In Mylcrist Builders Limited v. Mrs G Buck [2008] EWHC 2172 (TCC) an important issue arose in respect of the correct appointment of an arbitrator. Mylcirst and Buck had entered into a construction contract which contained an arbitration clause. The clause did not provide the mechanism for the appointment of an arbitrator and, accordingly, under s.16(3) Arbitration Act 1996, the parties were to jointly appoint an arbitrator. Mylcrist appointed an arbitrator but did this unilaterally and without the consent of Buck. In issue was s.17 Arbitration Act which stated that where two parties to an arbitration agreement were each to appoint an arbitrator and one party failed to do so the other party could appoint his arbitrator as sole arbitrator. The court found that s.17 Arbitration Act did not apply in these circumstances as there was no provision in the first place in the contract between Mylcrist and Buck that each party should appoint an arbitrator. The requirement was for the parties to jointly appoint a sole arbitrator and this had not been complied with. Consequently, the arbitrator lacked the substantive jurisdiction to make the Award that he did and the Award was therefore rendered unenforceable.

This case shows how important it is that parties properly comply with the provisions for the appointment of arbitrators whether provided in the contract between the parties or, in the absence of such contractual provisions, as set out in the Arbitration Act 1996.