How to Become an International Arbitrator
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How to Become an International Arbitrator
Introduction
Over the years, the number of people practicing international arbitration has increased. The increased international trade, growth of multinational law companies, reduced trade, and political barriers, and expansion of alternative dispute resolution are some of the factors that have led to the growth of international arbitration. Most individuals now prefer to use international arbitration to solve disputes rather than going to foreign courts as it is cheaper and convenient for them. Governments are also advocating for the use of international arbitration in investment and trade agreements. To become an international arbitrator, one has to meet some requirements such as language, nationality, occupation, experience, and availability. The paper will discuss in detail international arbitration and how to become an international arbitration.
Body
Parties involved in international arbitration mainly look at factors such as language, ability, experience in international arbitration, availability, and experience of the arbitrator in the country where the arbitration is to take place. Therefore when selecting the best arbitrator, the party looks at the arbitrator’s background and is then appointed according to the factors that can ensure effective representation and also have credibility with the other arbitrators. A practitioner who wishes to become an international arbitrator must, therefore, have qualities that match the parties’ requirements (Moses, 2017). Some ways of developing and improving on the qualities needed are, for example, becoming active in domestic arbitration, serving as counsels to parties in international arbitration, develop social expertise or attend seminars and programs on international arbitration and law, for example, International Bar Association.
Unless the parties state otherwise, arbitrators should be aware that international arbitration is governed by the laws in the country where the arbitration takes place. A good arbitrator should consider not only the legal requirements but also other factors such as compensation, necessary qualifications, and time requirements. The process of selecting arbitrators by practitioners varies and depends on the arbitral rules promulgated by the international laws (Cole & Ortola 2019). The appointment practices can be divided into methods of appointment, party appointment, and appointment of arbitrators absent party agreement.
Methods of appointment
Arbitrators are appointed according to the parties’ agreement on the method of selecting arbitrators. The arbitrator can be selected mutually by the parties or can be chosen by appointing authorities such as the American Arbitration Association. After both parties have chosen their arbitrators, a third arbitrator is selected and acts as the chair in the meetings (Mosk & Ginsburg, 2012). The parties have the freedom to choose the composition and size of the panel. Most firms maintain a list from which the arbitrators should be selected to avoid conflicts of interest.
Party appointment
The key feature that distinguishes arbitration from the judicial process is the party involvement in the selection of the decision-makers. The ability to choose the decision-maker is essential, especially for parties involved in international disputes. A party is usually more comfortable and relieved with the outcomes of the process if they can appoint one member of the panel who is more likely to be aware of the domestic business laws where the party operates. When selecting the members of the panel, the parties can unanimously agree with the members of the panel. They can also submit names of the proposed members of the panel, after which the members will be appointed randomly.
Appointment of Arbitrators absent Party Agreement
Several appointments can happen without the party agreement. One is ad-hoc arbitration. Ad- hoc arbitrations are those that are not administered by an arbitral institution, and the selection processes differ according to the dispute resolution clause of the contract and the applicable rules and law. The other appointment is institutional arbitration, wherein case the parties fail to agree, they refer to the rules of a particular institution. If no appointing authority as provided for by the parties, then the arbitrators may be appointed by the court. The court, however, is only supposed to appoint the arbitrators and not decide on the case.
Qualifications of an Arbitrator
Nationality
Parties can appoint an arbitrator of any nationality if there are no institutional or legal requirements. In most cases, however, the chair or the regulator of the meeting has to be of different nationality from the parties’ arbitrators. This is because it is believed that the different nationality of the third party provides the image of arbitral neutrality. Nevertheless, a sole arbitrator can belong to the nationality of one of the parties, but he or she has to be independent (Mosk & Ginsburg, 2012). The UNCITRRAL model law also states that a person should not be disregarded on the basis of having the same nationality as one of the parties.
Language
Although not a requirement by the arbitral rules, an arbitrator is supposed to be familiar with the selected language of the arbitration. The knowledge of the common language by the arbitrator helps save expenses and time used in the translation and interpretation. For this reason, if arbitrators are unable to communicate in the language chosen, they may be removed and replaced. In most cases, the language of the arbitration is mainly the language of the contract. The most used language in international arbitration is English.
Occupation
To be an arbitrator, one does not necessarily have to be a lawyer. Non-lawyers, however, have to have knowledge in international trade and laws to be appointed as arbitrators. But in most cases, lawyers are preferred since the arbitrations are of legal nature. Arbitral institutions can specify their qualifications in the occupation of the arbitrators. They can, for instance, specify that the arbitrators have to be from a particular profession and the level of experience needed.
Availability, Experience, and independence.
The arbitrator should be able to make inquiries to be available and competent when called upon to resolve disputes. Competence entails knowledge and experience in the topic matter of the arbitration. Availability may include the residence of the arbitrator, whether he or she is near the place where the arbitration process is to take place. Some people, however, can be prevented from being international arbitrators. For instance, the American Bar Association prohibits sitting judges from serving as arbitrators (Mosk & Ginsburg, 2012). Most laws also prohibit minors from being arbitrators. To become an arbitrator, one has to be independent and not to have any conflict of interest with either of the parties. The chair arbitrator also has to be impartial and listen to both sides’ arguments before making a decision.
Example of case law
An example of case law is that of a French pharmaceutical company called R&D that deals with research and development, which is licensed with the knowhow and patented pharmaceuticals to another company in the USA. The license agreement involves a clause on arbitration that states that in case of any dispute, it will be settled under specific arbitration rules. When the second company refused to pay a license fee, the R& D Company resulted in arbitration proceedings.
Conclusion
To become an arbitrator, one has to have met certain requirements such as the right nationality, language, availability and competence, experience, occupation, and other factors required by the parties and the arbitral laws. An arbitrator can either be appointed by the parties, judicial, or institutions that deal with international arbitration. To qualify as a competent arbitrator, one has to know the arbitral laws, international laws and also have knowledge of international trade. In case either of the arbitrators has a personal relationship with the parties, they are needed to disclose the relationship to avoid any conflict of interest. Generally, the laws that govern arbitration are those that operate in the country in which the arbitration takes place.
References
Cole, T., & Ortolani, P. (2019). Understanding International Arbitration. Routledge.
Moses, M. L. (2017). The principles and practice of international commercial arbitration. Cambridge University Press.
Mosk, R. M., & Ginsburg, T. (2012). Becoming an International Arbitrator: Qualifications, Disclosures, Conduct, and Removal. Practitioner’s Handbook on International Arbitration and Mediation, 2nd edn (Huntington, NY: JurisNet, 2007), 357-360.