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Chapter 13 Challenge, Removal and Replacment of
Publication Arbitrators
Comparative International 13-1 Once established, any arbitration tribunal remains in place until it has either
Commercial Arbitration rendered an award or the parties have settled their dispute. However, this is not always
the case. An arbitrator's mandate may be terminated for various reasons before the
allocated task has been fulfilled. For example, during the process an arbitrator's lack of
Bibliographic reference impartiality and independence may become known; or an arbitrator may become
incapable or refuse to act causing excessive delay. In such circumstances it should be
'Chapter 13 Challenge, possible for the parties to remedy the situation and have the arbitrator removed from
Removal and Replacment of office. Therefore, nearly all arbitration laws and rules contain procedures to challenge or
Arbitrators', in Julian D. M. seek the removal or replacement of an arbitrator. These provide a built-in insurance to
Lew , Loukas A. Mistelis , et safeguard the arbitration process.
al., Comparative
International Commercial P 301 13-2 The initiative for an early termination of the arbitrator's mandate may also come from
Arbitration, (© Kluwer Law P 302 within the tribunal. Arbitrators may wish to resign for various reasons which would not
International; Kluwer Law justify their removal. (1) This may be due to health or other personal reasons, but can also
International 2003) pp. 301 be an effort by a partisan arbitrator to delay the proceedings. In all such cases,
irrespective of whether they concern a voluntary or a forced termination of the arbitrator's
mandate, it should generally not be allowed to frustrate the arbitration proceedings.
13-3 For this reason it is essential that the applicable rules or laws must either provide for
a replacement arbitrator to be appointed or, in cases of multi-member tribunals, allow the
remaining arbitrators in some situations to render an award as a truncated tribunal.
13-4 This chapter considers with the various instances of a challenge or termination of the
arbitrator's mandate and the replacement of an arbitrator. Specifically dealt with below
are (1) challenging an arbitrator, (2) termination of the arbitrator's mandate, (3)
replacement of arbitrators, and (4) truncated tribunals.

1 Challenge of an Arbitrator
13-5 Irrespective of any agreement of the parties arbitrators must generally meet certain
minimum standards which follow from the quasi judicial function exercised by arbitration
tribunals. It is one of the exigencies of a fair trial that the deciding body is impartial and
independent. (2) Arbitrators who do not fulfil these requirements can generally be
challenged by the parties under the applicable arbitration rules and laws. For example,
Article 12(2) Model Law provides:
An arbitrator may be challenged only if circumstances exist that give rise to justifiable
doubts as to his impartiality or independence, or if he does not possess qualifications
agreed to by the parties. A party may challenge an arbitrator appointed by him, or in
whose appointment he has participated, only for reasons of which he becomes aware after
the appointment has been made.
13-6 Like most other provisions dealing with challenge procedures Article 12(2) does not
P 302 limit the right to challenge to arbitrators appointed by the other side or a neutral
P 303 appointing authority. As expressly stated in some arbitration rules parties may also
challenge their own arbitrators under certain circumstances. (3)
13-7 Over the years the number of challenges of arbitrators has increased. In part this is
due to the fact that parties are increasingly unwilling to accept biased arbitrators and
frequently see partiality in an arbitrator appointed by the other side. The other main
reason for this increase is that tactical challenges for dilatory purposes or procedural
advantages have become more common. (4) As a consequence only a minority of
challenges are successful, in particular in institutional arbitration where the arbitrator is
scrutinised before being appointed. (5) A challenge to the arbitrator inevitably results in
delays to the appointment process and the arbitration proceedings.

1.1 Grounds for Challenge

13-8 The grounds which justify a challenge differ depending on the rules and laws
applicable. Since most of them recognise the lack of “qualifications agreed to by the
parties” as a reason for challenge the whole process is de facto submitted to party
autonomy. As the parties are free to agree on whatever qualifications they want they can
agree on what reasons justify a challenge.
13-9 The most obvious grounds of challenge are the arbitrator's lack of impartiality or
independence. These concepts are usually not defined in any of the arbitration rules and
P 303 laws. (6) Certain guidelines as to the content can be found in the Codes of Ethics. (7)
P 304 Nevertheless, in comparison to a detailed list of events which would justify a challenge
those general references to broad principles have the advantage of providing greater

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 flexibility.
13-10 The majority of arbitration laws and rules recognise both the lack of independence
and impartiality as justifiable reasons for a challenge. (8) Some laws, however, refer either
to independence or to impartiality. For example, Article 180 Swiss PIL only mentions the
lack of independence as a reason for challenge. Nevertheless it is generally accepted
under Swiss law that a partial arbitrator can be challenged. (9)
13-11 By contrast section 24 English Arbitration Act dealing with the power of the court to
remove arbitrator, only refers to the lack of impartiality. (10) Therefore independence is
not considered to be a separate ground for removal of an arbitrator unless the lack of
independence also gives rise as to justifiable doubts as to the arbitrator's impartiality.
Section 24 provides that an arbitrator may also be removed if
(b) … he does not possess the qualifications required by the arbitration agreement
(c) … is physically or mentally incapable of conducting the proceedings or there are
justifiable doubts as to his capacity to do so
(d) … he has refused or failed-
(i) properly to conduct the proceedings, or
(ii) to use all reasonable dispatch in conducting the proceedings or making an
award, and that substantial injustice has been or will be caused to the
applicant.

13-12 Article 11(1) ICC Rules gives a right to challenge an arbitrator “whether for lack of
independence or otherwise.” This provision appears to give an unlimited discretion to the
ICC Court on a challenge to remove an arbitrator for whatever ground it deems
P 304 appropriate. (11) Despite not being mentioned in the rules an arbitrator can also be
P 305 challenged for his lack of impartiality. Other reasons which have led to successful
challenges are inter alia misconduct during the proceedings and the violation of the duty
to disclose any connections with the parties in the required statement of independence.
(12)
13-13 In general, however, the grounds for challenge are interpreted narrowly, in particular,
if a considerable amount of time and resources have already been spent in the arbitration.
There seem to be two different tests applied in the context of challenge proceedings: while
in the majority of countries “justifiable doubts” as to the arbitrator's impartiality or
independence are sufficient, (13) others, such as England (14) or the US (15) , require that
there is a “real danger” of a lack of impartiality. In most cases, however, both tests will
probably lead to the same results.
13-14 A good description of the requirements to be met under the “justifiable doubt”
standard can be found in a decision of 1995 by an appointing authority nominated by the
Secretary General of the Permanent Court of Arbitration in an arbitration between two
states under the UNCITRAL Rules. (16) The arbitrator challenged by the claimant was a
government official of a third country who had been an advisor of that country in matters
involving the claimant. The appointing authority, which finally rejected the challenge,
defined the applicable standard in the following way.
In sum, the test to be applied is that the doubts existing on the part of the claimant here
P 305 must be ‘justifiable’ on some objective basis. Are they reasonable doubts as tested by the
P 306 standard of a fair minded, rational, objective observer? Could that observer say, on the
basis of the facts as we know them, that the claimant has a reasonable apprehension of
partiality on the part of the respondents' arbitrator?
As to the level of knowledge and experience attributed to the ‘reasonable’, ‘fair 1 bench
mark as being the reaction of the well informed but disinterested commercial person
assessing the matter without specific expertise but aware of the political background
against which the matter arises and of the nature of a lawyer's professional services. In my
opinion, therefore, there is no doubt whatsoever that it is in light of the standard of
reasonableness that the matter must be judged. What is key to the disposition of the
challenge is the assessment of the factual fabric that constitutes the background of the
problem and has given rise to claimant's doubts.… (17)
13-15 The stricter “real danger” test for challenges can be found in the English Court of
Appeal's decision in the AT&T v Saudi Cable case. (18) The dispute arose out of an
agreement concluded during a bidding process for a telecommunication project in Saudi
Arabia under which the parties agreed to negotiate in good faith further related contracts.
The arbitration was under ICC Rules and had its seat in London. One of the arbitrators, well
known and respected, had provided the parties with his resumé and had signed the ICC
Statement of Independence. Inadvertently the curriculum vitae did not contain the
information that the arbitrator was a non-executive director and very small shareholder in
Nortel, another telecommunications company involved in the bidding process. When this
information came to light, two interim awards had already been issued by the tribunal in
which it found that the agreement was legally binding and that AT&T breached its
obligation to negotiate in good faith. Before the final award on damages was rendered
AT&T challenged the chairman of the tribunal. The challenge was rejected by the ICC Court
and AT&T was ordered to pay US$30,000,000 of damages to Saudi Cable. AT&T applied to

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 the English courts to have the chairman removed and the award set aside on the grounds
of unconscious bias and misconduct.
13-16 The Court of Appeal considered the issue from the viewpoint of actual bias rather
than the appearance of bias. On the facts it held that there was no evidence that the
P 306 arbitrator may be or was predisposed against AT&T. His directorship of Nortel was
P 307 incidental to his professional life: he had very limited involvement with the company, he
did not attach importance to his directorship and his shareholding was insignificant. The
arbitrator was a distinguished international lawyer and arbitrator, who was aware of his
obligations of impartiality, he believed at all times that he was acting appropriately and
nothing he had done or said during the proceedings had in any way shown bias of any kind.
(19)
13-17 In relation to the issue of unconscious bias by an arbitrator the Court of Appeal
endorsed a test developed by the House of Lords in R v Gough (20) for judges according to
which
… the court should ask itself whether … there was a real danger of bias on the part of the
relevant member of the tribunal in question, in the sense that he might unfairly regard (or
have unfairly regarded) with favour, or disfavour, the case of a party to the issue under
consideration by him. (21)
13-18 Despite the fact that the English Arbitration Act provides in section 24(1)(a) that an
arbitrator may be removed if there are “justifiable doubts as to his impartiality”, the real
danger test was endorsed by the Court to be the relevant test under the Act. (22)

1.2 Limitation of the Right to Challenge

13-19 The importance attached to the independence and the impartiality of the tribunal
connotes that parties cannot renounce their right to challenge arbitrators which do not
fulfil these requirements in advance. Any such agreement would be contrary to public
policy. (23) A German court in 1976 went as far as holding that the enforcement of an award
rendered by arbitrators, the names of which were not divulged to the parties, would be
P 307 contrary to public policy. It held that without such knowledge the parties could not
P 308 exercise their fundamental right to challenge. (24) Though it is doubtful whether today
courts in Germany or elsewhere would still come to the same conclusion, it shows the
importance attached to the right to challenge.
13-20 This does not imply that the right exists without limits and parties can initiate
challenge proceedings at any time. To restrict the possibility of challenges being used for
tactical and dilatory purposes most rules and laws submit the right to challenge an
arbitrator to strict time limits. The challenge must generally be exercised within a very
short period after the facts giving rise to the challenge become known. The period foreseen
in the different arbitration rules and laws varies (25) but rarely exceeds the 30 days
provided for under the ICC Rules. (26)
13-21 Parties cannot wait until the arbitration turns against them and then rely on a ground
for challenge but must exercise their right immediately. Otherwise they are considered to
have waived their objections. This is well evidenced by a recent decision of the Higher
Regional Court in Cologne. (27) The chairman of an arbitration tribunal informed the parties
that she had to take over a case from one of the partners of her law firm which involved a
claim in a different matter by a third party against the claimant. Under the applicable
arbitration rules challenges had to be made within two weeks after the relevant facts
became known. Since it took the claimant four weeks to request the removal of the
arbitrator, the court held that the ensuing challenge was inadmissible.
13-22 Considerations of waiver also underlie a second restriction on the right to challenge
which can be found in various arbitration laws and rules, such as the DIS Rules which
provide in section 18(1):
An arbitrator may be challenged only if circumstances exist that give rise to justifiable
P 308 doubts as to his impartiality or independence, or if he does not possess qualifications
P 309 agreed to by the parties. A party may challenge an arbitrator nominated by him, or in
whose nomination it has participated only for reasons of which he becomes aware after the
nomination has been made. [emphasis added] (28)
13-23 Parties who appoint their arbitrator despite knowing his lack of independence or
impartiality are considered to have waived any objections to the arbitrator and any
personal conflict he may have in this respect.
13-24 Whether the same limitation applies to a party which knowing the incriminating facts
did not object to an appointment made by the other side or an appointing authority is not
as clear. The principle of etoppel might also justify an exclusion of the right to challenge in
these cases. Irrespective of this the ICC allows challenges in such situations if they are
raised within 30 days after the notification or the confirmation of an appointment. (29) In
case of the Model Law the legislative history would support a different approach at least in
cases of a joint appointment or where a party could veto any appointment. The Model Law
contains an express reference to arbitrators “in whose appointments [the party] has
participated”, which is a purposeful deviation from the wording of the UNCITRAL Rules. (30)

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 1.3 Procedure for Challenge
13-25 The procedure for a challenge is submitted to party autonomy. Agreements between
the parties on such a procedure are, however, very rare in practice. Therefore challenge
proceedings are either governed by the rules provided for in the applicable arbitration
rules or, if no such rules have been agreed on, by the provisions in the relevant arbitration
laws.
a Provisions of the Arbitration Rules
13-26 In institutional arbitration the normal procedure for a challenge is by a reasoned
submission sent to the institution, which will then solicit comments from the other party
and the arbitration tribunal. If the parties cannot agree on the removal of the challenged
P 309 arbitrator or the arbitrator does not resign voluntarily the institution will have to decide
P 310 on the issue. (31) Differences exist primarily in relation to the time within which such an
application must be made and to whom the application must be sent. Under some rules,
such as the LCIA Rules, the application must be sent directly to all parties involved and not
only to the institution. (32)
13-27 Under the UNCITRAL Rules the application must be sent within 15 days directly to the
parties and all members of the arbitration tribunal. If the parties cannot agree on the
challenge or the arbitrator refuses to withdraw, Article 12 UNCITRAL Rules provides that the
challenge will be determined:
(a) When the initial appointment was made by an appointing authority, by that
authority;
(b) When the initial appointment was not made by an appointing authority, but an
appointing authority has been previously designated, by that authority;
(c) In all other cases, by the appointing authority to be designated in accordance with
the procedure for designating an appointing authority as provided for in ….
13-28 If the arbitration institution or the appointing authority sustains the challenge the
arbitrator in question will be removed. The decision of the institution or the appointing
authority is final. Whether that also applies if the challenge is rejected, depends on the law
applicable to the arbitration.
b Provisions of the Arbitration Laws
13-29 The Model Law allows an unsuccessful party in a challenge before an institution or
appointing authority to continue its challenge in the courts. It provides in Article 13(3)
If a challenge under any procedure agreed upon by the parties or under the procedure of
paragraph (2) of this article is not successful, the challenging party may request, within
thirty days after having received notice of the decision rejecting the challenge, the court or
other authority specified in article 6 to decide on the challenge, which decision shall be
subject to no appeal; while such a request is pending, the arbitral tribunal, including the
challenged arbitrator, may continue the arbitral proceedings and make an award.
13-30 According to Article 13(1) the parties cannot deviate from that provision. The
rationale for this approach is to avoid delays arising out of a challenged arbitrator
P 310 conducting the proceedings and the risk of the award being set aside. To avoid the
P 311 procedure being misused for dilatory tactics the law provides for a short time limit,
allows no appeal from the court's decision and gives the tribunal a discretion to continue
the arbitration, (33) a discretion which is also exercised in practice. (34)
13-31 The extent of continuing challenges in the courts was an issue in the English decision
in AT&T v Saudi Cable. On the basis of the provision in the ICC rules that any decision on a
challenge by the ICC Court should be final, the judge at first instance considered himself
bound by the decision of the ICC concerning any violation of the ICC Rules. However, this
did not prevent him from determining whether the English rules on unconscious bias or
misconduct had been violated. The Court of Appeal rejected that interpretation of the
finality provision of the ICC and held that
[t]he finality provision does not operate to exclude the English Court's jurisdiction under s.
23 of the 1950 Act [removal for misconduct]. Accordingly, Mr. Justice Longmore was entitled
to consider whether there had been “misconduct” by breaching the terms of the arbitration
agreement. When doing so the Court, if required to interpret the ICC rules, would naturally
pay the closest attention to any interpretation of the ICC rules adopted by the ICC court,
but the English Courts retain their jurisdiction to determine whether the ICC rules have
been breached when entertaining an application to remove for alleged misconduct. (35)
13-32 However, under some arbitration laws, a party cannot generally continue the
challenge proceedings in the court until the end of the arbitration proceedings. (36) If the
parties have agreed upon a challenge procedure, any decision rendered in such procedure
is considered to be final. A limited court control of the arbitrators' independence and
impartiality is only possible at the post-award stage where it might justify annulment of
the award.
P 311
P 312

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 13-33 Irrespective of the above mentioned differences nearly all arbitration laws provide
for challenge procedures if the parties have not agreed on a tailor-made challenge
procedure. Otherwise the parties could be forced to continue arbitration proceedings
without having any possibility at the pre-award stage to challenge the arbitrators even if
they obviously lacked the necessary independence or impartiality. A typical example of
those provisions is Article 13(2) Model Law which provides:
Failing such agreement, a party who intends to challenge an arbitrator shall, within fifteen
days after becoming aware of the constitution of the arbitral tribunal or after becoming
aware of any circumstance referred to in article 12(2), send a written statement of the
reasons for the challenge to the arbitral tribunal. Unless the challenged arbitrator
withdraws from his office or the other party agrees to the challenge, the arbitral tribunal
shall decide on the challenge.
13-34 Like a number of other national laws, the Model Law entrusts the tribunal with the
task of deciding the challenges with the possibility to bring additional proceedings in the
courts if the challenge is rejected. (37) Other laws, such as the English or the Belgian law,
refer the decision from the outset to the courts. (38)
13-35 An exception is the Federal Arbitration Act which does not provide for any judicial
review of an appointment at a pre-award stage. (39) Instead the parties' only option is to
attack the award issued by the tribunal, where the lack of impartiality or independence is
a reason for annulment or denial of enforcement. The disadvantages of this approach are
obvious: the parties are required to continue the arbitration though one party has lost
P 312 confidence in the impartiality of the tribunal and it is clear that the award will be
P 313 challenged. In this respect it is interesting to note that though no separate challenge
procedure exists the parties must put their objections to an arbitrator on the record to be
able to attack the award at a later stage. If this is not done the parties may be considered
to have waived their rights. (40)

1.4 Challenges after an Award has been Rendered

13-36 A slightly different situation arises when the facts which justify a challenge become
known only a short time before the award is rendered or even after it has been rendered.
Unless it is only a partial award the arbitrator's mandate is generally finished and he is
functus officio. Therefore, it makes little sense or is no longer possible to initiate challenge
procedures against the arbitrator. (41) Instead the parties must challenge the award and
seek its annulment, either on the ground that the tribunal was not properly constituted, an
incorrect procedure had been applied or that enforcement of the award would be contrary
to public policy. (42)
13-37 In this context the question arises whether any connection between the arbitrator
and the parties or their counsel which would have justified a challenge of the arbitrator
before an award has been rendered also justifies the challenge of an award or whether a
stricter standard has to be applied. The various national laws answer this question
differently.
P 313
P 314
13-38 Under French (43) , English (44) or Swiss (45) law the same test is applied irrespective
of whether the lack of independence is used to challenge the arbitrator or whether it is
used to challenge the award.
13-39 In contrast to that position under German law a different and stricter standard is
applied. This was reiterated by the German Supreme Court. (46) There a party discovered
after the award had been rendered that the law firm of the arbitrator it had appointed was
advising the parent company of the other party. Since this had not been disclosed by the
arbitrator the party requested the annulment of an award on the grounds of incorrect
procedures used by the tribunal. The Supreme Court held that the challenge for an alleged
lack of independence can only be brought before the award has been rendered. If the facts
giving rise to doubts of the arbitrator's independence were only discovered after the
award was made, they would only in cases of grave and obvious partiality or dependence
justify annulment of the award. Since in the Supreme Court's view the facts did not reveal a
grave case of partiality the award was upheld.
13-40 The application of a higher standard which required more or less proof of actual bias
affecting the award was justified by considerations of legal certainty. It was held that the
res judicata effect of the award should only be ignored in such extreme situations where
the enforcement of an award would violate public policy but should prevail in all other
cases. (47)
13-41 A violation of public policy was found to exist in an extreme case involving a contract
for participation in an arms fair in Turkey. The contract was drafted by the Turkish
claimant's lawyer and provided for arbitration in Turkey. It nominated the lawyer as the
P 314 sole arbitrator and contained a clause according to which the sole arbitrator could not be
P 315 removed under any circumstances. A contract penalty of Swiss Francs one million was to
be paid to the arbitrator if this provision was violated. The arbitrator who by that time had
also acted as a lawyer for the respondent, rendered an award in favour of the claimant
which the respondent unsuccessfully challenged before the Turkish courts. The Swiss courts
refused to enforce the award because the sole arbitrator lacked the necessary

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 independence: he had drafted the agreement, represented the claimant and was
effectively non-removable. This violated Swiss public policy. (48)
13-42 Courts are reluctant to set aside an award or refuse its enforcement for alleged bias
of an arbitrator. A far-reaching decision was rendered by an Indian Court of Appeal where a
high ranking official of one of the parties who was, however, not involved in the disputed
transaction, was appointed as the sole arbitrator. The court held that as long as the
arbitrator acted impartially and the appointment of an official of a party was not against
the public policy of the place of arbitration, the enforcement of an award rendered by
such an arbitrator would not be against Indian public policy. (49)

1.5 Exclusion of the Right to Challenge the Award

13-43 In general, there is no right to challenge an award on the basis of a lack of
independence or impartiality of an arbitrator where those facts were known to the parties
before the award was rendered. If parties do not make use of remedies available to them
they can be considered to have waived their rights in relation to those facts. This was the
position taken by the Supreme Court of Canada in 1966 when it stated:
… generally speaking, an award will not be set aside if the circumstances alleged to
disqualify an arbitrator were known to both parties before the arbitration commenced and
they proceeded without objection. (50)
13-44 This is also the case under the Model Law despite the fact that the requirements of
P 315 independence and impartiality are mandatory requirements and according to Article 4,
P 316 cannot be waived. (51) Otherwise the time limits for challenges contained in the Model
Law would be meaningless. A party could await the outcome of the proceedings and
challenge the award on the basis of facts already known to it before the award was
rendered. (52)
13-45 There is a tactical question of whether and when to challenge an arbitrator who is
thought not to be independent or impartial. In many cases it may be preferable not to
exercise the right to challenge. A party should always consider the effect of an unsuccessful
challenge on its ongoing relationship with the tribunal and the attitude the challenged
arbitrator may have towards the party.
13-46 Furthermore, a biased arbitrator will often be treated with suspicion by the rest of
the tribunal, so that the chairman will be more prepared to listen to the other party
appointed arbitrator. As a result the biased arbitrator may have little influence on the
content of an award so that a challenge may actually not be necessary. It will then only
lead to unnecessary delay since any challenge has the potential of causing disruption and
delaying the rendering of an award. Furthermore, there is no guarantee that the party
nominated replacement will be independent or impartial. It is also possible that the lack
of independence or impartiality of the replacement may not be as obvious, and he may, by
his personality and his status, be able to influence the outcome of the arbitration in a
much stronger way than the originally appointed arbitrator. (53)

2 Termination of the Arbitrator's Mandate

13-47 An arbitrator's mandate can also be terminated by agreement. This is expressly
provided for in an number of arbitration laws (54) and rules (55) . In any event, even
without such a provision, it follows from the contractual basis of arbitration. As the parties
are the masters of the arbitration they cannot be forced to continue an arbitration started
with a tribunal they do not want.
P 316
P 317
13-48 In addition, under most laws and rules each party has the right to apply for a
termination of an arbitrator's mandate and his replacement if the arbitrator is unable,
prevented or fails to carry out his functions. While under some rules and laws this is
considered to be just another reason for challenge within the special challenge procedure,
(56) the Model Law treats it as a separate ground for termination which is submitted to a
different procedure. Article 14(1) provides
If an arbitrator becomes de jure or de facto unable to perform his functions or for other
reasons fails to act without undue delay, his mandate terminates if he withdraws from his
office or if the parties agree on the termination. Otherwise, if a controversy remains
concerning any of these grounds, any party may request the court or other authority
specified in article 6 to decide on the termination of the mandate, which decision shall be
subject to no appeal.
13-49 Inability to perform his functions may arise if the arbitrator is seriously ill or dies or
perhaps where due to political controls an arbitrator is physically or legally prevented
from performing. (57) More problematic is to determine when “undue delay” has occurred
or the arbitrator has failed “properly to conduct the proceedings” as stipulated in the
English Arbitration Act. Once the proceedings have commenced it is very hard for the
parties to agree on whether undue delay has occurred, in particular, if one of the parties is
not interested in an expeditious rendering of the award. (58)
13-50 Depending on which courts have jurisdiction to remove an arbitrator in such a case

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 an interested party should consider whether the proceedings for the removal of an
arbitrator, in combination with the time for the appointment of a replacement arbitrator
and the additional steps required, would delay the proceedings even more than keeping
the arbitrator in place despite the delay.
13-51 It may prove valuable, in institutional arbitration, if the institution has a right of its
P 317 own to remove an arbitrator for delay in exercising his functions. For example, ICC Rules
P 318 Article 12(2) provides that:
An arbitrator shall also be replaced on the Court's own initiative when it decides that he is
prevented de jure or de facto from fulfilling his functions, or that he is not fulfilling his
functions in accordance with the Rules or within the prescribed time limits.
13-52 An arbitrator may also voluntarily tender his resignation and terminate his mandate,
either in response to a challenge or for other reasons. Given the disruption caused by such
a termination some arbitration laws and rules limit the right of an arbitrator to resign.
Belgian Law, for example, requires a special authorisation by a court of first instance if an
arbitrator wants to resign without the consent of the parties. (59) In most cases it is not in
the parties' interest to force such an arbitrator to continue; it is better to replace him by
another more cooperative arbitrator. In the light of the disruption caused by a voluntary
resignation arbitrators should always be made aware of the effect on fees and the
arbitrator's liability in contract as a result of such resignation. This should dissuade
partisan arbitrators from resigning at any stage of the proceedings and thereby
destabilising the arbitration process and creating delays.

3 Replacement of Arbitrators
13-53 Any successful challenge, the voluntary resignation of an arbitrator or other
termination of the arbitrator's mandate before the award has been rendered, results in an
incomplete tribunal. In these cases a new arbitrator has to be appointed if there was only
one arbitrator or if the remaining arbitrators cannot or do not want to act as a truncated
tribunal.
13-54 There are good reasons to submit the appointment of the replacement arbitrator to
the same rules under which the original arbitrator was appointed. Such an approach is in
line with the parties' intention as to the composition of the tribunal. For example, a
replacement for a party appointed arbitrator should be by the same party to ensure that
both parties have the same influence on the appointment of the tribunal which will finally
render the award. If that arbitrator is appointed by a court or an appointing authority the
party who originally appointed the replaced arbitrator may not have a person of their
P 318 confidence in the tribunal. Relevant in this respect should be the agreed way of
P 319 appointment for the original arbitrator not how the arbitrator was actually appointed.
Therefore a party who failed to make its appointment for the original tribunal should still
have the right to appoint the replacement.
13-55 This approach is adopted in the Model Law which provides in Article 15:
Where the mandate of an arbitrator terminates under article 13 or 14 or because of his
withdrawal from office for any other reason or because of the revocation of his mandate by
agreement of the parties or in any other case of termination of his mandate, a substitute
arbitrator shall be appointed according to the rules that were applicable to the
appointment of the arbitrator being replaced. (60)
13-56 The drawback of this approach is that it can easily be misused by a party for dilatory
purposes. A party which has deliberately appointed a biased or unsuitable arbitrator may,
after a successful challenge, do so again necessitating a second challenge with all its
disruptive effects.
13-57 To limit this possibility a number of institutional arbitration rules give a certain
discretion to the institution whether or not to apply the original appointment procedure
for the replacement arbitrator. For example, Article 11(1) LCIA Rules, inspired by the
slightly narrower Article 12(4) ICC Rules provides:
In the event that the LCIA Court determines that any nominee is not suitable or
independent or impartial or if an appointed arbitrator is to be replaced for any reason,
the LCIA Court shall have a complete discretion to decide whether or not to follow the
original nominating process.
13-58 A special provision for cases prone to misuse for dilatory purposes, which deviates
from the original appointment procedure, is also contained in the ICSID Rules. Article 11.2
states:
In addition to filling vacancies relating to arbitrators appointed by him, the Chairman of
the Administrative Council shall appoint a person from the panel of Arbitrators:
(a) to fill a vacancy caused by the resignation, without the consent of the Tribunal, of an
arbitrator appointed by a party; or
(b) at the request of either party, to fill any other vacancy, if no new appointment is
made and accepted within 30 days of the notification of the vacancy by the
Secretary-General.
P 319

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 P 319
P 320
13-59 Whenever a replacement arbitrator has been appointed the question arises to what
extent the tribunal has to repeat parts of the proceedings. Before oral hearings have been
held it is in general sufficient that the replacement arbitrator is given time to read the
pleadings and the other documents exchanged. Furthermore, he should give his assent in
written form to any procedural directions issued by the tribunal.
13-60 More problematic are replacements after evidence and legal arguments have been
presented. In such a situation it is necessary to provide the replacement arbitrator with
the same information as the other arbitrators and to give each party the opportunity to
present its case adequately to the whole tribunal which is to render the award. This can be
costly and time consuming. Where a transcript of the hearings exists it may be possible to
have the arbitrator read the transcript. He can then decide which witnesses, if any, he
wants to hear again or what additional questions he would like to ask the parties or the
witnesses. If no transcript exists it is for the particular tribunal to decide which parts of the
evidence, if any, should be repeated.
13-61 Although no general rule can be advanced on this point it is always to be borne in
mind that each arbitrator has the right to participate in every part of the proceedings.
Awards may be challenged for improper proceedings when that right is denied to a
replacement arbitrator. This seems to be the position underlying the provisions dealing
with this issue in the various arbitration rules. Most arbitration rules contain a provision
according to which the tribunal, after an arbitrator has been replaced, has discretion on
whether to repeat the hearings or any other actions. For example, Article 34 WIPO Rules
provides
Whenever a substitute arbitrator is appointed, the Tribunal shall, having regard to any
observations of the parties, determine in its sole discretion whether all or part of any prior
hearings are to be repeated. (61)
13-62 A more restrictive approach is adopted in the UNCITRAL Rules. This restricts the
tribunal's discretion to the party appointed arbitrators. Article 14 provides
If under Rules 13 to 15 the sole or presiding arbitrator is replaced, any hearings held
previously shall be repeated unless otherwise agreed to by the parties. If any other
arbitrator is replaced, such prior hearings may be repeated at the discretion of the
Tribunal.
P 320
P 321
13-63 It is noteworthy that the Iran-US Claims Tribunal altered this rule to allow the
Tribunal discretion as to the repetition of hearings irrespective of the status of the
arbitrator. This extended discretion was used when the question of rehearing arose in the
Iran-US Claims Tribunal following the death of Judge Virally. There were eleven cases in
which he had participated still pending. In most cases the new chairman considered the
transcripts, notes of judge Virally and his assistant sufficient and only two cases were
reheard. (62)
13-64 The Model Law, as well as most laws based on it, are silent on the issue. An exception
is Egyptian law, where a provision was included to the effect that the removal of an
arbitrator “shall entail considering the arbitral proceedings already conducted, including
the Arbitral Award, null and void.” The consequence of this approach is that all
proceedings have to be repeated. (63) This rule will probably also override any discretion
granted by the chosen arbitration rules.
13-65 By contrast the English Arbitration Act contains a more expansive provision dealing
with the issue of rehearing. It is submitted to the parties' agreement and failing such
agreement gives the tribunal a wide discretion as to whether parts of the proceedings have
to be repeated. Section 27(4) provides
The tribunal (when reconstituted) shall determine whether and if so to what extent the
previous proceedings should stand.
This does not affect any right of a party to challenge those proceedings on any ground
which had arisen before the arbitrator ceased to hold office. (64)
13-66 A good illustration of how tribunals make use of their discretion is ICC Award No 6476.
It was based on a rather extreme situation. (65) After the original tribunal had rendered a
partial award on jurisdiction the respondent initiated unsuccessful challenge proceedings
against the chairman which, despite being rejected, led to the resignation of the chairman.
Upon further challenges by the defendant the new chairman, as well as the arbitrator
appointed by the other party, also resigned. The respondent applied to the reconstituted
P 321 tribunal to have all prior proceedings and rulings repeated. To avoid any further delay in
P 322 the proceedings which were already ongoing for five years the tribunal decided to allow
the proceedings to continue on the basis that it would review all prior proceedings and
rulings and decide upon the application to repeat them in due course. In its final award
the tribunal held that in its view
… the best and safest course is to review all prior proceedings and rulings of the Tribunal
and to make such dispositions as it deems appropriate in the light of this review. This will
exclude any possibility of the Defendant's attacking this award on the ground that it is

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 based on prior proceedings and rulings by an improperly constituted tribunal.
…
Upon reviewing the entire record of the case, the newly appointed members of the
Tribunal have reached the conclusion that no proceedings need to be repeated for their
benefit and that their study of the record, together with the additional submissions by the
parties, has adequately informed them of what has transpired before. The Tribunal
therefore concluded that no repetition of prior proceedings is necessary.
…
The Tribunal's review, in the light of the submissions by both parties, leads it to conclude
that all rulings by the Tribunal should be reaffirmed, except that the reasoning needs to be
adjusted as indicated in the award.

4 Truncated Tribunals
13-67 Problems can occur where one arbitrator in a three person tribunal refuses to sign
the award, take part in the arbitrators' deliberations or even the proceedings, or
unilaterally withdraws from the tribunal. (66) A partisan arbitrator may also resign to
prevent an award against the party appointing him, or to delay the proceedings. Where the
refusal to co-operate comes shortly before an award is to be rendered the parties may
have spent a considerable amount of money and time on the arbitration proceedings. To
replace the unco-operative arbitrator and restart the proceedings is often not a realistic
option. It would reward the uncooperative behaviour and the necessary rehearing of the
case may be what the arbitrator intended.
P 322
P 323
13-68 In these circumstances can the remaining two arbitrators proceed without the
partisan arbitrator and render an award? (67) Such a procedure may be problematic in
light of the fact that, in general, awards should be made by the whole tribunal. Though few
laws contain provisions to that effect (68) the participation of all members of the tribunal
in the making of an arbitration award is generally considered to be a fundamental part of
due process. (69) It has been argued that the underlying rationale to ensure an equal
representation of the parties in the tribunal, is affected where one of the party appointed
arbitrator does not participate in part of the proceedings. (70) Furthermore it has been
maintained that an award rendered by a truncated tribunal of two arbitrators is not in
accordance with the agreement of the parties on a three member tribunal. (71)
13-69 These arguments do not lead to any conceptual problems in cases where a party
appointed arbitrator, after the closing of the proceedings and the tribunal's deliberations,
refuses to sign the award because he disagrees with its contents. The arbitrator had, during
the proceedings and the ensuing deliberation, every opportunity to present his view and
convince the other arbitrators of his opinion. Consequently, the party appointing him did
have equal influence on the composition of the tribunal which in its deliberations decided
on the award. The lack of an obstructive arbitrator's signature cannot be allowed to
frustrate the arbitration. The appropriate way to express disagreement with the award may
be to write a dissenting opinion. Therefore a number of laws and rules provide that in such
cases the signature of the arbitrator is not required. By contrast it is considered sufficient
that the award explains why the signature is lacking. (72)
13-70 In most cases, however, partisan arbitrators refuse to co-operate at an earlier stage,
before the final deliberations or even before the closing of the proceedings. The failure of
P 323 one arbitrator to participate in the final deliberations leading to the award or even part of
P 324 the proceedings deprives him of any influence on the final award. The award is rendered
only by the remaining two arbitrators.
13-71 This fact led the Cour d'appel de Paris in ATC-CFCO v Comilog to annul an award
rendered by a truncated tribunal on the basis that the tribunal rendering the award was
not properly constituted. (73) This case concerned the liability is for a collision of freight
trains and the resulting damages. The arbitrator appointed by ATC-CFCO, the Congolese
railroad authority, resigned after the draft award had been communicated to him by the
president of the tribunal. ATC-CFCO applied to have the award set aside which was
rendered by the remaining two arbitrators. The court considered it irrelevant whether the
resignation had a dilatory or abusive character and whether the arbitrator by his
behaviour breached a duty to complete his mandate. Emphasising the importance that the
composition of the tribunal be consistent with the requirements of the arbitration
agreement the court held
… that, contrary to the hypothesis advanced by Comilog, according to which the award
remains valid because it is rendered by the tribunal chosen by the parties even if one of
the arbitrators does not participate in the deliberation or refuses to sign the award, since
by continuing to accept his mission he still may exercise his prerogatives, the award at
issue has been rendered by an arbitral tribunal lacking one of its members and the
composition of which no longer conformed to the agreement on which its jurisdictional
power was based. (74)
13-72 A comparable view was taken by the Swiss Supreme Court in the Milutinovic case,

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 albeit on the basis of the old Swiss arbitration law. (75) Irrespective of these decisions the
prevailing view in international arbitration practice is that truncated tribunals should be
allowed to proceed in such situations and to render an award, thus preventing an
obstructive and partisan arbitrator from frustrating the whole arbitration.
13-73 This is well evidenced by a recent award in an ad hoc arbitration between Hilmapura
P 324 and Indonesia where the Indonesian arbitrator, apparently under pressure from the state
P 325 party appointing him, resigned at a late stage of the proceedings. Analysing the various
precedents and dealing with the objection that a truncated tribunal is not properly
constituted the remaining two arbitrators came to the conclusion that
The weight of well established international authority makes clear that an arbitral tribunal
has not only the right, but the obligation, to proceed when, without valid excuse, one of its
members fails to act, withdraws or – although not the case here – purports to resign.
…
The Arbitral Tribunal thus has no hesitation in finding that, in the circumstances of this
arbitration, it has the power to proceed to fulfil its mandate and render an award, since
Professor Priyatna's non participation is without valid excuse In reaching this finding, the
Arbitral Tribunal notes that is was initially constituted in precise conformity with the will of
the Parties as reflected in the Terms of Appointment, and that therefore Professor
Priyatna's withdrawal prejudices not the constitution but the continued effective
composition of the Arbitral Tribunal. As the International Court of Justice observed in it
Advisory Opinion in Interpretation of Peace Treaties with Bulgaria, Hungary and Romania,
and as highlighted by Judge Schwebel in his 1994 Goff Lecture, the distinction is
fundamental. (76)
13-74 This reasoning shows that the doctrinal problems related to awards rendered by
truncated tribunals can be overcome. In particular, where the resignation of an arbitrator
requires the consent of the parties, the institution, the courts or the tribunal, the
arbitrator's mandate is not terminated by his unilateral withdrawal. Therefore it can be
argued that the tribunal is still formally constituted. This excludes at the same time any
potential problems related to an even number of arbitrators and since no unanimity is
required for an award the lack of consent by one arbitrator is also not a problem. The
award by a truncated tribunal has the same support as a majority award, the only
difference being that the party appointed arbitrator did not take part in the deliberations.
Due process does not require that the third arbitrator actually takes part but only that he
has an opportunity to do so. (77)
P 325 13-75 Various efforts to regulate the matter on an international level have not been
P 326 successful. However, a number of the recently adopted rules and laws provide for
awards by truncated tribunals. (78) A fairly narrow provision can be found in the ICC Rules
where the decision as to rendering such an award is taken by the ICC Court of Arbitration.
Article 12(5) provides
Subsequent to the closing of the proceedings, instead of replacing an arbitrator who has
died or been removed by the Court pursuant to Articles 12(1) and 12(2), the Court may
decide, when it considers it appropriate, that the remaining arbitrators shall continue the
arbitration. In making such determination, the Court shall take into account the views of
the remaining arbitrators and of the parties and such other matters that it considers
appropriate in the circumstances, …
13-76 The remaining arbitrators' right to proceed is limited to situations where a vacancy
arises after the closing of the proceedings. By contrast the mere failure to participate
without any formal resignation or vacancies arising at an earlier time will probably not
give such a right. (79)
13-77 Broader provisions in other rules such as Article 35(a) WIPO Arbitration Rules. This
provides:
If an arbitrator on a three-person Tribunal, though duly notified and without good cause,
fails to participate in the work of the Tribunal, the two other arbitrators shall, unless a
party has made an application under Article 32, have the power in their sole discretion to
continue the arbitration and to make any award, order or other decision, notwithstanding
the failure of the third arbitrator to participate. In determining whether to continue the
arbitration or to render any award, order or other decision without the participation of an
arbitrator, the two other arbitrators shall take into account the stage of the arbitration, the
reason, if any, expressed by the third arbitrator for such non-participation, and such other
matters as they consider appropriate in the circumstances of the case. (80)
13-78 By submitting to arbitration under these rules the parties vest the tribunal with the
power to render an award as a truncated tribunal subject to the third arbitrator having a
P 326 fair opportunity to participate. This defeats any argument as to an improperly composed
P 327 tribunal. The parties opted for that type of tribunal irrespective of whether one
considers the mandate of the non-participating arbitrator to be terminated or not.
13-79 In such cases only a very restrictive position of the applicable law concerning the
equal representation of the parties in the deliberation can cause problems for awards by
truncated tribunals. The majority of national laws, however, adopt a different approach
allowing for such awards. The Swedish Act even contains an provision to that effect. Section

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 30 provides
Where an arbitrator fails, without valid cause, to participate in the determination of an
issue by the arbitral tribunal, such failure will not prevent the other arbitrators from ruling
on the matter. Unless the parties have decided otherwise, the opinion agreed upon by the
majority of the arbitrators participating in the determination shall prevail. If no majority is
attained for any opinion, the opinion of the chairman shall prevail. (81)
13-80 In other countries, such as France (82) and the US (83) , courts have interpreted the
law in such a way which is in line with the majority position in international arbitration.
(84) The reasons for that approach are well expressed in Uiterwyk Corporation v Iran
decided by the Iran-US Claims Tribunal. In this case, after the Iranian Arbitrator had
withdrawn from the deliberations, the other two members of Chamber One continued their
deliberations and held
[t]his is in accordance with the established practice of the Tribunal to continue its work
and make awards despite the failure of one arbitrator to participate. The practice of the
Tribunal in this respect is necessary to prevent disruption and frustration by one Member
of the Tribunal's performance of its functions and is fully in accordance with recognized
principles of international law. (85)
P 327
P 328
13-81 The arbitrators in the Milutinovic case (86) even went a step further. The case
concerned a dispute between the member of a consortium formed for the construction of a
power station in Libya. The Consortium Agreement provided for ICC Arbitration in Zurich.
After an exchange of written briefs and submissions and at the end of the examination of
witnesses the claimant asked for the re-examination of some of the defendant's witnesses.
The majority of the tribunal rejected that request which led to the resignation of the party
appointed arbitrator. The other two arbitrators rendered a partial award. They decided
that since the resignation had not been accepted by the ICC the unco-operative arbitrator
was still considered to be a member of the Tribunal. Accordingly the Tribunal saw no
problems as to its proper composition. Concerning its continuation of the deliberations the
Tribunal held
A decision of the Arbitral Tribunal to the contrary, i.e., to present a request for the removal
of Professor Jovanovic (either in Zurich or in Paris) and to re-start the proceedings with the
eventual successor of Professor Jovanovic, would be contrary to the requirements of orderly
and correct arbitration, providing to an arbitrator (or a party influencing him) the means to
sabotage the correct coming to an end of an arbitral procedure and to extort from the
opposed party the reopening of the proceedings. Such a possibility would neglect the
demands of the solution of international commercial disputes and question the credibility
of arbitration … (87)
13-82 This decision was annulled by the Swiss Federal Tribunal. After accepting in a first
round of proceedings that the behaviour of the remaining two arbitrators was justified, the
Swiss Federal Court nevertheless annulled the award for a violation of fundamental rights.
In its heavily criticised decision it held that due to the lack of participation by one
arbitrator the tribunal was not properly composed when rendering the award. It has been
P 328 doubted whether under the new Swiss law, Swiss courts would render the same decision.
(88)

References
1) Whether the retiring arbitrator loses his right to remuneration or whether he is even
liable for damages is a question for the applicable law or rules. See England,
Arbitration Act section 25.
2) See, e.g., Universal Declaration of Human Rights Article 10; European Convention on
Human Rights, 6 Article; Calvo, “The Challenge of ICC Arbitrators”, 15(4) J Int'l Arb 63
(1998) 65.
3) See, e.g., LCIA Article 10(3) and DIS Rules section 18(1) which only allow such a
challenge if based on facts not known to the party at the time of appointment.
4) See, e.g., Redfern and Hunter, International Commercial Arbitration, para 4-59; Henry,
“Les obligations d'indépendance et d'information de l'arbitre à la lumière de la
jurisprudence récente”, Rev Arb 193 (1999). In addition challenges may also be used to
intimidate or warn the arbitrators, see Böckstiegel, “Practice of Various Arbitral
Tribunals”, ICCA Congress series no 5, 132.
5) In the ICC context less than 10% of the challenges have been successful; see Craig, Park
& Paulsson, ICC Arbitration, para 13-01; Calvo, “The Challenge of ICC Arbitrators”, 15(4) J
Int'l Arb 63 (1998) 71.
6) A notable exception is section 8(a) of the Swedish Arbitration Law and Article 34
Chinese Arbitration law which contain lists of instances when impartiality is deemed to
be lacking. See also Henry, Le devoir d'indépendence de l'arbitre, (LGDJ 2001).
7) AAA, Code of Ethics for Arbitrators in Commercial Disputes (1977); IBA, Ethics for
International Arbitrators (1987).
8) See, e.g., Model Law Article 12(2); DIS Rules section 18(1).

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 9) For the drafting history and the interpretation of the requirement see Bucher, Die neue
internationale Schiedsgerichtsbarkeit in der Schweiz, para 168 et seq; Peter and
Freymond in Berti (ed), International Arbitration in Switzerland, Article 180 para 9 et
seq.
10) The DAC report made clear that independence was deliberately left out as a ground for
removal. The drafters feared that including independence as a separate ground might
lead to “endless arguments” and that in some situations “parties desire their
arbitrators to have familiarity with a specific field, rather than being entirely
independent”: paras 102, 103; the extensive list in section 24 is due to the fact that,
contrary to most other laws and rules, the Act does not have a special provision for
challenges but regulates all instances of removal of an arbitrator in one section.
11) Craig, Park & Paulsson, ICC Arbitration, para 13-05(i).
12) Derains and Schwartz, ICC Rules, 175 et seq; Calvo, “The Challenge of ICC Arbitrators”,
15(4) J Int'l Arb 63(1998) 64.
13) See, e.g., Model Law Article 12(2); Germany, ZPO section 1036(2); Switzerland, PIL Article
180(1)(c); South Africa, Moch v Nedtravel (Pty) Ltd, (1996) 3 SA 1; Australia, R v Watson, ex
parte Armstrong, (1976) 136 CLR 248.
14) See AT&T Corporation and another v Saudi Cable, [2000] 2 Lloyd's Rep 127; Laker Airways
v FLS Aerospace [1999] 2 Lloyd's Rep 45 which applied the “real danger” test though the
English Arbitration Act uses “justifiable doubts”; for an overview of the English law see
Gearing, “A Judge in his Own Cause?-Actual or Unconscious Bias of Arbitrators”, 3 Int
ALR 46 (2000); Eastwood, “A Real Danger of Confusion? The English Law Relating to Bias
in Arbitrators”, 17 ArbInt 287 (2001).
15) See, e.g., ANR Coal Co v Cogentrix of North Carolina, Inc, 173 F 3d 493 (4th Cir 1999); for
an extensive and critical discussion of the American case law see Shore, “Disclosure
and Impartiality: An Arbitrators Responsibility vis-à-vis Legal Standards”, 57(4) Disp
Res J 34 (2002) 78 et seq; see also the Supreme Court of Bermuda in Raydon
Underwriting Management Company Ltd v Stockholm Re (Bermuda) Ltd (in Liquidation),
2 Int ALR N-55 (1999).
16) Challenge decision of 11 January 1995, XXII YBCA 227 (1997).
17) Ibid, paras 30-31.
18) AT&T Corporation and another v Saudi Cable [2000] 2 Lloyd's Rep 127; for further
examples from the English and US jurisprudence see Shore, “Disclosure and
Impartiality: An Arbitrators Responsibility vis-à-vis Legal Standards”, 57(4) Disp Res J 34
(2002).
19) Ibid, 136.
20) [1993] AC 646, 670, per Lord Goff.
21) AT&T Corporation and another v Saudi Cable, [2000] 2 Lloyd's Rep 127, 135; the ICC Court
of Arbitration, relying on the justifiable doubts test came to the same conclusion; for a
different conclusion under the justifiable doubts test see, however, the 1968 decision
of the US Supreme Court in Commonwealth Coatings Corp v Continental Casualty Co,
393 US 145 (1968).
22) Laker Airways v FLS Aerospace [1999] 2 Lloyd's Rep 45.
23) See Bezirksgericht, Affoltern am Albis, 26 May 1994, XXIII YBCA 754 (1998) paras 24-27;
confirmed by the Court of Appeal in Zurich, 26 July 1995.
24) Oberlandesgericht, Cologne, 10 June 1976, IV YBCA 258 (1979) para 6, German original
published in 91 Zeitschrift für Zivilprozess (1978) 318, with note Kornblum, 323.
25) The challenge must be raised within 15 days: UNCITRAL Rules Article 11(1); LCIA Article
10(4); SCC Rules Article 18(2); DIS Rules section 18(2); AAA ICDR Rules Article 8. See also
Model Law Article 13(2). The challenge must be raised before the first or the next oral
hearing under CIETAC Article 29.
26) ICC Rules Article 11(2).
27) Oberlandesgericht, Cologne, 14 September 2000, 9 SchH 30/00, unpublished.
28) See also Model Law Article 12(2) and LCIA Article 10(3).
29) Derains and Schwartz, ICC Rules, 177.
30) Holtzmann and Neuhaus, Model Law, 390 et seq.
31) See, e.g., ICC Rules Article 11; DIS Rules section 18(2); AAA ICDR Rules Articles 8, 9;
CIETAC Rules Article 30; Zurich Chamber of Commerce Rules Article 16.
32) LCIA Article 10(4).
33) Holtzmann and Neuhaus, Model Law, 407; see similarly England, Arbitration Act section
24(3).
34) See, e.g., in Germany, the decision by the Oberlandesgericht Naumburg, 19 December
2001, 17(6) Mealey's IAR 27 (2002); see also Cour d'appel Paris, 24 February 1994, Ministry
of Public Works (Tunisia) v Société Bec Frères (France), XXII YBCA 682 (1997) para 14-20,
Rev Arb 275 (1995) with note Gaudemet, 285), where the court found that the arbitrators
were allowed to proceed with the arbitration and render an award while a challenge is
pending, as this was not prohibited by the law applicable to the arbitration
proceedings.
35) AT&T Corporation and another v Saudi Cable [2000] 2 Lloyd's Rep 127, 137.
36) For the position in France see Tribunal de Grande Instance Paris, 23 June 1988,
République de Guinée v MMR…et O…, Rev Arb 657 (1988); Fouchard Gaillard Goldman on
International Commercial Arbitration, para 872 et seq; for Switzerland, see Blessing,
Introduction to Arbitration, para 524; Bucher, Internationale Schiedsgerichtsbarkeit in
der Schweiz, para 175 et seq; see also Brazil, which deleted the provision of the Model
Law providing for such a right when adopting the Model Law.

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 37) See also Sweden, Arbitration Act section 10; Russian Federation, Arbitration Law Article
13(2); Germany, ZPO section 1037; but see the decision of the Egyptian Supreme
Constitutional Court, 6 November 1999, Case no 84 of the 19th Judicial Year, 3 Int ALR N-
80 (2000) which declared the referral of the decision to the arbitration tribunal to be
unconstitutional.
38) England, Arbitration Act section 24; Switzerland, PIL Article 180(3); Belgium, Judicial
Code Article 1691; Netherlands, CCP Article 1035; under Nigerian Law the challenge is
decided by the appointing authority and if no authority has been designated by the
Secretary General of the PCA; for other solutions adopted see Sanders, Quo Vadis
Arbitration?, 106 et seq.
39) Availl, Inc v Ryder Sys, Inc 110 F 3d 892, 895 (2d Cir 1997); Folse v Richard Wolfe Med
Insurance Corp 56 F 3d 603, 605 (5th Cir 1995); Certain Underwriters at Lloyd's, London et
al v Continental Casualty Company (US), XXIII YBCA 1046 (1998) para 1-7 (Northern
District of Illinois, Eastern Division, 7 August 1997); see also Veeder, “Laws and Court
Decisions in Common Law Countries and the UNCITRAL Model Law”, ICCA Congress
series no 5, 140, 144.
40) See the decision in The Island Territory of Curacao v Solitron Devices Inc, 356 F Supp 1
(SDNY 1973).
41) See, e.g., the position under German law, where the Supreme Court jurisprudence
consistently held that actions to challenge an arbitrator must be initiated before the
final award has been rendered and are not admissible afterwards; Bundesgerichtshof,
4 March 1999, ZIP 859 (1999); see, to the same effect, France, Tribunal de Grande
Instance Paris, 2 July 1990, Annahold BV v L'Oréal, Rev Arb 483 (1996); see also, in
Switzerland, the decision of the Tribunal Fédéral, 14 March 1985, Société Z v L, ATF/BGE
111 IA 72, 74-78.
42) For the possible reasons to attack an award made by an allegedly partial arbitrator
under Swiss law see Tribunal Fédéral, 12 January 1989, G SA (Switzerland) v T Ltd (UK),
XV YBCA 509 (1990) para 8. Regarding French law, see Cour d'appel Paris, 9 April 1992,
Société Annahold BV et al v L'Oreal, Rev Arb 483 (1996), where the award was annulled
since the applicant erred about the independence of the arbitrator who had not
disclosed its links with the other party.
43) Cour d'appel Paris, 9 Avril 1992, Société Annahold BV et al v L'Oreal, Rev Arb 483 (1996);
see also Henry, “Les obligations d'indépendance et d'information de l'arbitre à la
lumière de la jurisprudence récente”, Rev Arb 193 (1999).
44) AT&T Corporation v Saudi Cable [2000] 2 Lloyd's Rep 127.
45) Tribunal Fédéral, 14 Mars 1985, Société Z v L, ATF/BGE 111 IA 72, 74-78; Tribunal Fédéral,
18 August 1992, ATF 118 II359, 361-362.
46) Bundesgerichtshof, 4 March 1999, ZIP 859 (1999) with note Kröll, EWiR 1087 (1999) which
denied the existence of an exceptional case. For the opposite view in a comparable
case, see Cairo Court of Appeal, 25 November 1998, Case No 42 of the 115th Judicial
Year, reported in 3 Int ALR N-80 (2000).
47) In favour of showing actual bias see also Okekeifere, “Appointment and Challenge of
Arbitrators under the UNCITRAL Model Law: Part II: Challenge”, 3 Int ALR 13 (2000) 15.
48) Bezirksgericht, Affoltern am Albis, 26 May 1994, XXIII YBCA 754 (1998) para 19; confirmed
by the Court of Appeal in Zurich, 26 July 1995.
49) Transocean Shipping Agency (P) Ltd v Black Sea Shipping et al, (1998) XXIII YBCA 713,
para 11 (Court of Appeal, 14 January 1998).
50) Ghirardosi v Minister of Highways (BC), (1966) 56 DLR (2d) 469, 473; for further references
see Redfern and Hunter, International Commercial Arbitration, para 4-70.
51) For a contrary view, see Redfern and Hunter, International Commercial Arbitration, para
4-69.
52) See, e.g., Bundesgerichtshof, 1 February 2001 RPS 1 (2001) 16, 17(8) Mealeys IAR 34,
where a party could not invoke an alleged lack of impartiality in proceedings for the
enforcement of an award, as the facts on which such a defence was based were already
known to the party before the award was rendered. In this case, the party appointed
arbitrator, acting as a sole arbitrator under the applicable arbitration rules due to a
failure of the German side to appoint its arbitrator, had been involved in discussing
the claim on behalf of the other side.
53) See also Craig, Park & Paulsson, ICC Arbitration, para 13-03 who suggest that it is best to
challenge as infrequently as possible.
54) See, e.g., Model Law Article 14; England, Arbitration Act section 23(3)(4).
55) See ICC Rules Article 12(1); see WIPO Rules Article 28.
56) See, e.g., England, Arbitration Act section 24; ICC Rules Article 11(1).
57) An arbitrator may be legally prevented from performing his task where an antisuit-
injuction has been addressed to him; see the description of a number of those cases
by Kerr, “Concord and Conflict in International Arbitration”, 13 Arb Int 121 (1997) 136-138;
Nariman, “Finality in India: the Impossible Dream”, 10 Arb Int 373 (1994).

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 58) Okekeifere, “The Parties's Rights Against Dilatory or Unskilled Arbitrator”, 15(2) J Int'l
Arb 136 (1998).
59) Judicial Code Article 1689; provisions to the same effect can be found in Netherlands,
CCP Article 1029(2). See also Article 12(1) ICC Rules; Solhchi, “The Validity of Truncated
Tribunal Proceedings and Awards”, 9 Arb Int 303 (1993) 313.
60) See also UNCITRAL Rules Article 11(2); DIS Rules Section 18(3).
61) See, similarly, ICC Rules Article 12(4).
62) Baker and Davis, UNCITRAL Rules, 70-1.
63) Article 19(4). See also, to the same effect, Oman, Arbitration Law Article 19(4).
64) The Netherlands proceedings which are suspended until a replacement is appointed
shall “continue from the stage they have reached”: CPP Article 1030(3).
65) 8(1) ICC Bulletin 59 (1997).
66) See the cases cited by Solhchi, “The Validity of Truncated Tribunal Proceedings and
Awards”, 9 Arb Int 303 (1993); Schwebel, “The Validity of an Arbitral Award rendered by
an Truncated Tribunal”, 6(2) ICC Bulletin 19 (1995); for a case where the arbitrator was
apparently forced to abstain by the state party appointing him see Final Award of 16
October 1999 in ad hoc arbitration, Himpurna California Energy Ltd v Republic of
Indonesia, XXV YBCA 186 (2000).
67) The question also arises where the arbitrator dies, is successfully challenged or for
other legitimate reasons prevented from participating in the proceedings. In those
cases, the majority view is that, if no consent has already been given to an award, a
replacement arbitrator should be appointed.
68) See, e.g., Belgium, Judicial Code Article 1701(1).
69) Fouchard Gaillard Goldman on International Commercial Arbitration, para 1369.
70) See the account of the discussions involving awards by truncated tribunals in the
framework of the Iran-US Claims Tribunal, Schwebel, Three Salient Problems, 251 et seq.
71) Szurski, “The Constitution of the Arbitral Tribunal”, ICCA Congress series no 9, 331.
72) See, e.g., Model Law Article 31(1); Belgium, Judicial Code Article 1701(4); Netherlands,
CPP Article 1057(3); UNCITRAL Rules Article 34(4).
73) Cour d'appel Paris, 1 July 1997, Agence Transcongolaise des Communications – Chemin
de fer Congo Océan (ATC-CFCO) (Congo) v Compagnie Minière de l'Ogooue – Comilog SA
(Gabon), XXIVa YBCA 281 (1999).
74) Ibid, para 12.
75) Tribunal Fédéral, Ivan Milutinovic PIM v Deutsche Babcock AG, reported in detail in
Schwebel, “The Validity of an Arbitral Award rendered by an Truncated Tribunal”, 6(2)
ICC Bulletin 19 (1995) 22.
76) Final Award of 16 October 1999 in ad hoc arbitration, Himpurna California Energy Ltd v
Republic of Indonesia, XXV YBCA 186 (2000) 194.
77) Fouchard Gaillard Goldman on International Commercial Arbitration, para 1373.
78) See, e.g., Sweden, Arbitration Act section 30(1); Germany, ZPO section 1052(2);
Permanent Court of Arbitration Optional Rules 1993 Article 13(3); Permanent Court of
Arbitration Optional Rules 1992 Article 13(3).
79) Derains and Schwartz, ICC Rules, 195 who suggest that in those cases the arbitrator has
formally to be removed by the court first; Blessing, Introduction to Arbitration, para 153
et seq.
80) See also AAA ICDR Rules Article 11(1); LCIA Article 12(1).
81) See also Bermuda, International Conciliation and Arbitration Act 1993 section 30.
82) Cour de cassation, 28 January 1981, Industrija Motora Rakovica v Lynx Machinery Ltd,
Rev Arb 425 (1982); Cour d'appel Paris, 1 July 1997, Agence Transcongolaise des
Communications- Chemin de Fer Congo v La Compagnie Minière de l'Ogoove-Comelog SA,
XXIVa YBCA 281 (1999); Fouchard Gaillard Goldman on International Commercial
Arbitration, para 1373.
83) Republic of Columbia v Cauca Company, 23 S Ct 704, 190 US 524, 47 Led 1159 (S Ct, 1993).
For other decisions see Domke, Arbitration, paras 22-04, 29-02.
84) See Schwebel, Three Salient Problems, 296; Schwebel, 6(2) ICC Bulletin 19 (1995) 20 et
seq.
85) Uiterwyk Corporation (et al) Claimants, and the Government of the Islamic Republic of
Iran (et al), XIV YBCA 398 (1989) para 30; 19 Iran-US CTR 107.
86) ICC case no 5017, Ivan Milutinovic PIM v Deutsche Babcock AG, reported in detail in
Schwebel, “The Validity of an Arbitral Award rendered by an Truncated Tribunal”, 6(2)
ICC Bulletin 19 (1995) 22 et seq.
87) Ibid, 24. The tribunal, however, expressly limited its comments to cases where the oral
hearing, including the taking of evidence, was done by the whole tribunal while
declaring doubts whether the same approach could be taken before that stage.
88) Ibid, 27.

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