Five tips for selecting arbitrators

Choosing an arbitrator need not be a lottery. I propose the following five tips in choosing that arbitrator.

Consider whether to have a sole arbitrator or a three-member panel. Getting three busy arbitrators to co-ordinate diaries and produce an award expediently can be a difficult task. But it can also be a blessing as it allows the burden of writing an award to be shared making it more likely that a deadline will be met. It is also less likely that an increase in workload, or ill health, of one of the arbitrators will impede the writing of the substantive award, though it may affect the finalisation of the award.

Determine the nature of the dispute as precisely as possible. This can greatly assist in short-listing the right arbitrators. A party’s legal advisors play a vital role in identifying the precise nature of the dispute, and then suggesting arbitrators who have expertise in that precise area. For instance, while a retired High-Court judge may be an appropriate arbitrator if the dispute revolves around a knotty issue of law; if the dispute relates to numerous variation claims and extension of time applications which have been improperly valued, a senior construction lawyer, engineer or surveyor may be more apt.
Interview the arbitrator. This is more likely to be possible in a three-member tribunal where each party appoints their own arbitrator and the two appointed arbitrators appoint the third/chairman of the panel; but even in a sole arbitrator tribunal, if parties agree, candidates can be jointly interviewed. While some may baulk at this process, the principle is not an objectionable one. The purpose is to determine the suitability of the arbitrator and his or her availability.
Choose the best person. Yes, they may be more expensive than the rest, but it pays to seek out arbitral candidates who are recognized for their standing and expertise in their fields, their integrity, and their dispute-resolution skills. An arbitrator with standing is unlikely to permit circumstances that may invalidate his or her award – such as delaying the issuance of an award beyond the stipulated date.
Also, an arbitrator with expertise in the field of the dispute is likely to get to the heart of the issues expeditiously, which counter-balances the higher hourly charge-out rates. It is critical that the award be ‘right’– and choosing the best person for the role makes it more likely that it will be. Of course, the candidate chosen must also have a manageable workload.
Where possible, choose a legally trained arbitrator. In a three-member tribunal, if a party believes his case would be better served by appointing a technically qualified arbitrator, appointing an engineer as party-appointed arbitrator may be effective; but the Chairman should preferably be legally trained. If the tribunal were a sole arbitrator, it would be safer if that person were legally trained.
A legally trained arbitrator is more likely to be alive to any irregularities in the arbitration process that may invalidate an award. For instance, issues relating to the admissibility of evidence, whether specific discovery can properly be allowed, whether a party’s ability to present his case can properly be curtailed within the scope of the arbitral rules – all are matters of significant importance in determining the enforceability of an award in law. A legally trained arbitrator will be more used to addressing these issues.
Experience tells that these tips would minimise the risk of the whole arbitration process failing.