The Tribunal — overviewTribunal appointment — Arbitration Act 1996

When considering appointing a tribunal it is important to find out whether the parties have agreed to a process for the appointment of the tribunal. There may be prior agreement or agreement after the dispute or difference to be arbitrated has arisen. Parties may have specifically agreed who the arbitrator(s) will be or they may have provided a mechanism for the appointment, for example, through an arbitral appointing body.

Generally, a tribunal consists of an odd number of arbitrators or two arbitrators and an umpire.

Tribunal appointment - institutional and UNCITRAL rules (no agreement/multiple parties)

Institutional arbitration rules usually have provisions relating to appointment of the tribunal where there has been no agreement by the parties. In multi-party arbitration, where the multiple claimants or respondents can not agree a selection process, the institution will usually nominate all members of the tribunal.

Tribunal appointment — multiple parties

Problems can arise with the appointment of a tribunal where there are multiple parties. As a consequence of the Dutco case, many of the institutional rules changed to deal with the issues of multiple parties. If you are dealing with an arbitration agreement which does not make provision for the appointment of arbitrators where there are multiple parties then you need to be aware of the potential consequences of that.

Tribunal — resignation, revocation or death of an arbitrator

Parties can agree to revoke an arbitrator's authority. It can have adverse affects to both the reputation of the arbitration itself as well as the arbitrator. An arbitrator will still be able to claim fees and expenses.

An arbitrator's authority may also come to an end on resignation. It is only on resignation that an arbitrator will not be immune from suit.

The authority of an arbitrator in an arbitration is personal and therefore ceases on death. The death of a sole arbitrator will require the appointment of a new arbitrator to continue the arbitration.

The tribunal — challenge and removal of an arbitrator

An arbitrator can be removed for lack of impartiality, lack of agreed qualifications, incapacity or incompetence. The grounds for removal are set out in section 24 of the Arbitration Act 1996. As well as showing evidence that the ground the applicant wishes to rely on applies, the applicant will also have to show that the ground caused or is likely to cause it substantial injustice.

An applicant must apply promptly when seeking to challenge and remove an arbitrator or that party will the risk losing the right to object under section 73 of the Arbitration Act 1996.

Tribunal's powers — Arbitration Act 1996

The Arbitration Act 1996 contains numerous powers for the tribunal. These are a mixture of mandatory and non-mandatory powers. In some instances parties can agree to provide the tribunal with specific powers whilst in other cases parties can agree to remove a tribunal's powers.

The tribunal's powers — institutional and UNCITRAL rules

A tribunal's powers may be set out in the institutional rules which apply to the arbitration, for example, the LCIA or ICC rules.

The major sets of institutional arbitration not only provide powers to the tribunal but also to the institute itself, particularly prior to the appointment of the tribunal. The powers of the institution should therefore also be considered.

Joining an arbitrator to court proceedings

An arbitrator may be joined as a defendant in court proceedings when seeking to remove that arbitrator, when dealing with the arbitrators fees or where the arbitrator has exercised a lien over the award.

Stay of arbitration - to enable adjudication

It is important to be aware of the impact on an arbitration agreement where the parties are entitled to adjudicate. The arbitral tribunal has a discretion to stay the arbitration pending the adjudication. The court has no jurisdiction to stay an arbitration to allow an adjudication to take place.