Arbitrators and the arbitral tribunal

Who may act as an arbitrator and what qualifications matter?

An arbitrator must meet the legal requirements and those prescribed by the agreement or applicable rules.

Mozambique’s general law does not require every arbitrator to be a lawyer. Selection should consider the skills needed to understand the dispute and conduct fair proceedings.

Legal or technical experience, language skills, availability and case management ability may matter. No qualification replaces independence and impartiality. The institution administers arbitration; the arbitrators decide the dispute.

In Mozambique: Article 19 of Law 11/99 requires an adult natural person with full legal capacity who meets the requirements of the agreement or selected institution. Article 18(10) addresses agreed qualifications, independence and impartiality. Special regimes may add requirements.

How are arbitrators selected?

Parties may select the arbitrators or entrust selection to an institution or appointing authority under the agreement, rules and law.

Parties may jointly select a sole arbitrator, provide for party nominations on a panel, or entrust selection to an institution or appointing authority. Appointment, acceptance and tribunal formation are distinct stages.

If an appointment fails, use the prescribed mechanisms. A refusal to nominate does not by itself permit a party to block a valid arbitration indefinitely. Multi-party proceedings require checking the appropriate mechanism rather than simply copying the two-party model.

In Mozambique: Articles 17 and 18 govern formation and appointment. Article 18(7) provides for fallback intervention by an institutional body chosen by the parties and, without agreement on that body, by the court. For international commercial arbitration, also consult Articles 57 and 58.

How should parties choose between a sole arbitrator and a three-member tribunal?

Consider the dispute’s value and complexity, costs, availability and the benefit of a collective decision.

A sole arbitrator can simplify coordination and reduce certain expenses. Three arbitrators can bring different skills and perspectives, but require coordination among three people and may increase costs. Neither option alone guarantees a better or faster decision.

The choice should be consistent with the agreement and rules. Economic value matters but is not the only criterion: a lower-value dispute can raise complex legal issues.

In Mozambique: Article 16 permits a sole arbitrator or an odd-numbered panel and provides for three if the number is not determined. For international commercial arbitration, Article 57 also provides for three when the parties do not specify the number. Consult the rules that actually apply.

Does a party-appointed arbitrator represent that party?

No. A party-appointed arbitrator is not that party’s lawyer, agent or advocate.

Every arbitrator must decide independently and impartially. Participation in tribunal selection does not confer a right to someone who will secure a favourable decision.

The arbitrator should examine arguments and evidence under the applicable procedure. They should not take voting instructions, advise a party on strategy or disclose deliberations to it. Advocacy belongs to the party’s lawyer or representative.

In Mozambique: Article 22 prohibits representing any party’s interests, requires impartiality and independence and protects deliberation confidentiality, including against disclosure to the appointing party.

What are independence, impartiality and the duty of disclosure?

An arbitrator must be able to decide free from dependence or favouritism. Relevant circumstances must be disclosed so the parties can assess that position.

These are related but distinct safeguards:

• Independence

  Asks whether personal, professional or financial relationships compromise independent judgment.

• Impartiality

  Asks whether the arbitrator assesses the case without favouring a party or improperly prejudging the dispute.

• Duty of disclosure

  Requires communication of relevant circumstances so the parties can assess them. It continues during proceedings; disclosing a relationship does not automatically admit disqualification.

In Mozambique: Article 20(2) requires disclosure from the approach concerning possible appointment and throughout proceedings. Articles 21 and 22 address disqualification, challenge and ethics. The 2024 IBA Guidelines assist analysis in international arbitration but do not replace binding law or rules.

How may an arbitrator be challenged or replaced?

A challenge requires grounds and a prescribed procedure; replacement may follow a challenge or another ground for ending the appointment.

Challenging an arbitrator differs from disagreeing with their decision. Identify facts meeting the legal or rule-based grounds, such as justifiable doubts over independence or impartiality or absence of agreed qualifications.

Replacement may also be needed following death, inability to act or another legal cause. The appointment mechanism applicable to the replaced arbitrator is used. Check procedural consequences and whether evidence needs to be heard again.

In Mozambique: Article 21(4) specifies challenge grounds. Article 23 permits an agreed procedure subject to paragraph 3; without agreement, paragraph 2 requires written reasons within fifteen days, calculated on its stated terms. Paragraph 3 provides for a request for a decision within thirty days of notice rejecting the challenge. Paragraphs 4–8 govern termination, replacement and consequences. These deadlines do not automatically apply to special regimes.

Who decides the arbitral tribunal’s jurisdiction?

The arbitral tribunal may determine its own jurisdiction, subject to the court review prescribed by law.

The tribunal can decide its jurisdiction because it may examine whether there is a valid agreement, who is bound and which claims are covered. This is the competence-competence principle.

That inquiry differs from deciding who is right in the dispute. For a payment claim, first ask whether the arbitrators may decide it; then whether the debt exists. The jurisdictional decision remains subject to the court review prescribed by law.

In Mozambique: Article 37 governs jurisdiction, timing of objections and court review. Paragraph 3 distinguishes a preliminary decision from a decision in the award: for the former it provides for a court request within thirty days after notice; for the latter it refers to Article 44. Appointing an arbitrator does not by itself remove the right to raise a jurisdictional objection.