Jurisdiction &

Constitution of the
Arbitral Tribunal
International
Commercial Law II
Assaduzzaman
Taylors Law School

Lecture Outline
Jurisdiction of the Tribunal

Requirements for the Arbitration Agreement

Construction of the arbitration agreement
Wording of Arbitration Agreement
Existence of a Dispute
Competence-Competence

Constitution of Arbitral Tribunal

Failure of appointment procedure
Qualifications of the Arbitrators

Jurisdiction of the
Tribunal

Requirements for the Arbitration

Agreement
It must arise out of mutual consent
The parties must have legal capacity
Consequences of the lack of capacity
Law applicable to the legal capacity
The legal capacity to enter into an arbitration
agreement
The agreement must be made in writing
Must the agreement be contained in the same
document?
Are signatures necessary
for the validity of an
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arbitration agreement?

Jurisdiction of the
Tribunal
Construction of the arbitration
agreement
Civil law approach: application by the
Court of Appeal of Lithuanian law in
Svenska Petroleum Exploration AB v
Lithuania [2007] 1 All ER (Comm) 909,
Common law approach: Investors
Compensation Scheme LTD v West
Bromwich Building Society [1998] 1 WLR
896
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Wording of Arbitration
Agreement
In English law, arising under the contract was
considered more restrictively than other forms
of words such as arising in connection with
the contract: see, eg, Owners of CargoLately
Laden on Board the MV Delos v Delos Shipping
Ltd The Delos [2001] 1 All ER (Comm) 763,
Compare Fiona Trust & Holding Corpn v Yuri
Privalov [2007] UKHL 40, [2008] 1 Lloyd's Rep
254.* What is the ratio of the case? Do you
agree wit the policy that the HL applied in that
case?
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Existence of a Dispute
Uni-Navigation Pte Ltd v Wei Loong
Shipping Pte Ltd [1993] 1 SLR 876

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Competence-Competence

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1. Appointment and Mechanisms

of Appointing Authorities
Sole arbitrator or arbitral tribunal of
three:
If the agreement to arbitrate is silent on
the number of arbitrators, will there be a
sole arbitrator or a three-member tribunal?
If there is to be a sole arbitrator, who will
appoint him or her?
If there is to be a three-member tribunal,
who will appoint those members?
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English law
Arbitration Act 1996, ss 15 19
Sec. 15 The arbitral tribunal
1. The parties are free to agree on the number of
arbitrators to form the tribunal and whether there is
to be a chairman or umpire.
2. Unless otherwise agreed by the parties, an
agreement that the number of arbitrators shall be
two or any other even number shall be understood
as requiring the appointment of an additional
arbitrator as chairman of the tribunal.
3. If there is no agreement as to the number of
arbitrators, the tribunal shall consist of a sole
arbitrator.
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UNCITRAL Model Law

UNCITRAL Model Law, Art 10
(1) The parties are free to determine the
number of arbitrators.
(2) Failing such determination, the
number of arbitrators shall be three.
In cases where a significant sum is at
stake or, the parties come from States
with different legal and commercial
traditions, a panel of three arbitrators
would be the normal pattern.
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Institutional Rules
The AAA Rules Art. 5 and LCIA Rules Art. 5.4
provide that there will be one arbitrator
unless the parties have agreed otherwise or
the institution believes that there should be
three.
Article 8(2) of the ICC Rules states Where the
parties have not agreed upon the number of
arbitrators, the Court shall appoint a sole
arbitrator, save where it appears to the
Court that the dispute is such as to warrant
the appointment of three arbitrators.
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Who will appoint the sole

arbitrator?
Sec. 16 of the Arb. Act 1996 Procedure for appointment of
arbitrators:
(1) The parties are free to agree on the procedure for
appointing the arbitrator or arbitrators, including the
procedure for appointing any chairman or umpire.
(2) If or to the extent that there is no such agreement, the
following provisions apply.
(3) If the tribunal is to consist of a sole arbitrator, the
parties shall jointly appoint the arbitrator not later than 28
days after service of a request in writing by either party to do
so.
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If there is to be a three-member
tribunal, who will appoint those
members?
Sec. 16 of the Arb. Act 1996 Procedure
for appointment of arbitrators:
(5) If the tribunal is to consist of three
arbitrators
(a) each party shall appoint one arbitrator not
later than 14 days after service of a request
in writing by either party to do so, and
(b) the two so appointed shall forthwith
appoint a third arbitrator as the chairman of
the tribunal.
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2 Arbitrators
S. 16 Procedure for appointment of arbitrators
(4) If the tribunal is to consist of two arbitrators, each party
shall appoint one arbitrator not later than 14 days after
service of a request in writing by either party to do so.
(6) If the tribunal is to consist of two arbitrators and an
umpire
(a) each party shall appoint one arbitrator not later than 14
days after service of a request in writing by either party to
do so, and
(b) the two so appointed may appoint an umpire at any time
after they themselves are appointed and shall do so before
any substantive hearing or forthwith if they cannot agree on
a matter relating to the arbitration.
(7) In any other case (in particular, if there are more than
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two parties) section 18 applies
as in the case of a failure of

Failure of appointment
procedure
Sec.18 (2) any party to the arbitration agreement may
(upon notice to the other parties) apply to the court to
exercise its powers under this section.
(3) Those powers are
(a) to give directions as to the making of any necessary
appointments;
(b) to direct that the tribunal shall be constituted by such
appointments (or any one or more of them) as have been
made;
(c) to revoke any appointments already made;
(d) to make any necessary appointments itself.
(4) An appointment made by the court under this section
has effect as if made with the agreement of the parties.
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XL Ins Ltd v Toyota Motor Sales,

USA, Inc (14 July 1999, QB)
XL the applicant was a major insurer and
the two respondents were Toyota Group of
companies. Arbitration Clause gave two
arbitrators power to appoint third. Disputes
under the policy are to be determined in
London under the provision of The
Arbitration Act 1950 or its successors. The
contract also provides that the substantive
law that governs the policy is the internal
laws of the State of New York.
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XL Ins Ltd v Toyota Motor Sales,

USA, Inc (14 July 1999, QB)
They decided that parties should
have a right to object and parties
objected to all names. Court
appointed English arbitrator: curial
law was important. Knowledge of US
law and NY law was not crucial as
Toyota were prepared to accept
Canadian arbitrator. Third qualities:
1) ability to deal with substance; b)
ability to deal with procedure; 3)
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2. Qualifications of the
Arbitrators
An arbitrator must have the capacity to
evaluate conflicting statements of law or
fact, as well as the wisdom, courage,
and expertise to render a decision in
such a way that the parties-especially
the losing party-will recognize both the
fairness of the procedure and the finality
of the decision.
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Nationality
UNCITRAL ML, Art.11(1) No person
shall be precluded by reason of his
nationality from acting as an arbitrator,
unless otherwise agreed by the parties
UNCITRAL Rules, Art.6(4) In making
the appointment the appointing
authority shall take into account as well
the advisability of appointing an
arbitrator of a nationality other than
the nationalities of the parties.
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Nationality
LCIA Rules Art. 6(2) The
nationality of parties shall be
understood to include that of
controlling shareholders or
interests.
Multiplicity of corporate nationalities
within a group, however, should not
stand in the way to the appointment
of suitable neutral arbitrators.
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Hashwani v Jivraj [2011] UKSC

40
The claimant and the defendant established a
joint venture in 1981 for the purposes of property
investment. It was a term of the agreement that
any dispute between the parties arising out of
the venture should be referred to three
arbitrators, one of whom was to be appointed by
each party and all of whom were to be respected
members of, and holders of high office within,
the Ismaili community. The defendant disputed
the validity of that appointment, claiming that it
constituted unlawful discrimination contrary to
regulation 6(1)(a)(c).
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Hashwani v Jivraj [2011] UKSC

40
On appeal, court drew a clear distinction
between those who were, in substance,
employed and those who were independent
providers of services not in a relationship of
subordination with the person who received the
services; that an arbitrator's role was that of an
independent provider of services not in a
relationship of subordination with the parties who
received his services and was not one of
employment under a contract personally to do
work; that, accordingly, applying the
jurisprudence of the Court of Justice, the
Regulations were not applicable to the selection.
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