
Contents
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A. Overview A. Overview
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B. Number of Arbitrators B. Number of Arbitrators
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I. Legal Framework I. Legal Framework
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II. Panel of Three Arbitrators II. Panel of Three Arbitrators
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1. General Considerations 1. General Considerations
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2. The Role of the Chairman 2. The Role of the Chairman
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III. Sole Arbitrator III. Sole Arbitrator
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IV. Other Options IV. Other Options
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C. Procedure for the Constitution of the Arbitral Tribunal C. Procedure for the Constitution of the Arbitral Tribunal
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I. Legal Framework under the German Arbitration Law I. Legal Framework under the German Arbitration Law
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1. Introduction and Overview of the Legal Framework 1. Introduction and Overview of the Legal Framework
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2. Party Autonomy and Statutory Default 2. Party Autonomy and Statutory Default
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3. Panel of Three Arbitrators 3. Panel of Three Arbitrators
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4. Sole Arbitrator 4. Sole Arbitrator
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5. Multi-party Arbitration 5. Multi-party Arbitration
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6. Procedure for Appointment by Court 6. Procedure for Appointment by Court
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7. Appointment by Court due to Unfair Prejudice 7. Appointment by Court due to Unfair Prejudice
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II. DIS Rules II. DIS Rules
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1. General Principles 1. General Principles
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2. Default Rule: Panel of Three Arbitrators 2. Default Rule: Panel of Three Arbitrators
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3. Sole Arbitrator 3. Sole Arbitrator
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4. Multi-party Arbitration 4. Multi-party Arbitration
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5. Acceptance and Confirmation 5. Acceptance and Confirmation
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III. ICC Rules III. ICC Rules
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1. General Principles 1. General Principles
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2. Default Rule: Sole Arbitrator 2. Default Rule: Sole Arbitrator
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3. Panel of Three Arbitrators 3. Panel of Three Arbitrators
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4. Multi-party Arbitration 4. Multi-party Arbitration
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5. Acceptance and Confirmation 5. Acceptance and Confirmation
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D. Selection of Arbitrators in German Practice D. Selection of Arbitrators in German Practice
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I. Typical Selection Criteria I. Typical Selection Criteria
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1. Professional Background and Qualifications 1. Professional Background and Qualifications
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a) Lawyer v. Non-lawyer a) Lawyer v. Non-lawyer
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b) German-qualified Lawyer? b) German-qualified Lawyer?
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2. Experience in Arbitration 2. Experience in Arbitration
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3. Language 3. Language
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4. Soft Skills and Soft Factors 4. Soft Skills and Soft Factors
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5. Availability 5. Availability
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II. Considerations on Certain Groups of Legal Professionals II. Considerations on Certain Groups of Legal Professionals
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1. Practicing Lawyers 1. Practicing Lawyers
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2. German Judges 2. German Judges
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3. Law Professors; Public Officials 3. Law Professors; Public Officials
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III. The Selection Process in German Practice III. The Selection Process in German Practice
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1. Where to Find Arbitrator Candidates 1. Where to Find Arbitrator Candidates
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2. Research on Candidates 2. Research on Candidates
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3. Initial Contact 3. Initial Contact
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4. In-person Meeting 4. In-person Meeting
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5. Selection Decision 5. Selection Decision
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E. Challenge, Termination, and Replacement E. Challenge, Termination, and Replacement
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I. Overview of Applicable Rules I. Overview of Applicable Rules
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1. Ad hoc Proceedings 1. Ad hoc Proceedings
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2. Institutional Arbitration 2. Institutional Arbitration
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3. IBA Guidelines on Conflicts of Interest in International Arbitration 3. IBA Guidelines on Conflicts of Interest in International Arbitration
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4. Significance at the Set Aside and Enforcement Stages 4. Significance at the Set Aside and Enforcement Stages
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II. Lack of Independence or Impartiality II. Lack of Independence or Impartiality
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1. General Principles 1. General Principles
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2. Typical Situations 2. Typical Situations
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a) Personal Relations a) Personal Relations
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b) Prior Involvement in the Subject Matter of the Dispute b) Prior Involvement in the Subject Matter of the Dispute
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c) Behavior During the Proceedings c) Behavior During the Proceedings
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3. Disclosure Obligation 3. Disclosure Obligation
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III. Lack of Agreed Prerequisites III. Lack of Agreed Prerequisites
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IV. Challenge Procedure IV. Challenge Procedure
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1. Challenge Declaration and the Two-week Deadline 1. Challenge Declaration and the Two-week Deadline
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2. Withdrawal or Consent by the Other Party 2. Withdrawal or Consent by the Other Party
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3. Decision by the Arbitral Tribunal 3. Decision by the Arbitral Tribunal
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4. Court Review 4. Court Review
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5. Continued Arbitral Proceedings 5. Continued Arbitral Proceedings
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V. Inability to Perform and Undue Delay V. Inability to Perform and Undue Delay
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1. Inability to Perform 1. Inability to Perform
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2. Undue Delay 2. Undue Delay
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3. Voluntary Withdrawal 3. Voluntary Withdrawal
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4. Termination by Party Agreement 4. Termination by Party Agreement
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5. Termination by Court Decision 5. Termination by Court Decision
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VI. Replacement VI. Replacement
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F. The Arbitrator Agreement F. The Arbitrator Agreement
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I. Legal Nature of the Arbitrator Agreement I. Legal Nature of the Arbitrator Agreement
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II. Applicable Law II. Applicable Law
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III. Conclusion of the Arbitrator Agreement III. Conclusion of the Arbitrator Agreement
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IV. Rights and Obligations of the Arbitrators and the Parties IV. Rights and Obligations of the Arbitrators and the Parties
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1. Efficient Conduct of the Proceedings 1. Efficient Conduct of the Proceedings
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2. Personal Obligation and the Use of Assistants 2. Personal Obligation and the Use of Assistants
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3. Instructions by the Parties 3. Instructions by the Parties
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4. Remuneration 4. Remuneration
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a) General Principles a) General Principles
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b) Reimbursement of Expenses b) Reimbursement of Expenses
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c) Advances on Arbitrator Compensation and Expenses c) Advances on Arbitrator Compensation and Expenses
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5. Confidentiality 5. Confidentiality
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6. Accounting 6. Accounting
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7. Liability 7. Liability
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V. Term and Termination V. Term and Termination
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1. Effect of the Termination of the Arbitral Proceedings 1. Effect of the Termination of the Arbitral Proceedings
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2. Termination by Mutual Agreement 2. Termination by Mutual Agreement
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3. Unilateral Termination 3. Unilateral Termination
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a) Termination by the Parties a) Termination by the Parties
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b) Termination by Arbitrators b) Termination by Arbitrators
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4. Termination of the Office of an Arbitrator 4. Termination of the Office of an Arbitrator
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Cite
Abstract
This chapter examines the arbitral tribunal which resolves dispute by way of arbitration. It discusses the number of arbitrators, the procedure of appointing arbitrators, the selection of arbitrators, the challenge, termination of the office and replacement of arbitrators, as well as the arbitrator agreement — a topic that has more attention in Germany than in other jurisdictions. The study is important as the arbitral tribunal is one of the most important strategic steps in any arbitration. In most cases, the parties and their counsel to believe that picking the right panel is a preeminent precondition for achieving the desired outcome. The chapter describes how under German law, the principles of independence and impartiality of an arbitration are non-derogable cornerstones of any arbitral proceedings. Essentially, they form part of the German procedural ordre public which are considered indispensable constitutional requirements in order for arbitral proceedings to be equivalent to state court litigation.
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