Arbitrators and Appointments

After the enactment of the Brazilian Arbitration Act of 1996 (BAA 1996) and the growth of the Brazilian economy, Brazil has become an important venue for arbitration in Latin America. This note considers the framework for arbitration in Brazil, as set out by the BAA 1996, taking into consideration some applicable provisions of the Civil Code of Procedure and recent case law. It deals with all aspects of arbitration by describing the main features of a Brazilian arbitral process, from the preparation of a valid arbitration agreement to the enforcement of arbitral awards.

A guide to the key issues that arise when allegations of bribery, corruption and money laundering affect international arbitration proceedings.

Some arbitration agreements require arbitrators to be chosen and appointed by the parties. But how do you actually go about appointing them? This practice note provides practical guidance on the steps that must be taken when appointing an arbitrator, including the first approach to a potential arbitrator and confirmation of appointment.

A brief overview of the procedural powers which may be available to international arbitration tribunals.

An example claim form seeking an order to remove an arbitrator under section 24 of the English Arbitration Act 1996. This document is only available in MS Word format. Click here to view it.

This case study provides an example of an application to the English court for an order removing an arbitrator under section 24 of the Arbitration Act 1996.

A notice appointing a party-nominated arbitrator.

This document is available in MS Word format. Click here to view it.

This document is available in MS Word format. Click here to view it.

This is an example Answer to a Request for Arbitration under the ICC Rules 2012. The Answer includes a counterclaim. This document is available in MS Word format. Click here to view it.

This is an example Request for Arbitration under the ICC Rules 2012 and is available in MS Word format. Click here to view it.

This case study illustrates the commencement of an ICC arbitration under the 2012 Rules. It offers guidance on both: How to draft and file a Request for Arbitration. How to respond to the Request with an Answer, and (where appropriate), how to file a counterclaim.

This is an example Notice of Arbitration under the Arbitration Rules of the Singapore International Arbitration Centre and is available in MS Word format. Click here to view it.

This is an example covering letter to the Registrar of the Singapore International Arbitration Centre (SIAC), enclosing a Response to Notice of Arbitration under the Arbitration Rules of the SIAC. This document is available in MS Word format. Click here to view it.

This case study provides a worked example of the commencement of an international arbitration under the Arbitration Rules of the Singapore International Arbitration Centre. The case study consists of a Notice of Arbitration, together with a drafting note and a covering letter.

An article highlighting the key arbitration-related developments in France in 2012/2013. 

An article highlighting the key arbitration-related developments in Sweden in 2012/2013. 

This article summarises the results of the 2012 International Arbitration Survey: Current and Preferred Practices in the Arbitral Process.

A Q&A guide to arbitration law and practice in Hong Kong. The country-specific Q&A guide provides a structured overview of the key practical issues concerning arbitration in this jurisdiction, including any mandatory provisions and default rules applicable under local law, confidentiality, local courts' willingness to assist arbitration, enforcement of awards and the available remedies, both final and interim. To compare answers across multiple jurisdictions visit the Arbitration procedures and practice Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to arbitration. For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitration-mjg.

This chapter provides an overview of the 2012 revisions to the Swiss Rules of International Arbitration and the ICC Rules of Arbitration. In particular, it: summarises the main amendments to the two sets of rules that deal with efficiency considerations; examines mechanisms aimed at complex arbitrations; and discusses provisions relating to the emergency arbitrator. This article is part of the PLC Arbitration multi-jurisdictional guide. For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitration-mjg.

A Q&A guide to arbitration law and practice in Indonesia. The country-specific Q&A guide provides a structured overview of the key practical issues concerning arbitration in this jurisdiction, including any mandatory provisions and default rules applicable under local law, confidentiality, local courts' willingness to assist arbitration, enforcement of awards and the available remedies, both final and interim. To compare answers across multiple jurisdictions visit the Arbitration procedures and practice Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to arbitration. For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitration-mjg.

A Q&A guide to arbitration law and practice in Sweden. The country-specific Q&A guide provides a structured overview of the key practical issues concerning arbitration in this jurisdiction, including any mandatory provisions and default rules applicable under local law, confidentiality, local courts' willingness to assist arbitration, enforcement of awards and the available remedies, both final and interim. To compare answers across multiple jurisdictions visit the Arbitration procedures and practice Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to arbitration. For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitration-mjg.

A Q&A guide to arbitration law and practice in the United States. The country-specific Q&A guide provides a structured overview of the key practical issues concerning arbitration in this jurisdiction, including any mandatory provisions and default rules applicable under local law, confidentiality, local courts' willingness to assist arbitration, enforcement of awards and the available remedies, both final and interim. To compare answers across multiple jurisdictions visit the Arbitration procedures and practice Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to arbitration. For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitration-mjg.

A Q&A guide to arbitration law and practice in Australia. The country-specific Q&A guide provides a structured overview of the key practical issues concerning arbitration in this jurisdiction, including any mandatory provisions and default rules applicable under local law, confidentiality, local courts' willingness to assist arbitration, enforcement of awards and the available remedies, both final and interim. To compare answers across multiple jurisdictions visit the Arbitration procedures and practice Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to arbitration. For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitration-mjg.

A Q&A guide to arbitration law and practice in Canada. The country-specific Q&A guide provides a structured overview of the key practical issues concerning arbitration in this jurisdiction, including any mandatory provisions and default rules applicable under local law, confidentiality, local courts' willingness to assist arbitration, enforcement of awards and the available remedies, both final and interim. To compare answers across multiple jurisdictions visit the Arbitration procedures and practice Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to arbitration. For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitration-mjg.

A Q&A guide to arbitration law and practice in Egypt. The country-specific Q&A guide provides a structured overview of the key practical issues concerning arbitration in this jurisdiction, including any mandatory provisions and default rules applicable under local law, confidentiality, local courts' willingness to assist arbitration, enforcement of awards and the available remedies, both final and interim. To compare answers across multiple jurisdictions visit the Arbitration procedures and practice Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to arbitration. For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitration-mjg.

A Q&A guide to arbitration law and practice in Germany. The country-specific Q&A guide provides a structured overview of the key practical issues concerning arbitration in this jurisdiction, including any mandatory provisions and default rules applicable under local law, confidentiality, local courts' willingness to assist arbitration, enforcement of awards and the available remedies, both final and interim. To compare answers across multiple jurisdictions visit the Arbitration procedures and practice Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to arbitration. For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitration-mjg.

A Q&A guide to arbitration law and practice in India. The country-specific Q&A guide provides a structured overview of the key practical issues concerning arbitration in this jurisdiction, including any mandatory provisions and default rules applicable under local law, confidentiality, local courts' willingness to assist arbitration, enforcement of awards and the available remedies, both final and interim. To compare answers across multiple jurisdictions visit the Arbitration procedures and practice Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to arbitration. For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitration-mjg.

A Q&A guide to arbitration law and practice in Japan. The country-specific Q&A guide provides a structured overview of the key practical issues concerning arbitration in this jurisdiction, including any mandatory provisions and default rules applicable under local law, confidentiality, local courts' willingness to assist arbitration, enforcement of awards and the available remedies, both final and interim. To compare answers across multiple jurisdictions visit the Arbitration procedures and practice Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to arbitration. For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitration-mjg.

A Q&A guide to arbitration law and practice in the Russian Federation. The country-specific Q&A guide provides a structured overview of the key practical issues concerning arbitration in this jurisdiction, including any mandatory provisions and default rules applicable under local law, confidentiality, local courts' willingness to assist arbitration, enforcement of awards and the available remedies, both final and interim. To compare answers across multiple jurisdictions visit the Arbitration procedures and practice Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to arbitration. For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitration-mjg.

A Q&A guide to arbitration law and practice in Switzerland. The country-specific Q&A guide provides a structured overview of the key practical issues concerning arbitration in this jurisdiction, including any mandatory provisions and default rules applicable under local law, confidentiality, local courts' willingness to assist arbitration, enforcement of awards and the available remedies, both final and interim. To compare answers across multiple jurisdictions visit the Arbitration procedures and practice Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to arbitration. For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitration-mjg.

The table below provides a high-level summary of the enforceability of arbitral awards in 26 jurisdictions across the globe. This table is part of the PLC multi-jurisdictional guide to arbitration. For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitration-mjg.

This chapter outlines how the China International Economic and Trade Arbitration Commission (CIETAC) Arbitration Rules 2012 differ from the previous rules governing CIETAC, and considers the practical implications of the changes. This article is part of the PLC Arbitration multi-jurisdictional guide. For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitration-mjg.

An article highlighting the key arbitration-related developments in Hong Kong in 2011.

The International Chamber of Commerce has launched its revised Rules of Arbitration, which will come into force on 1 January 2012. The new rules are the product of over two years of review and the revisions are mainly "evolutionary" in that they reflect developments in arbitration practice and procedure since 1998, when the rules were last updated.

This article sets out the challenges faced when arbitrating in Africa.

An article highlighting the key arbitration related developments in the Russian Federation in 2010. 

An article which analyses the English Court of Appeal's decision in Jivraj v Hashwani [2010] EWCA Civ 712 and explains the common misconceptions surrounding the case.

An examination of the differences between arbitration and litigation and the particular advantages that arbitration offers.

On 19 April 2013, the Financial Industry Regulatory Authority (FINRA) announced its intention to make the selection of arbitration panels easier.

We have published a case study which provides an example of an application to the English court for an order removing an arbitrator under section 24 of the English Arbitration Act 1996.

In a French language decision dated 9 October 2012, the Swiss Supreme Court confirmed its rigorous approach to the formal requirements for challenging an arbitrator for lack of independence and impartiality.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel) and Daniel J. Hickman (Associate), White & Case LLP The United States Court of Appeals for the Fifth Circuit has held that a petitioner waived the evident partiality objection to vacate an arbitral award by failing to raise potential arbitrator bias concerns during the arbitration proceedings.

PD Dr. Nathalie Voser (Partner) and Anya George (Associate), Schellenberg Wittmer (Zurich) In a French-language decision of 27 June 2012, the Swiss Supreme Court dealt with the issue of the impartiality of arbitrators who must re-examine a case remanded to them after a successful challenge to an award. It found that unless there are particular reasons to doubt their impartiality, cases should be remanded to the original arbitrators. The decision also further defined the permissible scope of re-examination.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate) and Daniel Hickman (Associate), White & Case LLP The United States Court of Appeals for the Fifth Circuit has reversed a district court’s confirmation of an arbitral award where the arbitrator authorised class arbitration. The court found that the arbitrator exceeded his authority by allowing class arbitration with no contractual basis for doing so.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate) and Daniel Hickman (Associate), White & Case LLP The United States Court of Appeals for the Fifth Circuit has denied a motion to vacate an arbitral award based on allegations of an arbitrator exceeding his powers, concluding that a clerical error did not constitute a violation of the agreed system of arbitration and that the arbitrator’s award included adequate reasoning.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate) and Daniel Hickman (Associate), White & Case LLP The United States Court of Appeals for the District of Columbia has granted a motion to vacate an arbitral award against the Republic of Argentina, finding that the arbitral panel exceeded its authority by ignoring the requirements of the parties’ agreement.

In Republic of Mauritius v United Kingdom (Reasoned Decision on Challenge, 30 November 2011), an arbitral tribunal constituted under the United Nations Convention on the Law of the Sea 1982 considered a challenge to the arbitrator appointed by the UK.

Abby Cohen Smutny (Partner) and Lee A. Steven (Counsel), Leah Witters (Associate), White & Case LLP The New York Court of Appeals has relied on the Second Circuit’s reasonable person standard to find no evident partiality where a party alleged that the arbitrator failed to disclose relationships that affected his impartiality.

Ana Morales (Associate) and Silvia Martinez (Associate), Hogan Lovells International LLP The Court of Appeal of Madrid has recently issued two new decisions on annulment actions, dealing with, among other things, allegations of alleged lack of independence and impartiality of an arbitrator. The decisions provide important lessons for both parties and arbitrators.

Natalia Belomestnova (Senior Associate), Goltsblat BLP In a decision of 24 May 2011, which only recently became available, the Russian Supreme Commercial Court has issued its final ruling in Sberbank v Business-Lada, Lada-Forward LLC et al (case N A55-11220/2010). The court annulled the judgments of the lower courts that enforced the arbitral awards and rejected the claimant’s request for enforcement because of the suspicion of partiality.

PLC Arbitration has published a new Article, The challenges of arbitrating in Africa, authored by the Chairman of Africa Legal Network and Stephenson Harwood. The article sets out the challenges faced when arbitrating in Africa.

Stephan Wilske (Partner) and Claudia Krapfl (Associated Partner), Gleiss Lutz In a decision dated 17 December 2010, but only recently published, the Higher Regional Court of Munich clarified the relevant criteria for a decision on the termination of an arbitrator’s mandate.

Andrew Robertson (Partner), Piper Alderman   The Australian government has, through the International Arbitration Regulations 2011 (Regulations), prescribed the Australian Centre for International Commercial Arbitration (ACICA) as the default nominating authority under the recently amended International Arbitration Act 1974 (IAA). The IAA amendments came into force in July 2010 (see Legal update, Australia advances arbitral law reform) and the Regulations came into force on 2 March 2011.

Publication of Practice note, Challenges to arbitrators. (Free access.)

Stephan Wilske (Partner) and Claudia Krapfl (Associated Partner), Gleiss Lutz In its decision dated 17 August 2010, only recently published, the Higher Regional Court of Munich clarified the requirements for a successful challenge of an arbitrator, applying section 1037 of the German Code of Civil Procedure (Zivilprozessordnung, ZPO), which stipulates that arbitrators are not obliged to issue a "declaration of independence" without a particular reason.

PD Dr. Nathalie Voser (Partner) and Sonja Stark-Traber (Associate), Schellenberg Wittmer (Zurich) In a German-language decision dated 22 June 2010 and published on 20 September 2010, the Swiss Supreme Court acceded to an impartiality challenge to a sole arbitrator in a domestic arbitration case on the ground that the arbitrator had an indirect personal interest in the outcome of the arbitration proceedings.

Devan Parikh, Senior Advocate and Arbitrator, India The Indian Supreme Court has recently clarified the legal position with regard to the appointment of directors and employees of companies and government enterprises as arbitrators.

Alvin Yeo, Senior Counsel (Senior Partner) and Andre Maniam (Head of Litigation & Dispute Resolution Department), WongPartnership LLP The Singapore High Court has held that when a party to an arbitration puts forward material arguments or submissions to support its case and an arbitrator fails to consider those submissions in the course of making a decision, whether mistakenly or not, the arbitrator will be in breach of natural justice.

Irina Nazarova (Managing Partner), EnGarde Attorneys at Law In December 2009, the law "On Principles of Prevention and Counteracting Corruption" was amended and the entry into force postponed until 1 April 2010.

Publication of a Standard document, Appointment of Party-nominated Arbitrator: US Notice.

Alejandro López Ortiz (Senior Associate) and Silvia Martínez (Junior Associate), Lovells LLP In a recently published judgment of 22 June 2009, the Spanish Supreme Court reviewed existing case law on arbitrators' liability under the former and current Spanish Arbitration Acts and set out a five-stage test for establishing liability.

Maxim Kulkov (Partner), Goltsblat BLP In Erick van Egeraat Associated Architects B.V.(Netherlands) v Capital Croup LLC (Russia), No V 087/2006, the Court of Cassation of the Moscow Federal Circuit rejected claims that an arbitrator was biased as a result of having spoken at the same conference as the counsel representing the winning claimant. The claim of bias was not established on the evidence and in any event had been raised too late.

An update on the ICC Court requesting arbitrators to disclose details of their availability and independence.

Olof Ragmark (Partner), Delphi In Soyak International Construction and Investment Inc. ("Soyak") v. Hober, Kraus and Melis, the Swedish District Court considered, but did not need to decide, whether fees which had been "finally determined" by the SCC pursuant to its Arbitration Rules were susceptible to challenge in court.

An update on the ABA's draft paper entitled "Disclosures for Arbitrators in Commercial Disputes: A Checklist".

An update on the American Bar Association's latest draft paper on arbitrator disclosures.

The disclosure subcommittee for arbitration of the American Bar Association's (ABA) Dispute Resolution Section has issued a revised draft of its paper about arbitrator disclosures with respect to potential conflicts of interest. The draft sets out recommended "best practice" disclosure guidelines to be used by arbitrators, and includes a disclosure checklist and commentary for arbitrators to use to identify and disclose relationships and circumstances that may pose partiality issues. The subcommittee has asked for comments by 29 February 2008. It aims to present the revised draft to the ABA Dispute Resolution Section Council on 2 April 2008. See here for a copy of the draft. Source: Transnational Dispute Management

An informal Working Group of international arbitration practitioners has developed a draft evaluation form for parties to provide feedback to arbitrators on the conduct of arbitration proceedings and has published a report summarising the development of the form and its possible applications.The group was formed through the OGEMID (Oil, Gas, Energy, Mining, Infrastructure and Investments Disputes) discussion forum which identified a need for a feedback mechanism to inform arbitrators of the value of their services, to reinforce positive behaviour and provide objective information to allow arbitrators to improve future performance. There is no intention to use the feedback to create a ranking system.The form focuses on party satisfaction with the arbitrators' conduct of the proceedings. The questions cover common party processes of fairness and efficiency and ask, for example, whether the conduct met their expectations, whether the tribunal acted professionally, dealt promptly and fairly with difficult issues and effectively managed the arbitration.The group identified two possible applications of the form. It could be used informally by arbitrators and parties, on a confidential basis without further publication. Alternatively, in view of the difficulties in accessing information about an arbitrator's reputation and experience, the data could be used by institutions or other neutral third parties, who could publish the information on their websites and/or make it a

An internationally constituted committee of the CIArb has just published its "Guideline on the Interviewing of Prospective Arbitrators" following a wide international consultation. Hew E Dundas, President of the CIArb, comments: "... By following a recognised Guideline, the risk of failure or challenge is significantly reduced and parties can exercise due autonomy in choosing their arbitrator ... " The Guideline forms part of a set of Guidelines dealing with issues such as multi-party cases, jurisdictional issues and security for costs. The Guidelines are international in scope and cover a selected number of jurisdictions, both common and civil law and including Model Law jurisdictions. They are intended to be extremely practical and identify key areas where there may be a difference in approach between arbitrators in different jurisdictions. For further information see Practice note, selection of party-nominated arbitrators. Source: CIArb website

Drafting notes to accompany the claim form on an application for an order to remove an arbitrator under section 24 of the English Arbitration Act 1996.

These are drafting notes to accompany the example Answer to the Request for Arbitration under the ICC Rules 2012.

These are drafting notes to accompany the example Notice of Arbitration under the arbitration rules of the Singapore International Arbitration Centre.

In Timegate Studios, Inc. v. Southpeak Interactive, LLC, No. 12-20256, 2013 WL 1437710 (5th Cir. Apr. 9, 2013), the Fifth Circuit considered whether an arbitrator had exceeded his authority when issuing an unconventional remedy in furtherance of the "essence" of the underlying agreement.

The US Court of Appeals for the Sixth Circuit has affirmed a District Court's order vacating an arbitration award due to evident partiality of an arbitrator.

In French-language decision 4A_538/2012 of 17 January 2013, the Swiss Supreme Court provided clarification regarding the scope for challenging awards under the Swiss Private International Law Act (PILA) on the ground of improper constitution of the arbitral tribunal, as well as regarding the arbitrators' duty to warn parties before rendering an award based on an unexpected reasoning.

The Supreme Court has unanimously allowed the appeal in Jivraj v Hashwani [2011] UKSC 40, finding that arbitrators are not employees within the ambit of the Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660).

In Martin Dawes v Treasure & Son Ltd [2010] EWHC 3218 (TCC), the High Court ruled that an arbitrator was not functus officio and had jurisdiction to consider further claims referred to him.

In Noble Denton Middle East and another v Noble Denton International Ltd [2010] EWHC 2574 (Comm), the High Court considered the standard of proof required in an application for the appointment of an arbitrator under section 18 of the Arbitration Act 1996.

An update on Participaciones Inversiones Portuarias SARL v Gabonese Republic (ICSID Case No ARB/08/17), which considered issues of impartiality of arbitrators in ICSID arbitration.

Bree Farrugia (Solicitor Advocate), Herbert Smith LLP In a judgment overturning the French Court of Appeal, the Cour de Cassation in Liquidator of Jean Lion et Compagnie (SELAFA MJ) v La Société International Company for Commercial Exchanges Income, Cass. 1re civ., 6 May 2009, Case no. 08-10.281 has confirmed the limits of an arbitral tribunal's competence when separate collective proceedings have been commenced against one of the parties.