1E9Ct5D

350C H A P T E R X X I IThe parties can directly appoint the arbitrator or he or she may be appointed by anarbitral institution, a judge, or a third party established by the parties. This arrangementwill depend on the arbitration agreement. In addition, the parties can freely agree on theprocedure for appointing the arbitrators, either incorporating institutional rules of arbitrationor through an ad hoc proceeding established in the arbitration agreement.The Commerce Code establishes that the parties can freely appoint the number ofarbitrators and if there is no agreement just one arbitrator will be appointed. In the eventthat such procedure has not been established and the parties are not able to come toagreement on the appointment of the arbitrator, he or she will be appointed, at therequest of either of the parties, by the judge.Likewise, in the absence of an agreement between the parties and if in the arbitrationclause or arbitration agreement it is agreed that the dispute will be resolved by an arbitraltribunal of three members, the Commerce Code provides that each party willappoint one arbitrator and the two so appointed will in turn appoint the third. In theevent that one party does not appoint an arbitrator within 30 days from the receipt of arequest from the other party to do so, or if the two arbitrators cannot agree on the thirdwithin 30 days from their appointment, the appointment will be made, at the petitionof either of the parties, by the judge.In addition to the above, the parties can freely agree on the procedure for recusing thearbitrators. In the absence of an agreement or silence regarding the agreed-upon rules ofarbitration, in the case of an institutional arbitration, the party wishing to recuse an arbitratorwill send to the arbitral tribunal, within 15 days from the date on which it knowsof the appointment of the arbitrator or of the circumstances that give rise to doubts withrespect to his or her impartiality, a brief explaining the reasons for the recusal. The arbitraltribunal will decide on such recusal and if this action does not prosper, the recusingparty can ask a judge, within 30 days from being notified of the decision rejecting therecusal, that its validity be determined, which decision cannot be appealed.When an arbitrator is impeded from exercising his or her functions or for other reasonsdoes not exercise them within a reasonable time period, he or she will cease to holdsaid position either by resignation or removal. Thereafter a replacement will be appointedaccording to the same procedure by which the replaced arbitrator was appointed.The arbitral tribunal has the authority to decide on its own jurisdiction and rule onany defenses regarding the existence or validity of the arbitration agreement. The defenseof lack of jurisdiction of a tribunal must be filed no later than at the time of presentingthe response to the claim. The arbitral tribunal can resolve this question at that time orin the award on the merits of the case.If, before issuing the award on the merits, the arbitral tribunal declares itself to havejurisdiction, either of the parties within 30 days from the notification of the decision mayrequest a judge to definitively resolve the matter without appeal. However, such petition