BY JACOB MUTEVEDZI
Generally, any natural person who has legal capacity is eligible for appointment as an arbitrator. In contemporary times, however, to effectively deliver the advantages of arbitration, commercial arbitrators must be possessed of certain qualities, knowledge and skills. Often, the benefits expected of arbitration, such as expedition, economy and justice are forfeited on account of an arbitrator’s lack of competence. Hence, it has been said that a fine arbitrator is schooled not only in the “science” of arbitration but in the “art” of it.
Whether the arbitration is domestic or international, there are three important requirements one must satisfy to be considered a suitable candidate. These vital requirements are set out in Article 11 (5) of the Model Law as follows: (i) the qualifications imposed by the parties in their agreement; (ii) independence of the arbitrator; and (iii) impartiality of the arbitrator.
In addition to the requirements specified under the Model Law, an arbitrator should be endowed with special qualities to enable him to effectively discharge his or her mandate. These qualities include, among others, adequate experience, exposure and sufficient education and practical training.
Exposure and experience
Wide commercial and social exposure accompanied by an open mind are invaluable characteristics of a great arbitrator. In fact, the above-mentioned attributes are priceless in the context of an international arbitration. In their famous text, Law and Practice of International Commercial Arbitration, Sweet & Maxwell (1996, 168) Redfern and Hunter reiterate that an international arbitrator must have an acute awareness of global trade relations and demonstrate an equally sharp awareness of different systems and traditions. The highly-regarded Lalive in ICC Publication No. 412 (pages 317 and 350) states that, in his handling of the arbitration and in the nature of his awards, an international arbitrator is expected to:
“show proof of a comparative and comparist mind, open to legal pluralism, to various cultures various political and social systems. Arbitration will hardly be regarded as a suitable way of solving the case if it is to be administered by an arbitrator who is imbued with the ways of thinking and prejudices of another culture”.
Education and training
An international arbitrator’s education and training is, undoubtedly, his most important asset. In addition to his training and education in his professional field, an arbitrator must be experienced in the law and practice of arbitration. The qualities of the appointed arbitrator lend piquancy, acceptability and good repute to the arbitral process. An arbitrator without the requisite practical experience cannot effectively discharge his mandate. Continuous professional development and training initiatives are crucial to the eligibility of individuals as arbitrators.
Parties to arbitration are entitled to prescribe the qualifications they require of a person who will sit on the tribunal. Contrary to popular belief, lawyers are not exclusively eligible for appointment as arbitrators. In practice, it is often pragmatic to appoint an arbitrator with a specialised knowledge of the subject matter.
Consequently, depending on the nature of the dispute, parties may stipulate the appointment of an “actuary” or “lawyer” or “accountant” or some other professional to be the arbitrator. If a nominee falls short of the qualifications stipulated by the parties his appointment is invalid. Resultantly, any award made by such an unqualified arbitrator is void. It is important to note that the preferred qualifications may be expressed in a positive form as already indicated or in a negative form. For instance it may be stipulated that the arbitrator “shall not be a civil engineer”. Mustill & Boyd in their text, Commercial Arbitration, (2nd Edition 1989), Butterworths at page 247 state that: “He (the arbitrator) must possess all the qualifications and none of the disqualifications prescribed by the arbitrator Agreement.”
Independence as a notion, involves questions arising from the relationship between an arbitrator and one of the parties to the arbitration. The relationship could be financial or otherwise. In international arbitration, the term is often used to describe the arbitrator’s lack of a connection to any of the parties, counsels or co-arbitrators.
An independent arbitrator is one who is not susceptible to interference, or to perform under pressure from, or reliant on a party because of the relationship in question. Objectively, an arbitrator should have no direct professional relationship with one of the parties or their lawyer. Moreover, he should have no financial interest in the outcome of the arbitration. Subjectively, to manage perceptions, an arbitrator should not be of the same nationality as that of either party where he is a sole arbitrator in an international arbitration. Article 11 (5) of the Model Law underlines the prudence of appointing an arbitrator of a nationality different from that of any of the parties, in the case of a sole or third arbitrator. The rationale is to pre-empt the suspicion of bias or partiality arising from nationality.
Impartiality, as a concept, is concerned with the bias of an arbitrator either in favour of one of the parties or in relation to the issues in dispute. It involves, mainly, a state of mind and this makes it considerably difficult to measure. However, partiality is easy to establish if, for example, an arbitrator applies a procedure which is inconsistent with notions of due process, such as equality of treatment and observation of rules of natural justice.
If the requirements of independence and impartiality are not observed the appointment of an arbitrator is vulnerable to challenge. In practice common grounds for challenging an arbitrator have concerned an arbitrator or his law firm having prior contact with one of the parties to the arbitration. Other common grounds involve parties not receiving proper notice of appointing an arbitrator; an arbitrator rendering expert opinion in a previous case involving one of the parties and an arbitrator being involved in the decision on a challenge in another arbitration involving one of the parties.
Finally, the amount and quality of training received by an arbitrator cannot be overemphasized.
- Jacob Mutevedzi is a commercial lawyer and partner at Clairwood Chambers Attorneys and writes in his personal capacity. He can be contacted at +263775987784 or at firstname.lastname@example.org