CHILE Law and Practice Contributed by: Andrés Jana, Rodrigo Gil, Francisco Grob and Victoria Demarchi, Jana & Gil Dispute Resolution
4. The Arbitral Tribunal 4.1 Limits on Selection
In the case of a three-member tribunal, each party will name a co-arbitrator and the co-arbitrators will together nominate the president. Where the co-arbi - trators cannot reach agreement, or where one of the parties fails to name a co-arbitrator, any party may request the president of the respective court of appeal to make the appointment (Article 11 (3) of the ICAL). The president must make the appointment with due regard to “any qualifications required of the arbitrator by the agreement of the parties and to such consid - erations as are likely to secure the appointment of an independent and impartial arbitrator and, in the case of a sole or third arbitrator, shall take into account as well the advisability of appointing an arbitrator of a nationality other than those of the parties” (Article 11 (5) of the ICAL). There is no appeal available against the appointment of an arbitrator by the president of the court of appeal. Multiparty Arbitrations There are no provisions in international arbitration law for multiparty arbitrations. Parties may choose to incorporate the same arbitration clause in various related contracts or appoint the same arbitrator for related disputes. In multiparty cases under the ICAL, if the president of the court of appeal is called to assist in the appointment of arbitrators, the president may choose to consolidate the various disputes before tri - bunals of the same composition. Although there is little – if any – published guidance, there is no reason why the multiparty solutions sug - gested in Article 10 of the ICC Rules, Article 8 of the LCIA Rules and Article 3 (7) of the Rules of the Inter - national Centre for Dispute Resolution could not be applied. To a greater extent, Article 14 of the CAM Rules provides that where multiple claimants or respondents cannot agree on the appointment of their respective arbitrator, that arbitrator will be appointed by CAM Santiago. 4.3 Court Intervention For sole arbitrator cases, the president of the court of appeal will be entitled to intervene and designate the arbitrator when the parties fail to reach an agreement. This designation mechanism is activated upon party
The ICAL (see 2.1 Governing Law ) specifically establishes that nationality shall not be a barrier to the appointment of an arbitrator (Article 11 (1) of the ICAL). Therefore, unless otherwise agreed by the par - ties, a person’s nationality will not be an obstacle for them to act as an arbitrator (Article 11 (1) of the ICAL). Although discussions have arisen as to whether arbi - trators need to be lawyers under Article 526 of the CJO in the case of international arbitration, part of the doctrine considers that such a conclusion would be erroneous. This can be corroborated by the his - tory of the ICAL: when this discussion was raised, it was noted that there was consensus that – in the field of international commercial arbitration – the parties themselves are called upon to decide the quality of the arbitrator or arbitrators who will hear and resolve a dispute. It was considered that, if the parties decide that the arbitrator should be a lawyer or other profes - sional, the principle of autonomy should be respected. It was also considered that, for disputes related to essentially technical aspects, it may be more appro - priate to appoint an engineering arbitrator – a possibil - ity that the law should not limit. According to national law, judges cannot be appointed as arbitrators (Articles 226 and 317 of the CJO) and – even though this is self-evident – parties to the dispute cannot be appointed as arbitrators in their own case (Article 226 of the CJO). The ICAL poses no restrictions on who may act as arbitrator. However, given that Articles 226 and 317 of the CJO are considered to relate to public policy, they necessarily act as a limitation on the appointment of arbitrators in international arbitrations that take place in Chile. 4.2 Default Procedures Selecting Arbitrators In international arbitrations with a sole arbitrator, where the parties have not agreed on an appointment proce - dure and cannot reach agreement on the appointment of the arbitrator, the appointment will be made by the president of the respective court of appeal.
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