Article 8 of the Uniform Act provides that the arbitral tribunal must be composed of either a sole arbitrator or three arbitrators. This is a mandatory provision, since the article lists a hierarchy of methods that must be followed for the appointment of an additional arbitrator if the parties have appointed an even number of arbitrators or if a previously appointed arbitrator can no longer sit on the tribunal, for whatever reason.
Although it is clear that the real prohibition under Article 8 of the Uniform Act relating to an even number of arbitrators, there is a risk that, if the parties were to agree upon a five-member tribunal, the tribunal might be considered as having been improperly constituted, and its award might therefore be set aside.
The parties are free to determine by agreement the rules applicable to the appointment, dismissal or replacement of arbitrators. Failing any such agreement, or if the agreement is insufficient to cover all eventualities, the Uniform Act lays down certain rules.
As regards appointments, if there are to be three arbitrators, each party is to appoint one arbitrator and those two arbitrators are to agree upon a third arbitrator, or if there is to be a sole arbitrator, the parties are to agree upon an appointment. If there is failure at any stage of this appointment process, either through a failure of the parties or the arbitrators to agree as required, or through a party’s refusal to appoint an arbitrator, the appointment of the arbitrator concerned is instead made by the local court in the member state where the seat of arbitration is located. Although it is not expressly stated, the same procedure could presumably be applied, mutatis mutandis, if it were necessary to replace an arbitrator. This procedure is useful because it prevents parties from frustrating the arbitration process by refusing to appoint its own arbitrator.
WHERE THERE ARE MORE THAN TWO PARTIES TO THE ARBITRATION AGREEMENT
A problem may arise where there are more than two parties to the arbitration agreement, all having different interest, and where a here-member tribunal has been provided for. One of the fundamental principles in arbitration is that the parties must be treated equally, and a corollary of this is that no party must have a greater influence than the other parties on the appointment of the arbitral tribunal. However, if the parties have not made specific provision in their agreement for the appointment of an arbitral tribunal in such a way that no party has a greater influence, there is nothing in the Uniform Act to resolve the difficulty.
The requirement for all arbitrators to be independent and impartial as regards the parties is formally laid down, and any arbitrator who considers that there may be grounds for a party to challenge his independence or impartiality is required to bring this to the attention of the parties. In such an event he may only accept the appointment if he obtains the unanimous written consent of the parties.
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