“Well, did you choose the right arbitrator?”

Written by Kome Oruade

A successful arbitration always requires the arbitral tribunal’s adroit handling of the proceedings. This is more so because tribunal’s composition often determines the success or failure of the proceedings.  Hence, J.F. Lalive opines that “[t]he choice of the persons who compose the arbitral tribunal is vital and often the most decisive step to an arbitration. It has rightly been said that arbitration is only as good as the arbitrator.”[1]

Leading authors in arbitration, Redfern and Hunter, agree with this position. The authors hold the view that after the decision to refer a dispute to arbitration has been made, the choice of the arbitrator becomes critical. The life of the arbitration depends on the arbitrators. “It is above all, the quality of the arbitral tribunal that makes or breaks the arbitration…”[2]

Parties that opt for arbitration often perceive it as better suited for resolving business disputes when compared to litigation. Arbitration is more efficient; the decision is binding on the parties, (arbitral awards can only be challenged on limited grounds); and parties have a right to choose their arbitrators. It is this last quality, the parties’ ability to choose the arbitrators, that “makes or breaks the arbitration”[3]. “Get it wrong and the arbitration can be beset with problems”[4]. Yet, the parties have little or no guidance on this important subject.

Often, the arbitration agreement authorizes parties to appoint their arbitrators. In this case, well-informed parties have the advantage of cherry-picking arbitrators with experience and expertise necessary for the dispute in question. But where any party fails to make the required appointment, the mandate shifts to an appointing authority (if the parties have designated one) or the court.  In this instance, the parties lose the right of choosing a ‘judge’ with the appropriate characteristics for a given dispute.  The court-chosen arbitrator may or may not be right for the arbitration. (This is often due to lack of information to aid the court in appointing a candidate.) Thus where possible, parties should assist the court in reaching a decision by taking advantage of the list-procedure under Articles 6 and 7 of the First Schedule to the Arbitration and Conciliation Act, 1998.

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[1] J.F. Lalive, ‘Melanges en l’honneur de Nicholas Valticos: Droit et Justice’ (1989), quoted in Lord David Hacking, ‘Arbitration only as good as its Arbitrators’, International Arbitration and International Commercial Law: Synergy, Convergence and Evolution, 2011, 223, 224, Link, (accessed 8 April 2018) (Italics mine).

[2] Nigel Blackaby and Constantine Partasides with Alan Redfern and Martin Hunter, Redfern and Hunter on International Arbitration, 5th ed., Oxford University Press, 246, (Italics mine).

[3] Redfern and Hunter, Ibid.

[4] Lucy Greenwood, Global Arbitration Review, quoted in Lord David Hacking, ‘Arbitration only as good as its Arbitrators’, International Arbitration and International Commercial Law: Synergy, Convergence and Evolution, 2011, 223, 224, Link, (accessed 8 April 2018).

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