NEWSLETTER-2017

145 ARBITRATION LAW Under the ICC Rules, pursuant to Article 2(1) of Appendix VI regulating expedited procedures, a sole arbitrator may be appointed by the International Court of Arbitration (“Court”) notwithstanding any contrary provision of the arbitration agreement 5 . Accordingly, the parties’ will may be superseded by this provision, and the parties may be faced with an arbitration proceeding conducted by a sole arbitrator, even though they prefer a panel composed of more than one arbitrator. The ICC Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration 6 (“Notes”) justify this practice in stating that by submitting to arbitration under the Rules, the parties agree that any reference made to three arbitrators in their arbitration agreement is subject to the Court’s discretion to appoint a sole arbitrator, if the expedited procedure provisions are applied 7 . Other institutional arbitration rules have adopted a different approach to the issue. For instance, the SCAI Rules do not set forth an automatic appointment of a sole arbitrator, and provide that the Secretariat shall invite the parties to agree to refer the case to a sole arbitrator, if the arbitration agreement provides for an arbitral tribunal composed of more than one arbitrator 8 . The appointment of a sole arbitrator could be problematic con- sidering the importance of party consent in international arbitrations. Arbitration is based on party consent, since it is an exception to state court litigation. Accordingly, the parties should be free to tailor the proceedings in accordance to their own will, and the appointment of a sole arbitrator, even though the parties decided otherwise, could be contrary to the general principles as to which arbitration as a dispute resolution mechanism is based. On the appointment of a sole arbitrator in contradiction to the parties’ previous agreement, the decision of the Singapore High Court 5 Article 2(1) of Appendix VI of the Rules. Source: https://iccwbo.org/dispute-res- olution-services/arbitration/rules-of-arbitration/. 6 The Notes may be accessed under: https://cdn.iccwbo.org/content/uploads/ sites/3/2017/03/icc-note-to-parties-and-arbitral-tribunals-on-the-conduct-of-ar- bitration.pdf. 7 Notes, §76. 8 Article 42(2)(c) of the SCAI Arbitration Rules.