Arbitration at the SIAC – Arbitrators

 

“Judges ought to be more leaned than witty, more reverent than plausible, and more advised than confident. Above all things, integrity is their portion and proper virtue.” – Francis Bacon

 

 

 

 

Rules 9 to 18 – Arbitrators

I cannot emphasise enough the importance of choosing a good arbitrator for your matter. Many times, I have seen clients baulk at the costs of choosing an experienced arbitrator. My view is better pay a good arbitrator for a fair arbitration and just Award than plump for a poor, cheaper arbitrator and live with the consequences of an inequitable Award.

Where parties cannot agree on an arbitrator, some clients may opt to allow the President appoint the arbitrator (Rule 9.4). In such case, it could very well be the luck of the draw. The reality is that most of the best arbitrators may not be chosen by the President because their diaries may be full.

All being said and done, where the number of arbitrators has not been specified in the arbitration agreement, I would advise clients to opt for one good arbitrator rather than take the chance with three more economical options. The reason is simple. One good arbitrator would give you a fair hearing and just award at what would be a significantly lower fee.

Fees of the arbitrators must be a consideration in most arbitrations given the schedule set out by the SIAC, which we will discuss in another article.

 

 

Rule 10 – Sole Arbitrator

Where it is specified that a sole arbitrator be appointed, unless the arbitration agreement names the arbitrator, parties are given 21 days to settle on an arbitrator. Failing this, the President will appoint the sole arbitrator.

 

Rule 11 – Three Arbitrators

Where 3 arbitrators are to be appointed, each party is allowed to nominate one. If parties cannot agree on the procedure for the nomination of the third arbitrator, the President will appoint the third arbitrator. The arbitrator so appointed by the President shall be the presiding arbitrator.

 

Rule 12 – Multi-party appointment of arbitrator(s)

In cases of multi-party arbitrations with a sile arbitrator to be appointed, parties can agree on the arbitrator. In the absence of agreement within 28 days of the commencement of the arbitration, the President will decide on the sole arbitrator.

Where 3 arbitrators are to be appointed, the Claimant(s) will nominate one arbitrator. The Respondent(s) will nominate another. The third, and presiding arbitrator will be appointed by the President unless parties can agree on the same.

 

Rule 13 – Qualifications of Arbitrators

Arbitrators nominated by the parties are required to disclose to the Registrar and the parties circumstances that may “give rise to justifiable doubts” regarding the arbitrator’s independence or impartiality. This is the case whether these circumstances arise before his appointment or which arise during the arbitration.

 

Rule 14 – Challenge of Arbitrators

A party may challenge the appointment of a particular arbitrator whether the basis is doubts as to the impartiality or independence of the arbitrator. A party may also challenge the said appointment on the basis that the arbitrator lacks the requisite qualification agreed to by parties.

 

Rule 15 – Notice of Challenge

The procedure for this challenge is set out in Rule 15. It shall be filed within 14 days of the appointment of the arbitrator or within 14 days of the circumstances set out in Rule 14 becoming known.

The notice of challenge must set out the reasons that the challenge is being made. A challenge fee is to be paid and the challenge will be determined by the Court. of course, if the other party agrees with the challenge, the Court may also remove the arbitrator. In such case, a substitute arbitrator will be appointed as set out above.

 

Rule 16 – Decision on Challenge

It should be noted that the reasoned decision of the Court on the challenge is final. It cannot be appealed to the Court of Appeal.

Replacement of an Arbitrator (Rule 17) specifies that such procedure will be in accordance to the procedure earlier described. Repetition of Hearings in the Event of Replacement of an Arbitrator (Rule 18) states that where a sole or presiding arbitrator has to be replaced, hearings already held have to be repeated unless agreed otherwise by parties. If the replaced arbitrator is neither the sole or presiding arbitrator, the Tribunal will consult with the parties before making a decision.

 

* From the SIAC Rules, 6th Edition

 

Please note that this article does not constitute express or implied legal advice, whether in whole or in part. If you have any queries or require legal advice, please contact us at walter@silvesterlegal.com.