(1) ..........
Note for this subsection:
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 for this section:
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.