One of the key advantages of arbitration is the opportunity it affords parties to select the arbitrator or arbitrators who will decide their dispute.
Unlike most national court systems where judges are assigned to a case randomly, without regard to their particular qualifications or experience, in arbitration parties can choose arbitrators with qualifications tailored to the needs of their particular dispute.
Desired qualifications may include attributes such as subject matter expertise; years of experience; nationality; language skills; availability; location of practice and the commitment and ability to conduct an efficient, cost-effective arbitration.
Another advantage of arbitration relates to the parties ability to choose the number of arbitrators who will determine their dispute.
A single arbitrator, often favoured in cases where the issues may be relatively straightforward or or involve smaller amounts in dispute, is usually appointed by agreement, or by an independent third party.
Three arbitrators will generally be used in cases involving complex questions of law or fact or where substantial amounts of money are at stake. In these cases it is customary for each party (or group of parties) to appoint one arbitrator and for the presiding arbitrator to be appointed either by agreement between the party-appointed arbitrators or by an independent third party.
For arbitrations in Hong Kong, where the parties are unable to agree on the appointment of an arbitrator, either party may request HKIAC to make the appointment. To find out more, click here. HKIAC will also make appointments should the parties fail to make use of their opportunity to do so given in accordance with the HKIAC Administered Arbitration Rules.
To assist arbitration users to search for appropriate arbitrators for their matters, HKIAC maintains both a Panel and a List of Arbitrators.
The HKIAC Panel of Arbitrators comprises members who have demonstrated particular experience acting as arbitrator. Generally individuals included on the Panel are senior members of the arbitration community who have been appointed as arbitrator in multiple disputes and have significant experience in award drafting.
The HKIAC List of Arbitrators comprises members who may have some, but not necessarily extensive, experience acting as arbitrator as well as those who may have not yet achieved their first or multiple appointments, but who nevertheless have significant experience in arbitration to the extent that they would be suitable for appointment as arbitrator in cases either of smaller value or those with less complex issues for decision.
HKIAC provides a fully searchable online database of arbitrators included on its Panel and List of Arbitrators to provide a unique public resource to assist arbitration users search for appropriate arbitrators for their disputes.
The database allows parties to search according to qualifications such as nationality, practice location, jurisdiction of admission, arbitration expertise, other ADR skills and language to identify suitable candidates for appointment. It also allows parties to search for specific individuals by name in order to view details of their experience and qualifications.
The database of HKIAC Panel and List Arbitrators can be accessed here.
The registration of arbitrators on either HKIAC's Panel or List of Arbitrators requires individuals to demonstrate that they meet certain criteria and have sufficient experience to be included as a member of the applicable body.
Guidelines and Application Procedure for Inclusion on HKIAC's Panel and List of Arbitrators
Full details of the guidelines and application procedure for inclusion on HKIAC's Panel and List of Arbitrators can be found here.
The assessment of applications for registration, as well as the appointment of arbitrators by HKIAC, is undertaken by HKIAC's Appointments Committee.
Continuing Professional Development Requirements for HKIAC Panel and List Arbitrators
In order for HKIAC to maintain a high quality of arbitration expertise on its Panel and List of Arbitrators, it is important that those who have qualified for inclusion as members of these bodies maintain their knowledge and experience and keep up-to-date with developments in the law and practice of arbitration.
In order to achieve this objective HKIAC requires a minimum level of continuing professional development (CPD) to be undertaken by arbitrators wishing to remain on HKIAC's Panel or List of Arbitrators.
The level of CPD required has been determined, and is regularly reviewed, by the Appointments Committee.
Details of the Continuing Professional Development Requirements for HKIAC Panel and List Arbitrators can be found here.
Renewing Registration as an HKIAC Panel or List Arbitrator
Membership of HKIAC's Panel or List of Arbitrators is granted for a period of five or three years respectively, ending on 31 December of the final year.
Guidelines for how to renew membership of HKIAC's Panel or List of Arbitrators can be found here.
Complaints Against HKIAC Panel or List Arbitrators
Any person dissatisfied with the conduct of an arbitrator included on HKIAC's Panel or List of Arbitrators wishing to lodge a complaint should review HKIAC's Guidelines on the complaints procedure.
The Guidelines can be found here.
Removal Procedure from HKIAC Panel or List of Arbitrators
HKIAC reserves the right, in its absolute discretion, to remove an arbitrator from HKIAC's Panel or List of Arbitrators.
The duties of an arbitrator are threefold:†
- Duties imposed by the parties;
- Duties imposed by law; and
- Ethical duties.
When an arbitrator conducts an arbitration, he or she should be under strict moral and ethical obligations to act fairly and impartially, and adhere to the HKIAC Code of Conduct for Arbitrators.‡
If an arbitrator on HKIAC's Panel or List of Arbitrators fails to observe any of the duties outlined above, the Appointments Committee may, at its discretion, remove an Arbitrator from HKIAC's Panel or List of Arbitrators without providing reasons for doing so.
The decision of the Appointments Committee shall be final.
† Alan Redfern and Martin Hunter, Law and Practice of International Commercial Arbitration, 2nd edition, 1991, Sweet and Maxwell, pages 262 to 271.
‡ HKIAC Code of Conduct for Arbitrators is based closely on Chartered Institute of Arbitrators' “Guidelines of Good Practice and Code of Ethical Conduct for Arbitrators.”
Challenge of an Arbitrator
A cornerstone of the arbitration process is that it involves determination of disputes by one or more independent third parties. To perform their functions properly arbitrators must therefore be impartial and independent.
In any proceeding where HKIAC is making or confirming the appointment of an arbitrator, that arbitrator will be required to sign a declaration that there are no circumstances likely to give rise to any justifiable doubt as to their impartiality or independence. That Arbitrator will also have to undertake to immediately disclose any such circumstances if they should arise during the course of the arbitration.
If circumstances exist that give rise to justifiable doubts as to an arbitrator's impartiality or independence, it is possible for a party to the proceedings to challenge that arbitrator's continued involvement in the case. Such a challenge may also lie, depending on the applicable arbitral procedure, if the arbitrator does not possess qualifications agreed by the parties, if the arbitrator becomes de jure or de facto unable to perform his or her functions or for other reasons fails to act without undue delay.
HKIAC has issued a Practice Note in relation to the challenge of an arbitrator under the HKIAC Administered Arbitration Rules or in an arbitration administered by HKIAC. Any challenge made to an arbitrator in such cases will be determined by HKIAC in accordance with the procedures set out in the Practice Note.
HKIAC's Practice Note on the Challenge of an Arbitrator can be accessed here.
Arbitrator's Code of Ethical Conduct
There is a dual purpose to HKIAC's adoption of a Code of Ethics for arbitrators. Not only does the Code of Ethics serve as a guide to the conduct of arbitrators, it also provides a point of reference for users of the arbitration process and to promote public confidence in arbitration as a suitable forum for resolving disputes.
HKIAC's Code of Ethical Conduct for Arbitrators is not a rigid set of rules, but is a reflection of internationally acceptable norms.
The Code of Ethical Conduct for Arbitrators can be accessed here.