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 The flexibility in arbitration procedures comes as a result of one of it is cornerstones: party autonomy 6 .This principle entitles parties to a dispute to be the architects of the proceedings. This means, that parties are allowed to agree in a vast number of topics, including: (i) the number of arbitrators that will be responsible for reaching a decision; (ii) their time limit for reaching that decision; (iii) the selection of a method for choosing the arbitrators; (iv) the manner in which proceedings should be conducted; (v) The applicable law for to the dispute; (vi) to decide if the arbitration proceedings will be administered by an institution, or by the arbitrators themselves; (vii) determine which methods will be available to prove the facts of a dispute; and in general, (viii) any other factor that falls in the sphere of the parties autonomy. The mandate, or objective that the members of an Arbitral Tribunal (sole or multi-arbitrator) is to reach a final and binding decision, an enforceable award. It is important to bring into account that the award ruled by the arbitrators, if dictated in one of the countries that has signed the New York Convention, the decision will be enforceable in more than one hundred and forty jurisdictions. The consequences of having an award can be glorious or disastrous, due to the different places that the document can be enforced; hence, it is of great importance to study the way that this arbitral tribunals are constituted, specially those tribunals that are formed with more than one arbitrator. The common practice in the multi arbitrator tribunals is that two out of the three arbitrators are unilaterally appointed by the parties, one each; and the third -‐the presiding-‐ arbitrator, is selected by the arbitrators appointed by the parties. This brings up all type of situations, from collaborative arbitrators that fulfills their functions with due diligence; to interest is the Inter-‐American Convention on International Commercial Arbitration (1975), Hereinafter ‘Panama’ Convention. 6 Heuman, L. (2003) ‘Arbitration Law of Sweden: Practice and Procedure’. United States: Juris Publishing. Pag.249. 72
DERECHO EN SOCIEDAD, N. º 4 . Enero del 2013 Revista electrónica de la Facultad de Derecho, ULACIT – Costa Rica rebellious arbitrators who refuse to participate on proceedings; and even the possible scenarios where the arbitrators issues an ugly 7 dissent. Experienced practitioners, such as Prof. Van den Berg, have made reports where it is evidenced that an elevated number 8 of dissents are produced by the arbitrator that was unilaterally appointed by the party who loses the arbitration. The situation gets even more critical, when the dissents are used as the basis for a challenge, or to raise objections to the enforcement of the award 9 . This situation raises many doubts, and concerns about the method for appointing arbitrators, with a special connotation around the unilateral appointments. There are strong opinions that raises against the continuance of this practice, as it puts (or sometimes, it does) the perverse incentives that can exists in ruling in favor of the appointing party. The main idea surrounding the discussion is the possibility to get rid of doubts concerning the neutrality 10 , impartiality, and independence of arbitrators, with the prohibition of the unilateral appoints. In order to protect the institution of Arbitration, since problems as this one, at the end of the day, affects the trust and confidence that this ADR method provides to the users. Under this context, this paper has been divided into three parts 11 . The first one will be addressing the relevant topics under the constitution of arbitral tribunals. The second, 7 In the terminology used by Redfern, Alan 'The 2003 Freshfields? Lecture Dissenting Opinions in International Commercial Arbitration: The Good, the Bad and the Ugly' (2004) 20 Arbitration International pp. 223–242. 8 van den Berg, Albert Jan 'Dissenting Opinions by Party-‐Appointed Arbitrators in Investment Arbitration' in n Mahnoush Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman. P.821-‐843. 9 As discussed on section 3.2 of this work . .. 10 As stated in Bishop, Doak; Reed. Lucy ‘Practical Guidelines for Interviewing, Selecting and Challenging Party-‐Appointed Arbitrators in international Commercial Arbitration' (1998) 14 Arbitration International at 400, this term can either be interpreted broad, in order to encompass impartiality or neutrality, or specific, referring to the neutrality of nationality. 11 This paper has no intention of covering all the complexity that surrounds the constitution of the arbitration tribunals, nor dissenting opinions; it has been intended to give a general overview of these topics with enough references in case the reader would like to have a deeper analysis over such topics. 73
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IV EdiciÃ³n Revista Derecho en Sociedad - Ulacit

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