LUXEMBOURG Law and Practice Contributed by: Emilie Waty and Kloris Vjerdha, KLEYR_GRASSO
ing the arbitral tribunal’s competence to rule on its own jurisdiction as well as to prevent dilatory tactics. It is equally pertinent to point out that this principle finds additional confirmation in Article 5 (4) of the LAC Rules which expressly empowers the arbitral tribunal to uphold the validity and enforceability of the arbitra - tion agreement regardless of any allegation that the underlying contract is non-existent, null and void or otherwise invalid. There are no specific limitations on the parties’ autonomy to appoint arbitrators, provided that the designated arbitrators are natural persons who are not deprived of their civil rights. In instances where a legal person is designated as an arbitrator, it solely has the power to appoint a natural person to carry out the arbitral mandate. Thus, there are no requirements regarding the arbi - trator’s qualification nor the necessity of a specific licence, educational background or prior experience. It should be noted in this respect that where the par - ties have elected to refer their dispute before the LAC, Article 10.8 of its rules provides that the Council is to appoint arbitrators having regard to the nature of the dispute, the applicable law and the language of the procedure. 4.2 Default Procedures The parties to an arbitration may designate the arbitra - tors directly or by reference to an arbitration institu - tion’s procedural rules or procedural regulations that govern the appointment process. 4. The Arbitral Tribunal 4.1 Limits on Selection Likewise, the parties are free to determine the number of arbitrators. In the absence of such an agreement however, the Luxembourg Arbitration Law provides that the arbitral tribunal shall be composed of a panel of three arbitrators.
In particular, Article 1228-4 of the NCCP outlines four possible scenarios with respect to the appointment of arbitrators. Firstly, where a sole arbitrator is to be appointed and the parties fail to reach an agreement on their identity, the appointment of the sole arbitrator shall be made by the person or authority that is responsible for the organisation of the arbitration, or failing that, by the supporting judge. Secondly, when a panel of three arbitrators is to be appointed, each party shall proceed to designate one arbitrator, and the two appointed arbitrators shall jointly designate the third arbitrator. Should a party fail to appoint an arbitrator within one month, or if the two appointed arbitrators fail to designate the presid - ing arbitrator within one month, the appointment shall be made by the authority overseeing the arbitration proceedings, or in the absence thereof, by the sup - porting judge. Thirdly, in cases involving more than two parties, where the parties fail to agree on the composition of the arbitral tribunal, the appointment shall be made by the authority responsible for administering the arbitra - tion or, in the absence of such authority, by the sup - porting judge. Finally, any other disputes regarding the appointments of the arbitral tribunal shall be resolved by the author- ity responsible for administering the arbitration, or, in absence of such authority, by the supporting judge. 4.3 Court Intervention Under the Luxembourg Arbitration Law, state courts and more specifically the supporting judge may inter - vene in the appointment of arbitrators solely in dero - gation of the default procedure which foresees that it is in the parties’ discretion to select the arbitrators that will decide on the dispute (see 4.2 Default Pro- cedures ). As previously noted, the institution of the support - ing judge represents a novel feature introduced by the 2023 arbitration reform, which confers upon the President of the District Court the authority to exercise limited and targeted interventions during the arbitra -
452 CHAMBERS.COM
Powered by FlippingBook