Trọng tài viên và hội đồng trọng tài arbitrators and arbitral tribunal

International Commercial Arbitration Arbitrators and Tribunal Nguyen Manh Dzung, MCIArb LLM in International & Comparative Dispute Resolution (QMUL) Managing Partner of Dzungsrt & Associates Vice President of Pacific International Arbitration Center (PIAC) Hanoi- 10/11/2010 Relevant questions about arbitrators Who are arbitrators? How many arbitrators? What you want from “your arbitrator”? What experience and qualifications you expect from an arbitrator? How to nominate and appoint an arbitrator? How many arbitrators? • One or three? Or five? • Arbitration Rules  Party autonomy prevails  UNCITRAL Rules Art  ICC Rules Article  VIAC Rules Article  PIAC Rules Article 14 How many arbitrators? National laws  UNCITRAL Model Law Article 10(2)  Ordinance on Commercial Arbitration in 2003:  Article  Law on Commercial Arbitration in 2010  Article 39 How many arbitrators? • Five? • Advantages and disadvantages of different numbers? • Why 3? • Why 1? Choosing an arbitrator • What you want from “your” arbitrator • Nationality • Professional qualifications • Free selection • Availability • Independence • Impartiality Is the arbitrator “your” arbitrator? • Understand your case • Sympathetic to your position  Legal argument  Factual or technical approach • Industry expertise • Legal or other qualifications and experience • Nationality  Of parties  Neutral • Availability Qualifications of arbitrators • Must be a natural person • Must have full capacity • Can it be a legal entity? • Professional expertise agreed by parties • Nationality • UNCITRAL Model Law Article 11 • Ordinance on Commercial Arbitration in 2003 Article 12 • Law on Commercial Arbitration in 2010 Article 20 Overall duty of impartiality and independence What is meant by independence and impartiality? How to appoint arbitration tribunal What have parties agreed? General practice • Party autonomy Sole arbitrator to be agreed or  appointed by agreed appointing authority or by competent court • Three arbitrators: Each party appoint one arbitrator Third arbitrator/chairman to be agreed or  appointed by agreed appointing authority or by competent court Impartiality and Independence Established in  most arbitration laws  most arbitration rules  codes of ethics • IBA • AAA/ABA – new edition in 2004  international conventions  IBA Guidelines on conflict of interests Legal requirements • UNCITRAL Model Law – Article 12 “justifiable doubts as to his impartiality or independence” • Ordinance on Commercial Arbitration in 2003 • Law on Commercial Arbitration in 2010 Arbitration Rules • ICC Art 7(1) “ be and remain independent of the parties” • UNCITRAL – Art “justifiable doubts as to his impartiality or independence” • VIAC Rules – Article 13.1 • PIAC Rules - Article 22.a Why are impartiality and independence important? • Impartiality is needed to ensure that justice is done, and • Independence is needed to ensure that justice is seen to be done • The first condition is internal, the • second condition is external Meaning of independence Independence means no actual or past dependent relationship likely to affect arbitrator’s freedom of judgment • Financial interest, eg shareholders in company • Relationship with a party, eg law firm • Repeat appointments • Same arbitrator for related matters • Government employees Meaning of impartiality Impartiality is a state of mind It means • arbitrator does not favour one party - biased • nor is the arbitration predisposed as to the question in issue Distinguish: • neutrality – AAA Canon of Ethics Art VII • nationality - UNCITRAL Model Law Article 11 Duty of disclosure • All relevant facts • Most rules are not prescriptive as to what is relevant facts • Duty has its source in arbitration rules and statutes but may also be derived from an implied term of the agreement between arbitrator and parties • Normally same test applies as with judges • When in doubt, disclose! When in doubt disclose? • ICC – Art 7(2) “sign a statement of independence and disclose in writing … any facts or circumstances which might …call into question the arbitrator’s independence” • UNCITRAL Rules - Article disclose • ICSID – Declaration as per Rule • VIAC – Article 13.2 • PIAC – Article 22 b& c • NB: UNCITRAL Model Law - Article 12 IBA Guidelines on conflict of interests • Red • Orange • Green Challenge arbitrators Basis for challenge: • Lack of independence or impartiality Time for challenging arbitrator • Before proceedings fully commence • During the process • After award has been made Effect of challenge • Delay arbitration • May need to start again – reappoint the arbitrator • Undermine award Procedure for challenge Determined by • applicable arbitration rules • law governing the arbitration Basic rule • Challenge as soon as aware of grounds for challenge Applicable arbitration rules • • • • ICC Rules - Art 11 UNCITRAL Arb Rules - Arts 11 and 12 VIAC Rules – Article 14 PIAC Rules – Article 24 Law applicable to the arbitration • National laws • UNCITRAL Model Law - Article 13 • Ordinance on Commercial Arbitration in 2003 • Article 27 • Law on Commercial Arbitration in 2010 • Article 42 Relationship between parties and arbitrators • Obligations of the arbitrator owed to the parties     render an award complete the mandate stay impartial and independent conduct the arbitration fairly and without undue delay • Rights / Powers of the arbitrator   Remuneration • Bases for remuneration? Conduct the arbitration and make procedural decisions Thank you for your kind attention! Dzungsrt & Associates Unit 901, HAREC Building No 4A Lang Ha Str, Ba Đinh Dist, Ha Noi city Tel (84-4) 3772 6970 / Fax (84-4) 3772 6971 Email dzung.nguyen@dzungsrt.com Web www.dzungsrt.com Pacific International Arbitration Center– PIAC No 11A Phan Ke Binh str, District 1, Ho Chi Minh City Tel (84-8) 3911 8048/ Fax (84-8) 3911 8049 Email dzung.nguyen@piac.com.vn Web www.piac.com.vn – www.piac.vn ... questions about arbitrators Who are arbitrators? How many arbitrators? What you want from “your arbitrator”? What experience and qualifications you expect from an arbitrator? How to nominate and appoint... parties and arbitrators • Obligations of the arbitrator owed to the parties     render an award complete the mandate stay impartial and independent conduct the arbitration fairly and without... Arbitration in 2010 Article 20 Overall duty of impartiality and independence What is meant by independence and impartiality? How to appoint arbitration tribunal What have parties agreed? General practice