Alternative Dispute Resolution

October 2010 (Part C)

(a)

What is the minimum and the maximum number of arbitrators

to be appointed ?

• depend on the arbitration agreement.

• not provide in agreement ?

a) deemed to follow the appointment under section 12 of the Arbitration Act.

b) free to determine the number of the arbitrators.

c) If parties fail to determine :

• International arbitration, there will be 3 arbitrators.

• Domestic arbitration, it will consist a single arbitrator.

(b)

How to appoint the arbitrator/s?

Qualifications required of the arbitrator by the agreement of the parties.

Other considerations which are likely to secure the appointment of an independent an impartial arbitrator.

The advisability of appointing an arbitrator of a nationality other than those of the parties for international arbitration.

1. Appointment by parties

Parties are also free to decide and agree on a procedure for appointing the arbitrator or the presiding arbitrator under s. 13(2) of the Act,

fail to agree

each party then will appoint one arbitrator

two appointed arbitrator will appoint the third arbitrator

2. Appointment by Director of KLRCA .

Situations:

party fails to appoint an arbitrator within 30 days of receipt of a request

two arbitrators fail to agree on the third

arbitrator within 30 days of their appointment

single arbitrator : where the parties fail to agree on the procedure in subsection(2) and the parties fail to agree on the arbitrator

Under such procedure,

Parties have agreed on the procedure for appointment of the arbitrator but a party fails to act as required

The parties or two arbitrators are unable to reach an agreement

Third party including an institution fails to perform any function entrusted to it

3. Appointment by High Court.

Failure or disable part of Director of KLRCA to act under subsections (4), (5) and (6) within 30 days from the request.

(c)

If any of the parties is not satisfied with the arbitrator so appointed,

briefly explain the grounds to challenge such arbitrator and the steps to be taken in making such

challenge.

Section 14 of the Arbitration Act

GROUNDS FOR CHALLENGE

An arbitrator may be challenged only if :

There is justifiable doubts as to that

arbitrator’s impartiality or independence.

The arbitrator does not possess

qualifications agreed to by the

parties.

Section 15 of the Arbitration Act

CHALLENGE PROCEDURE

The party who intends to challenge shall within 15 days, send a written statement of the

“reasons for the challenge” to the Arbitral Tribunal.

The Arbitral Tribunal shall make decision on the challenge.

(Unless the challenged arbitrator withdraws from office or the

other party agrees to the challenge)

If not successful, the challenging parties may within 30 days after received notice of the decision

rejecting the challenge, apply to High Court to make a decision on the

challenge.

While such an applicant is pending, the Arbitral Tribunal and the

challenged arbitrator may continue the arbitral proceedings and make an

award.

No appeal shall lie against the decision of the High Court.

(d)

What are the processes involved in the arbitral proceedings

conducted by the arbitrator/s?

Under s.5, before conduct the proceeding, appoint an arbitrator.

Decide on the procedure.

Under s.21, the parties are free to agree on the procedure to be followed by the Arbitral Tribunal in conducting the proceedings.

Seat of the arbitration and place to conduct the proceeding

The arbitral proceeding will be commenced on the date on which a request in writing for that dispute to be referred to

arbitration is received by the respondent.

The claimant will show the facts to support his claim, the points at issue and the remedy sought by him.

If he fails to communicate the statement of claim to the respondent, the tribunal shall terminate the proceeding.

The respondent will state his defence.If he fails to communicate the statement of defence to the

claimant, the tribunal shall continue the proceeding.

Under s.26, the parties shall decide whether to hold oral hearings or oral argument or the proceeding shall be conducted

on the basis of documents and other materials.

If the parties agreed to have an oral hearing, the Arbitral Tribunal shall upon the application of any party hold oral

hearing at an appropriate stage of proceeding.

If any party fails to appear at the hearing, the tribunal will continue the proceedings.

Before conducting the hearing or meeting, the parties shall be given reasonable notice for the purpose of inspection of goods,

properties or documents.

The documents or the information that supplied to the tribunal shall be communicated to the other party.

Within the process of hearing, the parties shall be treated with equality and be given a fair and reasonable opportunity in

presenting their case.

In term of language used, the parties are free to agree on what language they want to use.

When closing the case, the arbitrator will give the awards.

Under s.33, an award shall be made in writing and be signed by the arbitrator.

An award shall state the reasons upon which it is based unless the parties have agreed that no reason are to be given or the

award is an award on agreed terms under s.32.

The award shall state its date and the seat of arbitration.

After an award is made, a copy of the award signed by the arbitrator will be delivered to each party.

The awards given by the arbitrators are final and binding.