F. UNCITRAL Exp - Appointment of the arbitrator

UNCITRAL Exp
UNCITRAL Expedited Arbitration Rules (2021)

ZivilrechtZivilprozessrecht

Article 8 addresses how a sole arbitrator is to be appointed in expedited arbitration. If the parties agreed on more than one arbitrator, articles 9 and 10 of the UARs apply.

Paragraph 1 encourages the parties to reach an agreement on the sole arbitrator.

Paragraph 2 provides a mechanism in the absence of an agreement by the parties on a sole arbitrator. Any party may request the engagement of the appointing authority 15 days after a proposal for the appointment of a sole arbitrator has been received by all other parties. This is shorter than the 30 -day time frame in article 8(1) of the UARs. The involvement of the appointing authority can only be triggered by a request by one of the parties.

Considering that the claimant is required to include a proposal for the appointment of a sole arbitrator in the notice of arbitration (see article 4(1) and para. 27 above), if there is no agreement within 15 days after the respondent’s receipt of the notice of arbitration, the claimant would be able to make a request to the appointing authority, if previously agreed by the parties. If a proposal is not included in the notice, the 15-day time frame would commence when the proposal is made.

It should, however, be noted that article 5(1) provides the respondent 15 days to respond to the notice of arbitration, which should also include a response to the claimant’s proposal for the appointment of a sole arbitrator. Therefore, it would be prudent for the claimant to consider the response before engaging with the appointing authority. If the respondent foresees that an agreement cannot be reached, it could also engage with the appointing authority at the same time it communicates the response to the notice of arbitration.

If there is no agreement by the parties on the appointing authority and the sole arbitrator 15 days after the receipt of the notice by the respondent, any party may request the Secretary-General of the PCA to designate the appointing authority or to serve as appointing authority in accordance with article 6(1). In the latter case, a party can also request the appointment of a sole arbitrator in accordance with article 8(2), which would likely facilitate a speedy constitution of the arbitral tribunal.

Article 8(2) of the UARs, which mentions a list-procedure for the appointment of a sole arbitrator, also applies to expedited arbitration.

In exercising the functions under the Expedited Rules, the appointing authority and the Secretary-General of the PCA should be mindful of article 6(5) of the UARs, which requires them to give the parties and the arbitrators (if appointed and when appropriate) an opportunity to present their views. Any proposal made and comments thereon by the parties on the appointment of a sole arbitrator should thus be taken into account.

When appointing an arbitrator for expedited arbitration, the appointing authority shall make an effort to secure not only an independent and impartial arbitrator in accordance with article 6(7) of the UARs but also an arbitrator who is available and ready to conduct the arbitration expeditiously in accordance with article 3(2) of the Expedited Rules. The appointing authority may wish to require the prospective arbitrator to make a statement as provided in the annex to the Expedited Rules.

The time frames in article 9 of the UARs on the constitution of a three-member arbitral tribunal apply to expedited arbitration. However, parties may wish to reduce the time frames therein to expedite the constitution of a three-member arbitral tribunal.

Import: 21.11.2024