Invariably, any natural person who has legal capacity is eligible for appointment as an arbitrator. In terms of Article 11 (1) of the UNICITRAL Model Law (“the Model Law”) a person shall not be precluded from appointment as an arbitrator on account of his nationality unless otherwise agreed by the parties.
arbtrition insights: Jacob Mutevedzi
Regardless of whether the arbitration is domestic or international, there are three vital requirements one must satisfy to be considered suitable for appointment. These key requirements are set out in Article 11 (5) of the Model Law as follows:
l the qualifications imposed by the parties in their agreement;
l independence of the arbitrator; and
l Impartiality of the arbitrator.
Over and above the abovementioned requirements specified under the Model Law, any arbitrator should be endowed with special qualities to enable him to effectively discharge his or her mandate. These qualities include:
l adequate experience and exposure; and
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l sufficient education and training.
Experience and exposure (outlook)
Broad commercial and social exposure coupled with an open mind are priceless attributes of a good arbitrator. This is even more important in the case of an international arbitration. In their seminal work, Law and Practice of International Commercial Arbitration 1996, Sweet & Maxwell, page 168, Redfern and Hunter emphasize that an international arbitrator must possess an acute awareness of global trade relations and demonstrate an awareness of different systems and traditions. This position is captured admirably in an article by Lalive in ICC Publication No. 412, page 317, 350 where the sentiment is expressed that, in his handling of the arbitration and in the nature of his awards, an international arbitrator is expected to: “show proof of a comparative and comparist mind, open to legal pluralism, to various cultures various political and social systems. Arbitration will hardly be regarded as a suitable way of solving the case if it is to be administered by an arbitrator who is imbued with the ways of thinking and prejudices of another culture”.
Education and training An international arbitrator’s education and training is probably his most important asset. Over and above his training and education in his professional field, an arbitrator must wield experience in the law and practice of arbitration. The qualities of the appointed arbitrator lend piquancy, acceptability and renown to the arbitral process. Obviously an arbitrator who is devoid of the requisite practical experience cannot effectively discharge his mandate. Continuous professional development and training initiatives are crucial to the eligibility of individuals as arbitrators.
Agreed qualifications The parties to arbitration have latitude to prescribe the qualifications they require of a person who will preside over their dispute. Contrary to popular belief lawyers are not exclusively eligible for appointment as arbitrators. In practice, it is often pragmatic to appoint an arbitrator with a specialised knowledge of the subject matter of the arbitration.
Thus depending on the nature of the dispute, parties may stipulate the appointment of a “lawyer” or “experienced architect” or “accountant” or some other professional to be the arbitrator. If the nominee does not meet all the qualifications stipulated by the parties his appointment is invalid. Consequently, any award made by such an unqualified arbitrator is void. It is imperative to note that the preferred qualifications may be expressed in a positive form as already indicated or in a negative form. For instance it may be stipulated that the arbitrator “shall not be a civil engineer”. Mustill & Boyd in their text, Commercial Arbitration, 2nd Edition 1989, Butterworths, page 247 capture the issue of qualifications beautifully in the following sentence:
“He (the arbitrator) must possess all the qualifications and none of the disqualifications prescribed by the arbitrator Agreement.”
Independence Autonomy as a notion, involves questions emanating from the relationship between an arbitrator and one of the parties to the arbitral process. The relationship could be financial or otherwise. In international arbitration, the term is often used to describe the arbitrator’s lack of a connection to any of the parties, counsels or co-arbitrators.
An independent arbitrator is one who is not susceptible to interference, or to perform under pressure from, or reliant on a party because of the relationship in question. Objectively, an arbitrator should have no direct professional relationship with one of the parties or their legal counsel. Further, he or she should have no financial interest in the outcome of the arbitration. Subjectively, to manage perceptions, an arbitrator should not be of the same nationality as that of either party where he or she is a sole arbitrator in an international arbitration. Article 11 (5) of the Model Law emphasizes the prudence of appointing an arbitrator of a nationality different from that of any of the parties, in the appointment of a sole or third arbitrator. The rationale is to pre-empt the suspicion of bias or partiality arising from nationality.
Impartiality Impartiality, as a concept, is concerned with the bias of an arbitrator either in favour of one of the parties or in relation to the issues in dispute. It involves, for the most part, a state of mind and this makes it considerably difficult to measure or establish. However, partiality is easy to establish if, for instance, an arbitrator applies an arbitral procedure that is inconsistent with the notions of arbitral due process, such as equality of treatment and if he fails to observe the rules of natural justice.
If the requirements of independence and impartiality are not observed the appointment of an arbitrator is susceptible to challenge. In practice common grounds for challenging an arbitrator have concerned an arbitrator or his or her law firm having prior contact with one of the parties to the arbitration. Other noteworthy grounds have involved the following situations: a party not receiving proper notice for appointing an arbitrator; an arbitrator rendering his expert opinion in a previous case involving one of the parties; an arbitrator being involved in the decision on a challenge in another arbitration involving one of the parties.
l Jacob Mutevedzi is a commercial lawyer and partner at Clairwood Chambers Attorneys and writes in his personal capacity. He can be contacted @ [email protected]
