Changing an Arbitrator Mid-Proceeding: Legal Framework and Current Practices

Courtesy/By: Fanuel Rudi | 23 Oct 2024 Views:11124

Changing an arbitrator during ongoing arbitration proceedings is a complex issue governed by various legal frameworks, including national laws, institutional rules, and international treaties. This report outlines the conditions under which an arbitrator may be changed, relevant case law, and the prevailing standards in the international arbitration community.

Legal Framework

1. National Laws and Institutional Rules

UNCITRAL Model Law: Article 12 of the UNCITRAL Model Law stipulates that once proceedings have commenced, an arbitrator can only be replaced by mutual agreement between the parties or under exceptional circumstances. This suggests a strong preference for maintaining the integrity of the tribunal once it is constituted.
HKIAC Rules: According to Article 12.1 of the HKIAC Administered Arbitration Rules, if an arbitrator is successfully challenged, a substitute will be appointed according to the rules applicable at the time of the original appointment. The arbitration resumes at the stage where the previous arbitrator was replaced unless otherwise decided by the tribunal.
ICSID Convention: Under Article 37(2) of the ICSID Convention, parties may replace any arbitrator appointed by them before the tribunal is constituted. However, once constituted, replacement requires mutual consent or must occur under specific conditions such as incapacity or resignation.

2. International Treaties and Guidelines

IBA Guidelines on Conflicts of Interest: These guidelines emphasize that an arbitrator must maintain impartiality throughout the proceedings. If any circumstances arise that could lead to doubts about an arbitrator's impartiality, they are obliged to decline their appointment or continue acting in the case.
International Court of Justice (ICJ) Procedures: The ICJ’s rules also reflect a similar stance, allowing for replacement only under mutual agreement or exceptional circumstances once proceedings have begun

Case Law

Several notable cases illustrate how these principles are applied in practice:

Hrvatska Elektroprivreda d.d. v. Republic of Slovenia (ICSID Case No. ARB/05/24): The tribunal ruled that it had the authority to exclude new counsel if their appointment would create a conflict of interest with existing arbitrators. This case highlights how concerns over integrity can influence decisions regarding changes in representation during arbitration.
Neurosigma, Inc. v. De Salles (AAA Case No. 72 193 00792 13 JENF): In this instance, extensions were granted following a change in counsel, demonstrating that while changes are possible, they may lead to procedural adjustments to ensure fairness.

Current Trends in International Arbitration

The international arbitration community generally favours stability and continuity within arbitral tribunals once they are constituted. Here are some key trends:

Strict Adherence to Rules: Most institutional rules require that any changes to arbitrators must be justified and often agreed upon by all parties involved.
Focus on Impartiality: There is a growing emphasis on ensuring that all arbitrators remain impartial throughout proceedings. Any perceived conflicts can lead to challenges and potential replacements.
Procedural Safeguards: Institutions like HKIAC and ICSID have established clear procedures for challenging and replacing arbitrators to maintain fairness and integrity in arbitration processes.

Conclusion

In summary, changing an arbitrator mid-proceeding is generally permissible only under specific conditions outlined in national laws and institutional rules, primarily requiring mutual consent or exceptional circumstances. The prevailing view within international arbitration emphasizes maintaining tribunal integrity and impartiality throughout proceedings. As such, while changes can occur, they are subject to stringent scrutiny to prevent disruptions and ensure fairness in arbitration outcomes.

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