Lloyd's Maritime and Commercial Law Quarterly


Matthew McGhee *


39. ARI v WXJ 1

Relationship between arbitrator and appointing party—necessity or not of a contract—conditions for appointing an arbitrator—express conditions on arbitrator’s acceptance of appointment
An arbitration agreement between A and W provided that, if a party wished to commence arbitration, then they were required to appoint an arbitrator and give notice of this to the counterparty. The counterparty then had 14 days to appoint its own arbitrator and advise the first party, failing which the first party could appoint its chosen arbitrator as the sole arbitrator. A appointed G as arbitrator and notified W of this. Twelve days later, W asked J whether J would act as arbitrator. J responded that they were available subject to conflicts. The following day, J confirmed that there were no issues with conflicts. The day after, 14 days after A’s initial notice, W notified A of J’s appointment by email copied to G and J. J subsequently said that they were unable to act because the remuneration was insufficient.
A claimed a declaration that W had not appointed an arbitrator and thus G was the sole arbitrator. W applied for summary judgment on the claim.
Decision: Application succeeded and claim dismissed.
Held: (1) Whether an arbitrator is appointed is a question to be approached pragmatically, not doctrinally. It is not necessary to establish the formation of a contract between the arbitrator and the appointing party. All that is required is either: (a) a clear and unconditional communication of acceptance of the appointment by the arbitrator which is then notified to the other party, or (b) communication of an unconditional willingness by the arbitrator to accept the appointment, which the appointing party then acts upon by communicating the appointment to the appointee and the other party.
(2) If it is necessary to establish the formation of a contract between the arbitrator and the appointing party, the context will ordinarily behove the arbitrator to specify any conditions which are to operate as a bar to appointment, failing which the arbitrator’s confirmation of their willingness to act is sufficient for the contract to be formed.
(3) J’s confirmation of availability on day 12 was subject to there being no conflicts, so was not an unconditional confirmation that J would act. However, that condition was lifted the following day, which was all that was necessary as between W and J. Thus, when

Arbitration Law


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