Chapter 11 - The Arbitrator - International Arbitration Law And Practice, Third Edition

Mauro Rubino-Sammartano is a Partner at LawFed-BRSA. Mr. Rubino-Sammartano is currently the President of the European Court of Arbitration and of the Mediation Centre of Europe, the Mediterranean and Middle East. He is also an associate member, as Italian advocate of Littleton Chambers in London. Mr. Rubino-Sammartano has acted and regularly acts as chairman, party-appointed, sole arbitrator and counsel in a large number of arbitral proceedings. His practice is largely based on international and national litigation and arbitration in the field of contracts, construction law, mergers and acquisitions, sales of goods, joint ventures and interlocutory injunctions.

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Originally from International Arbitration Law and Practice, Third Edition

11.1. Relationship between the Parties and the Arbitrator

The attention of arbitration scholars and practitioners is frequently absorbed by the relationship between the parties, which derives from and gives rise to the arbitration agreement. The contractual basis of the arbitration agreement and its procedural effects, have spurred a very significant discussion amongst writers. Some maintain that the arbitration agreement is just a contract, disregarding its procedural effects, and in doing so have stimulated formation of the contractual theory.

Others have focused their attention on the procedural effects, giving rise to the judicial theory.

The battle of theories – as Sanders rightly points out1 – dates back to the Del Drago arbitral proceedings (2) which arose from a dispute concerning the estate of the late Queen Marie Christine of Spain. Commentators have suggested that the relationship between the parties and the arbitrator amounts to a contract which is generally unwritten, but which could well be entered into in writing, covering their respective duties and rights. A detailed draft standard contract has been presented by Clay.2

Such a contract completes the picture arising from an arbitration agreement, which in administered arbitration, also generates a relationship between the parties and the arbitral institution, for the administration of the proceedings, and a relationship between the arbitrators and the arbitral institution, for their cooperation during the proceedings.

Table of Contents:

CHAPTER 11: THE ARBITRATOR

Contract to Arbitrate
11.1 Relationship between the Parties and the Arbitrator

Number of Arbitrators
11.2 A Sole Arbitrator or an Arbitral Tribunal – Even or Odd Number – The Umpire

Appointment of the Arbitrator
11.3 Criteria for Choosing the Arbitrator
11.4 Direct or Indirect Appointment – Intuitus Personae
11.5 Appointment – Acceptance – Lack of Designation
11.6 Capacity of the Arbitrator – Sex and Nationality
11.7 Physical Person or Legal Entity
11.8 Substitute Arbitrators

Choice of Law
11.9 Choice of Law Issues

Training
11.10 Training of Arbitrators
11.11 Impartiality – Independence – Bias – Misconduct – Challenge

Role of the Arbitrator
11.12 The Role of the Arbitrator
11.13 Parties’ Control on Arbitration
11.14 Arbitrator’s Duty to Encourage Settlement
11.15 Imposition of a Peace Treaty

Rights and Duties of the Arbitrator
11.16 The Duty of Disclosure
11.17 The Duties of the Arbitrator : The Rules of Conduct
11.18 Remuneration
11.19 Right to Cooperation from the Parties

Liability – Immunity
11.20 Liability – Immunity

Termination
11.21 Termination by Expiry of Term of Office and on Other Grounds – Replacement – Truncated Arbitration – Effects

Removal
11.22 Removal, Resignation and Challenge

Secretary to the Arbitral Tribunal
11.23 Possibility of Appointing a Secretary to the Arbitral Tribunal

Arbitrator’s Involvement before State Courts
11.24 Arbitrator’s Subsequent Involvement before State Courts
11.25 The Arbitrator as a Works
11.26 The Arbitrator as a Party