Arbitral tribunal - AbsoluteAstronomy.com

Arbitrator redirects here.

An arbitral tribunal (or arbitration tribunal) is a panel of one or more adjudicator

Adjudicator

An adjudicator is someone who presides, judges and arbitrates during a formal dispute. The term adjudicator essentially means a judge, without invoking the legal term. An ombudsman is a type of adjudicator in local government in the United Kingdom....

s which is convened and sits to resolve a dispute by way of arbitration

Arbitration

Arbitration, a form of alternative dispute resolution , is a legal technique for the resolution of disputes outside the courts, where the parties to a dispute refer it to one or more persons , by whose decision they agree to be bound...

. The tribunal may consist of a sole arbitrator, or there may be two or more arbitrators, which might include either a chairman or an umpire. The parties to a dispute are usually free to agree the number and composition of the arbitral tribunal. In some legal systems, an arbitration clause

Arbitration clause

An arbitration clause is a commonly used clause in a contract that requires the parties to resolve their disputes through an arbitration process...

which provides for two (or any other even number) of arbitrators is understood to imply that the appointed arbitrators will select an additional arbitrator as a chairman of the tribunal, to avoid deadlock

Deadlock

A deadlock is a situation where in two or more competing actions are each waiting for the other to finish, and thus neither ever does. It is often seen in a paradox like the "chicken or the egg"...

arising. Different legal systems differ as to how many arbitrators should constitute the tribunal if there is no agreement.

Arbitral tribunals are usually constituted (appointed) in two types of proceedings:

ad hoc
Ad hoc
Ad hoc is a Latin phrase meaning "for this". It generally signifies a solution designed for a specific problem or task, non-generalizable, and not intended to be able to be adapted to other purposes. Compare A priori....

arbitration proceedings are those in which the arbitrators are appointed by the parties without a supervising institution, relying instead on the procedural law and courts of the place of arbitration to resolve any differences over the appointment, replacement, or authority of any or all of the arbitrators; and
institutional arbitration proceedings are those in which the arbitrators are appointed under the supervision of professional bodies providing arbitration services, such as the New York-based American Arbitration Association
American Arbitration Association
The American Arbitration Association is a private enterprise in the business of arbitration, and one of several arbitration organizations that administers arbitration proceedings. The AAA also administers mediation and other forms of alternative dispute resolution. It is headquartered in New York...

(which conducts international proceedings through its Dublin-based branch, the ICDR), the LCIA
London Court of International Arbitration
The London Court of International Arbitration is an institution based in London, United Kingdom providing the service of international arbitration....

in London
London
London is the capital city of :England and the :United Kingdom, the largest metropolitan area in the United Kingdom, and the largest urban zone in the European Union by most measures. Located on the River Thames, London has been a major settlement for two millennia, its history going back to its...

or the ICC
International Chamber of Commerce
The International Chamber of Commerce is the largest, most representative business organization in the world. Its hundreds of thousands of member companies in over 130 countries have interests spanning every sector of private enterprise....

in Paris
Paris
Paris is the capital and largest city in France, situated on the river Seine, in northern France, at the heart of the Île-de-France region...

. Although these institutions (and many others) are headquartered in their respective cities, they are capable of supervising the appointment of arbitral tribunals in nearly any country, avoiding the need for the parties to involve local courts and procedures in the event of disagreement over the appointment, replacement, or authority of any or all of the arbitrators.

Permanent tribunals tend to have their own rules and procedures, and tend to be much more formal. They also tend to be more expensive, and, for procedural reasons, slower.

Appointment

The parties are generally free to determine their own procedure for appointing the arbitrator or arbitrators, including the procedure for the selection of an umpire or chairman. If the parties decline to specify the mode for selecting the arbitrators, then the relevant legal system will usually provide a default selection process. Characteristically, appointments will usually be made on the following basis:

If the tribunal is to consist of a sole arbitrator, the parties shall jointly appoint the arbitrator not later than (for example) 28 days after service of a request in writing by either party to do so.

If the tribunal is to consist of three arbitrators:

each party shall appoint one arbitrator not later than (for example) 14 days after service of a request in writing by either party to do so, and
the two so appointed shall forthwith appoint a third arbitrator as the chairman of the tribunal.

If the tribunal is to consist of two arbitrators and an umpire-

each party shall appoint one arbitrator not later than (for example) 14 days after service of a request in writing by either party to do so, and
the two so appointed may appoint an umpire at any time after they themselves are appointed and shall do so before any substantive hearing or forthwith if they cannot agree on a matter relating to the arbitration.

Most arbitration clauses will provide a nominated person or body to select a sole arbitrator if the parties are unable to agree (for example, the President of the relevant jurisdiction's Bar Association

Bar association

A bar association is a professional body of lawyers. Some bar associations are responsible for the regulation of the legal profession in their jurisdiction; others are professional organizations dedicated to serving their members; in many cases, they are both...

, or a recognised professional arbitration organisation such as the LCIA

London Court of International Arbitration

The London Court of International Arbitration is an institution based in London, United Kingdom providing the service of international arbitration....

, or a relevant professional organisation). In default of such a provision, where the parties are unable to agree, an application for an appointment is usually made to the court.

A well drafted arbitration clause will also normally make provision for where a party to the dispute seeks to cause delay by refusing to make or agree an appointment. Often this will allow the "non-defaulting" party to appoint a sole arbitrator and for the arbitration to proceed on that basis.

Chairman and umpire

Where the tribunal consists of an odd number of arbitrators, one of them may be designated as the umpire or chairman. The selection of title actually carries some significance. When an arbitrator is "chairman", then they will not usually exercise any special or additional powers, and merely have a presidential function as the tribunal member who sets the agenda. Where a member of the tribunal is an umpire, they usually do not exercise any influence on proceedings, unless the other arbitrators are unable to agree — in such cases, then the umpire steps in and makes the decision alone.

Arbitrator advocates

In some legal systems, it is common for each party to the dispute to appoint an arbitrator and for those two arbitrators to appoint a third arbitrator (who may or may not be called an umpire). However, the two arbitrators appointed by the parties to the dispute would essentially act as advocate

Advocate

An advocate is a term for a professional lawyer used in several different legal systems. These include Scotland, South Africa, India, Scandinavian jurisdictions, Israel, and the British Crown dependencies of Jersey, Guernsey and the Isle of Man...

s for the party who appointed them, and the umpire would effectively act as a sole arbitrator. However, such systems can lead to difficulty, as other countries may be reluctant to enforce an arbitration award

Arbitration award

An arbitration award is a determination on the merits by an arbitration tribunal in an arbitration, and is analogous to a judgment in a court of law...

where two of the three "arbitrators" are clearly unable to demonstrate impartiality

Impartiality

Impartiality is a principle of justice holding that decisions should be based on objective criteria, rather than on the basis of bias, prejudice, or preferring the benefit to one person over another for improper reasons.-Philosophical concepts of impartiality:According to Bernard Gert, "A is...

or independence.

Removal

In most legal systems the parties are free to specify in what circumstances the appointment of an arbitrator may be revoked. In default most legal systems provide either that (i) the parties to the dispute must act jointly to remove an arbitrator, or (ii) the other members of the arbitral tribunal must act to remove the arbitrator, and/or (iii) the court must act to remove an arbitrator. Most legal systems reserve a power to the court to remove arbitrators who are unfit to act, or are not impartial.

Resignation

It is generally accepted that one cannot force a person to continue as an arbitrator against their will, and arbitrators may resign

Resignation

A resignation is the formal act of giving up or quitting one's office or position. It can also refer to the act of admitting defeat in a game like chess, indicated by the resigning player declaring "I resign", turning his king on its side, extending his hand, or stopping the chess clock...

if they are unwilling to proceed with the arbitration. Where the arbitrator becomes aware of facts that might be seen to affect his or her impartiality, they are often under a duty to resign. The parties are generally free to agree with the arbitrator what should happen with respect to (i) the arbitrator's fees, and (ii) any liability of the arbitrator (such as wasted costs), if the arbitrator should resign, with or without cause.

Death

The authority of an arbitrator is personal, and an appointment ceases upon death

Death

Death is the permanent termination of the biological functions that sustain a living organism. Phenomena which commonly bring about death include old age, predation, malnutrition, disease, and accidents or trauma resulting in terminal injury....

.

Unless the parties have otherwise provided, the death of a party does not usually revoke the appointment of any arbitrator appointed by the deceased, and any agreement relating to the appointment is enforceable in the usual way against the personal representative

Personal representative

In common law jurisdictions, a personal representative is the generic term for an executor for the estate of a deceased person who left a will or the administrator of an intestate estate. In either case, a surrogate court of competent jurisdiction issues a finding of fact, including that a will...

s of the deceased.

Filling a vacancy

If a vacancy arises (through resignation or death, or otherwise) then the parties are free to agree:

whether, and if so, how, the vacancy shall be filled
whether, and if so, to what extent, the previous proceedings shall stand
what effect, if any, the arbitrator's ceasing to hold office has on any appointment or order made by that arbitrator (alone or jointly)

Most legal systems provide that, in default of agreement, a new arbitrator shall be appointed using the provision for appointments which applied to the original arbitrator that has vacated office; the tribunal itself (once reconstituted) should determinate whether, and if so, to what extent, previous proceedings stand; and the appointments and orders made by the previous arbitrator are unaffected.

Fees and expenses

The parties may make provision for the arbitrator's fees (although in some jurisdictions, whether the parties are agreeing to submit an existing dispute to arbitration, they may not provide that each party bears its own costs). However, the position may be different between, on the one hand, as between the arbitrators and the parties, and on the other hand, as between the parties themselves.

Although the parties may provide differently in the appointment of the arbitrator, the usual rule is that the parties are jointly and severally liable

Joint and several liability

Where two or more persons are liable in respect of the same liability, in most common law legal systems they may either be:* jointly liable, or* severally liable, or* jointly and severally liable.-Joint liability:...

for the arbitrator's fees. If the arbitrator is not paid, then they may sue either or both parties for unpaid fees.

In many jurisdictions, after making the award, the tribunal will order that the losing party pays the legal costs of the winning party, and this may include the arbitrator's fees. However, this does not affect the joint and several liability referred to above; but it does mean that the winning party may maintain a separate action against the losing party for the unpaid costs, or to be reimbursed for arbitrator's fees that the winning party has been forced to pay, but which the losing party was ordered to pay.

Immunity from suit

It is generally accepted that an arbitrator is not liable for anything done or omitted to be done in the discharge of his or her duties as an arbitrator unless bad faith

Bad faith

Bad faith is double mindedness or double heartedness in duplicity, fraud, or deception. It may involve intentional deceit of others, or self deception....

is shown. At common law

Common law

Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

this point was thought to have been left open, but in most jurisdictions it is accepted that arbitrators should enjoy immunity provided that they act in good faith in the same manner (and for much the same reasons) as judges

Judicial immunity

Judicial Immunity is a form of legal immunity which protects judges and others employed by the judiciary from lawsuits brought against them for official conduct in office, no matter how incompetent, negligent, or malicious such conduct might be, even if this conduct is in violation of statutes.For...

, and some jurisdictions have clarified this by statute.

Jurisdiction

In most legal systems, the arbitral tribunal is able to rule upon its own jurisdiction (often referred to as the doctrine of "Kompetenz-Kompetenz" in international law). Briefly, this enables the arbitral tribunal to determine for itself whether:

an arbitration agreement is valid,
whether the tribunal has been properly constituted under applicable law, and
what matters are to be determined by the arbitration under the agreement.

The doctrine, although continental in origin, has been recognised at common law, and has now been widely codified into national law.

Hearing

An "arbitration hearing" can be either procedural or evidentiary. As in court systems, a "procedural hearing" focuses exclusively on how the proceedings are to be conducted. By contrast, an "evidentiary hearing" is the equivalent to what in the courts of many countries would be called a trial, with the presentation of evidence in the form of documents and witnesses. Although evidentiary hearings are generally available as a means to assist the arbitral tribunal in deciding contested factual issues, arbitration rules do not usually require them and leave the means of decided disputed factual issues to the discretion of the tribunal. Many decisions of arbitral tribunals are made without any hearing at all.

Where it may be appropriate to do so, arbitral tribunals can make decisions solely upon documentary evidence, which may or may not be accompanied by witness statement

Witness statement

A witness statement is a statement summarising the oral evidence that a witness will give at trial. The purpose the witness statement is to set out the evidence of the witness; in some jurisdictions the statement will stand as the evidence in chief of the witness , and the trial will simply...

s, which in the US are referred to as affidavit

Affidavit

An affidavit is a written sworn statement of fact voluntarily made by an affiant or deponent under an oath or affirmation administered by a person authorized to do so by law. Such statement is witnessed as to the authenticity of the affiant's signature by a taker of oaths, such as a notary public...

s. Witness statements represent the testimony a witness would give if called to testify, and on which the witness is subject to questioning by the arbitral tribunal and, at times, cross examination by the other party.

Specific types of arbitration, for example, may rely exclusively on documents to decide disputes, such as in the growing field of online dispute resolution

Online Dispute Resolution

Online dispute resolution is a branch of dispute resolution which uses technology to facilitate the resolution of disputes between parties. It primarily involves negotiation, mediation or arbitration, or a combination of all three. In this respect it is often seen as being the online equivalent...

. In addition, some organizations, may specifically provide provide as part of their organizational bylaw

Bylaw

By-law can refer to a law of local or limited application passed under the authority of a higher law specifying what things may be regulated by the by-law...

s or standard terms and conditions that disputes shall be arbitrated without an oral hearing and upon documentary evidence only, an example being certain trade associations, such as GAFTA

Grain and Feed Trade Association

The Grain and Feed Trade Association is a London based trade organisation consisting of professionals, operators, traders and transporters in the international grain trade.-History:...

Duties

The duties of a tribunal will be determined by a combination of the provisions of the arbitration agreement and by the procedural laws which apply in the seat of the arbitration. The extent to which the laws of the seat of the arbitration permit "party autonomy" (the ability of the parties to set out their own procedures and regulations) determines the interplay between the two.

However, in almost all countries the tribunal owes several non-derogable duties. These will normally be:

to act fairly and impartially between the parties, and to allow each party a reasonable opportunity to put their case and to deal with the case of their opponent (sometimes shortened to: complying with the rules of "natural justice
Natural justice
Natural justice is a term of art that denotes specific procedural rights in the English legal system and the systems of other nations based on it. Whilst the term natural justice is often retained as a general concept, it has largely been replaced and extended by the more general "duty to act fairly"...

"); and
to adopt procedures suitable to the circumstances of the particular case, so as to provide a fair means for resolution of the dispute.

Procedure

Matters of procedure are normally determined either by the law of the seat of the arbitration, or by the tribunal itself under its own inherent jurisdiction (depending on national law). Procedural matters normally include:

mode of submitting (and challenging) evidence
Evidence
Evidence in its broadest sense includes everything that is used to determine or demonstrate the truth of an assertion. Giving or procuring evidence is the process of using those things that are either presumed to be true, or were themselves proven via evidence, to demonstrate an assertion's truth...
time and place of the hearing
language and translations
disclosure
Discovery (law)
In U.S.law, discovery is the pre-trial phase in a lawsuit in which each party, through the law of civil procedure, can obtain evidence from the opposing party by means of discovery devices including requests for answers to interrogatories, requests for production of documents, requests for...

of documents and other evidence
use of pleading
Pleading
In law as practiced in countries that follow the English models, a pleading is a formal written statement filed with a court by parties in a civil action, other than a motion...

s and/or interrogatories
use of legal advisors
Lawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
the appointment of experts and assessors

Appeals

Provisions relating to appeals vary widely between different jurisdictions, but most legal systems recognise that the right to appeal (or, technically, the right to seek to set aside) an award in an arbitration should be limited.

Usually such challenges are made on one of two bases:

that the tribunal did not have substantive jurisdiction to determine the matter; or
there was a serious irregularity on the part of the tribunal. Examples of serious irregularities may include:
1. failure of the tribunal to act in accordance with the rules of natural justice, or allowing a fair hearing;
2. the tribunal exceeding its powers (other than by exceeding its jurisdiction);
3. failure of the tribunal to conduct proceedings in accordance with the procedure agreed by the parties;
4. failure of the tribunal to deal with all the issues put to it for resolution;
5. uncertainty or ambiguity as to the effect of the award;
6. the award being procured by fraud
  Fraud
  In criminal law, a fraud is an intentional deception made for personal gain or to damage another individual; the related adjective is fraudulent. The specific legal definition varies by legal jurisdiction. Fraud is a crime, and also a civil law violation...
  
  , or otherwise being procured in a way contrary to public policy
  Public policy
  Public policy as government action is generally the principled guide to action taken by the administrative or executive branches of the state with regard to a class of issues in a manner consistent with law and institutional customs. In general, the foundation is the pertinent national and...
  
  ;
7. failure to comply with the requirements for the form of the award (e.g. in writing or in a specific language);
8. irregularities in the conduct of the proceedings.

In some jurisdictions it is also possible to appeal against an award on a point of law, however, such appeals normally require either the permission of the other parties, or the leave of the court.

Specialised Institutes of Arbitration

Specialised arbitration organizations have been formed in order to settle disputes in the matter of specialised issues, they work in only a very limited field but are highly specialised in the work they do. For this purpose they have made a special rules, procedures and regulations which they follow during the proceedings of arbitration. These institutions prove very useful in the cases where a very deep and specialised knowledge is needed in settlement, which in turn can be cost effective and time saving.

Such specialised institutions include:

Arbitration and Mediation Center, WIPO
Center for Effective Dispute Resolution
German Maritime Arbitration Association
Maritime Arbitration Association of the United States
Tokyo Maritime Arbitration Association

External links

The source of this article is wikipedia, the free encyclopedia. The text of this article is licensed under the GFDL.

Appointment

Chairman and umpire

Arbitrator advocates

Removal

Resignation

Death

Filling a vacancy

Fees and expenses

Immunity from suit

Jurisdiction

Hearing

Duties

Procedure

Appeals

Specialised Institutes of Arbitration

See also

External links