ARBITRAL TRIBUNAL

UNDER
UNCITRAL MODEL LAW

Submitted To
Mr. S.K Sinha
(Faculty of Law)

Submitted By
Abhinay Satya Prakash
Roll No. 05
BA LLB (HONS)
Semester VII
Section C

HIDAYATULLAH NATIONAL LAW UNIVERSITY

RAIPUR CHHATTISGARH

TABLE OF CONTENTS

TOPICS

PAGES

Acknowledgements.....ii

Introductioniii

Aim & Objective....iv

Scope and Limitations....iv

Research Methodology.......iv

Chapterization-

I. Number of Arbitrators......................................................01
II. Appointment of Arbitrators..........................................................................05
III. Challenge of Arbitrators.. ....09
IV. Replacement of Arbitrators..11

Conclusion .......15
References .......16

ACKNOWLEDGEMENTS

At the outset, I would like to express my heartfelt gratitude and thank my teacher, Mr. S.K Sinha
for putting his trust in me and giving me a project topic Arbitral Tribunal under UNCITRAL
Model Law such as this and for having the faith in me to deliver.
My gratitude also goes out to the staff and administration of HNLU for the infrastructure in the
form of our library and IT Lab that was a source of great help for the completion of this project.

Abhinay Satya Prakash

Sem-VII
Batch- XI

ii

INTRODUCTION
Composition of Arbitral Tribunal under UNICITRAL Rules
The section II of these rules, deals with the composition of Arbitral Tribunal. It consists of articles
5-14 of the rules divided among the following sub heads.

Number of arbitrators (Art. 5)

Appointment of arbitrators (Art. 6-8)

Challenge of Arbitrators (Art. 9-12)

Replacement of an arbitrator (Art. 13)

Repetition of hearings in the event of the replacement of arbitrator (Art. 14)

The UNCITRAL rules say that "If the' parties have not previously agreed on the number of
arbitrators and if within 15 days after the receipt by the respondent of the notice of arbitration the
parties have not agreed that there shall be one arbitrator, 3 arbitrators shall be appointed". This
article lays down that parties have hot decided about the number of arbitrators in their arbitration
agreement and if within 15 days of notice of arbitration the parties have not agreed that there shall
be one-arbitrator three arbitrators shall be appointed.
This article actually lays down 2 situations

When the parties have not previously decided on the aspect of number of arbitrators.

When notice of arbitration is given under section 4, and within 15 days the number of
arbitrators is not decided by parties. Then if above both situations exist the member to be
appointed shall be 3.

The both situations should co-exist for Art 5 to operate subject to modification by parties. The
first situation further connotes 2 aspects by using the term previously in article 5.

The number of arbitrator to be appointed is not decided in the arbitration agreement if

it is entered before the arising of the dispute.

The aspect of number of arbitrators is not covered by arbitration agreement if it entered

into after dispute arose.
iii

AIMS AND OBJECTIVES

The aim of this project is to investigate and describe the appointment, challenges and replacement
of the Arbitral Tribunal under UNCITRAL Model Law, and to trace its development in the present
day context. It also seeks to evaluate the extent and nature of its import in the provisions of the
UNCITRAL Model Law.

SCOPE AND LIMITATIONS

There is limited scope of this project to a consideration of Arbitral Tribunal under UNCITRAL
MODEL LAW with specific reference to the International Commercial Arbitration under Common
Law.

RESEARCH METHODOLOGY

The project is descriptive in nature. Data have been collected on the basis of secondary resources.
This includes books, literature, articles, journals, web pages, etc.
Books and other reference as guided by Faculty of law have been primarily helpful in giving this
project a firm structure. Websites and articles have also been referred.

iv

I.

Number of Arbitrators

As we are aware, the arbitration agreement can be entered into prior or after the dispute arose. First
situation signifies the entering into of the arbitration agreement prior to the dispute. Regarding
whether Arbitration agreement should contain the number of arbitrators to be appointed before
dispute or not is a debatable issue. One view shows that it is always effective to decide the various
aspects of arbitral tribunal like number, appointed etc. after the dispute arose, because the actual
nature magnitude of the dispute can be known exactly only after it arose. So the number of
arbitrator is decided to be one before the dispute and after the dispute arose and if the magnitude
of the problem requires more than 1 arbitrator then it may create unnecessary problems of other
party not accepting to increase number etc. Other view says that it may also be that fixing the
number of arbitrators before the dispute in Arbitration agreement may actually save time after the
dispute arose, because the respondent in order to put off arbitration may cause unnecessary delay
by not accepting the actual number of arbitrators.
What the UNCITRAL rules do is to provide a default procedure incase parties have not decided
on the number, previously and if either of parties is unnecessarily dodging in deciding it. The
second situation actually says that even if the number is not decided previously, if there is notice
given by claimant according to Article 4 and if within 15 days of the receipt of notice by
respondent, if parties still not accepted on the number then the number would be 3. The arbitrators
if cannot decide on issue it may lead to a dead lock, leading the matter to be referred to an umpire
for decision thereby delaying the process. So to avoid this odd number of arbitrators are provided
by these rules. The parties though have the power to modify the rules cannot modify to have even
number because after the UNCITRAL model law of arbitration, most of the countries have made
it as a mandatory requirement that tribunal should cannot have only even number of arbitrators,
and rules are subject to mandatory requirement of law. Coming to the default procedure laid down
by the rule, it says the number will be 3, but not one. The working notes on UNCITRAL rules
shows that the default procedure in case of number of arbitrators in UNCITRAL is 3 because it
was believed that the prevalent practice in International matters was that usually 3 arbitrators were
appointed. This was the reason for UNCITRAL rules to have 3 arbitrators in case parties do not
decide. The ICC rules contain in article 8 the procedure regarding the number of arbitrators. The
article begins by saying, "The dispute shall be decided by a sole arbitrator or by arbitrators. Where
1

the parties have not agreed upon the number of arbitrators the ICC court shall appoint a sole
arbitrator save where it appears to the court that dispute is such as to warrant the appointment of 3
arbitrators.
The ICC rules declare that all arbitrations under it shall be a carried out by odd number of
arbitrators only. This can be inferred from Art 8(1) which says "The disputes shall be decided by
a sole arbitrator or 3 arbitrators. The usage of shall makes it mandatory. This provision can also be
interpreted to mean that the number of arbitrators in case of ICC arbitrations is limited only to 3
arbitrators but not more than this. This interpretation may be wrong because the definition of
arbitral tribunal in Article 2 (I) says that it includes one or more arbitrators, so if the intention of
the ICC was to limit the number of arbitrators to 3 and the same could have been put in the
definition of arbitral tribunal so that significance of Article 8(1) is that only odd number of
arbitrators can be appointed and not even. This is in conformity to the French law of arbitration,
which has adopted the UNCITRAL model law of arbitration.
The default procedure in case of ICC is that sole arbitrator agree on shall be appointed in case
parties do not agree on the number. ICC does not use words like in case partner failed to agree on
the number previously. It just says if parties have not agreed on the number of arbitrators then
default procedure shall apply. This any way signifies the same meaning as in UNCITRAL Rules
because, once parties agree the number in arbitration agreement they are bound by it and parties
having not agreed on a specific issue implies that arbitrators agreement is silent on this aspect.
The ICC rules does not even specify as in UNCITRAL the time limit within which the parties
should specify the number of arbitrators mutually (within 15 days) date of notice of arbitration. It
may be that UNCITRAL rules is respecting the freedom of choice of parties to determine the
number and making it specific when the default procedure will come into play. It is only 15 days
after the date of notice, even after which if the parties do not reach an agreement on the number,
the default procedure will apply. ICC does not specify the time from when default procedure will
apply. Non-specification will lead to the institution immediately specifying the number of
arbitrators thereby violating the important principle of arbitration i.e. freedom of choice. Sufficient
time should be given for parties to make up their mind because setting up of an arbitral tribunal is
an important step and it decides the future of dispute. Though time is an essential element, still it
should not be hurried and- 15 days is not a long time. Non-specification of time shall make the
2

administrator take over the rights of the parties as in this case. There is lot of discretion vested with
the court and it may within any time specify the number.
The article also contains that 3 arbitrators may be appointed if the nature of the dispute is such that
it requires to be arbitrated by 3 arbitrators.
Specifying sole arbitrator in case parties failed to decide on the number and then specifying that 3
will be appointed if the dispute required shows that framers of rules have taken into account the
practical aspects of arbitration. Parties usually do not mention the number of arbitrators in
arbitrator agreement to decide a later when the dispute actually arose, after analyzing it properly.
Once parties have adopted any rules in their arbitration agreement they are bound by it. The parties
after the dispute arises are not in a position to decide the number owing to any reason as a result
the default procedure applies. If parties have adopted UNCITRAL rules and parties even after the
dispute arose did not choose the number leading to the application of default procedure and the
nature of dispute is such that it could be arbitrated by one arbitrator, but still 3 arbitrators have to
be appointed because the rules to which they have consented says so (Parties can any time modify
it by consensus, and the above disadvantage exists if only taken verbatim). The same situation will
not arise in case of ICC because it has provided in its default procedure a sole arbitrator as its
minimum which can be changed to 3 if dispute so warrants. So ICC has clearly taken cost factor
into account by specifying the minimum number.
The ICC article 8 is though titled number of arbitrator it also with appointment of arbitrators and
UNCITRAL has special article 5 devoted only for specifying the number.
The AAA mentions about the number of arbitrators in Article 5 of its rules. It corresponds to article
8 of its rules of ICC and lays down "If parties have not agreed on the number of arbitrators, one
arbitrator shall be appointed unless the administrator determines in its discretion that 3 arbitrators
are appropriate because of the large size, complexity or other circumstance of the case". Even
AAA does not specify time limit after which the default procedure will apply. It also does not
specify that odd number will only be appointed. It does not contain a specific definition as to what
is an arbitral tribunal of an ICC.
So what is accepted in the agreement cannot be changed by one party. So this means if sole
arbitrator is mentioned in the agreement then also he shall be appointed accordingly and if not
3

mentioned in agreement then also sole arbitrator shall be appointed unless the court finds it
otherwise. So the default procedure is accordingly laid down and the way article is framed is not
plain and it does not speak for itself.
The wording in LCIA is completely different from that in other institutional rules covered so far
and LINCITRAL rules. The LCIA while defining article tribunal says that it includes a sole
arbitrator or all the arbitrators where more than one. The LCIA rules go further while defining it
and also says that "All reference to an arbitrator shall include masculine and feminine. This may
be to provide for more specificity.
The number of arbitrators to be appointed for an arbitral tribunal is covered under article 14 of the
WIPO rules. At the outset the article lays down that tribunal shall consist of such members as has
been agreed by the parties. There is full freedom given to parties and it is explicitly shown.
The ICA rules define arbitral tribunal different from those defined by its counterparts. It says that
Arbitral Tribunal means an arbitrator or arbitrators appointed for determining a particular dispute
or difference. The ICA has taken more of a functional approach while defining the arbitral tribunal.
It defines Arbitral Tribunal in terms of what it does than in terms of its number. The method
adopted in ICA rules is completely different though the same substance is followed. The other
institutional rules and UNCITRAL rules have laid down that if parties have not agreed on the
number of arbitrators, the number will be as per the rules and in certain rules it is also provided
that the number will be hiked if circumstances require it.
The next aspects which is common to all rules herein is that they revolve around sole arbitrator
and 3 arbitrator and not more than three. This means that most of international commercial
arbitrations stress on three arbitrators.

II.

APPOINTMENT OF ARBITRATORS

The next step in the composition of arbitration tribunal after the determination of the number is
the appointment of arbitrators. After they are appointed on AT comes into play to decide the
dispute. Sb this is an important aspect. An arbitral tribunal cannot be formed or cannot exist
without arbitrators, so they need to be appointed. Since appointment of arbitrators is also
procedural matter there is much freedom of choice available with the parties to decide their
appointment. One of the important facets of arbitrations is that it allows parties to submit a dispute
to judges of their own choice. Appointing judges of their own choice is the prerogative of the
parties in arbitration unlike ordinary court procedure where parties do not have this choice of
judges.
The various rules of arbitration lay down the procedure for appointment of arbitrators subject to
the agreement of the parties. There is primary given to the agreement of the parties regarding
appointment and only in the absence of the agreement that the default procedure as laid down is
the rules or law of arbitration comes in play. Therefore the first mode of appointment is through
agreement. I.E. parties generally get the first chance to appoint their arbitrators. The parties choose
their own contacts or from the power of arbitrators available with various institutions. The
appointment is as per the procedure laid down by parties or by the rules they adhere to the way the
appointment of arbitrators is dealt in the various rules are:The rule in Article 5 corresponds with the normal practice of naming a tribunal made up of three
arbitrators for the settlement of disputes arising out of international trade transactions, particularly
when the parties are from different geographic regions and have different nationalities. Generally,
each party will in such a case appoint a national of his country as arbitrator and the presiding
arbitrator will be appointed by the two arbitrators appointed by the parties or by an appointing
authority.
The appointment of the sole arbitrator is regulated in Article 6 the notice of arbitration, sent by the
claimant to the respondent, may already contain a proposal for the appointment of the sole
arbitrator. If the notice of arbitration does not contain such a proposal either party (also the
respondent) may make such a proposal.

Article 8 para 2, requires that the proposal for the sole arbitrator should contain the full names,
addresses and nationalities of the proposed persons, together with a description of their
qualifications.
The parties have 30 days after receipt by a party of a combined proposal to agree on the sole
arbitrator and/or the A.A. will appoint him. It is also possible that the parties designate an A.A.
but that this A.A. refuses to act or fails to appoint the sole arbitrator within 60 days of receipt of a
party's request to this effect. In those three cases (no agreement on A. A. refusal by A.A, failure of
A. A. to act), either party may approach the secretary general of the Permanent court of Arbitration
at Hague. This high Official will not appoint an arbitrator. His task is a limited one. The Secretary
General will only designate the A.A.
All this sounds perhaps rather complicated, but was the only acceptable solution UNCITRAL
could find without making its arbitration a fully administered, institutional arbitration. If the parties
do not reach agreement amongst themselves on the designation of an A.A. this will undoubtedly
cause considerable delay. I have therefore repeatedly recommended that the parties, when referring
their dispute to UNCITRAL Arbitration, should at the same time agree on the A.A. Once the A.A.
has been designated by the parties the appointment procedure will present no special difficulties.
That an A.A. would refuse to act or would not fulfil its task within two months seems rather
unlikely.
The permanent court of Arbitration, contrary to what one would expect because of its
nomenclature, is no real court. It consists of a List of Members prepared to function as arbitrators.
The Court, situated at the Peace palace in Hague, in the same building as the International Court
of Justice (formerly the Permanent Court of Justice) has at its disposal a Bureau, headed by the
Secretary General. It is this Secretary General who is prepared to lend his assistance in order to
make the UNCITRAL arbitration Rules function, by designating an A.A. if the parties fail to reach
agreement.
The A.A. in making an appointment of the sole arbitrator, must use the list procedure as described
in Article 6, para 3. However, the parties may agree that the list procedure should not be used,
which may be hypothetical case. On the other hand, the A.A. might also, in its discretion, determine
that the list procedure, is not appropriate in a specific case. The A.A. may also, after first having
tried to arrive at an appointment by means of the list procedure, deviate from this procedure if for
6

any reason the appointment cannot be made according to it, and appoint the sole arbitrator at its
discretion.
According to Article 9, every prospective arbitrator must disclose to those who approach him in
connection with a possible appointment 'any circumstances likely to give rise to justifiable doubts
as to his impartiality or independence*. These circumstances include, to give some examples, a
family or business tie with a party or the fact that he has served as a party's lawyer.
Article 10 repeats the same words as ground for challenge of an arbitrator once appointed. Any
arbitrator may be challenged if circumstances exist that may give rise to justifiable doubts as to
the arbitrators impartiality or independence. Every arbitrator, including an arbitrator appointed
by the parties, should therefore be impartial and independent.
When an A.A. is requested to make an appointment, it not only receives the notice of arbitration,
but also a copy of the contract and a copy of the arbitration agreement, if not contained in the
contract. Article 8 also entitles the A.A. to require from either party any information it deems
necessary to fulfil its task. The A.A. should also observe para 2 of this article when sending
identical lists of candidates to both parties and should mention their full names, addresses and
nationalities together with a description of their qualifications. The sole arbitrator should be
independent and impartial. For example, he should not have family ties or business connections
with one of the parties. Article 6 para 4, reminds the A.A. that it should have regard to this (rather
obvious) requirement of independence and impartiality on the part of the person to be appointed
as sole arbitrator.
In certain circumstances this independence and impartiality may best be secured by appointing as
sole arbitrator a person of a nationality other than the parties. However, a compatriot of one of the
parties could also meet these requirements. The Rules instruct the A. A. to take into account the
advisability of appointing an arbitrator of a nationality other than the nationalities of the parties*.
While the general standard expressed in the Rules is for the arbitrator to be from a country other
than that of the parties, the Rules are not absolute and the appointing authority has the power to
appoint a compatriot of one of the parties, although such cases are not expected to occur frequently.
The parties may, of course, agree to appoint whomever they wish as the sole arbitrator, regardless
of his nationality appointment (para 2). If not, the A. A. may again appear on the scene. The party
having made his appointment may then request the .A.A to appoint the second arbitrator. In order
7

to speed up the proceedings, the A.A. when making this appointment, is freed from following the
list procedure. The appointment of the second arbitrator by the A.A. is a direct appointment.
If the second arbitrator has to be appointed by an A. A. but no such authority has been previously
designated by the parties, the first party to appoint his arbitrator may directly' approach the
Secretary General of the Permanent Court of Arbitration at the Hague for the designation of an A.
A. The parties are therefore not obliged to try first of all to reach agreement on the designation of
an A.A. by putting forward proposals of names of institutions or persons as prescribed under
Article 6 Likewise, the Secretary General will designate an appointing authority if the previously
designated A.A. refused to act or fails to appoint the second arbitrator within 30 days of receipt of
a party's request to this effect.
The Rules do not expressly determine the A.A. but only state that the appointment shall be made
by 'an' appointing authority. If an A.A. has been previously agree upon by the parties, or has been
designated by the Secretary General for the appointment of the second arbitrator, this A.A. will
appoint the chairman of the arbitral tribunal. The parties could, of course, still agree on the choice
of an A. A. but are, in my opinion, not obliged to make proposals to this effect, as this is not
prescribed in the Rules. If the parties do not reach a last minute agreement on the choice of an A.
A. it seems that the solution nearest to the system of the Rules is to fall back on Article 7, para and
to have the A.A. designated by the Secretary General. Either party should then be entitled to
request the secretary general to designate the A.A.

III.

CHALLENGE OF ARBITRATORS

The challenge of arbitrators is regulated in Articles 9 to 12 this regulation rightly starts with the
obligation of a prospective arbitrator to disclose to those who approached him in connection with
the possible appointment any circumstances likely to give rise to justifiable doubts as to his
impartiality or independence (Article 9). No appointment has as yet been made and no challenge
can therefore take place. A challenge may, however, be made on the same grounds, i.e. that
circumstances exist that give rise to justifiable doubts as to the arbitrator's impartiality or
independence', once an appointment has been made (Article 10 para 1). Some examples of cases
in which these doubts may arise.
The disclosure should be made by the prospective arbitrator to those who approach him. Once
appointed (by an A.A.)., or chosen by the parties in common agreement or by only one of the
parties or appointed by the two arbitrators appointed by the parties, the arbitrator is obliged to
disclose such circumstances to the parties unless they have already been informed by him of these
circumstances". Both parties should be equally informed about these circumstances by the person
who best knows whether justifiable doubts as to his impartiality or independence exist. It is
possible that only one party, the party who has appointed the arbitrator, has until this time been
informed.
In practice, when the courts are called upon to deal with the challenge a well, they will only very
exceptionally deviate from the decision that the Appointing Authority (A.A.) has made according
to the Rules, Moreover, the effect of a challenge is normally that either the other party agrees to
the challenge, or the challenged arbitrator himself withdraws. Therefore the challenge procedure
of the Rules, are very exceptional. Even more exceptional will ho challenge procedures in Court.
According to Article 11, para 2 the challenge must be notified, with a statement of the reasons for
the challenge, in writing to (a) the other party, (b) (tie arbitrator who is challenged and (c) the other
members of the arbitral tribunal, The Rules are therefore based on the normal situation whereby
the challenge takes place after the arbitral tribunal has been constituted.
A party may, however, already be aware at an earlier stage of the circumstances that may give rise
to a challenge, if arbitral tribunal of three arbitrators, should be constituted and, as yet, only ono
9

of the parties thus appointed an arbitrator. The period of 15 days within which the challenge must
be made starts to run-according to Article 11, para 1 after this appointment, when the challenging
party Is aware of circumstances giving rise to a challenge. However, in this case the notification
of the challenge can only be made to the other party and the arbitrator who is challenged, The other
members of the arbitral tribunal have, as yet, not been appointed. A party who has failed to exercise
his right of appointing an arbitrator or of participating in the appointment of a sole arbitrator will
therefore get a new opportunity to do so.
Another solution could have been to refer back, in these cases, to the A.A. who has intervened.
The Rules, however, prefer to give the party another chance. The same applies to the two
arbitrators appointed by the parties. They too will get another chance to agree on the presiding
arbitrator if this arbitrator (appointed by an A.A. as the two arbitrators could not agree on his
choice) has to be replaced after the challenge. Article 12 regulates the procedure which must be
followed when the normal consequences of a challenge do not materialize, and the other party does
not accept the challenge and nor does the challenged arbitrator withdraw. In this, in my view,
exceptional case, the A.A. will decide on the challenge.
Of the two possibilities (the A. A. rejects or sustains the challenge) the Rules need to regulate only
the latter. According to para 2. If the A.A. sustains the challenge, a substitute arbitrator will be
appointed or chosen pursuant to procedure as explained under 6. This corresponds with the solution
accepted by the Rules in case of agreement to the challenge or withdrawal of the challenged
arbitrator. However where such a procedure would require the designation of an A.A. the A.A.
who decides on the challenge will function as the appointing authority. A practical solution, which
may save time as well.
Another practical solution is contained in Article 14, only when a sole arbitrator or presiding
arbitrator has been replaced, must hearings held previously be repeated. If any other arbitrator is
replaced, repetition of hearings depends on the decision of the arbitral tribunal Challenge after
hearings will however seldom take place. The provision of this article is of more practical
importance in the case of replacement of an arbitrator because of his death or resignation. This
brings me to the next subject, dealt with in the Rules immediately after the subject of the challenge.

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IV.

REPLACEMENT OF AN ARBITRATOR

Article 13 deals with four other cases of replacement of an arbitrator, in addition to the replacement
of an arbitrator after challenge. The first two are the death or resignation of an arbitrator during
the course of arbitral proceedings. According to para. I, in those cases the substitute arbitrator will
be appointed or chosen in accordance with the procedure that applied to the appointment or choice
of the arbitrator being replaced. The provisions of Articles 6 to 8 (Appointment of Arbitrators) and
Article 9 (Disclosure) apply fully.
Resignation of an arbitrator except in the case of his withdrawal after challenge seldom occurs and
it will remain, a very exceptional event. The Rules do not give any indication as to the
circumstances in which a resignation may be justified, and indeed, they could hardly be expected
to do so. Once the arbitrator has agreed to function he should fulfil his task. Exceptionally there
may be good reasons for not continuing, such as a heart attack. If not, an arbitrator who resigns
may possibly be sued for damages (costs) consequent upon his resignation.
Para 2 provides for the replacement of an arbitrator in two other cases, the arbitrator fails to act, or
either de or defacto cannot perform his functions. In contrast to the cases of death or resignation,
the arbitrator in these cases, still has the title of arbitrator. To get him replaced a party, or both
parties, must take the initiative. The same procedure has therefore been adopted as for the
challenge of an arbitrator.
Both cases are rather exceptional. This applies both to the situation of the arbitrator who has shown
himself to be inactive (which relates to the past), and to the situation of the arbitrator who is unable
to function (which may have manifested itself in the past, but essentially relates to the future). A
de facto impossibility may be due to war circumstances, a de jure impossibility may occur when
the arbitrator has been judicially declared insane. Although both cases are exceptional and this is
even more true of the impossibility (de facto or de jure) than of the inactivity (failure to act) the
Rules had to take account of these situations. As remedy they provide for the replacement of the
arbitrator. This is a brief over view of the appointment of arbitral tribunal under the UNCITRAL
rules.

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Under the ICC Rules though the parties are given the freedom to choose their own arbitrators their
appointment a subject to the confirmation by the ICC Court'. The ICC Rules provide that the parties
if accepted to solve the dispute by a sole arbitrator than the parties by agreement may nominate
the sole arbitrator for confirmation. The rule further says that the parties failed to nominate a sole
arbitrator within the time allowed or within the additional time allowed by the secretariat than the
sole arbitrator shall be appointed by the court. The rule further says that if the parties have accepted
to appoint three arbitrators for confirmation by the court then each party will nominee one
arbitrator and the chairman of the arbitral tribunal shall be appointed by the Court unless the parties
have agreed upon another procedure for such appointment, however such a nomination is subject
to confirmation by the court. The ICC Rules further says that the parties failed to nominate the
arbitrator then they shall be appointed by the court. While confirming the appointment of arbitrator
the court considers the nationality of arbitrator and other relationships with the countries of which
the parties or the other arbitrators are nationals and the prospective arbitrators availability and
ability to conduct the arbitration in accordance with these Rules. While confirming the arbitrator
nominated by the party they are required to file a statement of independent such confirmation.
Under the UNCITRAL rules such a suo-motu powers is not available as there is no administrator.
Under the UNCITRAL rules when the ICC Court wants to replace an arbitrator suo-mottu it has
to do it after giving an opportunity to the arbitrator and the parties to comment on the ICC. Court
decision in written. After the arbitrator is replace the ICC Court as a power to either follow the
original nominating process or not, after the tribunal is reconstituted the arbitral tribunal shall
decide after inviting comments from parties to what extent prior proceedings shall be repeated.
The ICC Rules also take care of possibility of the death of the arbitrator after the closing of the
proceedings. So it is better to have a such provision, moreover this provision covers only the
natural cause* of the death of the arbitrator because other causes of the replacement of the
arbitrator require a decision like if an arbitrator is to be removed on a challenge at this stage of
closure of proceedings and he is found to be partial then the other party may ask for the repetition
of the proceedings, because at the stage since all the proceedings are not carried out properly the
award may also be partial. So other causes may require the appointment of a new arbitrator but the
death of an arbitrator at this stage of closure need not require one as explained above.

12

Under the WIPO rules the initial power to appoint the arbitrator is given to the parties as under
the- UNCITRAL rules. The WIPO rules do not have confirmation procedure as under the ICC
Rules. The appointment procedure under the WIPO rules is like under the UNCITRAL rules. The
WIPO rules also provide for the default procedure of appointment of arbitrator if the parties failed
to appoint the arbitrators. They follow the list system of appointment of arbitrators the WIPO rules
also contained the appointment of arbitrators procedure in case of multiparty arbitration. This is
unique in WIPO rules. The qualities of the arbitrator are as same in other rules the replacement
procedure and the re appointment procedure is as same as in the UNCITRAL rules except that all
the correspondence is made to the center than to the appointing authority as in the UNCITRAL
rules.
Rules to the extent that initial chance of appointment is given to the parties and it is confirmed by
the ICC Court. Whereas under the L.C.I.A. Rules even the procedure of appointment is subject to
L.C.I.A rules . Rules also provide for expedited formation of the tribunal on application by the
party requesting an expedited formation of the tribunal. The party is also require to state the reasons
for such urgency after giving the copy to the other party the L.C.I.A. court may in its complete
discretion, abridge or curtail any time limit for the formation of the Arbitral Tribunal, including
service of the response and of any matters or documents adjudged to be missing from the Request.
The replacement procedure under the L.C.I.A. Rules is as same as the ICC Rules barring the time
limits. The L.C.I.A. Rules provide for replacement of arbitrator on request from other remaining
arbitrator. The L.C.I.A. Rules do not have any specified procedure for the appointment of the
arbitrator. This may be because the ultimate power to appoint the arbitrator rests with the tribunal.
Under the AAA Rules the initial freedom to decide the procedure for appointing arbitrator is given
to the parties, in case the parties do not agree upon a procedure then the administrator appoints the
arbitrator. The appointment procedure is not specifically laid down. The replacement procedure
and the reconstitution is as under the UNCITRAL rules. Under the I.C.A. Rules the initial power
to appoint arbitrator is given to the parties. The said notice shall specify the period within which
the nomination shall be made which shall not be more than thirty days from the date of the said
notice to the respective parties. If the parties fell to agree on the person to be appointed as sole
arbitrator within the time granted by the Registrar, the Registrar in consultation with the Chairman
of the committee and in his absence in consultation with the member of the Governing Body
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designated by the Chairman, shall appoint the sole arbitrator from among the panel of arbitrators.
If one of the parties is a national or resident of a country other than India, the sole arbitrator shall,
as far as possible, be chosen or appointed by the Registrar from among the nationals of a country
other than that of either of the parties. The sole arbitrator so nominated shall constitute the arbitral
tribunal to hear the dispute and shall be appointed as such in writing by the Registrar.
The Registrar shall give notice to the Parties of the constitution of the arbitral tribunal.. The
Challenge procedure is as in the ICC Rules with a small modification that the arbitrator is
appointed by the registrar then after removal the registrar has the right to appoint the new arbitrator
and incase the original arbitrator has being appointed by the parties then the parties are required to
give the nomination within the prescribe time and if the parties fail to nominate then it is done by
the registrar such a provision exist because in the initial appointment itself lot of time is wasted if
the parties did not come to an conclusion regarding the appointment of the arbitrators so the I.C.A
presumes the same may happen in the nomination for replacement also so an second chance of
appointment is not given.

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CONCLUSION

Arbitration, particularly in the international sphere, offers a quick and relatively inexpensive
means to dispute resolution. The United Nations has established the UNCITRAL Arbitration Rules
as an option available to contracting parties from different States. UNCITRAL offers a viable
alternative to the arbitration rules of the ICC. The Iran- United States Claims Tribunal, however,
has demonstrated that some problems exist with the UNCITRAL Rules. The best means to avoid
the weaknesses in the Rules is to add a contractual provision that clarifies its inherent ambiguities.
By doing so, a party is ensured a fair and cost- efficient method of international dispute resolution.

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BIBLIOGRAPHY
Books ReferredInternational Arbitration Under the UNCITRAL Arbitration Rules: A Contractual Provision for
Improvement by John D. Franchin

Internet Sources

http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=3120&context=flr

http://hawaiiopinions.blogspot.in/2008/02/arbitration-uncitral-document.html

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