Содержание
Every arbitration starts with a question of how many arbitrators shall hear the dispute: a sole arbitrator or a tribunal of three arbitrators. Below I will outline the factors I use before answering this question in Gafta.
When can a sole arbitrator be appointed?
Under Gafta 125, when filing a notice of arbitration, the claimant has two options: to appoint an arbitrator to a tribunal of three or propose to the respondent that the dispute be heard by a sole arbitrator.
There is one subtlety in the appointment procedure. If the respondent does not want to appoint a sole arbitrator, it must:
- refuse, and
- nominate an arbitrator (one of the three) on its end.
In other words, it is not enough just to decline. You have to nominate your own arbitrator along with the refusal. Otherwise, Gafta will appoint a sole arbitrator after receipt of the claim. Few people pay attention to this. There are respondents who are surprised to find out that a sole arbitrator will still be appointed despite their opposition. The devil is in the details (and at the offices of law firms).
For and against a sole arbitrator
There are many articles on this subject, but most have little to do with practice. Usually, they highlight two advantages of a sole arbitrator: cheapness and speed.
Sole arbitrator is cheaper
That’s true, but the cheapness is very relative.
In practice, the cost of a Gafta arbitration with a sole arbitrator or a tribunal does not differ significantly. The difference is usually between $5,000 and $7,000. So it’s not much compared to a dispute of US$200,000-300,000. But if the amount in dispute is small and every penny counts (especially when you have to pay those lawyers), you need to know this.
In Gafta, the standard deposit (payable after filing a claim) in a dispute heard before a sole arbitrator is less than in the case of a tribunal of three arbitrators.
The maximum difference between the amounts of deposits is around four thousand pounds.
The final cost depends on the amount of time the arbitrators spend on the case. Logically, this figure will be higher with a tribunal because three persons read the documents (math!).
The sole arbitrator is faster
The number of arbitrators does not affect the speed of the case. For example, I waited four months for a sole arbitrator to decide, even though the case involved a typical contractual non-payment.
It depends on the arbitrator’s personal qualities, workload and previous experience in resolving similar disputes. But even if we choose a”fast” arbitrator, we are not responsible for the other two. There is a chance that they will not be as quick.
With three arbitrators, it depends on the chairperson. It is usually the chairperson who drafts the award. But if something goes wrong, there is hope that the other two arbitrators will intervene. With a sole arbitrator, Gafta chooses the candidate itself. You may or may not get lucky.
Why three arbitrators are needed
Firstly, everyone makes mistakes. And with three arbitrators, there is a better chance that the decision will be more balanced and objective: three people will read the documents (at least they should). Yes, the deposit will be £4,000 more. But if the dispute is complex or the claim is at least $200,000, do you need such savings?
Secondly, it is possible to select the arbitrator yourself. This can be important in many cases. For example, the dispute involves a breach of the sampling procedure. In that case, you may choose an arbitrator with experience in survey companies. Or you may select an experienced, reputable arbitrator, or someone you know.
How to choose an arbitrator?
The list and CVs of the arbitrators can be found here.
Gafta does not have a register of awards to analyse an arbitrator’s decisions. So ideally, you should rely on your experience with specific arbitrators. But if you are choosing for the first time, here is something to think about:
- What kind of position will we be claiming: complex legal or more of trading? If the former, choose an arbitrator with a legal background. In Gafta, in-house lawyers can become arbitrators. Otherwise, appoint a trader practitioner.
- What is the nature of the dispute? If the dispute relates to imports into the Netherlands, look for an arbitrator with experience in that field and country.
- Sometimes the views and opinions of arbitrators can be found in Gaftaworld magazine.
- If the arbitrator is busy with his main job, he may devote less time to the dispute than a full-time arbitrator.
- Also, it is mindful to consider the nationality of the arbitrator and the place of incorporation of the respondent’s company. Choosing a French arbitrator when the respondent is a major French trading company might not be a good idea. This does not mean a conflict of interest per se, but it is better to play it safe.
Although the list of arbitrators is long, there are not many arbitrators who hear more than one case yearly. These arbitrators may be busier, but with more practice, they will deal with typical disputes more quickly.
Summary
To summarise, a sole arbitrator in Gafta is only needed in these cases:
- The amount in dispute is below $200,000.
- You’re on a small budget, and saving £3,000 to £4,000 will make a difference.
- The case is straightforward and does not involve deep legal concepts, counterclaims or the need for narrow professional expertise.
- You are fearless, and it does not bother you.
If you do not find yourself on the list, you need a tribunal of three arbitrators.
If you still have questions or need assistance with Gafta arbitration — whether it is about appointing arbitrators or handling the dispute itself — feel free to contact me via email, Telegram or WhatsApp. I provide legal support on all matters related to Gafta arbitration and international trade.
