CHAPTER III.

COMPOSITION OF
ARBITRAL TRIBUNAL

Article 10. Number of arbitrators

(1) The parties are free to determine the number of arbitrators.

(2) Failing such determination, the number of arbitrators shall be three.

TRAVAUX PRÉPARATOIRES (Available on the Internet at www.uncitral.org).

The travaux préparatoires on article 10 as adopted in 1985

are contained in the following documents:
1. Report of the United Nations Commission on
International Trade Law on the work of its eight-
eenth session (Official Records of the General
Assembly, Fortieth Session, Supplement No. 17
(A/40/17)), paras. 11-333.
2. Reports of the Working Group: A/CN.9/216;
A/CN.9/232; A/CN.9/233; A/CN.9/245; A/CN.9/
246, annex; A/CN.9/263 and Add.1-2; A/CN.9/264.
Relevant working papers are referred to in the reports.
3. Summary records of the 312th and 332nd
UNCITRAL meetings.
Article 10 was not amended in 2006.
CASE LAW ON ARTICLE 10
1. Article 10 provides further evidence of the importance
given to party autonomy in the Model Law. It grants to the
parties complete freedom regarding the number of arbitra-
tors.268 One court ruled that an agreement between the par-
ties to appoint an even number of arbitrators was within
the scope of the parties’ freedom under paragraph (1), and
that the validity of the arbitration agreement did not depend
on the number of arbitrators.269 This holding is in line with
the travaux préparatoires.270
2. A court does not have the power to modify the default
rule of three arbitrators on grounds of cost-effectiveness or
proportionality.271

268
See for instance: Electra Air Conditioning B.V. v. Seeley International Pty. Ltd., Federal Court, Australia, 8 October 2008, [2008]
FCAFC 169, available on the Internet at http://www.austlii.edu.au/au/cases/cth/FCAFC/2008/169.html; Gordian Runoff Ltd. (formerly Gio
Insurance Ltd.) v. The Underwriting Members of Lloyd’s Syndicates, Supreme Court of New South Wales (Equity Division), Australia,
19 December 2002 (revised 5 February 2003), [2002] NSWSC 1260, available on the Internet at http://www.austlii.edu.au/au/cases/nsw/
NSWSC/2002/1260.html.
269
CLOUT case No. 177 [MMTC v. Sterlite Industries (India) Ltd., Supreme Court, India, 18 November 1996], also available on the
Internet at http://www.indiankanoon.org/doc/1229987/.
270
A/CN.9/264, Analytical commentary on draft text of a model law on international commercial arbitration, under article 10, para. 2
available on the UNCITRAL website at http://www.uncitral.org/uncitral/en/commission/sessions/18th.html.
271
Thésaurus Inc. v. Xpub Média Inc., Court of Quebec, Canada, 20 August 2007, [2007] QCCQ 10436 (CanLII), available on the
Internet at. http://canlii.ca/t/1t0f3.

57
58 UNCITRAL 2012 Digest of Case Law on the Model Law on International Commercial Arbitration

Article 11. Appointment of arbitrators

(1) No person shall be precluded by reason of his nationality from acting as an arbi-
trator, unless otherwise agreed by the parties.

(2) The parties are free to agree on a procedure of appointing the arbitrator or arbi-
trators, subject to the provisions of paragraphs (4) and (5) of this article.

(3) Failing such agreement,

a) in an arbitration with three arbitrators, each party shall appoint one arbitrator,
and the two arbitrators thus appointed shall appoint the third arbitrator; if a party
fails to appoint the arbitrator within thirty days of receipt of a request to do so
from the other party, or if the two arbitrators fail to agree on the third arbitrator
within thirty days of their appointment, the appointment shall be made, upon request
of a party, by the court or other authority specified in article 6;

b) in an arbitration with a sole arbitrator, if the parties are unable to agree on

the arbitrator, he shall be appointed, upon request of a party, by the court or other
authority specified in article 6.

(4) Where, under an appointment procedure agreed upon by the parties,

(a) a party fails to act as required under such procedure, or

(b) the parties, or two arbitrators, are unable to reach an agreement expected of
them under such procedure, or

(c) a third party, including an institution, fails to perform any function entrusted
to it under such procedure,

any party may request the court or other authority specified in article 6 to take the
necessary measure, unless the agreement on the appointment procedure provides other
means for securing the appointment.

5) A decision on a matter entrusted by paragraph (3) or (4) of this article to the court
or other authority specified in article 6 shall be subject to no appeal. The court or other
authority, in appointing an arbitrator, shall 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 and, in the case
of 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.

TRAVAUX PRÉPARATOIRES 2. Reports of the Working Group: A/CN.9/216;

The travaux préparatoires on article 11 as adopted in 1985
are contained in the following documents:
1. Report of the United Nations Commission on Inter-
national Trade Law on the work of its eighteenth ses-
sion (Official Records of the General Assembly, Fortieth
Session, Supplement No. 17 (A/40/17)), paras. 11-333.
A/CN.9/232; A/CN.9/233; A/CN.9/245; A/CN.9/246,
annex; A/CN.9/263 and Add.1-2; A/CN.9/264. Rele-
vant working papers are referred to in the reports.
3. Summary records of the 312th and 332nd
UNCITRAL meetings.
Article 11 was not amended in 2006.
(Available on the Internet at www.uncitral.org).