International Construction Law Review
OBTAINING THE RIGHT INTERNATIONAL ARBITRAL TRIBUNAL: A PRACTITIONER’s VIEW*
CHRISTOPHER R SEPPÄLÄ
Partner, White & Case LLP, Paris
I. INTRODUCTION
While much has been written on the selection of arbitrators,1
few attempts have been made to set out a strategy designed to assist or enable a party to obtain an optimal or good tribunal for its case under the principal international arbitration rules.2
Most writings on the subject tend to describe the procedure for the selection of arbitrators (appointment of arbitrators, their number and qualifications, the requirement of independence and impartiality, challenge and replacement of arbitrators) in dispassionate and objective terms, leaving it to the parties and their counsel to infer, as best they can, how they can use that procedure to their advantage.
The limited attention which has been given to strategy in this area is surprising as arbitration specialists agree that few decisions are more important in an international arbitration than the selection of the arbitral tribunal. As Gerald Aksen, an eminent US practitioner, has put it: “that selecting the tribunal is the most important decision to be made in any international arbitration (apart from the rendering of the actual award) is, by now, a cliché. It also still happens to be true.”3
* The author is grateful to Matthew Secomb, his colleague at White & Case LLP, Paris, for his comments on a draft of this paper, but the author assumes sole responsibility for its contents.
1 See, for example, Lew, Mistelis and Kröll, Comparative International Commercial Arbitration
(Kluwer, 2003) (hereinafter called “Lew, Mistelis and Kröll”), Chap 10, 223–253; Redfern and Hunter, Law and Practice of International Arbitration
(London: Sweet & Maxwell, 4th ed., 2004) (hereinafter called “Redfern and Hunter”), paras. 4–21 to 4–50; and Fouchard, Gaillard, Goldman, International Commercial Arbitration
(Gaillard and Savage, Eds) (The Hague: Kluwer, 1999), 452–555.
2 There are, however, some articles which attempt to do this, at least as regards party-nominated arbitrators, see, e.g., Carter, “The Selection of Arbitrators”, Am Rev of Int Arb (1994), 84, and Bishop and Reed, “Practical Guidelines for Interviewing, Selecting and Challenging Party-Appointed Arbitrators in International Commercial Arbitration”, 14 Arb Int, No 4, 1998 (hereinafter called “Bishop and Reed”). Most other writings on the subject appear to be from the perspective of arbitrators or arbitral institutions or university professors rather than from the perspective of the parties.
3 Gerald Aksen, “The Tribunal’s Appointment”, in Newman and Hill (Eds), The Leading Arbitrators’ Guide to International Arbitration
(New York: Juris Publishing, 2004) (hereinafter called “Newman and Hill”), 31. See also, e.g., Lew, Mistelis and Kröll, para. 10–30 and Redfern and Hunter, para. 1–15, to similar effect.
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