OMAN Law and Practice Contributed by: Sultan Al Ghafri, Nasser Al Riyami, Abdullah Al Aufi and Joud Lashko, Al Khalili, Al Ghailani & Co. LLP (K&Co.)
4.3 Court Intervention A court can intervene in the selection of arbitrators, but only within the confines set by the Arbitration Law. The circumstances in which the competent court may be called upon to make an appointment are addressed at 4.2 Default Procedures . What matters for present purposes is the character of the court’s involvement and the limits upon it. The court’s role is supportive and administrative rather than substantive: it acts to complete the constitution of the tribunal so that the arbitration may proceed, and not to review the merits of any party’s choice of arbitrator. It may act only upon the application of an interested party, and only where the mechanism agreed by the par - ties has failed. Its powers are confined to what the Arbitration Law expressly permits, so that it cannot unilaterally reconstitute a validly appointed tribunal in the absence of a proper challenge, and any arbitrator it appoints remains subject to the same requirements of independence, impartiality and disclosure as one nominated by the parties. That supervisory jurisdiction over the composition of the tribunal extends also to applications for the challenge, removal or replacement of an arbitrator, but no further: where the mechanism agreed by the parties has functioned, the constitution of the tribunal is a matter for the parties alone. 4.4 Challenge and Removal of Arbitrators Under Article 18 (1) of the Arbitration Law, an arbitrator may be challenged only where circumstances exist which give rise to serious doubts as to their impartial - ity or independence. Article 18 (2) provides that a party may not challenge an arbitrator whom it appointed, or in whose appointment it participated, save for a rea - son of which it became aware after that appointment was made. Under Article 19 (1), the challenge must be made in writing to the arbitral tribunal, stating the grounds relied upon, within 15 days from the date on which the challenging party learned of the constitu - tion of the tribunal or of the circumstances justifying the challenge. If the challenged arbitrator does not withdraw, the arbitral tribunal itself, and not the court, determines the challenge at first instance. A challenge is inadmissible if brought by a party which has pre - viously challenged the same arbitrator in the same arbitration (Article 19 (2)). Where the tribunal rejects the challenge, the applicant may appeal against that decision to the court designated in Article 9 of the
tors who are not Omani nationals or qualified Omani lawyers. 4.2 Default Procedures Where the parties’ chosen method for selecting arbi - trators fails – for example, because a party does not nominate an arbitrator within the agreed or statutory period, or because the party-nominated arbitrators cannot agree on a presiding arbitrator – Article 17 of the Arbitration Law provides a default mechanism under which the competent court will make the nec - essary appointment upon application by the inter - ested party, and it governs the manner of the court’s intervention in any dispute over the appointment of arbitrators. In the case of a three-member tribunal, if one party fails to appoint its arbitrator within 30 days of being called upon to do so, or if the two party- appointed arbitrators fail to agree on a chairperson within a further specified period, the competent court will appoint the outstanding arbitrator or chairperson. A similar default procedure applies to multiparty arbi - trations, although in practice such situations are more commonly addressed through the tribunal’s own pro - cedural directions or the rules of the chosen arbitral institution, with recourse to the courts remaining as a fallback where consensus cannot be reached. The court’s default power under Article 17 is of par - ticular practical importance in ad hoc arbitration, where there is no arbitral institution to act as appoint - ing authority. If the parties, or the arbitrators they have nominated, fail to complete the tribunal, it is the competent court that selects the missing arbitra - tor. Where the court makes the appointment, it will ordinarily select from among the arbitrators regis - tered with it, and registration is subject to published requirements. Chief among these is that the candidate hold recognised arbitration qualifications, in the form of certificates or accredited courses from reputable arbitration bodies, or alternatively that the candidate submit substantial evidence of practical experience in arbitration. Parties contemplating an ad hoc arbi - tration seated in Oman should bear in mind that any arbitrator appointed by the court will be drawn from that register.
678 CHAMBERS.COM
Powered by FlippingBook