2006/Vol. 5 No.1 - Hamline Law - Hamline University

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30 THE JOURNAL OF AMERICAN ARBITRATION [<strong>Vol</strong>. 5:1 arbitrators is: the claimant picks one, the respondent picks one, and the two arbitrators pick the third arbitrator, who will be the chair of the arbitration panel. For a three person arbitral tribunal, the selection process permits each party to select an arbitrator with the third being chosen by the two party-appointed arbitrators. 130 For example, the AAA recommends the following clause in the arbitration agreement: The arbitrator selected by the claimant and the arbitrator selected by respondent shall, within ten days of their appointment, select a third neutral arbitrator. In the event that they are unable to do so, the parties or their attorneys may request the American Arbitration Association to appoint the third neutral arbitrator. 131 If the parties choose to use a single arbitrator, the agency will send a list of qualified arbitrators to both parties. Typically, there will be five to seven names of qualified arbitrators, who the agency has vetted and deemed qualified to arbitrate the claims. The claimant and respondent attorneys discuss the names on the list. They may decide to pick one person from the list, or they may decide to use the “alternative strike” method. The U.S. Federal Mediation and Conciliation Service allows “[e]ach party alternately strikes a name from the submitted panel until one remains.” 132 Another method requires the parties to rank their choices, and the person with the highest rank is appointed arbitrator. 133 130. See AAA, Drafting Dispute Resolution Clauses, supra note 45; see also ICC Rules, supra note 84, art. 8 (“[E]ach party shall nominate . . . one arbitrator for confirmation. If a party fails to nominate an arbitrator, the appointment shall be made by the Court. The third arbitrator, who will act as chairman of the Arbitral Tribunal, shall be appointed by the Court.”). 131. AAA, Drafting Dispute Resolution Clauses, supra note 45. 132. Federal Mediation and Conciliation Service, Policies and Procedures, § 1404.12, Selection by Parties and Appointments of Arbitrators, available at http://www.fmcs.gov/internet/itemDetail.asp?categoryID=197&itemID=16959 (last visited Oct. 16, 2005). 133. See id. The FMCS rules allow “[e]ach party advises the OAS of its order of preference by numbering each name on the panel and submitting the numbered lists in writing to the OAS. The name that has the lowest combined number will be appointed.” Id.; see also AAA Rules, supra note 37, R-11. The AAA commercial arbitration rules provide that: If the parties are unable to agree upon an arbitrator, each party to the dispute shall have 15 days from the transmittal date in which to strike names objected to, number the remaining names in order of preference, and return the list to the AAA. . . . From among the persons who have been approved on both lists, and in accordance with the designated order of mutual preference, the AAA shall invite the
<strong>2006</strong>] ARBITRATION: THE BASICS 31 If the parties cannot agree on an arbitrator from the first list, either can request the agency to send another list of arbitrators. The AAA rules provide that the agency may make the appointment if the first list does not prompt the appointment of an arbitrator. 134 Most arbitration agencies will permit two lists to be used. If the parties cannot agree to an arbitrator after the second list is sent, the agency will appoint an arbitrator. 135 However the parties set up the method of choosing the arbitrator, it is important to note that, in arbitration, “[t]he arbitrator is the decisive element. . . . his or her ability, expertness, fairness and impartiality are at the base of the arbitration process.” 136 The arbitrator decides the outcome of the case; thus, it is important for parties to take the time to decide if one or three arbitrators will be best for their potential dispute. D. Notification Requirements Once the parties have decided on the arbitrator(s), the arbitration agency notifies the arbitrator that he or she has been chosen. The American Arbitration Association sends a written confirmation letter acceptance of an arbitrator to serve. Id. 134. AAA Rules, supra note 37, R-11. If the parties cannot decide on an arbitrator from the first list, “the AAA shall have the power to make the appointment from among other members of the National Roster without the submission of additional lists.” Id. 135. The rules for appointing arbitrators vary according to the agency utilized. See ICC Rules, supra note 84, art. 8. According to the ICC rules: Where the parties have agreed that the dispute shall be settled by a sole arbitrator, they may, by agreement, nominate the sole arbitrator for confirmation. If the parties fail to nominate a sole arbitrator . . . the sole arbitrator shall be appointed by the Court. Id. See also Federal Mediation and Conciliation Service, supra note 132, § 1404.11. The FMCS rules state that: If the parties do not agree on an arbitrator from the first panel, the OAS will furnish a second and third panel to the parties upon joint request and payment of an additional fee. Requests for a second or third panel should be accompanied by a brief explanation as to why the previous panel(s) was inadequate. If parties are unable to agree on a selection after having received three panels, the OAS will make a direct appointment upon joint request. Id. 136. GABRIEL WILNER, DOMKE ON COMMERCIAL ARBITRATION 24-1 (Larry Edmonson ed., Thomson West 2003).
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2006/Vol. 5 No.1 - Hamline Law - Hamline University

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