HOW SHALL THE APPOINTMENT OF ARBITRATORS BE HANDLED WHEN THE PARTIES CANNOT REACH AN AGREEMENT?

The process of resolving commercial disputes through arbitration is founded on the fundamental principle of respecting the parties’ agreement. In practice, once a dispute arises, the parties often cannot agree on the arbitrator who will resolve the dispute. Accordingly, the following issue occurs: “If the parties fail to agree on the appointment of an arbitrator, how and by whom will the appointment be made?”

Pursuant to Clause 5 Article 3 of the Law on Commercial Arbitration 2010, an arbitrator is a person selected by the parties or appointed by an Arbitration Centre or a Court to resolve a dispute in accordance with the Law on Commercial Arbitration. Under this provision, the appointment of arbitrators shall first be in accordance with the parties’ agreement in the dispute. If the parties cannot reach an agreement, the Law on Commercial Arbitration also provides specific mechanisms for appointing arbitrators. Specifically:

1. In case of appointment by the Arbitration Center (applicable to the establishment of an Arbitration Council)

First, for an arbitral tribunal consisting of multiple arbitrators:

Clause 1 and Clause 2 Article 40 of the Law on Commercial Arbitration 2010 provide: “Where an arbitral tribunal comprises multiple arbitrators, if within 30 days from the date the Arbitration Centre sends the request, the parties still cannot agree on the selection of arbitrators, then within 07 days from the expiry of that period, the President of the Arbitration Centre shall issue a decision appointing the arbitrators.”

Second, for an arbitral tribunal comprising a sole arbitrator:

Clause 4 Article 40 of the Law on Commercial Arbitration 2010 provides: “After 30 days from the date the respondent receives the statement of claim, if the parties fail to select a sole arbitrator, then upon the request of one or more parties, the President of the Arbitration Centre shall appoint the sole arbitrator to resolve the dispute.”

At the Midland Commercial Arbitration Centre (MCAC), Articles 12 and 13 of the MCAC Rules of Arbitration also regulate this matter. Specifically, if within 30 days from the date of receiving the request to select an arbitrator, the parties still cannot agree, the President of the Arbitration Centre shall issue a decision appointing an arbitrator within 07 days after the expiry of that period, or upon the request of one or more parties in cases where the tribunal consists of a sole arbitrator.

2. In case designated by the Court (applicable to the establishment of a case arbitration council)

First, for an arbitral tribunal consisting of multiple arbitrators:

Clause 1 and Clause 2 Article 41 of the Law state: “Within 30 days from the date the respondent receives the claimant’s statement of claim, the respondent must select an arbitrator and notify the claimant of the arbitrator selected. Upon the expiry of this period, if the respondent fails to notify the claimant of the selected arbitrator and the parties have no other agreement on the appointment of arbitrators, the claimant shall have the right to request the competent Court to appoint an arbitrator for the respondent.”

Second, for an arbitral tribunal comprising a sole arbitrator:

Clause 4 Article 41 of the Law on Commercial Arbitration 2010 provides: “Where the parties agree that the dispute shall be resolved by a sole arbitrator but fail to select one within 30 days from the date the respondent receives the statement of claim, and the parties have no agreement requesting an Arbitration Centre to appoint an arbitrator, then upon the request of one or more parties, the competent Court shall appoint the sole arbitrator.”

Conclusion: From the foregoing provisions, it is clear that both the Law on Commercial Arbitration and the MCAC Rules of Arbitration contain specific regulations addressing situations where the parties fail to agree on the appointment of an arbitrator to resolve the dispute. This is essential to ensure the continuity, fairness, and due process of the arbitral proceedings, thereby strengthening the parties' confidence in the efficiency and enforceability of arbitration as a dispute resolution method.

This article, published on the MCAC website, provides an in-depth analysis of issues arising when the parties fail to reach an agreement on the appointment of arbitrators. For more detailed information, please contact us via hotline +84 935 925 068 or email contact@mcac.vn.

See also: Respondent’s failure to submit a statement of defense or attend the hearing in arbitral proceedings