Appointment of arbitrator. How to choose and what ethical rules and other factors should be taken into account

During an event to improve the qualifications of lawyers at the Higher School of Advocacy on the topic "Appointment of an arbitrator: how to choose and what ethical rules and other factors should be taken into account?", Khrypkova Khrypkova, lawyer, member of the Committee on Alternative Dispute Resolution, which operates as part of NAAU, member of the Ukrainian Arbitration Association, spoke about the importance of the correct nomination or appointment of an arbitrator by a party in an international commercial arbitration dispute.

Quite often, Ukrainian lawyers defend the interests of clients in international commercial arbitration cases, which are conducted according to various international regulations and with a place of proceedings abroad.
The lawyer can act as the main adviser or cooperate with foreign advisers from other countries.
In addition, Ukrainian lawyers may be appointed as arbitrators by the parties to the dispute or by an arbitration institution abroad.
Consequences of choosing an arbitrator:
  • The quality of arbitration proceedings depends on the composition of the arbitration panel
  • The legal and cultural background of the arbitrators has a vital impact on the arbitral proceedings and the arbitral award.
  • The role of side referees
  • Disinterested / busy arbitrators
  • The choice of one of the two arbitrators may influence the choice of the presiding arbitrator
The choice of arbitrator can affect key issues, especially where the parties have not agreed:
  • Choice of law and interpretation of contracts / law
  • Application of certain procedures, including the approach to disclosure of information
  • The nature and duration of oral hearings, including the questioning of witnesses and experts
  • Distribution of costs and others
In 2019, an international survey was conducted among participants in arbitration processes, which determined the most important characteristics of arbitrators. Specifically, 70% resolution within a reasonable period of time. 68% willingness to make difficult decisions, including on procedural issues and arbitrators' possession of process management skills. 63% possession of technical knowledge.
There are different methods of formation of the arbitration tribunal.
In particular, the parties to the contract in the arbitration agreement / arbitration clause or in the agreement on the transfer of the dispute to arbitration have the right to agree on the number of arbitrators (odd and even number), their qualifications, the method of appointment, may agree on the appointment of specific persons as members of the arbitration tribunal.
In the absence of a prior agreement of the parties, the parties may agree on the procedure for appointing an arbitral tribunal already after submitting a request for arbitration.
If the parties have not agreed on the procedure, then each party appoints its own arbitrator, and by mutual agreement the parties choose a presiding arbitrator, or the appointed arbitrators choose a presiding arbitrator (if they are unable to do so, the presiding body appoints the arbitrator).
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