Arbitration: Agreement, Tribunal and Procedure
The Arbitration: Agreement, Tribunal and Procedure domain tests the architecture of a valid arbitration - the written agreement, the tribunal's constitution and jurisdiction, and procedural due process.
The agreement
Under Article II of the New York Convention 1958 an arbitration agreement must be in writing; Model Law Article 7 (2006 revision) recognises electronic form and incorporation by reference. Separability means the arbitration clause survives the invalidity of the main contract (Sulamérica Cia Nacional de Seguros v Enesa Engenharia [2012] EWCA Civ 638). Competence-competence allows the tribunal to rule on its own jurisdiction in the first instance.
The tribunal
Number and appointment follow the parties' agreement or institutional rules. Failing agreement, appointing authorities or courts make default appointments. Arbitrators must be independent and impartial; the IBA Guidelines on Conflicts of Interest use red, orange and green lists to aid disclosure, which is a continuing duty. Challenges go first to the institution or the tribunal, then to the courts. Removal grounds typically include justifiable doubts about independence, lack of agreed qualifications and failure to conduct the proceedings properly.
Procedure
Model Law Articles 18 and 19 guarantee equal treatment and a fair opportunity to be heard, with procedural autonomy subject to mandatory rules. Typical elements: seat (the legal anchor determining supervisory courts and challenge), venue (where hearings physically happen), language, pleadings, document production (IBA Rules on the Taking of Evidence), fact and expert witnesses, hearings and costs.
Worked example
A clause provides for 'arbitration in London under the ICC Rules'. London is the seat; the ICC is the institution; the ICC Court administers the case and the English courts supervise. If a party challenges the tribunal's jurisdiction, the tribunal rules on it in a partial award, which can then be challenged under section 67 of the Arbitration Act 1996.
Traps
Conflating seat with venue; insisting on a signature the applicable law does not require; assuming a tribunal's interim measure is self-executing across borders; ignoring the continuing duty of disclosure; missing the difference between challenging an arbitrator and challenging an award.