THE SLOW PROCESS OF APPOINTMENT

In his Cambridge lecture (2007), Stephen York, drawing upon his experience of English and international arbitration, suggested that steps should be taken to ensure prompt appointment of arbitrators. It is common for the selection process by party-appointment to take several months. This is a source of delay and expense. The position is unsatisfactory.

SOLE ARBITRATORS

In English arbitration law, the default size of the tribunal number is one arbitrator: ‘If there is not agreement as to the number of arbitrators, the tribunal shall consist of a sole arbitrator.’

The singleton arbitrator remains common in England (and the LCIA Rules reflect this). This arrangement was favoured by a majority of respondents to consultation on the 1996 Bill. The ICC Rules (2012) also state that, in the absence of contrary agreement, an arbitration agreement will be taken to involve appointment of a sole arbitrator (under those Rules), although this presumption can be rebutted if the ICC thinks that on the facts a three-member panel might be ‘appropriate’.

There are arguments in favour of using sole arbitrators. Such an arrangement is cheaper. It also works well if there are more than two parties. Another benefit is that the sole arbitrator is less inclined to strike a crude compromise between rival submissions and positions. But a three-arbitrator panel is divided by the wing-members’ opposite leanings.

However, there is the disadvantage that the sole arbitrator might be imposed on the parties by an institutional arbitration system if the parties have not nominated the arbitrator, or by the court (12.13).

The burden of making a decision in a heavy case can be considerable, and the sole decision-maker might not always be on top form, even if the individual's general reputation is strong. There is safety in numbers.

Furthermore, a three arbitrator panel allows each side to select their appointee, the third member being quite insulated from unilateral choice. The party-appointee system can foster (i) a sense that each party has a ‘judge of its choice’; (ii) and a further sense of ‘investment in the arbitration’; and (iii) that (certainly in an international context) the parties’ appointees can help resolve linguistic and cultural differences, and avoid misperceptions. But there can be fissures and inefficiencies created by having more than one arbitrator.