Disputes about who arbitrates a dispute are common, particularly where the arbitration clause is silent or the parties cannot agree on a name.
Where the parties cannot agree
Where the arbitration clause provides a mechanism — such as each party naming an arbitrator and the two naming an umpire — that mechanism generally governs. Where it does not, the court can be approached to make the appointment under the applicable arbitration legislation.
Grounds for challenge
- Justifiable doubts about the arbitrator’s independence or impartiality
- Lack of qualifications the parties agreed were required
- Circumstances arising after appointment that affect impartiality, disclosed or discovered later
Timing of a challenge
A challenge to an arbitrator is generally expected to be raised promptly once the grounds become known, rather than being held in reserve and raised only if the award turns out unfavourable.
What to do next
Bring the arbitration agreement and any communications relevant to the proposed or appointed arbitrator’s independence.