IV EdiciÃ³n Revista Derecho en Sociedad - Ulacit

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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. 98
DERECHO EN SOCIEDAD, N. º 4 . Enero del 2013 Revista electrónica de la Facultad de Derecho, ULACIT – Costa Rica small pool of available professionals, which could promote the repeated appointments of arbitrators, contributes to an increase of challenges of arbitrators, making procedures less expeditious. Another area of trouble could be the high entry costs to form part of the pool of available arbitrators, problem of great concern especially to new arbitrators. Blind Appointments Another option available is to keep confidential 83 the name of the appointing party, in order to promote the free exchange of ideas between arbitrators during the period that last the proceedings, and especially during the deliberations, since it guarantees (in the file at least) that none of the parties will feel pressured in affirming one side or the other. The main problem with this solution is that it is not so reliable in practice, where it would be extremely easy to find out which party appointed who; although, in theory, it is still an option 84 , in addition to the applicability trouble in the cases of ad-‐hoc arbitrations. Non-‐ Neutral Arbitrators A final alternative proposal is the one taken by Han Smit where he proposes that: party-appointed arbitrators should be banned unless their role as advocates for the party that appointed them is fully disclosed and accepted 85 . Which in other words, he advocates the 83 Other institutions have experimented with a variety of other practices, such as “blind appointments” (i.e. seeking to ensure that nominees do not know who appointed them) as stated by Paulsson, supra note 67 38 at pag. 12 84 In an exchange of communications of the author with Christian Alberti, Assistant Vice President of the International Centre for Dispute Resolution, he mentioned that this is not a standard ICDR practice; yet, it is not unusual either. 85 Smith, supra note 4948. 99
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IV EdiciÃ³n Revista Derecho en Sociedad - Ulacit

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