Arbitrator Selection

• Author: Ken Mcewan
• Pages: 103-128

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chapter four

Arbitrator Selection

KEn mCEWAn

A. INTRODUCTION

It has been said that the most important decision in an arbitra-

tion is the selection of the arbitral tribunal. Unlike litigation,

where the adjudicator is assigned, in arbitration the arbitral tribu-

nal is not a permanent entity and must be selected by the parties.

Having made the decision that arbitration is the best resolution

mechanism for their dispute, the parties are also best placed to

determine the adjudicator.1

This requires counsel to have a thorough understanding of

their client’s case at a very early stage. Selecting the tribunal re-

quires understanding not only the basic facts but also the case

that counsel are planning to present, including the themes that

will be advanced. Without a thorough understanding of the case,

counsel cannot expect to properly assess the particular qualities

to seek in an arbitrator.

1 See Emilia Onyema, “Selection of Arbitrators in International Commercial

Arbitration” (2005) 8:2 International Arbitration Law Review 45 at 45.

KEn mCEWAn

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It has also been said that arbitration will only be as good as

the arbitrators conducting it.2 The arbitral tribunal is tasked with

not just making the decision at the end of the day but running

the hearing of the dispute. Selecting the “best possible” arbitrator

in this context means choosing an arbitrator with the “requisite

qualications and experience to understand the facts and issues

in the case and the case management skills to see that it proceeds

eciently and does not get sidetracked.”3

A discussion of the selection of arbitrators can proceed in two

parts: the process of selecting arbitrators and which arbitrators to

select through that process.4

B. THE SELECTION PROCESS

The rst step in any arbitration should be to examine the applic-

able arbitration clause specied in the contract. In many cases, the

clause itself will dictate how proceedings are to be commenced

or what rules will govern the process. It is important to note that

even when a procedure has been specied, the parties can agree

to change the procedure, provided that it is by consent. Once the

parties have agreed to be bound by a specic set of rules, they have

agreed to have the applicable organization administer the arbitra-

tion to the extent that the rules provide, including assist in the

selection of arbitrators and their rate schedule.5 Counsel should

consider whether a given arbitration needs an administering or-

2 See Doak Bishop & Lucy Reed, “Practical Guidelines for Interviewing,

Selecting and Challenging Party-Appointed Arbitrators in International

Commercial Arbitration” (1998) 14:4 Arbitration International 395 at 395, on-

line: https://doi.org/10.1093/arbitration/14.4.395.

3 Raymond G Bender Jr, “Critical First Steps in Complex Commercial Arbi-

tration: Appointing Qualied Arbitrators and Staging the Preliminary

Conference” (2009) 64:1 Dispute Resolution Journal 28 at 30.

4 See James H Carter, “The Selection of Arbitrators” (Paper delivered at the

Worldwide Forum on the Arbitration of Intellectual Property, 3–4 March

1994).

5 See J Brian Casey, “Choosing an Arbitration Organization and an Arbitra-

tor” (2007) 26:1 Advocates’ Journal 22 at 22.