arbitral tribunal under uncitral model law

8/9/2019 ARBITRAL TRIBUNAL UNDER UNCITRAL MODEL LAW

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ARBITRAL TRIBUNAL

UNDER

UNCITRAL MODEL LAW

Submitted To

Mr. S.K Sinha

(Faculty of Law)

Submitted By

Abhinay Satya Prakash

Roll No. 05

BA LLB (HONS)

Semester VII

Section ‘C’

HIDAYATULLAH NATIONAL LAW UNIVERSITY

RAIPUR CHHATTISGARH


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ACKNOWLEDGEMENTS

At the outset, I would like to express my heartfelt gratitude and thank my teacher, Mr. S.K Sinha

for putting his trust in me and giving me a project topic “ Arbitral Tribunal under UNCITRAL

Model Law ” such as this and for having the faith in me to deliver.

My gratitude also goes out to the staff and administration of HNLU for the infrastructure in the

form of our library and IT Lab that was a source of great help for the completion of this project.

Abhinay Satya Prakash

Sem-VII

Batch- XI


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INTRODUCTION

Composition of Arbitral Tribunal under UNICITRAL Rules

The section II of these rules, deals with the composition of Arbitral Tribunal. It consists of articles

5-14 of the rules divided among the following sub heads.

• Number of arbitrators (Art. 5)

• Appointment of arbitrators (Art. 6-8)

• Challenge of Arbitrators (Art. 9-12)

• Replacement of an arbitrator (Art. 13)

Repetition of hearings in the event of the replacement of arbitrator (Art. 14)

The UNCITRAL rules say that "If the' parties have not previously agreed on the number of

arbitrators and if within 15 days after the receipt by the respondent of the notice of arbitration the

parties have not agreed that there shall be one arbitrator, 3 arbitrators shall be appointed". This

article lays down that parties have hot decided about the number of arbitrators in their arbitration

agreement and if within 15 days of notice of arbitration the parties have not agreed that there shall

be one-arbitrator three arbitrators shall be appointed.

This article actually lays down 2 situations-

When the parties have not previously decided on the aspect of number of arbitrators. When notice of arbitration is given under section 4, and within 15 days the number of

arbitrators is not decided by parties. Then if above both situations exist the member to be

appointed shall be 3.

The both situations should co-exist for Art 5 to operate subject to modification by parties. The

first situation further connotes 2 aspects by using the term previously in article 5.

The number of arbitrator to be appointed is not decided in the arbitration agreement if

it is entered before the arising of the dispute.

The aspect of number of arbitrators is not covered by arbitration agreement if it entered

into after dispute arose.


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I. Number of Arbitrators

As we are aware, the arbitration agreement can be entered into prior or after the dispute arose. First

situation signifies the entering into of the arbitration agreement prior to the dispute. Regarding

whether Arbitration agreement should contain the number of arbitrators to be appointed beforedispute or not is a debatable issue. One view shows that it is always effective to decide the various

aspects of arbitral tribunal like number, appointed etc. after the dispute arose, because the actual

nature magnitude of the dispute can be known exactly only after it arose. So the number of

arbitrator is decided to be one before the dispute and after the dispute arose and if the magnitude

of the problem requires more than 1 arbitrator then it may create unnecessary problems of other

party not accepting to increase number etc. Other view says that it may also be that fixing the

number of arbitrators before the dispute in Arbitration agreement may actually save time after the

dispute arose, because the respondent in order to put off arbitration may cause unnecessary delay

by not accepting the actual number of arbitrators.

What the UNCITRAL rules do is to provide a default procedure incase parties have not decided

on the number, previously and if either of parties is unnecessarily dodging in deciding it. The

second situation actually says that even if the number is not decided previously, if there is notice

given by claimant according to Article 4 and if within 15 days of the receipt of notice by

respondent, if parties still not accepted on the number then the number would be 3. The arbitrators

if cannot decide on issue it may lead to a dead lock, leading the matter to be referred to an umpire

for decision thereby delaying the process. So to avoid this odd number of arbitrators are provided

by these rules. The parties though have the power to modify the rules cannot modify to have even

number because after the UNCITRAL model law of arbitration, most of the countries have made

it as a mandatory requirement that tribunal should cannot have only even number of arbitrators,

and rules are subject to mandatory requirement of law. Coming to the default procedure laid down

by the rule, it says the number will be 3, but not one. The working notes on UNCITRAL rules

shows that the default procedure in case of number of arbitrators in UNCITRAL is 3 because it

was believed that the prevalent practice in International matters was that usually 3 arbitrators were

appointed. This was the reason for UNCITRAL rules to have 3 arbitrators in case parties do not

decide. The ICC rules contain in article 8 the procedure regarding the number of arbitrators. The

article begins by saying, "The dispute shall be decided by a sole arbitrator or by arbitrators. Where


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the parties have not agreed upon the number of arbitrators the ICC court shall appoint a sole

arbitrator save where it appears to the court that dispute is such as to warrant the appointment of 3

arbitrators.

The ICC rules declare that all arbitrations under it shall be a carried out by odd number ofarbitrators only. This can be inferred from Art 8(1) which says "The disputes shall be decided by

a sole arbitrator or 3 arbitrators. The usage of shall makes it mandatory. This provision can also be

interpreted to mean that the number of arbitrators in case of ICC arbitrations is limited only to 3

arbitrators but not more than this. This interpretation may be wrong because the definition of

arbitral tribunal in Article 2 (I) says that it includes one or more arbitrators, so if the intention of

the ICC was to limit the number of arbitrators to 3 and the same could have been put in the

definition of arbitral tribunal so that significance of Article 8(1) is that only odd number of

arbitrators can be appointed and not even. This is in conformity to the French law of arbitration,

which has adopted the UNCITRAL model law of arbitration.

The default procedure in case of ICC is that sole arbitrator agree on shall be appointed in case

parties do not agree on the number. ICC does not use words like in case partner failed to agree on

the number previously. It just says if parties have not agreed on the number of arbitrators then

default procedure shall apply. This any way signifies the same meaning as in UNCITRAL Rules

because, once parties agree the number in arbitration agreement they are bound by it and parties

having not agreed on a specific issue implies that arbitrator’s agreement is silent on this aspect.

The ICC rules does not even specify as in UNCITRAL the time limit within which the parties

should specify the number of arbitrators mutually (within 15 days) date of notice of arbitration. It

may be that UNCITRAL rules is respecting the freedom of choice of parties to determine the

number and making it specific when the default procedure will come into play. It is only 15 days

after the date of notice, even after which if the parties do not reach an agreement on the number,

the default procedure will apply. ICC does not specify the time from when default procedure will

apply. Non-specification will lead to the institution immediately specifying the number of

arbitrators thereby violating the important principle of arbitration i.e. freedom of choice. Sufficient

time should be given for parties to make up their mind because setting up of an arbitral tribunal is

an important step and it decides the future of dispute. Though time is an essential element, still it

should not be hurried and- 15 days is not a long time. Non-specification of time shall make the


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administrator take over the rights of the parties as in this case. There is lot of discretion vested with

the court and it may within any time specify the number.

The article also contains that 3 arbitrators may be appointed if the nature of the dispute is such that

it requires to be arbitrated by 3 arbitrators.

Specifying sole arbitrator in case parties failed to decide on the number and then specifying that 3

will be appointed if the dispute required shows that framers of rules have taken into account the

practical aspects of arbitration. Parties usually do not mention the number of arbitrators in

arbitrator agreement to decide a later when the dispute actually arose, after analyzing it properly.

Once parties have adopted any rules in their arbitration agreement they are bound by it. The parties

after the dispute arises are not in a position to decide the number owing to any reason as a result

the default procedure applies. If parties have adopted UNCITRAL rules and parties even after thedispute arose did not choose the number leading to the application of default procedure and the

nature of dispute is such that it could be arbitrated by one arbitrator, but still 3 arbitrators have to

be appointed because the rules to which they have consented says so (Parties can any time modify

it by consensus, and the above disadvantage exists if only taken verbatim). The same situation will

not arise in case of ICC because it has provided in its default procedure a sole arbitrator as its

minimum which can be changed to 3 if dispute so warrants. So ICC has clearly taken cost factor

into account by specifying the minimum number.

The ICC article 8 is though titled number of arbitrator it also with appointment of arbitrators and

UNCITRAL has special article 5 devoted only for specifying the number.

The AAA mentions about the number of arbitrators in Article 5 of its rules. It corresponds to article

8 of its rules of ICC and lays down "If parties have not agreed on the number of arbitrators, one

arbitrator shall be appointed unless the administrator determines in its discretion that 3 arbitrators

are appropriate because of the large size, complexity or other circumstance of the case". Even

AAA does not specify time limit after which the default procedure will apply. It also does notspecify that odd number will only be appointed. It does not contain a specific definition as to what

is an arbitral tribunal of an ICC.

So what is accepted in the agreement cannot be changed by one party. So this means if sole

arbitrator is mentioned in the agreement then also he shall be appointed accordingly and if not


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mentioned in agreement then also sole arbitrator shall be appointed unless the court finds it

otherwise. So the default procedure is accordingly laid down and the way article is framed is not

plain and it does not speak for itself.

The wording in LCIA is completely different from that in other institutional rules covered so farand LINCITRAL rules. The LCIA while defining article tribunal says that it includes a sole

arbitrator or all the arbitrators where more than one. The LCIA rules go further while defining it

and also says that "All reference to an arbitrator shall include masculine and feminine. This may

be to provide for more specificity.

The number of arbitrators to be appointed for an arbitral tribunal is covered under article 14 of the

WIPO rules. At the outset the article lays down that tribunal shall consist of such members as has

been agreed by the parties. There is full freedom given to parties and it is explicitly shown.

The ICA rules define arbitral tribunal different from those defined by its counterparts. It says that

Arbitral Tribunal means an arbitrator or arbitrators appointed for determining a particular dispute

or difference. The ICA has taken more of a functional approach while defining the arbitral tribunal.

It defines Arbitral Tribunal in terms of what it does than in terms of its number. The method

adopted in ICA rules is completely different though the same substance is followed. The other

institutional rules and UNCITRAL rules have laid down that if parties have not agreed on the

number of arbitrators, the number will be as per the rules and in certain rules it is also providedthat the number will be hiked if circumstances require it.

The next aspects which is common to all rules herein is that they revolve around sole arbitrator

and 3 arbitrator and not more than three. This means that most of international commercial

arbitrations stress on three arbitrators.


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II. APPOINTMENT OF ARBITRATORS

The next step in the composition of arbitration tribunal after the determination of the number is

the appointment of arbitrators. After they are appointed on AT comes into play to decide thedispute. Sb this is an important aspect. An arbitral tribunal cannot be formed or cannot exist

without arbitrators, so they need to be appointed. Since appointment of arbitrators is also

procedural matter there is much freedom of choice available with the parties to decide their

appointment. One of the important facets of arbitrations is that it allows parties to submit a dispute

to judges of their own choice. Appointing judges of their own choice is the prerogative of the

parties in arbitration unlike ordinary court procedure where parties do not have this choice of

judges.

The various rules of arbitration lay down the procedure for appointment of arbitrators subject to

the agreement of the parties. There is primary given to the agreement of the parties regarding

appointment and only in the absence of the agreement that the default procedure as laid down is

the rules or law of arbitration comes in play. Therefore the first mode of appointment is through

agreement. I.E. parties generally get the first chance to appoint their arbitrators. The parties choose

their own contacts or from the power of arbitrators available with various institutions. The

appointment is as per the procedure laid down by parties or by the rules they adhere to the way the

appointment of arbitrators is dealt in the various rules are:-

The rule in Article 5 corresponds with the normal practice of naming a tribunal made up of three

arbitrators for the settlement of disputes arising out of international trade transactions, particularly

when the parties are from different geographic regions and have different nationalities. Generally,

each party will in such a case appoint a national of his country as arbitrator and the presiding

arbitrator will be appointed by the two arbitrators appointed by the parties or by an appointing

authority.

The appointment of the sole arbitrator is regulated in Article 6 the notice of arbitration, sent by the

claimant to the respondent, may already contain a proposal for the appointment of the sole

arbitrator. If the notice of arbitration does not contain such a proposal either party (also the

respondent) may make such a proposal.


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Article 8 para 2, requires that the proposal for the sole arbitrator should contain the full names,

addresses and nationalities of the proposed persons, together with a description of their

qualifications.

The parties have 30 days after receipt by a party of a combined proposal to agree on the solearbitrator and/or the A.A. will appoint him. It is also possible that the parties designate an A.A.

but that this A.A. refuses to act or fails to appoint the sole arbitrator within 60 days of receipt of a

party's request to this effect. In those three cases (no agreement on A. A. refusal by A.A, failure of

A. A. to act), either party may approach the secretary general of the Permanent court of Arbitration

at Hague. This high Official will not appoint an arbitrator. His task is a limited one. The Secretary

General will only designate the A.A.

All this sounds perhaps rather complicated, but was the only acceptable solution UNCITRALcould find without making its arbitration a fully administered, institutional arbitration. If the parties

do not reach agreement amongst themselves on the designation of an A.A. this will undoubtedly

cause considerable delay. I have therefore repeatedly recommended that the parties, when referring

their dispute to UNCITRAL Arbitration, should at the same time agree on the A.A. Once the A.A.

has been designated by the parties the appointment procedure will present no special difficulties.

That an A.A. would refuse to act or would not fulfil its task within two months seems rather

unlikely.

The permanent court of Arbitration, contrary to what one would expect because of its

nomenclature, is no real court. It consists of a List of Members prepared to function as arbitrators.

The Court, situated at the Peace palace in Hague, in the same building as the International Court

of Justice (formerly the Permanent Court of Justice) has at its disposal a Bureau, headed by the

Secretary General. It is this Secretary General who is prepared to lend his assistance in order to

make the UNCITRAL arbitration Rules function, by designating an A.A. if the parties fail to reach

agreement.

The A.A. in making an appointment of the sole arbitrator, must use the list procedure as described

in Article 6, para 3. However, the parties may agree that the list procedure should not be used,

which may be hypothetical case. On the other hand, the A.A. might also, in its discretion, determine

that the list procedure, is not appropriate in a specific case. The A.A. may also, after first having

tried to arrive at an appointment by means of the list procedure, deviate from this procedure if for


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any reason the appointment cannot be made according to it, and appoint the sole arbitrator at its

discretion.

According to Article 9, every prospective arbitrator must disclose to those who approach him in

connection with a possible appointment 'any circumstances likely to give rise to justifiable doubtsas to his impartiality or independence*. These circumstances include, to give some examples, a

family or business tie with a party or the fact that he has served as a party's lawyer.

Article 10 repeats the same words as ground for challenge of an arbitrator once appointed. Any

arbitrator may be challenged if circumstances exist that may give rise to justifiable doubts as to

the arbitrator’s impartiality or independence’. Every arbitrator, including an arbitrator appointed

by the parties, should therefore be impartial and independent.

When an A.A. is requested to make an appointment, it not only receives the notice of arbitration,

but also a copy of the contract and a copy of the arbitration agreement, if not contained in the

contract. Article 8 also entitles the A.A. to require from either party any information it deems

necessary to fulfil its task. The A.A. should also observe para 2 of this article when sending

identical lists of candidates to both parties and should mention their full names, addresses and

nationalities together with a description of their qualifications. The sole arbitrator should be

independent and impartial. For example, he should not have family ties or business connections

with one of the parties. Article 6 para 4, reminds the A.A. that it should have regard to this (ratherobvious) requirement of independence and impartiality on the part of the person to be appointed

as sole arbitrator.

In certain circumstances this independence and impartiality may best be secured by appointing as

sole arbitrator a person of a nationality other than the parties. However, a compatriot of one of the

parties could also meet these requirements. The Rules instruct the A. A. to take into account the

advisability of appointing an arbitrator of a nationality other than the nationalities of the parties*.

While the general standard expressed in the Rules is for the arbitrator to be from a country otherthan that of the parties, the Rules are not absolute and the appointing authority has the power to

appoint a compatriot of one of the parties, although such cases are not expected to occur frequently.

The parties may, of course, agree to appoint whomever they wish as the sole arbitrator, regardless

of his nationality appointment (para 2). If not, the A. A. may again appear on the scene. The party

having made his appointment may then request the .A.A to appoint the second arbitrator. In order


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to speed up the proceedings, the A.A. when making this appointment, is freed from following the

list procedure. The appointment of the second arbitrator by the A.A. is a direct appointment.

If the second arbitrator has to be appointed by an A. A. but no such authority has been previously

designated by the parties, the first party to appoint his arbitrator may directly' approach theSecretary General of the Permanent Court of Arbitration at the Hague for the designation of an A.

A. The parties are therefore not obliged to try first of all to reach agreement on the designation of

an A.A. by putting forward proposals of names of institutions or persons as prescribed under

Article 6 Likewise, the Secretary General will designate an appointing authority if the previously

designated A.A. refused to act or fails to appoint the second arbitrator within 30 days of receipt of

a party's request to this effect.

The Rules do not expressly determine the A.A. but only state that the appointment shall be made by 'an' appointing authority. If an A.A. has been previously agree upon by the parties, or has been

designated by the Secretary General for the appointment of the second arbitrator, this A.A. will

appoint the chairman of the arbitral tribunal. The parties could, of course, still agree on the choice

of an A. A. but are, in my opinion, not obliged to make proposals to this effect, as this is not

prescribed in the Rules. If the parties do not reach a last minute agreement on the choice of an A.

A. it seems that the solution nearest to the system of the Rules is to fall back on Article 7, para and

to have the A.A. designated by the Secretary General. Either party should then be entitled to

request the secretary general to designate the A.A.


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III. CHALLENGE OF ARBITRATORS

The challenge of arbitrators is regulated in Articles 9 to 12 this regulation rightly starts with the

obligation of a prospective arbitrator to disclose to those who approached him in connection withthe possible appointment any circumstances likely to give rise to justifiable doubts as to his

impartiality or independence (Article 9). No appointment has as yet been made and no challenge

can therefore take place. A challenge may, however, be made on the same grounds, i.e. that

circumstances exist that give rise to justifiable doubts as to the arbitrator's impartiality or

independence', once an appointment has been made (Article 10 para 1). Some examples of cases

in which these doubts may arise.

The disclosure should be made by the prospective arbitrator to those who approach him. Onceappointed (by an A.A.)., or chosen by the parties in common agreement or by only one of the

parties or appointed by the two arbitrators appointed by the parties, the arbitrator is obliged to

disclose such circumstances to the parties unless they have already been informed by him of these

circumstances". Both parties should be equally informed about these circumstances by the person

who best knows whether justifiable doubts as to his impartiality or independence exist. It is

possible that only one party, the party who has appointed the arbitrator, has until this time been

informed.

In practice, when the courts are called upon to deal with the challenge a well, they will only very

exceptionally deviate from the decision that the Appointing Authority (A.A.) has made according

to the Rules, Moreover, the effect of a challenge is normally that either the other party agrees to

the challenge, or the challenged arbitrator himself withdraws. Therefore the challenge procedure

of the Rules, are very exceptional. Even more exceptional will ho challenge procedures in Court.

According to Article 11, para 2 the challenge must be notified, with a statement of the reasons for

the challenge, in writing to (a) the other party, (b) (tie arbitrator who is challenged and (c) the othermembers of the arbitral tribunal, The Rules are therefore based on the normal situation whereby

the challenge takes place after the arbitral tribunal has been constituted.

A party may, however, already be aware at an earlier stage of the circumstances that may give rise

to a challenge, if arbitral tribunal of three arbitrators, should be constituted and, as yet, only ono


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of the parties thus appointed an arbitrator. The period of 15 days within which the challenge must

be made starts to run-according to Article 11, para 1 after this appointment, when the challenging

party Is aware of circumstances giving rise to a challenge. However, in this case the notification

of the challenge can only be made to the other party and the arbitrator who is challenged, The other

members of the arbitral tribunal have, as yet, not been appointed. A party who has failed to exercise

his right of appointing an arbitrator or of participating in the appointment of a sole arbitrator will

therefore get a new opportunity to do so.

Another solution could have been to refer back, in these cases, to the A.A. who has intervened.

The Rules, however, prefer to give the party another chance. The same applies to the two

arbitrators appointed by the parties. They too will get another chance to agree on the presiding

arbitrator if this arbitrator (appointed by an A.A. as the two arbitrators could not agree on his

choice) has to be replaced after the challenge. Article 12 regulates the procedure which must be

followed when the normal consequences of a challenge do not materialize, and the other party does

not accept the challenge and nor does the challenged arbitrator withdraw. In this, in my view,

exceptional case, the A.A. will decide on the challenge.

Of the two possibilities (the A. A. rejects or sustains the challenge) the Rules need to regulate only

the latter. According to para 2. If the A.A. sustains the challenge, a substitute arbitrator will be

appointed or chosen pursuant to procedure as explained under 6. This corresponds with the solution

accepted by the Rules in case of agreement to the challenge or withdrawal of the challenged

arbitrator. However where such a procedure would require the designation of an A.A. the A.A.

who decides on the challenge will function as the appointing authority. A practical solution, which

may save time as well.

Another practical solution is contained in Article 14, only when a sole arbitrator or presiding

arbitrator has been replaced, must hearings held previously be repeated. If any other arbitrator is

replaced, repetition of hearings depends on the decision of the arbitral tribunal Challenge after

hearings will however seldom take place. The provision of this article is of more practical

importance in the case of replacement of an arbitrator because of his death or resignation. This

brings me to the next subject, dealt with in the Rules immediately after the subject of the challenge.


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IV. REPLACEMENT OF AN ARBITRATOR

Article 13 deals with four other cases of replacement of an arbitrator, in addition to the replacement

of an arbitrator after challenge. The first two are the death or resignation of an arbitrator duringthe course of arbitral proceedings. According to para. I, in those cases the substitute arbitrator will

be appointed or chosen in accordance with the procedure that applied to the appointment or choice

of the arbitrator being replaced. The provisions of Articles 6 to 8 (Appointment of Arbitrators) and

Article 9 (Disclosure) apply fully.

Resignation of an arbitrator except in the case of his withdrawal after challenge seldom occurs and

it will remain, a very exceptional event. The Rules do not give any indication as to the

circumstances in which a resignation may be justified, and indeed, they could hardly be expectedto do so. Once the arbitrator has agreed to function he should fulfil his task. Exceptionally there

may be good reasons for not continuing, such as a heart attack. If not, an arbitrator who resigns

may possibly be sued for damages (costs) consequent upon his resignation.

Para 2 provides for the replacement of an arbitrator in two other cases, the arbitrator fails to act, or

either de or defacto cannot perform his functions. In contrast to the cases of death or resignation,

the arbitrator in these cases, still has the title of arbitrator. To get him replaced a party, or both

parties, must take the initiative. The same procedure has therefore been adopted as for thechallenge of an arbitrator.

Both cases are rather exceptional. This applies both to the situation of the arbitrator who has shown

himself to be inactive (which relates to the past), and to the situation of the arbitrator who is unable

to function (which may have manifested itself in the past, but essentially relates to the future). A

de facto impossibility may be due to war circumstances, a de jure impossibility may occur when

the arbitrator has been judicially declared insane. Although both cases are exceptional and this is

even more true of the impossibility (de facto or de jure) than of the inactivity (failure to act) theRules had to take account of these situations. As remedy they provide for the replacement of the

arbitrator. This is a brief over view of the appointment of arbitral tribunal under the UNCITRAL

rules.


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Under the ICC Rules though the parties are given the freedom to choose their own arbitrators their

appointment a subject to the confirmation by the ICC Court'. The ICC Rules provide that the parties

if accepted to solve the dispute by a sole arbitrator than the parties by agreement may nominate

the sole arbitrator for confirmation. The rule further says that the parties failed to nominate a sole

arbitrator within the time allowed or within the additional time allowed by the secretariat than the

sole arbitrator shall be appointed by the court. The rule further says that if the parties have accepted

to appoint three arbitrators for confirmation by the court then each party will nominee one

arbitrator and the chairman of the arbitral tribunal shall be appointed by the Court unless the parties

have agreed upon another procedure for such appointment, however such a nomination is subject

to confirmation by the court. The ICC Rules further says that the parties failed to nominate the

arbitrator then they shall be appointed by the court. While confirming the appointment of arbitrator

the court considers the nationality of arbitrator and other relationships with the countries of whichthe parties or the other arbitrators are nationals and the prospective arbitrator’s availability and

ability to conduct the arbitration in accordance with these Rules. While confirming the arbitrator

nominated by the party they are required to file a statement of independent such confirmation.

Under the UNCITRAL rules such a suo-motu powers is not available as there is no administrator.

Under the UNCITRAL rules when the ICC Court wants to replace an arbitrator suo-mottu it has

to do it after giving an opportunity to the arbitrator and the parties to comment on the ICC. Court

decision in written. After the arbitrator is replace the ICC Court as a power to either follow theoriginal nominating process or not, after the tribunal is reconstituted the arbitral tribunal shall

decide after inviting comments from parties to what extent prior proceedings shall be repeated.

The ICC Rules also take care of possibility of the death of the arbitrator after the closing of the

proceedings. So it is better to have a such provision, moreover this provision covers only the

natural cause* of the death of the arbitrator because other causes of the replacement of the

arbitrator require a decision like if an arbitrator is to be removed on a challenge at this stage of

closure of proceedings and he is found to be partial then the other party may ask for the repetition

of the proceedings, because at the stage since all the proceedings are not carried out properly the

award may also be partial. So other causes may require the appointment of a new arbitrator but the

death of an arbitrator at this stage of closure need not require one as explained above.


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Under the WIPO rules the initial power to appoint the arbitrator is given to the parties as under

the- UNCITRAL rules. The WIPO rules do not have confirmation procedure as under the ICC

Rules. The appointment procedure under the WIPO rules is like under the UNCITRAL rules. The

WIPO rules also provide for the default procedure of appointment of arbitrator if the parties failed

to appoint the arbitrators. They follow the list system of appointment of arbitrators the WIPO rules

also contained the appointment of arbitrators procedure in case of multiparty arbitration. This is

unique in WIPO rules. The qualities of the arbitrator are as same in other rules the replacement

procedure and the re appointment procedure is as same as in the UNCITRAL rules except that all

the correspondence is made to the center than to the appointing authority as in the UNCITRAL

rules.

Rules to the extent that initial chance of appointment is given to the parties and it is confirmed by

the ICC Court. Whereas under the L.C.I.A. Rules even the procedure of appointment is subject to

L.C.I.A rules . Rules also provide for expedited formation of the tribunal on application by the

party requesting an expedited formation of the tribunal. The party is also require to state the reasons

for such urgency after giving the copy to the other party the L.C.I.A. court may in its complete

discretion, abridge or curtail any time limit for the formation of the Arbitral Tribunal, including

service of the response and of any matters or documents adjudged to be missing from the Request.

The replacement procedure under the L.C.I.A. Rules is as same as the ICC Rules barring the time

limits. The L.C.I.A. Rules provide for replacement of arbitrator on request from other remainingarbitrator. The L.C.I.A. Rules do not have any specified procedure for the appointment of the

arbitrator. This may be because the ultimate power to appoint the arbitrator rests with the tribunal.

Under the AAA Rules the initial freedom to decide the procedure for appointing arbitrator is given

to the parties, in case the parties do not agree upon a procedure then the administrator appoints the

arbitrator. The appointment procedure is not specifically laid down. The replacement procedure

and the reconstitution is as under the UNCITRAL rules. Under the I.C.A. Rules the initial power

to appoint arbitrator is given to the parties. The said notice shall specify the period within whichthe nomination shall be made which shall not be more than thirty days from the date of the said

notice to the respective parties. If the parties fell to agree on the person to be appointed as sole

arbitrator within the time granted by the Registrar, the Registrar in consultation with the Chairman

of the committee and in his absence in consultation with the member of the Governing Body


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designated by the Chairman, shall appoint the sole arbitrator from among the panel of arbitrators.

If one of the parties is a national or resident of a country other than India, the sole arbitrator shall,

as far as possible, be chosen or appointed by the Registrar from among the nationals of a country

other than that of either of the parties. The sole arbitrator so nominated shall constitute the arbitral

tribunal to hear the dispute and shall be appointed as such in writing by the Registrar.

The Registrar shall give notice to the Parties of the constitution of the arbitral tribunal.. The

Challenge procedure is as in the ICC Rules with a small modification that the arbitrator is

appointed by the registrar then after removal the registrar has the right to appoint the new arbitrator

and incase the original arbitrator has being appointed by the parties then the parties are required to

give the nomination within the prescribe time and if the parties fail to nominate then it is done by

the registrar such a provision exist because in the initial appointment itself lot of time is wasted if

the parties did not come to an conclusion regarding the appointment of the arbitrators so the I.C.A

presumes the same may happen in the nomination for replacement also so an second chance of

appointment is not given.


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BIBLIOGRAPHY

Books Referred-

International Arbitration Under the UNCITRAL Arbitration Rules: “A Contractual Provision for

Improvement ” by John D. Franchin

Internet Sources-

http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=3120&context=flr

http://hawaiiopinions.blogspot.in/2008/02/arbitration-uncitral-document.html
http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=3120&context=flrhttp://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=3120&context=flrhttp://hawaiiopinions.blogspot.in/2008/02/arbitration-uncitral-document.htmlhttp://hawaiiopinions.blogspot.in/2008/02/arbitration-uncitral-document.htmlhttp://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=3120&context=flr

arbitral tribunal under uncitral model law

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