New South Wales Consolidated Acts

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COMMERCIAL ARBITRATION ACT 2010 - SECT 11

Appointment of arbitrators

11 Appointment of arbitrators

(cf Model Law Art 11)

(1)
Note : Art 11 (1) of the Model Law (which provides that no person is precluded by nationality from acting as an arbitrator unless otherwise agreed by the parties) has been omitted.
(2) The parties are free to agree on a procedure of appointing the arbitrator or arbitrators, subject to the provisions of subsections (4) and (5).
(3) Failing such agreement:
(a) in an arbitration with 3 arbitrators and 2 parties, each party is to appoint one arbitrator, and the 2 arbitrators so appointed are to appoint the third arbitrator; if a party fails to appoint the arbitrator within 30 days of receipt of a request to do so from the other party, or if the 2 arbitrators fail to agree on the third arbitrator within 30 days of their appointment, the appointment is to be made, on the request of a party, by the Court, and
(b) in an arbitration with a sole arbitrator, if the parties are unable to agree on the arbitrator, an arbitrator is to be appointed, on the request of a party, by the Court, and
(c) in an arbitration with 2, 4 or more arbitrators or with 3 arbitrators and more than 2 parties the appointment is to be made, at the request of a party, by the Court.
(4) Where, under an appointment procedure agreed on by the parties:
(a) a party fails to act as required under the procedure, or
(b) the parties, or 2 or more arbitrators, are unable to reach an agreement expected of them under the procedure, or
(c) a third party, including an institution, fails to perform any function entrusted to it under the procedure,
any party may request the Court to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment.
(5) A decision within the limits of the Court’s authority on a matter entrusted by subsection (3) or (4) to the Court is final.
(6) The Court, in appointing an arbitrator, is to have due regard to any qualifications required of the arbitrator by the agreement of the parties and to such considerations as are likely to secure the appointment of an independent and impartial arbitrator.
Note : This section (other than subsections (3) (c), (5) and (6)) is substantially the same as Art 11 of the Model Law. Subsection (3) (c) is added to cover the contingency of the parties failing to agree on the procedure to appoint arbitrators in certain circumstances not covered by the Model Law as incorporated in this Act. It is based on clause 11 (6) of Schedule 1 to the Arbitration Act 1996 (NZ). Subsection (5) makes it clear that, although a decision of the Court is generally final, review of a decision of the Court that is not made within the limits of its powers and functions is not precluded. Subsection (6) does not include the requirement in Art 11 (5) of the Model Law that the Court take into account the advisability of appointing an arbitrator of a nationality other than those of the parties in appointing a sole or third arbitrator as this is not relevant in the context of domestic commercial arbitrations.



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