“Arbitration is the will of the parties”, a very important slogan that shows the relation between arbitration and the free choice of the parties to freely opt for arbitration for the settlement of their dispute(s).
This is clearly shown in the right of the parties to appoint the arbitrators or, on the contrary, to challenge their appointment due to certain instances that could affect the performance of the arbitratorarbitration process. The good known management principle of “hire and fire” applies here.
With reference to the appointment of the parties to the arbitrators, the UNICITRAL model law on international commercial arbitration provides for all necessary details regarding the appointment of the arbitrators, taking in consideration that this is a very sensitive and delicate technical step that boosts steady and fast successful arbitration.
Likewise, the rules also specifically refer to the grounds of the instances regarding the “challenge for arbitrators”. In this connection, when a person is approached in connection with his/her possible appointment as an arbitrator, heshe shall disclose any circumstances that are likely to give rise to justifiable doubts as to his/her impartiality or independence.
Impartiality and independence of the arbitrators are presumed as the main pillars in the arbitration profession. Any arbitrator, from the time of hisher appointment and throughout the arbitral proceedings, shall without any delay disclose any such circumstances related to impartiality and independence to the parties, unless they have already been informed of such instances by him.
An arbitrator shall always be free from any pressures or influence from the parties, as long as heshe is doing the role in honesty within the required professional and ethical standards. However, an arbitrator may be challenged only if circumstances exist to give rise to justifiable doubts as to hisher impartiality or independence, or if heshe does not possess the qualifications agreed to by the parties.
A party may challenge an arbitrator appointed by him, or in whose appointment heshe has participated, only for reasons of which heshe becomes aware after the appointment has been made. By all means, this authority by any party shall be exercised very carefully and far away from personal differences or grudges.
Regarding the challenge procedure, the parties are free to agree on a procedure for challenging an arbitrator, subject to and according to certain provisions as provided for in the rules. Failing such agreement, a party who intends to challenge an arbitrator shall, within fifteen days after becoming aware of the constitution of the tribunal or after becoming aware of any other circumstances, send a written statement of the reasons for the challenge to the arbitral tribunal. Unless the challenged arbitrator withdraws from his office or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge.
If a challenge under any procedure agreed upon by the parties or under the mentioned procedures in the rules, is not successful, the challenging party may request within thirty days after having received notice of the decision rejecting the challenge, the court or other authority specified in the rules, to decide on the challenge, which decision shall be subject to no appeal. While such a request is pending, the arbitral tribunal, including the challenged arbitrator, may continue the arbitral proceedings and make an award.
No doubt, certain facts may emerge that make the challenge very necessary. Therefore, the rules cover such challenge and how to go within. This could be very essential to achieve justice and equity and to keep the arbitration profession clean form those who may be working to achieve personal gains at the cost of justice.
