Composition Of The Tribunal

Front 1

Introduction

Back 1

- Process of composition

- Sumukan

- UNCITRAL 11

- ICC 14

- AA 33.1

Front 2

Process of Composition

Back 2

May be laid out expressly in the arbitration agreement, parties may subscribe to arbitration rules, or this may be left to the statutory law of the seat (S24 AA or ML 13.3)

Front 3

Sumukan

Back 3

Example of a case where the composition of the tribunal was set aside due to not following the correct procedure of appointment

Front 4

UNCITRAL Article 11

Back 4

Refers to appointment and removal of the arbitrators and that the arbitrator must disclose any information at the outset which may warrant partiality.

Front 5

ICC 14

Back 5

Challenges in the ICC arbitration rules must be submitted to the secretariat

Front 6

AA 33.1

Back 6

Arbitrators are obliged to be free of any bias

Front 7

Removal

Back 7

- Informal

- Institutional

- Seat AA 24 ML 13.3

Front 8

Informal

Back 8

Advised that parties attempt to ask tribunal to step down, but this is unlikely to occur as the three arbitrators may be unwilling to. UNCITRAL Rules 11.3 challenging the jurisdiction will not waive your rights to submit.

Front 9

Institutional Rules

Back 9

Various institutional rules will have own methods of removal such as ICC, LCIA or UNCITRAL AR

Front 10

The Seat

Back 10

AA24 or ML 13 requires arbitrators to comply with due process. Only when parties have exhausted all remedies may they pursue removal at the seat. Note time limits as well, ML 13 = 30 days.

Front 11

Removal Tests

Back 11

- A v B

- X v Q

- Betz v Pankow

Front 12

A v B

Back 12

Objective test = look to what the fair minded observer would consider bias. Arbitrator having previously worked with solicitors of the parties involved was not considered bias

Front 13

X v Q

Back 13

Singaporean case. Consider the mindset of the well-informed, uninterested commercial party.

Front 14

Betz v Pankow

Back 14

American Case stressing that the tests for removal are based on objectivity

Front 15

IBA Guidelines

Back 15

- Define

- NWR 1.3

- WR 2.1.1

- WO 3.1.1

- WG 4.1.1

Front 16

NWR 1.3

Back 16

Serious bias in which parties cannot waive their rights to not be subject to. Arbitrator has a financial interest in the case (Dimes)

Front 17

WR 2.1.1

Back 17

Serious bias where parties can waive the rights to object. Arbitrator has had prior involvement in the dispute

Front 18

WO 3.1.1

Back 18

Less serious bias but it is expected that the arbitrator should disclose this information to assume the position of an impartial arbitrator. Having performed services for parties in past 3 years.

Front 19

WG 4.1.1

Back 19

Minor instances of bias which will rarely give rise to bias. Where the arbitrator has written academically about the issue at hand.

Front 20

Case Examples

Back 20

- Laker Airways

- R v Gough

- HSN Capital

- Sierra Fishing

- Catalina v Norma

- A v B

- Commonwealth

Front 21

Laker Airways

Back 21

Arbitrator coming from the same chambers as one of the counsel was not bias. Test applied to remove a barrister from acting as an arbitrator AA 24(1) was an objective one. Case considered R v Gough. Actual bias did not have to be proved. Must be reasonable suspicion as to impartiality to remove under S24.

Front 22

R v Gough

Back 22

Test to be applied in all cases of apparent bias is whether there was a real danger that the appellant had not had a fair trial

Front 23

HSN Capital (American Advisory)

Back 23

Considered that any kind of relationship with the counsel of some sort whether it be friendship or colleague scenario was not apparent bias

Front 24

Sierra Fishing

Back 24

The courts will use the IBA guidelines in court. Arbitrator had financial interest in one of the parties' law firms. He failed to disclose this at the outset. Was bias.

Front 25

Catalina v Norma

Back 25

Example of actual bias. "Portuguese tend to be liars".

Front 26

A v B

Back 26

Discussions with an arbitrator about unrelated topics was not considered bias

Front 27

Bias

Back 27

- Pinochet

- Dimes

- Eastwood

Front 28

Pinochet

Back 28

Amnesty trial ruling that no man can be a judge in his own cause

Front 29

Dimes

Back 29

Pecuniary interest = instant bias

Front 30

Eastwood

Back 30

More rigorous tests of bias should be applied to arbitrators. They are more costly, international reach and finality.

Front 31

Impartiality and Independence

Back 31

- Eastwood

Front 32

Eastwood

Back 32

Considered ICC and AA which each omit either impartiality or independence in their tests. However ICC has since changed this. AA does not include independence as a factor as these acts are about timing. The AA tends to be applied once the apparent bias has occurred.