Author: Toby Landau*
Published: December 1998
Description: The effective constitution of an arbitral tribunal may appear, at first sight, as a straightforward and uncontroversial part of the overall arbitral process. Any practitioner with experience in this field, however, will vouch for the contrary: composing and establishing a tribunal is a task that is often fraught with difficulty, and in some cases, a cause for the entire arbitral process to break down. It is self-evident that no arbitration can proceed without a tribunal. It follows that any party that considers an arbitration as contrary to its interests will capitalize on every opportunity to obstruct the appointment process, or to challenge a tribunal once appointed. Once constituted, there are many factors that may result in a dysfunctional tribunal thereafter, or indeed a need to make substitute appointments. Even if a tribunal has been appointed, its very constitution may still provide a ground for defeating the enforcement of a subsequent award.
In analyzing any arbitration rules or provisions for the composition and establishment of the arbitral tribunal, five main factors may be particularly relevant: the extent to which party autonomy is protected; controls on quality and qualifications of those appointed; the efficiency and speed of appointment; the extent to which problems in the constitution of a tribunal will be solved, and support provided; and the question of costs.
*MA, BCL (Oxford University); LL.M. (Harvard Law School); ACIArb; Barrister-at-Law, Essex Court Chambers, London; Member of the New York Bar.