IV Edición Revista Derecho en Sociedad - Ulacit

DERECHO EN SOCIEDAD, N. º 4 . Enero del 2013
Revista electrónica de la Facultad de Derecho, ULACIT – Costa Rica
in persuading the third arbitrator 76 , then the effect of the co-­‐arbitrators should annul the
other one 77 ; hence, the process becomes no different (except for the prices) than having a
SOLE arbitrator 78 .
Some of the obvious problems that this proposal could bring are that it is possible that the
parties will not be able to agree on the name of the arbitrator, or will not be entirely
satisfied by the appointment made by the Institution. In addition, there can be cases of such
complexity that having a single arbitrator could not be enough.
Appointments Made by a Third Party
A second alternative, is to conclude an agreement where all the appointments, or at least
the appointments related to party appointed arbitrators, are to be decided by a third
neutral party 79 , an option available either in Institutional or ad hoc proceedings.
The biggest advantage of this solution is that it is likely that the quality of the proceedings
and the award will increase 80 as a consequence of having a higher level of collegiality 81 .
Another interesting point to highlight is that if all arbitrators are being selected by a third
neutral party, such institution could decide to include individuals with specific knowledge
in determined subject, which could bring something extra 82 .
Some criticism can be raised in the establishment of this method. There could be
unsatisfied users by the selection made by the Institution. Another problem will be with the
76 It is to bring into consideration that the Institutional Rules of the most prestigious Arbitration Centers
Stipulates that the Chairman can decide a case by its own, in case no majority is reached. ICC Rules art.25(1);
LCIA Rules art26(3) , SCC rules, art.35(1), CIETAC rules art.43(5).
77 Kirby, supra note 345 at pag. 350
78 Idem, at pag. 347.
79 Paulsson, supra note 38 at pag.16. For this purpose, Paulsson exemplifies his proposal with the Court of
Arbitration for Sport, which has it seat in Laussane and works with arbitrators that are registered in their
lists.
80 Kirby, supra note 35 at Idem, at pag.350.
81 Mourre, supra note 72-­‐74.
82 On repeated appointments see: Slaoui, Fatima-­‐Zahra ‘The rising issue of ‘repeat arbitrators’: a call for
clarification’ (2009) 25 Arbitration International, pp. 103-­‐119. In the conclusions the author encourages to
have some diversity inside the Arbitral Tribunal, having experts in the substantive field and in the procedural.
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