Originally from Limits to Party Autonomy in International Commercial Arbitration

INTRODUCTION   

International arbitration is solidly based on a premise of party autonomy, and one of the most salient manifestations of that autonomy arises in the composition of the arbitral tribunal.  At stake is the liberty of parties to choose their own judge or judges.  Party autonomy in determining the structure of an arbitral tribunal and in selecting arbitrators serves multiple purposes. It enables parties to ensure that those who will judge their dispute have qualifications that the parties deem proper and will conduct the proceedings with the requisite fairness and efficiency.  In addition, party-nomination enhances the parties’ trust in the arbitration as a dispute resolution mechanism, if only because they have participated in the panel’s composition as well as the arbitration ground rules.   This should enhance the prospects of compliance with the final award. 

Party autonomy in composition of the arbitral tribunal is among the first exercises of that autonomy in the life cycle of an arbitration, Parties may well embed in their arbitration agreement their understandings about how an eventual arbitral tribunal is to be constituted. The present discussion proceeds on the assumption that the parties did in fact agree on the matter.  But the parties may also postpone that decision, in whole or in part, until after a dispute has arisen, in which case the choice of each party-nominated arbitrator will typically be made unilaterally by the nominating party, while the choice of panel president may typically be made in a number of different ways, for example, by agreement between the parties, by agreement between the two party-appointed arbitrators, by an arbitral institution or, if need be, a court.  Although it is commonly said that party-appointed arbitrators have the task of ensuring that the panel understands the party’s position and the basis for it, international arbitrators – panel president and party-appointed arbitrators alike – are expected to approach the merits with neutrality.  That is not necessarily a feature attributed to national courts of either party.

The principle of party autonomy in selection of an arbitral tribunal is made explicit in many arbitration laws around the world.  Most rules of arbitral procedure, posit the principle, both with respect to the manner of selecting arbitrators  and the selection of arbitrators themselves  and, at least implicitly by the New York Convention itself, notably in Article II(1) in relation to arbitration agreements  and Article V(1)(d) in relation to arbitral awards.