Comparative Guides
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Results: 4 Answers
International Arbitration
8.
The tribunal
8.1
How is the tribunal appointed?
 
UK
The arbitration agreement may stipulate the procedure for appointment of the tribunal, including the procedure for appointing a chair (Section 16(1)).

If there is no such agreement, and:

  • the tribunal is to consist of a sole arbitrator, the sole arbitrator shall be jointly appointed by the parties within 28 days of one party’s written request (Section 16(3));
  • the tribunal is to consist of two arbitrators, each party shall appoint one arbitrator within 14 days of one party’s written request (Section 16(4)); or
  • the tribunal is to consist of three arbitrators:
    • each party shall appoint one arbitrator within 14 days of one party’s written request to do so; and
    • the two so appointed shall forthwith appoint a third arbitrator as the chairman of the tribunal (Section 16(5)).

The parties are free to agree what will happen in the event of the failure of the procedure for the appointment of the arbitral tribunal (Section 18). Where there is no such agreement, the court may exercise certain powers, including “to give directions as to the making of any necessary appointments; to direct that the tribunal shall be constituted by such appointments (or any one or more of them) as have been made; to revoke any appointments already made; and to make any necessary appointments itself” (Section 18(3)).

For more information about this answer please contact: Craig Tevendale from Herbert Smith Freehills
8.2
Are there any requirements as to the number or qualification of arbitrators in your jurisdiction?
 
UK
The parties may agree on the number of arbitrators to form a tribunal and on the qualification of the arbitrators. If there is no such agreement, the tribunal shall consist of one arbitrator (Section 15). There are no default requirements regarding the characteristics of arbitrators.

For more information about this answer please contact: Craig Tevendale from Herbert Smith Freehills
8.3
Can an arbitrator be challenged in your jurisdiction? If so, on what basis? Are there any restrictions on the challenge of an arbitrator?
 
UK
Under Section 24(1) of the Arbitration Act, a party to the arbitration may apply to the court for the removal of an arbitrator where ‘substantial injustice’ has been or will be caused by any of the following:

  • Circumstances exist which give rise to justifiable doubts as to the arbitrator’s impartiality;
  • The arbitrator does not possess the qualifications required by the arbitration agreement;
  • The arbitrator is physically or mentally incapable of conducting the proceedings, or there are justifiable doubts as the arbitrator’s capacity to do so; or
  • The arbitrator has failed or refused to conduct the proceedings properly or efficiently.

If the arbitration is governed by institutional rules which provide the institution with the power to remove an arbitrator, the court shall not exercise its power of removal unless it is satisfied that institutional recourses have first been exhausted (Section 24(2)).

Where an application to remove an arbitrator has been made, the tribunal may continue the arbitral proceedings and make an award while such application is pending (Section 24(3)).

For more information about this answer please contact: Craig Tevendale from Herbert Smith Freehills
8.4
If a challenge is successful, how is the arbitrator replaced?
 
UK
The parties are free to decide the process for replacing an arbitrator who has ceased to hold office. Where there is no such agreement in place (including through institutional rules), the provisions of Sections 16 (procedure for appointment of arbitrators) and 18 (failure of appointment procedure) apply in relation to the filling of the vacancy as in relation to an original appointment (Section 27).

For more information about this answer please contact: Craig Tevendale from Herbert Smith Freehills
8.5
What duties are imposed on arbitrators? Are these all imposed by legislation?
 
UK
In conducting the arbitral proceedings, in its decisions on matters of procedure and evidence and in the exercise of all other powers conferred on it, the tribunal has a general duty to:

  • act fairly and impartially as between the parties, giving each party a reasonable opportunity to present its case and deal with that of its opponent; and
  • adopt procedures suitable to the circumstances of the particular dispute, avoiding unnecessary delay or expense, so as to provide a fair means for the resolution of the matters falling to be determined (Section 33).

Subject to limited exceptions, the tribunal is under an implied duty to maintain the confidentiality of the hearing, the documents generated and disclosed during the arbitral proceedings and the award.

For more information about this answer please contact: Craig Tevendale from Herbert Smith Freehills
8.6
What powers does an arbitrator have in relation to: (a) procedure, including evidence; (b) interim relief; (c) parties which do not comply with its orders; (d) issuing partial final awards; (e) the remedies it can grant in a final award and (f) interest?
 
UK
(a) Procedure, including evidence?

Subject to the right of the parties to agree to any matter, the arbitral tribunal shall decide all procedural and evidential matters (Section 34). These matters include:

  • when and where any part of the proceedings is to be held;
  • the language or languages to be used;
  • whether written statements are required and if so, in what form;
  • which documents or classes of documents should be disclosed between the parties (if any);
  • whether strict rules of evidence should apply regarding the admissibility and relevance of material presented, and the time, manner and form in which such material should be exchanged;
  • whether the tribunal should take the initiative in ascertaining the facts and the law; and
  • whether there should be oral or written evidence or submissions (Section 34(2)).

(b) Interim relief?

Unless otherwise agreed by the parties, the tribunal has the power to grant certain interim measures, including security for costs and measures to preserve evidence (Sections 38 and 39). The parties may also agree to give further powers to the tribunal to grant interim measures, either in the arbitration agreement or by reference to institutional arbitration rules which themselves provide such powers.

The court can grant interim measures in support of arbitration, including in relation to the taking of witness evidence, the preservation of evidence and the granting of interim injunctions (Section 44). However, the court can order interim measures only where the tribunal has no power (eg, where the tribunal has not yet been constituted or where the tribunal lacks the necessary power) or is unable to act effectively (Section 44(5)). In this context, there is some uncertainty as to the impact of emergency and expedited provisions in institutional rules on the ability of the English court to order interim measures. In Gerald Metals SA v Timis [2016] EWHC 2327 (Ch), the English court held that where there is sufficient time for an applicant to obtain relief from an expedited tribunal or emergency arbitrator under the rules, the court has no power to grant urgent relief.

Otherwise, the court may grant ex parte relief where the matter is urgent. In the absence of urgency, the court will require the permission of the tribunal or the written consent of the parties (Sections 44(3) and (4)).

(c) Parties which do not comply with its orders?

If a party fails to comply with any order or directions of the tribunal and cannot show sufficient cause, the tribunal may make a “peremptory order” to the same effect, prescribing an appropriate time limit for compliance, such as the tribunal considers appropriate (Section 41(5)).

If a claimant fails to comply with a peremptory order to provide security for costs, the tribunal may make an award dismissing its claim (Section 41(6)). Otherwise, if a party fails to comply with any other kind of peremptory order, tthe tribunal may:

  • direct that the party in default shall not be entitled to rely upon any relevant allegation or material;
  • draw adverse inferences from the act of non-compliance;
  • proceed to an award based on such materials as have been properly provided to it; and/ or
  • make such order as it thinks fit as to the payment of costs of the arbitration incurred in consequence of the non-compliance (Section 41(7)).

Further, unless otherwise agreed by the parties, the court may make an order requiring a party to comply with a peremptory order made by the tribunal, but only where the applicant has exhausted any arbitral process available (Section 42).

(d) Issuing partial final awards?

Under Section 47 of the Arbitration Act, and unless otherwise agreed by the parties, the tribunal may make more than one award at different times and on different aspects of the case to be determined. The tribunal may, in particular, make an award relating to:

  • an issue affecting the whole claim; or
  • a part only of the claims or cross-claims submitted to it for decision.

(e) The remedies it can grant in a final award?

The parties are generally free to agree on the tribunal’s power to grant remedies (Section 48). Unless the parties have agreed otherwise, the tribunal has the same powers as the English High Court and the county court (Section 105(1)) to order:

  • a party to do or refrain from doing anything;
  • specific performance of a contract (other than a contract relating to land); or
  • rectification, setting aside or cancellation of a deed or other document.

A tribunal does not have the power under English law to award punitive damages or to order imprisonment or the payment of fines.

(f) Interest?

Subject to the parties’ agreement, the tribunal may award simple or compound interest “from such dates, at such rates and with such rests” as it considers meets the justice of the case, both up to the date of the award and between the date of the award and of payment (Section 49).

For more information about this answer please contact: Craig Tevendale from Herbert Smith Freehills
8.7
How may a tribunal seated in your jurisdiction proceed if a party does not participate in the arbitration?
 
UK
Where a respondent fails to participate in arbitration without showing sufficient cause, the tribunal may continue the proceedings without that party and may make an award on the basis of the evidence before it (Section 41(4)). Tribunals will typically give non-participating respondents every opportunity to participate as the case progresses and, mindful of its duties under Section 33(1) of the Arbitration Act, the tribunal may in practice raise points for the claimant to address which would have been available for the respondent had it chosen to participate.

For more information about this answer please contact: Craig Tevendale from Herbert Smith Freehills
8.8
Are arbitrators immune from liability?
 
UK
Arbitrators and their employees and agents are immune for acts and omissions in the discharge or purported discharge of their duties, unless they have been shown to have acted in bad faith. However, an arbitrator may not be immune from any liability incurred by reason of the arbitrator’s resignation (Section 29).

For more information about this answer please contact: Craig Tevendale from Herbert Smith Freehills