This third post of the Arbitration Proceedings in Yemen will be discussing issues related to the appointment and removal of arbitrators according to Yemen Arbitration Law and Yemeni Centre for Conciliation and Arbitration Rules (“YCCA Rules”).
1. What are the procedures in Yemen for appointing arbitrators?
According to Article (24) of the YCCA Rules, the parties are free to determine the number of arbitrators, provided that it is an odd number. Alternatively, the parties may agree to refer the matter to the YCCA to appoint the arbitrator(s).
If the parties have agreed to appoint a single arbitrator but were unable to agree on such appointment, the YCCA Secretary General shall appoint the arbitrator within one week from the date the request is received from the parties.
If the parties agreed to appoint three arbitrators, each party shall appoint an arbitrator and both arbitrators shall appoint a third arbitrator within fifteen (15) days, who shall act as the Chair of the tribunal. In the event a party refuses to appoint an arbitrator, the YCCA Secretary General will be entitled to appoint such arbitrator. If both arbitrators are unable to appoint the presiding arbitrator within a maximum period of fifteen (15) days from the appointment date of the second arbitrator, the YCCA Secretary General may appoint the presiding arbitrator in coordination with the YCCA Chairman. In the event of institutional arbitration under the YCCA, all arbitrators must be appointed from the YCCA’s certified list of arbitrators.
2. Do the laws and regulations in Yemen provide for the possibility of members of the judiciary to be appointed arbitrators on a part-time basis?
In the past, the appointment of members of the judiciary as arbitrators on a part-time basis was prohibited. However, recent applicable laws and regulations do not prohibit such appointment, provided that the appointed member is not conflicted by being an arbitrator in a matter that is or may be referred to him in a court (Article (11) of the Arbitration Law).
3. Are the parties free to agree the number of arbitrators? If the parties do not agree, does the law provide a number?
The parties to arbitration are free to agree on the number of arbitrators. In the absence of such agreement, the number of arbitrators shall be three (Article (21) of the Arbitration Law) or any odd number (Article (23) of the YCCA Rules). However, the YCCA recommends that the arbitral tribunal comprises one arbitrator if the claim is less than 2,000,000 Yemeni Rials (equivalent to approx. US$6,000).
4. Can local courts assist in the appointment of arbitrators?
Yes. In the event of ad hoc arbitration, the competent court may assist in the appointment of arbitrators if parties are unable to do so. If the parties do not agree on the appointment of a single arbitrator, the arbitrator will be appointed by the competent court upon the request of one of the parties. If the tribunal comprises three arbitrators, each party shall appoint one arbitrator who have thirty (30) days to appoint the presiding arbitrator. If they fail to agree on the appointment of the presiding arbitrator, he will be appointed by the competent court upon the request of either of the parties (Article (22) of the Arbitration Law).
5. How will arbitrators be appointed in a multi-party dispute?
This specific question is not addressed by applicable laws and regulations in Yemen. However, the general principles provide that arbitrators shall be one, three or an odd number. In the event that the multiple parties were unable to agree on the appointment of the arbitrator(s), such appointment shall be made by the YCCA, or by the competent court (if ad hoc).
6. Under the local laws and regulations, are there any age, gender or nationality limitations pertaining to the appointment of arbitrators? Does the local laws and regulations deal with the nationality criteria of the Tribunal/Chairman when dealing with parties from multiple nationalities?
An arbitrator must be an adult of any gender and nationality. The current laws and regulations do not set out certain nationality criteria of the arbitrators when dealing with parties from multiple nationalities.
7. How, and in what circumstances, can arbitrators be replaced? Do local courts interfere in the removal of an arbitrator or the challenges raised against the appointment of an arbitrator?
An arbitrator may be replaced in case of revocation of duty for reasons of dismissal, withdrawal, resignation or any other reason. The appointment of his substitute shall be made in the same manner in which he was appointed pursuant to Article (26) of the Arbitration Law. Further, Article (25) of the Arbitration Law provides that if an arbitrator is unable to perform his duties, which obstructs proceedings and fails to resign, the parties may agree on a replacement or request the competent court to do so.
Generally speaking, a court may intervene, upon request of either party, in arbitral proceedings in relation to:
- the appointment, challenge or termination of an arbitrator;
- the jurisdiction of an arbitral tribunal;
- the setting aside of an arbitral award;
- assistance in taking evidence or recognition of an arbitration agreement (including its compatibility with court-ordered interim measures);
- court-ordered interim measures; or
- the recognition and enforcement of interim measures and arbitral awards.
8. What can a party do to challenge an arbitrator in case of partiality, fraud, or bias?
Article (27) of the YCCA Rules provides that the challenging party must, within fifteen (15) days of the information relating to the challenge coming to light, send a written statement of the reasons for the challenge to the YCCA Chairman. The reason(s) for such challenge must be similar to those required for challenging court judges (i.e. matters related to impartiality, independence, unfair practice, etc.). Further, one or both of the parties may also challenge an arbitrator if proven unable to perform his functions, or for other reasons fails to act without undue delay pursuant to Article (25) of the Arbitration Law.