20 January 1995, Geneva, Switzerland
Discussion: Commencement of Arbitration Proceedings and Constituting the Arbitral Tribunal
Paul Eilbracht (Netherlands)
The following question is addressed to Dr. van den Berg. Article 20 relates to the appointment of the presiding arbitrator in the event that there are three arbitrators appointed. You referred to the possible rejection, and probable repeated rejection, by the parties, the claimant and the respondent, of qualified arbitrators. This rejection, however, could perhaps, as you told us, result in the appointment of less qualified arbitrators. If two such less qualified arbitrators were then appointed, are they together allowed to appoint the presiding arbitrator or could the WIPO Arbitration Center do so from the previously rejected highly qualified arbitrators.
Albert Jan van den Berg (Netherlands)
The system is such that what you have described will not arise. Each party appoints its own arbitrator and then, if the two arbitrators cannot agree on the presiding arbitrator, the third arbitrator is appointed by the list procedure. The list procedure eliminates the burning factor, as I described. If a result is not achieved with the first list, the Center may make an appointment outside the list. It may also be, in practice, that the Center may decide to send a new list, as I have seen other centers do. But a second list could hold up the appointment process and, for that reason, it may be advisable for the Center to appoint directly. So you will not get, if we may so describe them, second-class arbitrators.
Paul Eilbracht (Netherlands)
I understand from the Article, the third arbitrator could a national of another country.
Albert Jan van den Berg (Netherlands)
The reason is that it is preferable to have a presiding or sole arbitrator who comes from a country that is not a country of one of the parties. It is more a psychological factor perhaps, but a party does not want the presiding or sole arbitrator to have the nationality of the other party.
Henry Connor (United Kingdom)
My concern is that an arbitral decision, which I would hope and expect and assume is based on the merits of a case, is actually set aside by failure to observe what are effectively a very complex set of straight jackets for the procedures of setting up the entire arbitral procedure. Is this not a consequence of making the rules of procedure so tight and so mandatory and with so little discretion for the WIPO Center? Is that not very likely to be the outcome of a number of cases in the future?
Albert Jan van den Berg (Netherlands)
I share your concern, but the solution in practice is this. If you look at Article 58 of the Rules, you see the waiver provisions. The waiver provisions apply if a party knows that any provision of, or requirement under, the Rules, or any direction of the Tribunal, has not been complied with and yet proceeds with the arbitration without promptly recording an objection. If you discover that, in your mind as a party, something has not been carried out or not been complied with in the Rules, you have to raise immediately your finger. If you do not so, you have waived your rights and you can no longer seek the setting aside of the award on that ground.
Back to the Conference on Rules for Institutional Arbitration and Mediation Index