| Author: | Richard Hill Hill & Associates |
| Subjects: | Arbitration agreements commercial (Other articles) Dispute resolution law (Other articles) |
| Issue: | Volume 3, Number 1 (May 1996) |
| Category: | Comment |
It is to be wished that arbitration return, at least for technically complicated cases, to one of the reasons to which it owes its existence: to submit a dispute to people truly knowledgeable in the subject matter.- Prof. Pierre Lalive[1]
1. As a non-lawyer, the author can do no better than to start by paraphrasing two distinguished English arbitrators: "where he refers to systems of law, he begs to be treated as an enthusiastic amateur with no formal qualifications or competence to advise in relation to those laws; he apologizes in advance to experts in such laws who know so much more about them."[2]
2. Hi-Tech cases are those in which the dispute involves facts which are difficult for the non- expert to understand. In many situations, only persons with advanced degrees and many years practical experience will be able to make sense of the facts as presented by the parties. Consider the following quotes:[3]
An AGENT program is a collection of active objects (agents). Cooperation and synchronization among objects is achieved by message passing. AGENT provides a flexible way of defining classes of objects, specifying their data members as well as methods. In addition to data members and methods of a traditional object, an active object (agent) has its script. A script specifies some activity performed by the active object.[4]
In an SNA network, all communication between end users is via a port into the network, called a Logical Unit.[5]
The tree version pointed to by a time-stamp is garbage collected after the succeeding time-stamp. The existing time-stamp represents the fail-back state of the file system and must be preserved until the next check-point.[6]
3. Each of these statements makes perfect sense to a seasoned computer professional, but will probably fail to convey much information to the uninitiated. It has long been accepted that expert opinions will form a necessary part of any court proceedings or arbitrations involving advanced technologies. Under certain procedures, the parties present experts; under other procedures, the court or the arbitrator appoints experts. Unfortunately, experts disagree amongst themselves regarding the finer points of their profession at least as frequently as lawyers disagree amongst themselves regarding the finer points of the law. Thus, party-appointed experts can be expected to present different conclusions, and to present well- reasoned and cogent arguments supporting their conclusions. In many cases, lay judges or arbitrators are unable to evaluate the technical merits of the expert's opinions and must resort to non-technical grounds in order to decide which expert to believe (for example, does an expert contradict him- or herself, is the expert's report well-written and apparently well-researched, what impression does the expert make during oral testimony, and so forth). It might be hoped that courts and arbitrators could avoid this quagmire by appointing a single expert. However, this has limited effect since, under the fundamental rules of due process and natural justice,[7] each party has the right to comment on the expert's opinion. The comment will normally be made by a party-appointed expert, so now the judge or arbitrator is confronted by at least three-- usually conflicting--expert opinions, and is no better off than if only two party-appointed experts had been called. The situation was well described nearly one hundred years ago:
... how can the jury judge between two statements each founded upon an experience confessedly foreign in kind to their own? The truth of either combatting proposition lies just in its validity as an inference from a vast mass of experience ... as to the truth of which trained powers of observation are quite essential, the results themselves of a life of technical training.[8]
4. Nor has the situation improved, according to Alan Redfern and Martin Hunter, who are among the leading authorities in international arbitration:
One of the most unsatisfactory features of procedure in international commercial arbitration is the prevailing practice whereby the parties present conflicting evidence on matters of complex technical opinion. ... It is rare for members of an arbitral tribunal to have the ability to make a reasoned evaluation between two wholly opposed professional opinions on technical matters.[9]
5. There are many reasons why parties agree to arbitrate rather than to use court proceedings to resolve disputes. Among the reasons given are:
6. It is no secret that the counsel of most large multi-national companies are well aware of the fact that reason 1 above rarely, if ever, proves valid. We will explore the reasons for this in a moment. Reason 2 above is also of dubious validity, as clearly explained by Jan Paulsson and Nigel Rawding.[10]
7. Reasons 3 and 4 remain valid, and in fact account for the continued growth of arbitration, both domestic and international. For example, in the USA, parties, government agencies, and even the courts are increasingly willing to use arbitration in order to avoid the cost and complexities of domestic court procedures.[11]
8. Arbitration proceedings often take years,[12] and are therefore expensive, because that is what the parties want, in the sense that the parties agree to extensions of the time-limits imposed by institutional arbitration rules,[13] and prolong the proceedings by producing complex presentations on points of fact or law. This is apparently a paradox: when they negotiated the contract, the parties stipulated arbitration in order to resolve any possible dispute quickly, efficiently, and fairly. But when the dispute arises, they will often go to any length to prevent the dispute from being resolved. Why? The reason is often hidden in the little word "fair". One party, often the respondent, feels that the other party's case has no validity, and has no compunction about using all possible means to thwart the progress of the case. These means include challenges of the arbitral tribunal's jurisdiction, of the claimant's good faith,[14] of the arbitrators themselves, of interim awards, and--last but by no means least[15]--of the award itself when it is finally rendered.
9. Michael Schneider, a leading practitioner of international arbitration, has suggested a series of procedural methods that could help the parties to agree on methods for avoiding complexities that prolong the arbitral process with little benefit to anyone.[16] These methods may well work when applied in practice.
10. The remainder of this paper explores an alternative idea for making arbitrations simpler and faster in high-technology cases: carefully choosing the arbitrators in order to achieve this goal.
11. There are many ways in which arbitral tribunals are composed. However, practically all methods fall into one of the following categories:
12. Parties, quite legitimately, select arbitrators whom they believe likely to understand their point of view and able to defend it in front of the other arbitrators. Institutions, quite legitimately, select arbitrators known for their legal skills and knowledge.
13. The rules of two well-known arbitration institutions explicitly specify that arbitrators should be chosen on the basis of the substance of the dispute or their knowledge of business matters.[17] Other rules are silent on this topic.[18] Yet, if a dispute involves complex technologies, it is apparent--as many authors have noted--that an arbitral tribunal composed of non-experts will be unable to make much sense of the evidence.
14. In such cases a tribunal which includes at least some people who are experts in the domain of the dispute might be expected to be better able to evaluate the evidence. Indeed, this conclusion was reached by many of the respondents to the Arbitration and Expert Opinion Questionnaire recently circulated by the ICC Institute of International Business Law and Practice[19].
15. However, other respondents pointed out that, at least in some judicial traditions, the tribunal should not itself determine the facts, but rather should restrict itself to evaluating the facts presented by the parties. In his brilliant summary of the extensive research and discussions sponsored by the ICC Institute of International Business Law and Practice on this topic in 1994, prof. Jean- Francois Poudret put the matter thus:
... Continental lawyers think that the judge must establish The Truth, the "true" or absolute truth ... Anglo-Saxon lawyers and the majority of the scandinavians believe that the role of the judge is simply to decide between the parties, to determine who has presented the best evidence, and thus to establish a relative judicial truth.
... In the continental concept, the role of the expert is on the one hand to illuminate the abitrator rearding technical matters and to assist him in the evaluation of the evidence presented by the parties, and on the other hand to verify or to establish himself certain disputed facts.
... [In the Anglo-Saxon system the role of the expert witness] is firstly to counsel and to assist his party regarding the presentation of the case, right from the beginning of the proceedings ... . ... Then he must give his opinion and above all convince the arbitrator.[20]
16. Thus different roles will be assigned to judges and experts in different legal traditions. However, one of the key features of arbitration is the ability of the parties to agree on whatever procedures make sense for their particular dispute, subject of course to national laws and fundamental principles of natural justice. Quoting Poudret again, it seems clear that "expert opinions are less frequent, or even not needed, when the arbitrators themselves have the requisite specialized knowledge."[21]
17. We will now explore the following questions:
18. Under most Arbitration Rules, the parties can jointly appoint a single arbitrator, or each appoint one arbitrator, who will then jointly appoint a presiding arbitrator. In these cases the parties can select arbitrators with specific skills and knowledge.
19. In addition, several institutional Arbitration Rules explicitly state that arbitrators should be appointed according to methods or procedures agreed by the parties.[22] Furthermore, some Rules explicitly provide that the preferences of the parties, or qualifications requested by the parties, should or must be taken into account.[23]
20. Furthermore, laws in several jurisdictions provide that the parties' wishes with respect to the process of nominating the arbitrators or the qualifications of the arbitrators must be respected.[24] Such laws will normally be binding even on a nomination institution if the seat of the arbitration is in that jurisdiction, since the national laws of the jurisdiction are the lex arbitri.[25]
21. Therefore, there can be little doubt that the parties are free to select arbitrators with specific skills and knowledge. How should the parties exert this power? In principle there are two ways:
22. We now examine the two cases.
23. In theory, this should be the optimal method. It is only after the dispute has arisen, and presumably been thoroughly discussed by the parties prior to initiating arbitration proceedings, that the substance of the dispute is known, particularly whether it hinges on questions of fact or questions of law.
24. If a dispute hinges on questions of fact, then presumably the parties would be best served by an arbitral tribunal that included experts in the domain of dispute (for example, computer software), whereas, if the dispute hinges on questions of law, then presumably the parties would be best served by an arbitral tribunal that included experts in the law.
25. If indeed the interests of both parties are best served by speedy proceedings, for example because the parties firmly intend to maintain an ongoing business relation and simply wish to get the dispute out of the way as quickly as possible, then they will likely be able to agree fairly easily on the composition of the arbitral tribunal. However, in such cases the parties would probably be better served by a mediation procedure, or even--horribile dictu in Europe--by one of the Mediation- Arbitration (MED-ARB) procedures that are proving popular in the USA.[26]
26. But, as we have seen in 1.3 above, the presumption that both parties' interests are best served by an arbitral tribunal that is able to proceed quickly is not correct. One party will often have a vested interest in prolonging the proceedings, and will use all possible means to do so.
27. In this light, we will now examine the advantages and disadvantages of all possible compositions of 1- person and 3-person arbitral tribunals.
28. A sole arbitrator could be an expert in the domain of the dispute, or an expert in the law, or--conceivably--an expert in both.
29. If the sole arbitrator is an expert in the domain of the dispute, the party that wishes to prolong the proceedings will raise complex legal points whose validity the arbitrator will be unable to understand. He or she will then have to request expert opinions on points of law, and will be subject to the same quandary described in 1.1 above that affects all arbitrators confronted with a range of expert opinions. Furthermore, there is considerable risk that a non-lawyer acting as sole arbitrator might commit an error of law that could lead to annulment of the award--a situation that would not be viewed with favor by at least one party. Although a sole arbitrator who is not an expert in the domain of the dispute might be more likely to commit errors of fact than an expert, any such errors usually would not lead to annulment of the award, because errors of fact in an arbitral award cannot be appealed in most jurisdictions.[27]
30. If the sole arbitrator is an expert in the law, the party that wishes to prolong the proceedings will raise complex factual issues whose validity the arbitrator will be unable to understand. He or she will then have to request expert opinions regarding the domain of the dispute, and will be subject to the quandary described in 1.1 above.
31. So, why not choose an arbitrator who is an expert in both the law and the subject matter? Because, even if such a person existed, the party that wishes to prolong the proceedings would not accept his or her appointment. Any sophisticated party will surely heed the old adage "if you are weak on the facts, raise points of law; if you are weak in law, raise points of fact" and be unwilling to forgo the possibility of doing either!
32. A three-member panel is favored in large or complex cases for a number of reasons. One very good reason is that it allows the parties' lawyers to be reasonably confident that their particular legal cultures will be represented in - or at least understood by - the arbitral tribunal. Many lawyers know only their own legal culture and have a tendency to organize their thoughts and writings in accordance with the customs of that culture: this can be ineffective if the arbitrators come from a legal culture with very different customs (for example, a European defendant might be surprised by the fact that a US arbitrator might grant plaintiff the last word).
33. For the sake of simplicity, we will now use the term "lawyer" for someone who is an expert in the law, and "expert" for someone who is an expert in the domain of the dispute, and we will exclude for the moment the possibility that the arbitral tribunal could include a person who is an expert in both the law and the domain of the dispute. With these stipulations, a three-member panel could consist of:
34. A panel composed of three experts suffers exactly the same drawbacks as an expert sitting as sole arbitrator. Similarly, a panel composed of three lawyers--the usual case in international arbitration--suffers from the same drawbacks as a lawyer sitting as sole arbitrator.
35. To allow an expert to preside over the arbitral tribunal would appear unwise, since the presiding arbitrator bears the primary responsibility for ensuring that the arbitral proceedings do not violate or ignore any laws, and result in an enforceable judgement.
36. If it is accepted that the presiding arbitrator should be a lawyer, then the only possibilities left are that the other two members of the tribunal should either both be experts, or that one should be an expert and the other a lawyer.
37. Under what circumstances would parties make such appointments (or, equivalently, impose restrictions on the nomination process in order to achieve the same effect)? First let us suppose that the claimant believes that its case is strong on the facts and that therefore the respondent is likely to raise points of law. In this situation, the claimant is unlikely to nominate an expert as arbitrator, since it will correctly feel that its arbitrator might not be able to understand the legal arguments raised by the respondent, so the case would wind up being judged by the presiding arbitrator and the respondent's arbitrator on points of law.
38. Conversely, if the claimant believes that its case is strong on the law and that therefore the respondent is likely to raise points of fact, it might consider appointing an expert as arbitrator. However, in most situations the claimant will fear that the respondent will anyway appoint a lawyer, and that the claimant's strength in the law would be undermined by the ability of the respondent's arbitrator to discuss points of law with the presiding arbitrator, which the claimant's arbitrator would be unable to do.
39. Therefore, given that the presiding arbitrator will be a lawyer, the low-risk strategy for both parties is to appoint lawyers.[28] Thus most arbitral tribunals consist of three lawyers, with the disadvantages noted in 1.1 above for disputes involving advanced technologies.[29]
40. Sections 2.4 and 3 below propose alternatives to this apparently no-win situation.
41. In theory it does not make much sense to specify the composition of the arbitral tribunal before a dispute arises, since the nature of the dispute cannot be known in advance. However, given the analysis of 2.3 above, the lesser of two evils may be to specify that experts be included in the tribunal if it is at all likely that any potential dispute will involve matters of fact related to advanced technologies. The parties could consider adding one of the following to the arbitration clauses in their contract:
42. On the basis of the analysis of 2.2 above, it seems clear that these clauses should be enforceable in most cases, and result in two experts being appointed as arbitrators if this is justified by the nature of the dispute. Tribunals composed exclusively, or partially, of experts appear to work well for disputes in other technically-oriented businesses, such as construction, commodiites trading, and insurance, so it is at least conceivable that tribunals including experts could work well for disputes involving advanced technologies such as computer or telecommunications systems. Indeed, as Poudret put the matter in his summary of the ICC Institute of International Business Law and Practice:
... If it is no doubt undesirable that only one party name a technical expert to an arbitral tribunal otherwise composed of lawyers, we have trouble understanding objections that could be raised regarding the classic composition: two specialists in the subject matter and a lawyer as chair. ... [There are examples of such systems] which have proven particularly effective....[30]
43. It might be argued that party-appointed experts sitting as arbitrators will tend to defend "their" party's point of view, leaving the presiding arbitrator no better off than if the experts had appeared as witnesses. But this argument ignores the responsibility of arbitrators to act independently and impartially.[31] Party-appointed lawyers are not expected to act as advocates when they sit as arbitrators. Similarly, party-appointed experts can be expected not to take an adversarial role if they are sitting--to use an English expression--on the bench rather than in front of it. Furthermore, even a lay presiding arbitrator should be able to detect bias in one party-appointed expert if the other party-appointed expert is impartial, as he or she is bound to be by the ethics of arbitration. The presiding arbitrator would then naturally give more weight to the opinions of the impartial expert; thus, experts have a vested interest in acting impartially if they are sitting as arbitrators. As Poudret put the matter:
... [Actual practice], at least in my experience, does not confirm in any way fears concerning the lack of objectivity of technical-expert-arbitrators [nominated by parties].
... In effect, within an arbitral tribunal there usually arises a sense of trust which facilitates communication and permits a more open discussion than during hearings. On the other hand, isn't the objectivity of the chair sufficiently persuasive to make, in most cases, a one-sided position taken by one of the arbitrators appear obviously incongrous?
I am firmly convinced that on this point arbitration must return to one of the reasons to which it owes its existence: to submit a dispute to people truly knowledgeable in the subject matter; as a consequence it should favor such a composition of arbitral tribunals through either appropriate arbitration clauses or Arbitration Rules. A legal education is not the only guarantee of an arbitrator's objectivity. On the contrary, the solution proposed would no doubt contribute, not only to save significant time and money, but also to reduce the litigious and procedural character that is too often taken today by arbitration. Thus composed, the arbitral tribunal would be much better qualified to understand and decide on the contradictory opinions expressed by party-appointed experts.[32]
44. As Poudret suggests, it could be envisaged that one might "add a technical expert to the arbitral tribunal in order to assist it in understanding the technical arguments made by party-appointed experts."[33] This expert would not be a full voting member of the tribunal, but rather someone specifically charged with the mission of explaining to the voting members the meaning of technical evidence presented by the parties.
45. If the non-voting technical assessor participates in the deliberations of the arbitral tribunal, he or she would have a somewhat different role from that of the expert appointed by the tribunal. The court- appointed expert examines some evidence and then submits a report to the tribunal. In contrast, a technical assessor would actively participate in all discussions of the technical merits of the case, withdrawing only at the moment of the final vote, if there is no unanimous decision.
46. Clearly the parties would have to agree to this special composition of the arbitral tribunal, for example by adding the following to the arbitration clause:
1) Notwithstanding any provisions to the contrary of the [cite chosen arbitration rules here] the arbitral tribunal shall include a non- voting technical expert in addition to the [sole arbitrator or three arbitrators] specified in the rules. The technical expert shall participate in all hearings and deliberations and advise the other members of the arbitral tribunal concerning evidence and testimony of a technical nature; he or she shall not sign the arbitral award nor be considered an arbitrator with respect to the lex arbitri. The technical expert shall be nominated by the presiding arbitrator; the appointment cannot be challenged by either the parties or the other arbitrators.
Such clauses are probably new, and would require discussion and analysis before being tested in practice.
47. A more radical--and no doubt more controversial--idea is to expand the arbitral panel to five members: a lawyer as presiding arbitrator, two party-appointed lawyers, and two party-appointed experts. The advantage of this approach is that the tribunal will itself have all the expert knowledge it needs regarding both the facts and the law. In disputes involving advanced technologies, the cost of proceedings before such a tribunal will not necessarily exceed the costs of proceedings before an ordinary three-person tribunal, since at least two, and often three, experts would normally be called in anyway (one by each party and one by the tribunal).
48. Do arbitration rules allow five-member tribunals? Definitely yes in the case of AAA, LCIA, Netherlands, Stockholm, WIPO, and Zurich. Maybe in the case of UNCITRAL.[34] No in the case of ICC, Milano, and Vienna.
49. However many national laws, in their role as lex arbitri, do allow five-member tribunals if the parties so stipulate. For example:
50. Furthermore, any award issued by an arbitral tribunal whose composition denied the parties' wishes concerning the number or arbitrators, or their qualifications, risks being unenforceable under the New York Convention. Indeed, V.1.d of that Convention states that exequator may be refused "if the composition of the arbitral authority ... was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place."
51. The parties could consider adding one of the following to the arbitration clauses in their contract:
Such clauses are probably new, and would require discussion and analysis (especially with respect to majority and voting rules) before being tested in practice.
52. An even more radical suggestion for technical cases has been made by a senior UK lawyer[36]: a technical expert should sit as sole arbitrator to decide cases argued by technical experts. That is, there should be no lawyers at all!
53. This provocative idea deserves deserves to be debated. It could no doubt be implemented only if the parties had agreed to it before a dispute arises, or if the parties are so willing to come to a quick resolution that a mediation procedure might be a better way to resolve their dispute.
54. By their nature, disputes involving advanced technologies will tend to result in long, expensive arbitral proceedings unless the parties have a strong wish to resolve the dispute quickly. One method that parties can use to protect themselves against long, expensive proceedings is to exercise their rights to influence the composition of the arbitral tribunal. However, this right can be effectively exercised only before a dispute arises.
55. Therefore, it is suggested that parties to contracts involving advanced technologies consider stipulating that the arbitral tribunal include experts in the domain of potential disputes (for example, computer technology) in the arbitration clauses of their contracts.
1. In the Preface to Arbitration and Expertise, International Chamber of Commerce publication No. 480/7, 1994. Professor Lalive's French remarks (which quote prof. Jean-Francois Poudret) have been translated by the author of this paper. [return to text]
2. Alan Redfern and Martin Hunter referred to non- English laws in their original phrase, found in the Preface to the First Edition of their classic work Law and Practice of International Commercial Arbitration, Sweet and Maxwell, 1991. [return to text]
3. All taken from the fascinating article "Of Metaphor and the Difficulty of Computer Discourse" by Gerald J. Johnson in Communications of the ACM, Association for Computing Machinery, December 1994. [return to text]
4. "AGENT: Active logical objects" by K. J. Kochut in Proceedings of the 28th Annual Southeast Regional Conference, April 1990. [return to text]
5. Computer Network Architectures by A. Meijer and P. Peeters, Computer Science Press, 1982. [return to text]
6. "A safe in-memory file system" by J. Phoenix Gait, Communications of the ACM, Association for Computing Machinery, January 1990. [return to text]
7. An elegant formulation of these rules is contained in the French Code of Civil Procedure. Article 16 states: "The judge shall in all circumstances assure respect for the principle of the adversarial process, and shall respect it himself. His decision may be founded on arguments, explanations, or documents invoked or produced by the parties only if both parties had the opportunity to contest them. He may not base his decision on legal ground which he has considered on his own initiative unless he has first invited the parties to comment." According to French law, the guiding principles of this (and other related) articles must be applied to arbitral proceedings, and case-law in many jurisdictions (not just France) has extended the principle of contradictoire to expert opinions in arbitrations. See II.7.2 of "Les traits charact ristiques de l'administration de la preuve dans certaines proc dures de types romaines" by Labert Matray, and I.3 of "Comparative introduction to the system of producing evidence in common law countries and countries of Roman law tradition" by Matthieu de Boisseson, both in Taking of Evidence in International Arbitral Proceedings, ICC Publication no. 440/8, 1990; and 6.6.d of Law and Practice of International Commercial Arbitration, by Alan Redfern and Martin Hunter, Sweet and Maxwell, 1991. The UNCITRAL (Art 27.4) and WIPO (Art. 55.c) Arbitration Rules explicitly allow parties to present expert witnesses in addition to any expert appointed by the arbitral tribunal; the Supplementary Rules Governing the Presentation and Reception of Evidence in International Commercial Arbitration of the International Bar Association contain similar provisions (Articles 5.2.c and 5.2.4). Finally, article V.1.b of the New York Convention provides that enforcement of an arbitral award may be refused if a party was unable to present its case. [return to text]
8. Judge Learned Hand, "Historical and Practical Considerations Regarding Expert Testimony", Harvard Law Review, 1901. Quoted in 6.6.d of Law and Practice of International Commercial Arbitration, by Alan Redfern and Martin Hunter, Sweet and Maxwell, 1991. [return to text]
9. See 6.6.d of Law and Practice of International Commercial Arbitration, by Alan Redfern and Martin Hunter, Sweet and Maxwell, 1991. [return to text]
10. "The Trouble with Confidentiality" by Jan Paulsson and Nigel Rawding in The ICC International Court of Arbitration Bulletin, May 1994. [return to text]
11. See for example "ADR at the Crossroads" by S. Gale Dick in the Dispute Resolution Journal, American Arbitration Association, March 1994. [return to text]
12. Most ICC arbitrations these days last between 2 and 3 years. See III.a of "An Inside View of the ICC Court" by Robert H. Smit in Arbitration International, 10/1, 1994. [return to text]
13. If no extensions were requested or granted, the award in an ICC arbitration would be rendered six months after the signing of the Terms of Reference. See Article 18 of the ICC Rules of Arbitration. [return to text]
14. A remarkable example is provided by the Ken-Ren case, which is well described by Brian Davenport in "The Ken-Ren Case: Much Ado About Nothing Very Much" and David Branson in "The Ken-Ren Case: It is an Ado where More Aid is Less Help" both in Arbitration International, 10/3, 1994. [return to text]
15. For example, attempts to enforce awards in India often lead to a series of appeals of Wagnerian proportions. See "Finality in India: The Impossible Dream" by F.S. Nariman in Arbitration International, 10/4, 1994. [return to text]
16. See "Lean Arbitration: Cost Control and Efficiency Through Progressive Identification of Issues and Separate Pricing of Arbitration Services" by Michael E. Schneider in Arbitration International, 10/2, 1994. [return to text]
17. Article 5 of the Rules of Arbitration of the International Arbitral Center of the Federal Economic Chamber in Vienna (Vienna Rules) states that "Arbitrators should have specific knowledge and experience of legal, commercial or other practical matters". Article 3.3 of the London Court of International Arbitration Rules (LCIA Rules) states that "In selecting arbitrators, consideration will be given, so far as possible, to the nature of the contract, the nature and circumstances of the dispute, ...". [return to text]
18. The international Arbitration Rules of the American Arbitration Association (AAA), International Chamber of Commerce (ICC), Chamber of National and International Arbitration of Milano (Milano), Netherlands Arbitration Institute (Netherlands), Stockholm Chamber of Commerce Arbitration Institute (Stockholm), United Nations Commission on International Trade Law (UNCITRAL), World International Property Organization (WIPO), and Zurich Chamber of Commerce (Zurich) are all silent on the topic of substantive non-legal qualifications of arbitrators. [return to text]
19. See paragraph 23 of Isabelle Hautot's "Introductory Report" in Arbitration and Expertise, International Chamber of Commerce publication No. 480/7, 1994. [return to text]
20. Author's translation of excerpts from pages 122 and 123 of "Rapport de Synthese" by Jean-Fran ois Poudret in Arbitration and Expertise, International Chamber of Commerce publication No. 480/7, 1994. [return to text]
21. Author's translation of excerpts from page 124 of op. cit. [return to text]
22. See Article 6.1 of the AAA Rules for International Arbitration, Article 3.3 of the LCIA International Arbitration Rules, Article 13.1 of the Netherlands Arbitration Institute Rules, Article 15.a of the WIPO Arbitration Rules. [return to text]
23. See Article 6.4 of the AAA Rules, Article 3.3 of the LCIA International Arbitration Rules, Article 14.4 of the Netherlands Rules, Articles 19.b.i and 19.b.iv of the WIPO Rules. [return to text]
24. For example the Swiss International Private Law Act (LDIP), Article 179.1 states that arbitrators shall be "nominated ... in accordance with the parties' agreement", and Article 180.1.a states that an arbitrator "can be disqualified if he [this law was written before sex-neutral drafting techniques were introduced in Switzerland] does not meet the qualifications agreed by the parties." English case-law is similar: see 4.3.b of Law and Practice of International Commercial Arbitration, by Alan Redfern and Martin Hunter, Sweet and Maxwell, 1991. Article 1493 of the French Code of Civil Procedure states that the arbitration agreement may "provide the manner for the appointment [of the arbitrators]". [return to text]
25. See 28.05 of ICC Arbitration by W. Laurence Craig, William W. Park, and Jan Paulsson, ICC Publishing, 1990; and 2.1.b and 6.2.b of Law and Practice of International Commercial Arbitration, by Alan Redfern and Martin Hunter, Sweet and Maxwell, 1991. [return to text]
26. In their inimitable national style, Americans have coined a bewildering variety of picturesque expressions to describe more or less esoteric variations of the concept of enabling Î if the parties so wish Î a mediator to deliver a binding decision when it is clear that mediation properly speaking will fail. See for example "The Mediation Rules of WIPO and Others" by Marc Blessing in Proceedings of the Conference on Rules for Institutional Arbitration and Mediation, World Intellectual Property Organization, January 20 1995; and "ADR, the civil law approach" by Otto L. O. De Witt Wijnen in Arbitration, February 1995. [return to text]
27. See Article V of the New York Convention and 8.2.d of Law and Practice of International Commercial Arbitration, by Alan Redfern and Martin Hunter, Sweet and Maxwell, 1991. [return to text]
28. A similar conclusion is reached in 4.3.d of Law and Practice of International Commercial Arbitration, by Alan Redfern and Martin Hunter, Sweet and Maxwell, 1991. [return to text]
29. The Netherlands Arbitration Institute (NAI) occasionally appoints experts (for example, accountants) as arbitrators. This information was provided by Mr. Paul van Baal of the NAI. [return to text]
30. Author's translation of excerpts from page 130 of "Rapport de Synth se" by Jean-Fran ois Poudret in Arbitration and Expertise, International Chamber of Commerce publication No. 480/7, 1994. The examples referred to are the Swiss construction industry and commercial tribunals. [return to text]
31. The requirement arises from the principles of natural justice. Specific language is contained in some institutional arbitration rules and national laws (lex arbitri). For example, Article 10.1 of the UNCITRAL Rules state that "An arbitrator may be challenged if circumstances exist that give rise to justifiable doubts as to the arbitrator's impartiality or independence." See also 4.4 of Law and Practice of International Commercial Arbitration, by Alan Redfern and Martin Hunter, Sweet and Maxwell, 1991; and 3.1 of the International Bar Association Ethics for International Arbitrators. [return to text]
32. Author's translation of excerpts from pages 130 and 131 of "Rapport de Synth se" by Jean-Fran ois Poudret in Arbitration and Expertise, International Chamber of Commerce publication No. 480/7, 1994. [return to text]
33. Page 132, op. cit. [return to text]
34. Article 5 of the UNCITRAL Arbitration Rules states: "If the parties have not previously agreed on the number of arbitrators (i.e. one or three) ....". I leave it to learned lawyers to argue whether the parenthesis is a mandatory provision or not. [return to text]
35. For example, if the UNCITRAL rules are used, the nominating authority could provide two lists, each containing at least three candidates: one list containing names of experts in the domain of the dispute, and one list containing names of experts in the law. Alternatively, it could provide a single list, containing at least six candidates: three experts in the domain of the dispute (identified as such) and three experts in the law (identified as such). [return to text]
36. Ronald Bernstein, Vice-president (Emeritus), The Chartered Institute of Arbitrators, in "Arbitration at the Crossroads: The Arbitrator as Leader? or just Listener" in Arbitration, May 1995. [return to text]