There appears to be limited research or academic writing on the influence of the chair or presiding arbitrator on arbitral decisions, yet the role is a crucial one. In particular, it can impact on the contribution of party-appointed arbitrators and, consequently, the ultimate decision making of a tribunal.
This influence can manifest in various ways, and following are some examples. It is the chair or presiding arbitrator who usually dictates the pace and tone of the arbitration, and conducts the hearings; the award will usually be in the words of the chair, and chairs are often given considerable discretion as to the drafting of the award; co-arbitrators may delegate day-to-day unimportant procedural decisions, such as short extensions of time, to the chair alone, for example article 35 of the Beijing Arbitration Commission/Beijing International Arbitration Centre (BAC) Rules.
The position is exacerbated where there are inexperienced or novice co-arbitrators who will often pay deference to the chair, resulting in the chair having a disproportionate influence or impact on decisions.
The presiding arbitrator’s role is, therefore, vitally important. Yet the procedure for selecting the chair or presiding arbitrator is neither universal nor necessarily without its problems. The following are some alternative ways of choosing a chair.
The BAC rules, for example, require parties to choose arbitrators from its panel, and in default, for the chairman of the BAC to choose the arbitrator (see articles 9, 18 and 19). As for the presiding arbitrator, the parties may each nominate between one and three arbitrator(s) from the panel list as candidate(s) or seek a short-list of names from the BAC for the role. In the absence of a single common candidate the decision is left to the chairman of the BAC.
Moving away from China to other jurisdictions, the position is often rather different, and institutional rules vary. Many arbitral institutional rules permit the parties to agree on alternative procedures. For instance, the Singapore International Arbitration Centre (SIAC) 2016 Rules, article 11(3); the International Chamber of Commerce (ICC) article 12(5); and the London Court of International Arbitration (LCIA) article 7 all defer to the agreement of the parties where the arbitration clause provides, although nominations are subject to confirmation and appointment by the arbitral institution.
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Most arbitration clauses, where such a provision is made, provide that the co-arbitrators rather than the institution should nominate the presiding arbitrator.
The United Nations Commission on International Trade Law (UNCITRAL) Rules are more specific and do not depend on the agreement of the parties for the co-arbitrators to choose the presiding arbitration. It is implied from agreement to the UNCITRAL rules. Article 9 provides that: “If three arbitrators are to be appointed, each party must appoint one arbitrator. The two arbitrators thus appointed must choose the third arbitrator who will act as the presiding arbitrator of the arbitral tribunal.”
The current practice of enabling co-arbitrators to have an unfettered choice of presiding arbitrator is not always ideal. It may work well if the arbitrators are experienced and familiar with other arbitrators who would make good presiding arbitrators. However, it works less well, for example, if one of the co-arbitrators is inexperienced and effectively has to defer to the choice of the experienced co-arbitrator. It also means that the parties have no direct say in what is perhaps the most crucial member of the tribunal, thereby possibly diluting the respective ability of the party-appointed arbitrators to influence the dynamics of the tribunal.
Thus it is important for parties to be consulted on the presiding arbitrator, for unlike the BAC rules, it is most frequently the co-arbitrators, not the parties, who select the presiding arbitrator. Ideally, this should be provided for in the arbitration agreement, but it rarely is. More practically, it is advisable when nominating a party appointed arbitrator for parties or, in practice, their lawyers, to make it clear to him or her that they wish to be consulted on the presiding arbitrator before he or she is chosen.
Obviously, there is a limit to what the parties can request. They cannot address the views of a candidate on the merits, but they can seek someone experienced in a particular field of industry or a particular law, for example. The International Bar Association (IBA) Guidelines on Party Representation permit communication with party-nominated arbitrators on the choice of presiding arbitrator, although the 2014 LCIA rules require notification to the registrar before this is done (article 13.5). The IBA guidelines permit direct communication between the parties and candidates for presiding arbitrator only where all parties agree (article 8(b)-(d)).
Although how the presiding arbitrator is appointed varies, the reality is that the chair is often a compromise − or if no agreement can be reached because of tactical manoeuvres or otherwise − then the decision is left to an arbitral institution, or occasionally to the court.
Because the appointing procedure for presiding arbitrators has a considerable impact on arbitration, and in consideration of the presiding arbitrator’s central role in deciding the outcome of cases, parties and their advisers should ensure that they are consulted before a presiding arbitrator is chosen, even though they do not have the final word on the ultimate candidate.
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Hilary Heilbron QC is a barrister from Brick Court Chambers. BAC/BIAC’s case managers Gerard Lin and Liu Nianqiong also contributed to the article
