OVERVIEW · CHAPTER 04
Constitution and operation of the arbitral tribunal
Appointment, independence, challenges and replacement of arbitrators.
Number, qualifications and appointment
Under the general regime, Article 16 provides for a sole arbitrator or an odd-numbered tribunal, with three arbitrators by default. Article 19 requires an individual of full age and legal capacity who meets the agreed or institutional qualifications. Nationality does not itself preclude appointment, unless otherwise agreed under Article 21(1).
Article 18 provides default appointment rules and mechanisms for resolving failures to appoint. Paragraph 8 permits an appointment request after eight days from the specified acts; it does not require a court to decide within eight days. International commercial arbitration is subject to the special provisions in Articles 57 and 58: Article 58 notably provides thirty-day periods for certain steps in constituting a three-member tribunal.
Sources and references
- Law No. 11/99 of 8 July — Arbitration, Conciliation and Mediation · arts. 16–19, 21, 57–58
Independence, impartiality and disclosure
An arbitrator does not represent the appointing party. Article 20(2) requires disclosure of circumstances that may give rise to justifiable doubts about impartiality or independence, from the initial approach and throughout the proceedings. Article 22 sets out ethical duties including equal treatment, diligence and confidentiality of deliberations.
The IBA Guidelines may assist conflict analysis but do not replace consideration of the law, rules and specific facts. Disclosure and disqualification are related but distinct issues: not every disclosure requires removal, and non-disclosure must also be assessed in context.
Sources and references
Challenge, replacement and liability
Article 21(4) addresses justifiable doubts about impartiality or independence and the absence of agreed qualifications. In the absence of an agreed challenge procedure, Article 23 requires a reasoned communication within fifteen days of learning of the tribunal’s constitution or the relevant circumstances. If the challenge fails, paragraph 3 governs a court request within thirty days of notification of that decision.
Replacement follows the rules applicable to the original appointment. Article 23(7) interrupts the proceedings until the replacement accepts; paragraph 8 addresses possible repetition of oral evidence. The law also addresses liability: Article 21(5) concerns unjustified withdrawal after acceptance, and Article 22(4) addresses dishonest or fraudulent performance, resulting harm and violations of law. Arbitrators should not be described as generally immune from liability.