A sole Arbitrator
It is a well spread practice in arbitration to appoint three arbitrators.
When there are only two parties, each party appoints an arbitrator and the third one is appointed by these arbitrators or by the administering body. The number of arbitrators must always be uneven.
This mechanism does not work if the parties are more than two, unless several of them form one group, which is not tainted by improper arrangements, which appoints one arbitrator.
The European Court of Arbitration has made, since the 90's, a clear choice in its Rules for an Arbitral Tribunal made of a sole arbitrator.
The main reasons for that are that if there is a sole arbitrator, the arbitral proceedings have to pay about 2/3 less arbitral fees, proceedings are frequently more expedite and that party appointed arbitrators are not always neutral.
Time is important for the innocent party
9 months for filing of the award from the receipt by the arbitrator of the file (two extensions each one up to 6 months are considered only in very exceptional situations, such as for great complexity of big construction disputes), a time frame to be carefully controlled by the Court.
Consultation with the parties before appointing the arbitrator
A preliminary meeting to consult with the parties in view of the appointment of the sole arbitrator.
CEA’s schedule aims at keeping the fees and administrative dues for arbitral proceedings considerably low.
Rules of evidence with respect of the right of the parties to present and prove their case
A calendar of the proceedings
The Request that the arbitrator establishes a calendar for the proceedings keeping, as much as possible, to CEA’s recommended time schedule;
A Constructive Dialogue
The arbitrator is not required to remain distant from the parties, but to create a dialogue with them, such as asking them questions to clarify their allegations and submissions and requesting them to identify the parts of their documents on which they rely.
A full review of the merits by rehearsal
The general tendency is to limit the review of arbitral awards to procedural errors. It follows from this that errors in fact and errors in law are not subject to review.
These rules do not agree on this approach and provide, in those jurisdictions which do not forbid this, for a full review of the first instance award by a panel of three arbitrators, all appointed by the European Court of Arbitration, to decide within six months, maximum one year, by rehearing the case.
A leave to refer a dispute to the appellate arbitral tribunal is needed. As a rule the leave is granted if the loser deposits the capital and the interest with this institution which the first instance award has put to its charge or has not granted to it. The same applies to a loser only in part. A deposit for the costs of the arbitral appellate proceedings may be added to it.
Other relevant points
- Contrary to many other rules, the Rules set out the rules of evidence in detail;
- Respect for each party’s right to present and prove her case such as without having to disclose in advance the intended questions for the witnesses, without interference by the arbitrator in selecting witnesses and without interfering with the parties’ reasonable right to examine and cross-examine witnesses and benefiting of right to a not full disclosure of documents;
- Setting up of the hearings, final argument and award, one following the other;
- Commitment by each party not to raise useless or totally ungrounded oppositions and motions and not to behave in a delaying or obstructive manner as well as their acceptance of sanctions relating to such behaviour;
- Acceptance by each party of the right of the other party to apply for an ex parte summary judgment concerning the share of costs and fees of the arbitration proceedings, which had to be advanced by the former and that, because of its lack of payment, had to be paid by the other;
- Recommendation made to the arbitrator to issue, as soon as possible, a partial award for amounts which are not disputed or which are manifestly due;
- Request made to the arbitrator to identify and decide at the beginning of the proceedings, by Order or, where necessary, partial award, any question of fact or law that would narrow the dispute.