The choice of presiding arbitrator

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There appears to be limited research or academic writing on the influence of the chair or presiding arbitrator on arbitral decisions, yet the role is a crucial one. In particular, it can impact on the contribution of party-appointed arbitrators and, consequently, the ultimate decision making of a tribunal.

This influence can manifest in various ways, and following are some examples. It is the chair or presiding arbitrator who usually dictates the pace and tone of the arbitration, and conducts the hearings; the award will usually be in the words of the chair, and chairs are often given considerable discretion as to the drafting of the award; co-arbitrators may delegate day-to-day unimportant procedural decisions, such as short extensions of time, to the chair alone, for example article 35 of the Beijing Arbitration Commission/Beijing International Arbitration Centre (BAC) Rules.

The position is exacerbated where there are inexperienced or novice co-arbitrators who will often pay deference to the chair, resulting in the chair having a disproportionate influence or impact on decisions.

The presiding arbitrator’s role is, therefore, vitally important. Yet the procedure for selecting the chair or presiding arbitrator is neither universal nor necessarily without its problems. The following are some alternative ways of choosing a chair.

The BAC rules, for example, require parties to choose arbitrators from its panel, and in default, for the chairman of the BAC to choose the arbitrator (see articles 9, 18 and 19). As for the presiding arbitrator, the parties may each nominate between one and three arbitrator(s) from the panel list as candidate(s) or seek a short-list of names from the BAC for the role. In the absence of a single common candidate the decision is left to the chairman of the BAC.

Moving away from China to other jurisdictions, the position is often rather different, and institutional rules vary. Many arbitral institutional rules permit the parties to agree on alternative procedures. For instance, the Singapore International Arbitration Centre (SIAC) 2016 Rules, article 11(3); the International Chamber of Commerce (ICC) article 12(5); and the London Court of International Arbitration (LCIA) article 7 all defer to the agreement of the parties where the arbitration clause provides, although nominations are subject to confirmation and appointment by the arbitral institution.

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Hilary Heilbron QC is a barrister from Brick Court Chambers. BAC/BIAC’s case managers Gerard Lin and Liu Nianqiong also contributed to the article