Appointment of an Arbitrator
Author: Shatakshi Dixit New Law College, BVDU, Pune
Editor: Diksha Bhasin New Law College, BVDU, Pune
Selecting an arbitrator for one self is a crucial task. The arbitrator selected should be able to understand the issues of the dispute and render a judgment which should be satisfactory and acceptable. It is a big task to access the factors among various arbitrators and often parties are confused which factors to consider. This article will provide an insight to what factors should be considered while appointing an arbitrator.
KEYWORDS– Tribunal, Arbitrator, Factors, Dispute, Judgment.
Litigation and arbitration are two different areas to solve disputes. One of the major differences between the two is that in litigation we do not have an option to choose our tribunal whereas, this is not the case in arbitration. In arbitration, we have to select our own tribunal which can comprehend the issues of the dispute and accordingly render a decision which satisfies both the parties. Most of the institutions only claim their arbitrator to be unbiased and independent, ignoring the other factors which make them more skillful. There are various important factors which enhance the overall output; some of which will be discussed hereunder.
NEED FOR CONSIDERING VARIOUS FACTORS WHILE APPOINTING AN ARBITRATOR-
The work of an arbitrator is not only subjected to deliver judgment. An arbitrator has an active role in the procedure as he has to listen to both the parties and communicate with them along with various witnesses present. All the arbitrators who compose the tribunal also have to interact with each other throughout the proceedings to come to a particular and common solution. Arbitrators cannot be dormant as they have to set the guidelines or the procedure and set the date and time of the proceedings. There are various other important decisions taken by arbitrators like till what extent the issue should be disclosed in front of other people. They also take part in various other things like questioning or cross examination of the parties and witnesses. The presence or availability of the tribunal should also be taken into account as this will affect the amount of focus the arbitrator would provide. There is also a possibility that the party nominating the arbitrator would want him to be in their favor. Thus, to avoid such situations, some factors should be considered to ensure that the appointed arbitrator meets the needs of both, the party and the dispute.
FACTORS TO BE TAKEN INTO CONSDERATION-
Appointment by parties is not the only point which is taken into consideration to reach to a valid appointment. The arbitrators themselves decide whether to accept the appointment or not. There are various factors which arbitrators take into reflection before making such decisions:
AVAILBILITY OF THE ARBITRATOR– Availability of the arbitrator cannot be judged by just seeing the professional schedule of the arbitrator. Availability also refers to the ability to use their skills to perform the duty included in their agenda; this is because there is absence of any concrete procedure established for the smooth functioning of the process of arbitration. The process is subject to vary as per the commands of the arbitrators. Hence, it is advisable to consider the upcoming schedule of the arbitrator before appointing him.
THE LANGUAGE FACTOR– It is an easy job for the arbitrator to use his or her mother tongue when it comes to local arbitration but in internal arbitration, language used by the arbitrators can be a foreign language. This ability is to be inspected by the parties themselves. Checking their Curriculum vitae is an option but correct assessment would be done over an interview. This would ensure an honest evaluation of the arbitrator.
THE INDEPENDENCE AND IMAPARTIALITY– The arbitrator has to perform honestly and supposed to do self analysis of his work, being impartial. He must test himself twice; one should be his self analysis regarding his capacity and ability to carry out his work without any support (independently) and without being biased. Next test should be conducted before the parties to reassure. Moreover, if an arbitrator has to improve his work he should also test himself in front of his peers. This would also increase his reputation, which amount to a great asset for arbitrators.
TERMS OF REMUNERATION– After earning the trust of the parties and reputation in the society, the time comes for remuneration. Remuneration is also one of the most important factors which affect the appointment of an arbitrator. Terms of remuneration should be discussed before the commencement of the procedures. This is because sometimes when the arbitrators do not find a satisfactory remuneration they refuse to take any further proceedings.
CASELOAD ON THE ARBITRATOR SHOULD BE MANAGEABLE– To devote the required time for the dispute, the arbitrator must not be overburdened with many cases. He should have a manageable caseload so that he could allot sufficient time to all of his cases. If the parties select an arbitrator who is burdened with many cases then it may lead to clash of dates and timings between various cases. This will lead to a delay in the proceedings of the dispute and thus, failure in fulfilling the principle of “speedy resolution”.
STRONG MANAGEMENT SKILL – A MUST CRITERIA – Since there is no defined strict procedure given for the smooth functioning of arbitration, this flexibility is to be managed by the arbitrator. The date, time, the people who are required to be present and what time to speak, duration, etc., has to be managed by the arbitrators.
BEFOREHAND POSSESSION OF REQUISITE LEGAL AND PROFESSIONAL EXPERTISE – If the arbitrator selected already possesses the professional knowledge regarding the dispute then it would be very advantageous. In such cases the availability of choosing the arbitrator proves to be very beneficial and time saving. For example- if the dispute is related to oil and gas agency then choosing an arbitrator who is an expert in such a field would save the parties from explaining to them the basic concepts of industry and better delivery of justice can also expected.
NATIONALITY OF THE ABITRATOR SHOULD BE TAKEN INTO CONSIDERATION – When the parties in dispute belong to different countries and if there is a sole arbitrator then it should be checked that the arbitrator does not belong to any of the country, where the parties came from. This is done to eliminate any kind of impartiality. In case of tribunal of more than one arbitrator, parties can appoint an arbitrator from their country. In fact it would be better to include an arbitrator from the country where the party belongs to as it would help in understanding the customs, business practices, etc in a better manner.
It is an ordeal to select an appropriate arbitrator, as it is not at all an easy task. Whereas, a dispute can be solved in a better manner if the selection of the arbitrator is made by minimizing the types of risks which can be pre determined or by selecting the arbitrators according to the needs. This will increase the overall performance and there will be a better chance of success. Best possible results can be achieved if the arbitrators keep their focus on the reason of their appointment and use their professional skills for the same, so that the result achieved is reasonable, satisfactory, effective and legally conclusive in nature.