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12 Asian Disp. Rev. 19 (2010)
Who Do You Want. Who Do You Get: Appointing the Right Arbitrator

handle is hein.kluwer/asidpurv0012 and id is 21 raw text is: ARBITRATION Who do you want? Who do you get? Appointing the right arbitrator This article discusses crucial factors that parties should consider in constituting international arbitral tribunals by agreement, in particular with regard to the number of arbitrators, effective methods of selection and appointment, and appropriate objective and subjective qualities of arbitrators. The article is based on a paper delivered to the East Asia Branch of the Chartered Institute of Arbitrators in Hong Kong on 2 July 2009. Introduction *he choice of persons who [compose the arbitral tribunal is I vital and often the most decisive step in an arbitration. It has rightly been said that arbitration is only as good as the arbitrators.1 One of the major advantages of arbitration over litigation is the opportunity for the parties to choose the number and identity of the tribunal members. This choice is significant for both positive and negative reasons. Get it right, and the chances of a well- conductedprocess leadingtoadecision that is fair and based on thorough understanding are maximised. Get it wrong, and the considerable power of the arbitrator(s), unless the parties' agreement or institutional rules limit it, can have serious impacts on fairness, the efficiency and cost of the process and, ultimately, the quality of the decision. Restrictions on challenges Obtaining a decision that is correct is not just a matter of preference, although that is obviously true. It must be appreciated by the parties that the circumstances in which a dissatisfied party can challenge an award are very limited, especially under the main institutional rules, compared with litigation, where the appeal system provides relatively easy access to correction. The House of Lords' decision in Lesotho Highlands Development Authority v Impregilo ,pA 2 gives a salutary reminder that, when parties opt for an ICC arbitration, they agree to be bound by the award and - shall be deemed to have waived their right to recourse insofar as such waiver can validly be made.' The London Court of International Arbitration has a similar provision in its Rules: the parties - waive irrevocably their right to any form of appeal, review or recourse to any state court or other judicial authority insofar as such waiver may validly be made4, although it should be noted that the UNCITRAL Arbitration Rules have no equivalent provision and so are less restrictive of challenge. If, however, the parties agree to limit their rights to challenge an award, errors of fact or even law will not be enough to ground a challenge. In the absence of a procedural error, they will be bound by a flawed decision.' Choosing a tribunal that will not deliver a flawed decision is doubly important if the decision is final. Number of arbitrators How many arbitrators comprise the tribunal is one of the first considerations, both chronologically and in terms of significance. It is not always a matterof personal preference. Some legal systems require an uneven number of arbitrators in order to avoid a tied result. Conversely, in some City of London trade sectors, there is a tradition of two-member tribunals, with subsequent reference to an umpire in the absence of agreement on the outcome. In most international commercial arbitrations, the choice is usually between one arbitrator and three. Many institutional rules make provision as to number of arbitrators, although since these will be subject to agreement by the parties, there is still choice - the 'party autonomy' principle. The ICC Rules of Arbitration thus provide6 that - Where the parties have not agreed upon the number of arbitrators, the Court shall appoint a sole arbitrator, save where it appears to the Court that the dispute is such as to warrant the appointment of three arbitrators'. The LCIA equivalent8 is that - A sole arbitrator shall be appointed unless the parties have agreed in writing otherwise, or unless the LCIA Court determines that in view of all the circumstances of the case a three member tribunal is appropriate. Sole arbitrators can bring advantages of efficiency, both in terms of speed and economy. Hearings can be arranged more easily where the diary of only one arbitrator needs to be consulted; self-evidently one set of fees will be cheaper than three. The time taken for the decision should also normally be shorter, as there is no need for a single arbitrator to consult, deliberate and decide with others. Therefore, if the parties can

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