Establishment/Organization of Arbitral Tribunal Flashcards
Slaoui addresses problem of what?
Repeat arbitrators.
What is the issue around disclosure?
The arbitrator may be expected to be challenged at outset, or opts not to for fear of over-disclosure.
What do the IBA Guidelines say?
Rule 31.3: disclosure required if appointed within past three years on more than two occasions. This is not required where repeat appointment is part of accepted business practice.
What, says Slaoui, is justification for full disclosure?
That it is “more disturbing if a party finds out arbitrator is a repeat arbitrator during the proceedings.” She suggests regulation would mean conflicts of interest would be avoided.
What is a problem with Slaoui’s theory?
Regulation would impede party’s freedom to choose, would make the process less expeditious, and in any event does not solve the main problem: parties using it as a dilatory tactic.
Slaoui advocates what for the IBA Guidelines? Why?
Slaoui asserts that there should be a requirement that the arbitrator disclose past association with counsel, because otherwise they may feel tied to that counsel.
Why does Slaoui reject the argument by arbitrators that they have sense to decide what should be disclosed?
S says it should remain the prerogative of the parties to determine what behaviour is reprehensible. This produces ‘clean slate’ arbitration.
Blackaby and Partasides identify differences between ad hoc and institutional arbitration?
AH: absolute choice of seat. positive action required to commence proceedings.
I: seat recommended though not binding. Proceedings commenced upon date of request received by Secretariat.
AH: choice of judges. If failure, then recourse to courts to choose. Delay, risk of court not grasping international dimension to make suitable choices. No automatic intervention where failure to appoint arises.
I: access to qualified pool, administrative support.
AH: must choose appointing authority by agreement.
I: choice of arbitrators limited to list.
What is BaP’s criticism of the IBA Guidelines’ Orange List?
They criticise it for “failing to provide any substantive guidance on what, if any, conflicts of interest gallon within its scope (ie commercial or relationship conflicts) ought to lead to disqualification.”
What forms of urgent relief are available?
“Pre-Arbitral phase” (ICC), summary Arbitral proceedings, expedited formation of tribunal (LCIA Art 9), emergency arbitrators, anti-suit injunction, abridging/curtailing of time limits (LCIA).
What are the factors regarding timing?
- Giving notice starts the clock.
- Limitations on length of time to respond to notice, vary between systems/arbitration clauses/lex arbitri.
- “Inexcusable delay” - forces uncooperative party into arbitration.
What restriction does UNCITRAL place on arbitrators?
They may not be of same nationality as party.
What does the ‘Code of Ethics for Arbitration in Commercial Disputes’ presume? What does that entail?
That arbitrators are impartial, therefore the challenging party must be the one to prove the allegation.
For what reason, apart from delay, may a challenging party try to wait until an award is made to challenge an arbitrator?
To see if they can nonetheless obtain an award in their favour. This seems unlikely however, given there are time limits on when a challenge can be made.
Despite their similarities, What are the advantages of the EAA vs the UNCITRAL Rules, according to Speller and Fly?
- Less prescriptive eg no stipulations on statements of claim.
- Certain rules are to be expressly opted-in, others out.
- Limits scope for appeals process, limited intervention by judiciary of Arbitral process (s69).
