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 is a general principle surrounding the ideality of person to become an arbitrator, and that is, the requirement of the potential arbitrator to be impartial, independent and with the capacity of understanding the dispute that will be ventilated under his wing. On this matter, is to be brought up what the UNCITRAL Model Law and the leading rules of Arbitral Institutions establish. And basically, the different stipulations do not require that a person hold any special characteristics, in order to become an arbitrator. However, it does make it clear, after interpreting the relevant provisions 26 , that it is within the parties’ autonomy the possibility to agree on the qualities the arbitrator(s) might be required to have 27 . In Institutional Arbitrations, the person will have to be previously confirmed by the Institution before being appointed an arbitrator. A topic that cannot be omitted in this section is the area concerning the duty of disclosure of an arbitrator, which is under a close relation with the topic of the ideality of an arbitrator. The disclosure 28 can be defined as the procedural act where an appointed arbitrator discloses to all of the parties, and arbitrators involved during a particular arbitration dispute, any circumstances that could bring into doubt his impartiality, independence, or capacity for the present dispute 29 . The duty of disclosure, is of vital importance because it gives parties the option to challenge 30 the appointment, and also because it promotes transparency and confidence 31 in the arbitration proceedings. Once the tribunal is constituted according to the party agreements, and the arbitrators have 26 That is, Art.10 to 15 of UNCITRAL rules 27 For example, Art.33 of the Arbitration Law of the Republic of El Salvador establishes that for some types of arbitration, it is required to be a certified lawyer. 28 Bishop and Reed. , supra note 10 at pages 407–416. IBA Guidelines on Conflicts of Interest in International Arbitration (2004). 29 For more on impartiality and independence of arbitrators read Rogers, C.A. (2008) 'The Ethics of International Arbitrators' 5 Transnational Dispute Journal at 631-‐643; also Born, Supra note 24 at 1615 – 1645; see also: Raeschke-‐Kessler, H (2008) 'Impartiality and Independence of Arbitrators -‐ A Problem of Transnational Law' 5 Transnational Dispute Journal. 30 If no objection is made, it will be considered as a waiver of the party to challenge the arbitrator later on, leading to the confirmation of the arbitrator, and the eventual conformation of the Arbitral Tribunal. On challenge of arbitrators: Redfern and Hunter, supra note 3. 31 Rogers, Supra note 29 at 638 84
DERECHO EN SOCIEDAD, N. º 4 . Enero del 2013 Revista electrónica de la Facultad de Derecho, ULACIT – Costa Rica disclosed the possible causes of a challenge, the arbitrators have other obligations to comply 32 . Appointments of Arbitrators The appointment of arbitrators, once again, is set up under the sphere of decisions available to the parties that agree to arbitrate. There is a vast possibility of scenarios of different methods for the selection, or appointment of arbitrators. Methods can be as diverse as a random selection from a list of names; a decision taken by a third neutral (or non-‐neutral) party; a consensual decision (and how hard is to obtain a consensus when two parties are in the middle of a dispute!); and more frequently, a direct appointment, also known as an unilateral appointments 33 . The use of one method over another will define the outcome of arbitration, since there are some methods that would guarantee the parties, no matter what the outcome of the result is, that there have been no symptoms of bias in the arbitrators, while there might be other ways of appointment that might give that sensation. In any case, is important to not forget art.34 and 36 of the Model Law and Article V of the New York Convention, since an arbitration agreement that do not gives equal possibilities to parties in the appointment of the arbitral tribunal, a possible invalidity or a refusal of enforcement can be the result. In multi arbitrator panels, the usual practice establishes that each party will select one arbitrator 34 , and the unilaterally party appointed arbitrators will select the third arbitrator, who will act as the chairperson of the dispute. It is to be noted that each party must cover the costs of the appointed arbitrators, and the honorary of the chairman are usually shared. 32 On the limits on the party autonomy: Pryles, Michael " Limits to Party Autonomy in Arbitral Procedures" . On other obligations that arbitrators need to fulfill: Rogers, at supra note 29, at page 630-‐648. 33 On different appointing methods of arbitrators, see: Redfern and Hunter, supra note 3, at 4.29 to 4.37 34 In case of having a reluctant party to make the appointment, the model law allows that the party with an interest in the proceeding recurs to the courts in order to make the appointment. 85
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IV EdiciÃ³n Revista Derecho en Sociedad - Ulacit

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