Appointing Arbitrators in Ad Hoc Arbitration in China
- What Roles the Courts May Play?
临时仲裁中仲裁员的指定：中国法院的角色
Generally, there are two forms of arbitration: ad hoc arbitration and institutional arbitration. The former means the arbitration is conducted without the involvement of an arbitration institution, whilst the latter is conducted according to the rules of one of the established arbitral institutions. Since parties to an ad hoc arbitration are entitled to their own choice of rules, it would be more flexible and shows more respect for party autonomy in terms of arbitrator appointment, choice of seat, and choice of law. Another distinct advantage is that unlike institutional arbitration with fixed sites, bodies and administrative staff which requires a large amount of intermediary costs, ad hoc arbitration requires less procedural matters and permits parties to choose the seats without limitation.[1]
一般而言，有两种类型的仲裁：临时仲裁和机构仲裁。前者是指在没有仲裁机构参与的情况下进行的仲裁，而后者则是根据已建立的仲裁机构的规则进行的仲裁。由于临时仲裁的当事方有权选择自己的规则，因此它更加灵活，并且在仲裁员的指定，仲裁地的选择和法律选择等方面更加尊重当事人的意思自治。另一个明显的优势是，不同于具有固定地点、机构和行政人员的机构仲裁，临时仲裁所需的程序较少，中间成本较少，并且允许当事方自愿选择仲裁员名额。
In practice, The Arbitration Rules of the United Nations Commission on International Trade Law (“UNCITRAL Arbitration Rules”) provide parties with a set of rules to conduct ad hoc arbitration. Theoretically speaking, the UNCITRAL Arbitration Rules can be used both in domestic context and international context in China. In reality, it has been written into arbitration agreements in foreign related arbitrations before China International Economic and Trade Arbitration Commission (“CIETAC”).
实践中，《联合国国际贸易法委员会仲裁规则》（《贸法会仲裁规则》）为当事方提供了一套进行临时仲裁的规则。从理论上讲，《贸法会仲裁规则》可以在中国国内和国际范围内使用。实际上，中国国际经济贸易仲裁委员会（CIETAC）的涉外仲裁的案例中，已经有当事人将《贸法会仲裁规则》写入到仲裁协议中。
However, for ad hoc arbitration to be done efficiently and effectively, cooperation and coordination between parties and their lawyers are essential.[2] As such, it may be necessary to rely on adequate legal systems and judicial assistance to support the conduct of arbitration. Otherwise, it may be highly likely that one of the parties would refuse to play its part, making it impossible to proceed with arbitration. For example, if the parties did not appoint arbitrators within the limited time, or the institutions chosen by the parties to appoint arbitrators seriously delay the procedure of appointing arbitrators, the court of the place where the arbitration takes place could step in to break the deadlock.
然而，为了高效和有效地进行临时仲裁，当事方及其律师之间的合作与协调至关重要。因此，开展临时仲裁有必要依赖有力的法律制度和司法协助。 否则，一方当事人很可能会拒绝配合，从而使得仲裁程序无以为继。例如，当事方未能在限定的时间内指定仲裁员，或者当事方选择的指定仲裁员的机构严重延迟了指定仲裁员的程序，仲裁地法院可以依申请介入指定仲裁员，以打破僵局。
This article examines one aspect of judicial support in the proceeding of ad hoc arbitration—the appointment of arbitrators by courts. We ask the question why PRC Courts do not appoint arbitrators. The writing discusses legislations and practices in various jurisdictions, purporting to provide a comparative perspective for building a judicial mechanism in the People’s Republic of China (“PRC” or “China”) to support the development of ad hoc arbitration, especially in China’s Free Trade Zones (“FTZs”).
本文探讨了临时仲裁程序中司法协助的一个方面，即法院担负起指定仲裁员的角色。我们提出一个问题，即为什么中国法院不介入指定仲裁员。本文讨论了不同法域的立法和实践，旨在为在中国内地完善司法机制以支持临时仲裁在中国自由贸易区（以下简称为“自贸区”）中的发展提供一种比较研究的视角。
Judicial Assistance in Appointing Arbitrators
仲裁员的指定中的司法协助
It is common practice in many jurisdictions that where the parties are unable to reach an agreement upon the appointment of an arbitrator and no one is expressly empowered to make the appointment for them, the national court that has jurisdictions—usually the court of the seat of arbitration—will have reserved authority to nominate an arbitrator.在许多司法管辖区中，这已经成为一个通例：即在双方当事人无法就仲裁员的指定达成一致，且没有人或机构被明确授权代为指定时，拥有管辖权的国家法院（通常是仲裁所在地）会行使指定仲裁员的内置权力。Currently, PRC courts do not involve themselves in the process of appointment of arbitrators. This is partly because the arbitration system was built on institutional arbitration traditionally, but it now faces challenges as the ad hoc arbitration concept emerges in China. Let us first look at the practice of other countries.当前，中国内地法院并未介入指定仲裁员的程序。部分原因是仲裁体制传统上是建立在机构仲裁的基础上，但随着中国临时仲裁概念的出现，它现在面临着新的挑战。让我们首先看看其他国家的做法。Practice of Other Countries
其他国家的实践
According to Section 18 of the English Arbitration Act 1996[3], courts have defaulted powers in appointing arbitrators under certain circumstances, and Section 19 provides that in exercising such powers the courts “shall have due regard to any agreement of the parties as to the qualifications required of the arbitrators”.[4] The Federal Arbitration Act of the United States (“FAA”)[5], the French Law on International Arbitration[6], and Federal Statute on Private International Law of Switzerland[7] adopt a similar approach. Legislations in Canada also acknowledge courts’ roles in the constitution of arbitral tribunals as set out in the UNCITRAL Model Law on International Commercial Arbitration (“UNCITRAL Model Law”)[8], e.g., the International Commercial Arbitration Act 2017 adopted by British Columbia which largely replicates the provisions of the UNCITRAL Model Law and the International Commercial Arbitration Act 2017 adopted by Ontario which recognizes the UNCITRAL Model Law’s force of law with exceptions and modifications.[9]根据《英国仲裁法》第18条的规定，法院在某些情况下享有指定仲裁员的默示权力；而根据该法第19条的规定，法院在行使这种权力时，“应适当考虑当事各方关于仲裁员资格要求的任何协议”。美国的《联邦仲裁法》、法国的《国际仲裁法》和瑞士《关于国际私法的联邦法》也有类似的规定。加拿大的立法还承认《联合国国际贸易法委员会国际商事仲裁示范法》（以下简称为“《国际商事仲裁示范法》”）中关于法院在仲裁庭组成中的作用的规定，例如，不列颠哥伦比亚省通过的《2017年国际商事仲裁法》在很大程度上借鉴了《贸易法委员会示范法》；安大略省通过的《2017年国际商事仲裁法》，承认了《国际商事仲裁示范法》的法律效力，但也有部分例外和修改。Three cases from some of the above-mentioned jurisdictions may be worth noting, in order to better understand how the failure of such agreement to appoint arbitrators could lead to deadlocks in practice, how the acts are applied, and the importance of courts’ intervention in dealing with such situations. In the Canadian case Hallcon v. Railcrew[10], the parties agreed to apply the International Commercial Arbitration Act of Ontario (“The Ontario Act”) based on the provision that “the arbitration tribunal shall consist of one independent arbitrator appointed by mutual agreement of the parties, if they can agree on one, or three independent arbitrators appointed under the Act if they can not…”. Unfortunately, the parties could not mutually appoint a sole arbitrator. Divergence arose as to whether there is an agreement as to the procedure of arbitrator appointment and which paragraph of Article 11 of the Ontario Act[11] applies. The Court then decided that there was no agreement on appointing three arbitrators under the Ontario Act, and as such Article 11(3) shall apply, and proceeded to exercise its authority to decide on the constitution of the arbitral tribunal.为了更好地理解由于指定仲裁员的协议失败而导致实务中的僵局、上述仲裁立法的实施方式以及法院介入的重要性，下文引述了上文提到的一些法域的三个案例。在加拿大的Hallcon v. Railcrew案中，双方当事人同意适用安大略省《2017年国际商事仲裁法》（以下简称为“《国际商事仲裁法》”），其依据是“仲裁庭应由当事方相互同意共同选定一名独立仲裁员构成，如果他们无法共同选定，则应由三名独立仲裁员组成……”。不幸的是，当事人间无法共同指定一名独任仲裁员。此时，关于是否存在关于仲裁员指定程序的约定以及应当如何适用《国际商事仲裁法》第11条的哪一段的问题，双方出现了分歧。法院随后裁定，根据《国际商事仲裁法》双方没有达成指定三名仲裁员的协议，因此第11条第3款应予适用，并行使了其司法权力来决定仲裁庭的组成。The English case Guidant LLC v Swiss Re International SE & Anor[12] also reflects the function of judicial assistance in arbitrator appointment - there is a dispute as to whether the chair of the tribunal in one case should be appointed in other two cases involving identical issues but different parties, the court denied this application and nominated an arbitrator in default, after considering all relevant factors in the case.英国的Guidant LLC v Swiss Re International SE＆Anor案也反映了司法协助在指定仲裁员中的功能。对于一名已经担任争议性质完全相同的一个案件的首席仲裁员，法院需要考虑是否应当指定该名仲裁员担任争议完全相同但包含不同被申请人的两个争议案件的首席仲裁员。在考虑了该两案的所有相关因素后，法院驳回了当事人的申请，并在当事人达不成一致意见的情况下指定了另外一人担任该二个案件（串案）的首席仲裁员。In the US case BP Exploration Libya Ltd. v. Exxonmobil Libya Ltd.[13], the US Court of Appeals held that the District Court “exceeded its authority under the FAA by ordering the parties to proceed to arbitration before five arbitrators when their agreement specified three arbitrators”, and authorized the District Court to intervene under the FAA and to appoint an arbitral panel of three arbitrators as agreed by the parties.在美国BP Exploration Libya Ltd. v. Exxonmobil Libya Ltd.案中，美国上诉法院认为，地区法院“超越了《联邦仲裁法》的授权，在双方协议中约定指定三名仲裁员时，要求当事方组成五名仲裁员的仲裁庭进行仲裁”，并授权地区法院根据《联邦仲裁法》进行干预，按照当事人间的协议指定由三名仲裁员组成的仲裁庭进行仲裁。These legislations and case studies could serve as references for the legal basis for judicial support in cases where the arbitration agreement is itself flawed and unable to offer an operable method for appointing arbitrators. In the cases regarding the application of arbitration legislations, the courts in these jurisdictions play an important role in assisting in the composition of the arbitration tribunal and advancing the cases as required. In order for the arbitration agreement to be enforced, national courts under a developed arbitration system are suitable to assist in the process of appointment of arbitrators. This judicial capability makes the arbitration procedure less likely to be delayed at the stage of formation of the arbitral tribunal, and effectively connects judicial supervision to the pre-award arbitration process.从上述法律和案例研究中，我们可以看出，当仲裁协议本身存在缺陷而无法提供产生仲裁员的可行方法时，司法提供协助是有法律依据的。在适用仲裁法的案件中，这些法域的法院在协助仲裁庭的组成和按要求推进案件方面发挥着重要作用。为了实施仲裁协议，在发达的仲裁系统下的国家法院适格提供指定仲裁员的司法协助。这种司法职能使仲裁程序在组成仲裁庭阶段不大可能被拖延，并将司法监督与仲裁裁决前的程序有效地联系在一起。PRC Arbitration Law
中国的仲裁法律
When it comes to the Arbitration Law of the PRC (“Arbitration Law”), based on the concept of institutional arbitration, the chairman of the arbitration commission selected by the parties, rather than a competent court, is empowered to appoint arbitrators.[14] Under the current Arbitration Law, one of the conditions for an arbitration agreement to be valid is that the parties select an Arbitration Commission,[15] because the whole arbitration legal mechanism is specifically tailored for institution arbitration.我们然后讨论《中华人民共和国仲裁法》（以下简称为“《仲裁法》”）的有关规则。根据机构仲裁的概念，由当事方选择的仲裁委员会的主任，而非有管辖权的法院，指定仲裁员。根据现行的《仲裁法》，仲裁协议有效的条件之一是当事方选定了仲裁委员会，因为整个仲裁法律机制都是专门为机构仲裁而量身定制的。Ad hoc arbitration is a relatively new scenario in China. While China recognizes ad hoc arbitration award made in foreign countries under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”)[16], it does not keep the same approach towards domestic ad hoc arbitration until very recently in the opening up and reform in the FTZs in this regard.在中国大陆，临时仲裁是一个相对较新的概念。尽管中国承认根据《联合国承认和执行外国仲裁裁决公约》（即《纽约公约》）在外国作出的临时仲裁裁决，但直到最近，中国大陆才在这方面逐步开放并在自贸区改革中对国内临时仲裁采取相同的承认方法。The appointment mechanism under the current Arbitration Law is short-handed, and will give rise to problems when it comes to ad hoc arbitration, especially when there is no agreement as to the selection of arbitrators. In that circumstance, where the claimant takes the case to the national court it may simply refuse to entertain the case on the ground of the existence of an arbitration agreement and offers no further help in appointing arbitrators. Such dilemmas would not be uncommon in the future development of arbitration in China, with the Supreme People’s Court’s (“SPC”) positive attitude towards recognizing ad hoc arbitration in FTZs. An upgraded version of the legal system for arbitrator appointment in ad hoc arbitration is in real demand. It will serve to make judicial support available in the process of appointment of arbitrators in both domestic and international ad hoc arbitrations in China.当前《仲裁法》所规定的仲裁员指定机制是存在短板的，且在临时仲裁中，特别是在当事人就仲裁员的选择没有达成一致意见时会产生问题。在这种情况下，原告将案件提交国家法院审理，法院可能只是基于存在仲裁协议而拒绝受理该案，但未能在指定仲裁员方面提供进一步的帮助。最高人民法院对承认自贸区临时仲裁持积极肯定态度后，未来中国的仲裁发展将面临临时仲裁中仲裁员如何产生的困境。实践中需要一个关于在临时仲裁中指定仲裁员的法律制度的升级版本。这将为中国国内和国际临时仲裁中的指定仲裁员程序提供司法支撑。The New Scenario of Ad Hoc Arbitration in China
中国临时仲裁的新愿景
Now commercial disputes among two entities in FTZs in China may be submitted to arbitration at a particular place in Chinese mainland, according to particular arbitration rules, or by particular personnel. After the issue of Opinions of the Supreme People’s Court on Providing Judicial Guarantee for the Building of Pilot Free Trade Zones (“Opinions”), which recognizes ad hoc arbitration in particular circumstances,[17] China Internet Arbitration Alliance Rules for Bridging Ad Hoc Arbitration and Institutional Arbitration (“Internet Rules”)[18], Hengqin FTZ Rules for Ad Hoc Arbitration (“Hengqin Rules”)[19], and General Rules for Arbitration of China Nansha International Arbitration Centre (“Nansha Rules”)[20] were adopted by institutions one after another, providing legal basis for ad hoc arbitration. These rules are important innovations in China’s local efforts to create an international legal business environment and are important events, as time progresses, in the implementation of the ad hoc arbitration system in China, reflecting the respect for party autonomy in arbitration.现在，在中国自贸区中的两个实体之间的商业纠纷可以根据特定的仲裁规则、在中国大陆特定的地方并由特定的人士进行仲裁。《最高人民法院关于为自由贸易试验区建设提供司法保障的意见》（以下简称“《意见》”）承认特殊情况下的临时仲裁。该《意见》发布后，中国互联网仲裁联盟《临时仲裁与机构仲裁对接规则》、《横琴自由贸易试验区临时仲裁规则》和《南沙国际仲裁中心仲裁通则》相继出台，从而为临时仲裁提供了法律基础。这些规则是中国在创造国际法律商业环境方面的重要创新，也是中国大陆与时俱进实施临时仲裁的重要事实，反映了对仲裁当事人意思自治的尊重。However, the current Arbitration Law in the PRC is still unable to provide for the system support for ad hoc arbitration, with the authority of the court of the seat of arbitration is still lacking. In practice, if parties agree on the UNCITRAL Arbitration Rules to be applied, in which Article 6 provides that “if no appointing authority has been agreed upon by the parties, or if the appointing authority agreed upon refuses to act or fails to appoint the arbitrator within sixty days of the receipt of a party's request therefor, either party may request the Secretary-General of the Permanent Court of Arbitration at The Hague to designate an appointing authority”, it would cause much inconvenience where the seat of the arbitration is a Chinese city. Similar cases could occur if the parties agree to apply the arbitration rules of the International Chamber of Commerce (“ICC”)[21], the London Court of International Arbitration (“LCIA”)[22], and the Hong Kong International Arbitration Centre (“HKIAC”)[23], according to which these arbitration institutions outside China could be replied on to appoint arbitrators.然而，目前的《中华人民共和国仲裁法》仍无法为临时仲裁提供制度支撑，特别是仲裁地法院仍然缺乏指定仲裁员的权力。在实践中，如果当事方同意适用《贸易法委员会仲裁规则》，那么根据其中第6条第1款，“除非各方当事人已就选择指定机构达成约定，否则一方当事人可随时提名一个或数个机构或个人，包括海牙常设仲裁法院秘书长，由其中之一担任指定机构。”若依此规则，如果约定的仲裁地点在中国，那么将会带来极大的不便。如果双方同意适用国际商会（ICC）、伦敦国际仲裁院（LCIA）和香港国际仲裁中心（HKIAC）的仲裁规则，可能会发生类似的情况。而根据这些规则，当事人可以要求中国大陆以外的这些仲裁机构指定仲裁员。Institutions' Limited Role
仲裁机构的有限角色
It is not realistic to expect the permanent institutions such as CIETAC[24] or Beijing Arbitration Commission (“BAC”) to appoint arbitrators in ad hoc arbitration, due to the differences in nature. In contrast, if the Arbitration Rules of CIETAC or BAC are applied, those Chinese arbitration institutions do not seem to undertake the role of appointing arbitrators in ad hoc arbitrations but their own institutional arbitrations (except CIETAC Hong Kong[25]). To rely on a foreign-related arbitration institution to appoint arbitrators in the ad hoc circumstance would not only increase the cost of time and fees, but would also be likely to lead to the appointment of foreign arbitrators who are not necessarily experienced in dealing with Chinese cases.[26] It would be more efficient and authoritative if the Chinse courts could stand up to conduct such appointing authority.我们认为，由于性质上的差异，期望中国国际经济贸易仲裁委员会（CIETAC）或北京仲裁委员会（BAC）等常设机构指定临时仲裁程序中的仲裁员是不现实的。相比之下，如果采用目前CIETAC或BAC的仲裁规则，那么上述中国仲裁机构似乎并不承担指定自身机构仲裁以外的临时仲裁的仲裁员的角色（CIETAC Hong Kong除外）。在特殊情况下依靠外国涉案仲裁机构指定仲裁员，这不仅会增加时间和费用，而且还可能导致那些不具有与中国事务打交道的经验的外国仲裁员被指定进而处理中国案件。如果此时中国法院能够介入并指定仲裁员，那将使临时仲裁更加有效并更具权威。How PRC Courts May Appoint Arbitrators
中国法院如何指定仲裁员？
In the future ad hoc arbitrations taking place in China, whether domestic or international, it is rather inevitable that there will be no agreement or unclear wording between the parties as to the appointment of arbitrators. Judicial assistance in appointing arbitrators must be introduced in ad hoc arbitration in China.[27] Accordingly, the current Arbitration Law should be amended to tailor-make appointments for the emerging ad hoc arbitration in China. In that regard, Article 11 the UNCITRAL Model Law could be modelled on in terms of the court’s appointment of arbitrators. Where the party fails to appoint the arbitrator or the institution appointed by the parties fails to do so within a limited period of time, the court of the seat of the arbitration shall make the appointment upon the party’s request. It could also be included that the parties may agree for the PRC courts to appoint the arbitrators. The courts may also have the authority to appoint a suited arbitration institution, e.g. the institution close to the seat of arbitration, to conduct such appointment.
未来发生在中国的临时仲裁中，无论是国内仲裁还是国际仲裁，当事人间在指定仲裁员方面不能达成协议或发生措辞不明确的情形，这是不可避免的。中国大陆必须设立关于临时仲裁中指定仲裁员的司法协助制度。因此，我们应修改现行的《仲裁法》，以量身定制中国的临时仲裁制度。在这方面，《贸法会示范法》第11条可以作为范本，确定法院指定仲裁员的制度。当事人未在限定的时间内指定仲裁员或者当事人选定的机构不予指定的，仲裁所在地法院应当按照当事人的请求进行指定。此外，还可以包括当事人可以协议由中国法院指定仲裁员的制度。法院也有权指定适格的仲裁机构进行指定，例如：靠近仲裁地的仲裁机构进行指定。As to the qualifications of arbitrators, the current Arbitration Law provides for the requirements in Article 13[28]. Article 67 recognizes that foreign arbitrators could be appointed in foreign-related arbitration[29]. In order to better enforce these provisions, the courts of the FTZs could establish the lists of arbitrators in cooperation with institutions. Institutional arbitration mechanism has been successfully operated in China for more than 60 years, and a large number of arbitrators with high professional level and practical experience have been cultivated, which provides a wide and practical basis for the introduction of ad hoc arbitration.关于仲裁员的资格，现行《仲裁法》第十三条作了规定。该法第67条承认，可以在涉外仲裁中指定外国仲裁员。为了更好地执行这些规定，自贸区的法院可以与机构合作建立仲裁员名单。机构仲裁机制在中国大陆已经成功运作了60多年，培养了一大批具有较高专业水平和实践经验的仲裁员，这为引入临时仲裁提供了广泛的实践基础。Courts could also increase the number of arbitration-familiar judges, to promote the capacity for the courts to appoint foreign and domestic arbitrators.[30] Besides, since the Plan for Further Deepening the Reform and Opening-up of China (Shanghai) Pilot Free Trade Zone[31] and the Measures for the Administration of Overseas Arbitration Institutions' Establishment of Business Departments in the China (Shanghai) Pilot Free Trade Zone Lin-Gang Special Area[32] encourage foreign arbitration institutions to establish branches in China, the lists of arbitrators of such institutions could also be taken into consideration by the courts in order to facilitate foreign-related commercial arbitrations. As such, other related laws and regulations as well as judicial interpretations/guides by the SPC are also in demand to establish a detailed and comprehensive system in support of the emerging growth of ad hoc arbitration in China.
法院还可以通过增加熟悉仲裁的法官的人数，以提高法院指定外国和本国仲裁员的能力。此外，《进一步深化中国（上海）自由贸易试验区改革开放方案》和《境外仲裁机构在中国(上海)自由贸易试验区临港新片区设立业务机构管理办法》进一步鼓励外国仲裁机构在中国设立分支机构。法院也可以考虑此类机构的仲裁员名单，以促进涉外商事仲裁的发展。因此，未来还需要通过完善其他相关法律法规以及最高人民法院的司法解释，以建立详细而全面的法律指引制度来支持中国临时仲裁的新兴和发展。The expansion of FTZs in China, such as Hainan, facilitates foreign trade and commerce, and at the same time creates new challenges for the current arbitration system. The recognition of ad hoc arbitration by some institutions also indicates that judicial assistance in ad hoc arbitration is in need, especially when the backwardness of the legislation results in the difficulty to propel such arbitration. In order to build up a legal mechanism for ad hoc arbitration to be conducted efficiently and effectively in China, the role of the courts of the seat of arbitration in assisting in the composition of the arbitration tribunal shall be paid attention to in future legal reforms.海南等自贸区在中国的发展，促进了对外贸易和商业活动，同时也给当前的仲裁制度带来了新的挑战。一些机构对临时仲裁的认可也表明，临时仲裁需要司法协助，尤其是在立法尚未完善的情况下，临时仲裁的发展进程尚需司法支撑和推力。为了建立在中国有效进行临时仲裁的法律机制，今后的法律改革中应重视仲裁所在地法院在仲裁庭组成方面的司法支持。[1] Ye, X 2019, ‘From Ideas to Practices: on the Construction of Ad Hoc Arbitration System under the Background of Belt and Road Initiative’, Journal of Henan Administrative Institute of Politics and Law, vol. 34, no. 6, pp. 130-6.[2] Blackaby, N, Partasides, C QC, Redfern, A & Hunter, M 2015, Redfern and Hunter on International Arbitration, 6th edn, Oxford University Press, Oxford, p.141.[3] The English Arbitration Act 1996, s. 18:Failure of appointment procedure.(1) The parties are free to agree what is to happen in the event of a failure of the procedure for the appointment of the arbitral tribunal. There is no failure if an appointment is duly made under section 17 (power in case of default to appoint sole arbitrator), unless that appointment is set aside.(2) If or to the extent that there is no such agreement any party to the arbitration agreement may (upon notice to the other parties) apply to the court to exercise its powers under this section.(a) to give directions as to the making of any necessary appointments;(b) to direct that the tribunal shall be constituted by such appointments (or any one or more of them) as have been made;(c) to revoke any appointments already made;(d) to make any necessary appointments itself.(4) An appointment made by the court under this section has effect as if made with the agreement of the parties.(5) The leave of the court is required for any appeal from a decision of the court under this section.”[4] The English Arbitration Act 1996, s. 19:Court to have regard to agreed qualifications.In deciding whether to exercise, and in considering how to exercise, any of its powers under section 16 (procedure for appointment of arbitrators) or section 18 (failure of appointment procedure), the court shall have due regard to any agreement of the parties as to the qualifications required of the arbitrators.[5] The Federal Arbitration Act 1926, section 5 Appointment of arbitrators or umpire:If in the agreement provision be made for a method of naming or appointing an arbitrator or arbitrators or an umpire, such method shall be followed; but if no method be provided therein, or if a method be provided and any party thereto shall fail to avail himself of such method, or if for any other reason there shall be a lapse in the naming of an arbitrator or arbitrators or umpire, or in filling a vacancy, then upon the application of either party to the controversy the court shall designate and appoint an arbitrator or arbitrators or umpire, as the case may require, who shall act under the said agreement with the same force and effect as if he or they had been specifically named therein; and unless otherwise provided in the agreement the arbitration shall be by a single arbitrator.[6] The French Arbitration Law 2011, art. 1451:An arbitral tribunal shall be composed of a sole arbitrator or an uneven number of arbitrators. If an arbitration agreement provides for an even number of arbitrators, an additional arbitrator shall be appointed. If the parties cannot agree on the appointment of the additional arbitrator, he or she shall be appointed by the other arbitrators within one month of having accepted their mandate or, if they fail to do so, by the judge acting in support of the arbitration (juge d’appui) referred to in Article 1459.[7] Federal Statute on Private International Law, art. 179:Constitution of the arbitral tribunal1. The arbitrators shall be appointed, removed or replaced in accordance with the agreement of the parties.2. In the absence of such agreement, the judge where the arbitral tribunal has its seat may be seized with the question; he shall apply, by analogy, the provisions of the CPC on appointment, removal or replacement of arbitrators.3. If a judge has been designated as the authority for appointing an arbitrator, he shall make the appointment unless a summary examination shows that no arbitration agreement exists between the parties.[8] UNCITRAL Model Law on International Commercial Arbitration 1985, with amendmentsArticle 11 Appointment of arbitrators(1) No person shall be precluded by reason of his nationality from acting as an arbitrator, unless otherwise agreed by the parties.(2) The parties are free to agree on a procedure of appointing the arbitrator or arbitrators, subject to the provisions of paragraphs (4) and (5) of this article.(3) Failing such agreement,(a) in an arbitration with three arbitrators, each party shall appoint one arbitrator, and the two arbitrators thus appointed shall appoint the third arbitrator; if a party fails to appoint the arbitrator within thirty days of receipt of a request to do so from the other party, or if the two arbitrators fail to agree on the third arbitrator within thirty days of their appointment, the appointment shall be made, upon request of a party, by the court or other authority specified in article 6;(b) in an arbitration with a sole arbitrator, if the parties are unable to agree on the arbitrator, he shall be appointed, upon request of a party, by the court or other authority specified in article 6.(4) Where, under an appointment procedure agreed upon by the parties,(a) a party fails to act as required under such procedure, or(b) the parties, or two arbitrators, are unable to reach an agreement expected of them under such procedure, or(c) a third party, including an institution, fails to perform any function entrusted to it under such procedure, any party may request the court or other authority specified in article 6 to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment.(5) A decision on a matter entrusted by paragraph (3) or (4) of this article to the court or other authority specified in article 6 shall be subject to no appeal. The court or other authority, in appointing an arbitrator, shall have due regard to any qualifications required of the arbitrator by the agreement of the parties and to such considerations as are likely to secure the appointment of an independent and impartial arbitrator and, in the case of a sole or third arbitrator, shall take into account as well the advisability of appointing an arbitrator of a nationality other than those of the parties.[9] Rosenthal, J, Halfin, B & Jacobson, T 2020, International Arbitration 2020, 6th edn, Tirado, J (ed.), Global Legal Group, viewed 17 July 2020,.[10] Hallcon v. Railcrew 2011 ONSC 5597.[11] Article 11 of the International Commercial Arbitration Act of Ontario, which is modelled on the UNCITRAL Model Law, provides:(2) The parties are free to agree on a procedure of appointing the arbitrator or arbitrators, subject to the provisions of paragraphs (4) and (5) of this article.(3) Failing such agreement, (a) in an arbitration with three arbitrators, each party shall appoint one arbitrator, and the two arbitrators thus appointed shall appoint the third arbitrator; if a party fails to appoint the arbitrator within thirty days of receipt of a request to do so from the other party, or if the two arbitrators fail to agree on the third arbitrator within thirty days of their appointment, the appointment shall be made, upon request of a party, by the court or other authority specified in article 6; (b) in an arbitration with a sole arbitrator, if the parties are unable to agree on the arbitrator, he shall be appointed, upon request of a party, by the court or other authority specified in article 6.(4) Where, under an appointment procedure agreed upon by the parties, (a) a party fails to act as required under such procedure, or (b) the parties, or two arbitrators, are unable to reach an agreement expected of them under such procedure, or (c) a third party, including an institution, fails to perform any function entrusted to it under such procedure, any party may request the court or other authority specified in article 6 to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment.[12] Guidant LLC v Swiss Re International SE & Anor [2016] EWHC 1201.[13] BP Exploration Libya Ltd. v. Exxonmobil Libya Ltd., 689 F.3d 481 (5th Cir. 2012).[14] The Arbitration Law 2017, art. 32:If the parties fail, within the time limit prescribed by the Arbitration Rules, to select the form of the constitution of the arbitration tribunal or fail to select the arbitrators, the arbitrators shall be appointed by the chairman of the arbitration commission.[15] The Arbitration Law 2017, art. 16:An arbitration agreement shall include the arbitration clausesprovided in the contract and any other written form of agreement concludedbefore or after the disputes providing for submission to arbitration.The following contents shall be included in an arbitration agreement:1. the expression of the parties' wish to submit to arbitration;2. the matters to be arbitrated; and3. the Arbitration Commission selected by the parties.[16] United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958.[17] Opinions of the Supreme People’s Court on Providing Judicial Guarantee for the Building of Pilot Free Trade Zones, art 9.3:If two enterprises registered in FTZ agree that relevant disputes shall be submitted to arbitration at a particular place in Chinese mainland, according to particular arbitration rules, or by particular personnel, the arbitration agreement may be determined as valid. If the people's court holds that the arbitration agreement is null and void, it shall request the court at the next higher level for review. If the superior court consents to the opinions of the subordinate court, the former shall report its review opinions to the Supreme People's Court level by level, and render a ruling after the Supreme People's Court makes a reply.[18] China Internet Arbitration Alliance Rules for Bridging Ad Hoc Arbitration and Institutional Arbitration 2017.[19] Hengqin FTZ Rules for Ad Hoc Arbitration 2017.[20] General Rules for Arbitration of China Nansha International Arbitration Centre 2017.[21] Rules of ICC as Appointing Authority in UNCITRAL or Other Arbitration Proceedings 2018.[22] LCIA official website, Ad Hoc Proceedings, viewed 17 July 2020, .[23] See Article 1.2, HKIAC Administered Arbitration Rules (2013).[24] Except where Hong Kong Arbitration Centre of CIETAC, which followed the practice in Hong Kong and has it own Rules as Appointing Authority in Ad Hoc Arbitration.[25] Please see Article 1, CIETAC Hong Kong Arbitration Centre Rules as Appointing Authority in Ad Hoc Arbitration.[26] Sun, W 2017, ‘Recent Development of Ad Hoc Arbitration in China: Interpretation and Advices about the SPCs Opinion on Providing Judicial Protection for the Development of the FTZs and the Hengqin Rules’, Beijing Arbitration, vol. 101, no. 3, pp. 83-94, p. 87.[27] Huan, H & Zhang, S 2019, ‘A Study of Innovative Legal System for Arbitrators in China under the Belt and Road Initiative’, International Business Research, vol. 40, no. 3, pp. 79-87, p. 83.[28] Article 13 of the Arbitration Law:An arbitration commission shall appoint its arbitrators from among righteous and upright persons.An arbitrator shall meet one of the conditions set forth below:(1) He or she has passed the national uniform legal profession qualification examination and obtained the legal profession qualification, and conducted the arbitration work for eight years or more;(2) To have worked as a lawyer for at least eight years;(3) He or she has served as a judge for eight years or more;(4) To have been engaged in legal research or legal education, possessing a senior professional title; or(5) To have acquired the knowledge of law, engaged in the professional work in the field of economy and trade, etc., possessing a senior professional title or having an equivalent professional level.An arbitration commission shall have a register of arbitrators in different specializations.[29] Article 67 of the Arbitration Law:A foreign-related arbitration commission may appoint arbitrators from among foreigners with special knowledge in the fields of law, economy and trade, science and technology, etc..[30] Xue, Y & Cheng, Y 2018,’ Improvement of the Mechanism of Chinese Courts as the Court at the Seat of Arbitration’, Legal Forum, vol. 33, no. 5, pp. 86-94, p. 90.[31] Notice of the State Council on Issuing the Plan for Further Deepening the Reform and Opening-up of China (Shanghai) Pilot Free Trade Zone, No. 21 [2015] of the State Council.[32] Measures for the Administration of Overseas Arbitration Institutions' Establishment of Business Departments in the China (Shanghai) Pilot Free Trade Zone Lin-Gang Special Area, No. 5 [2019] of the Shanghai Municipal Bureau of Justice.北京霖理律师事务所是北京市司法局批准设立的律师事务所，主要业务覆盖国际仲裁、知识产权和商事投资合同争议解决。霖理法律英语是“为了法律的目的学习简洁英语”而开创的公众号，是霖理律师事务所涉外业务的研发平台，旨在促进法律英语和中文法律语言的应用和普及，努力打造中文社区内生的法律英语的多元生态，促进复合型法律职业人士交流经验互动学习。
