중재판정부내에서의 의장중재인의 법률상 지위

The arbitrator is the decisive element in any arbitration. His ability, expertness, fairness, and impartiality are the basis of the arbitration process. The success of an arbitration will largely depend on him. Any arbitration is only as good as the arbitrator who is conducting it. This phrase reflects the paramount importance which is attached to the selection and appointment of the arbitrator in international arbitration. There are several ways in which the parties may decide who shall arbitrate it. Usually, The sole arbitrator is selected and appointed by mutual agreement of the parties. In case of a three member tribunal, each party appoints one arbitrator, while the chairman is usually appointed by the two party appointed arbitrators. If the appointment process fails, the arbitrator is appointed by the arbitral institution in case of institutional arbitration or by the court under the arbitration law of the seat of the arbitration. The parties' freedom to choose a tribunal that is qualified to decide their dispute is one of the major advantages of arbitration. In general, parties should always determine the necessary qualification first and then look for appropriate persons instead of the other way around. The parties should, however, always be careful not to require too many qualifications from the potential arbitrators. Art. 13 (2) of the Korean Arbitration Law provides that an arbitrator may be challenged if he does not possess qualifications agreed to by the parties. A lack of qualifications agreed upon by the parties may also provide a ground for setting aside the award. An important qualification relates to the nationality of the arbitrator. Often, the party-appointed arbitrators will have the nationality of the party that appointed them. They will then convey to the other arbitrators the legal and cultural particularities of the country of the party that appointed them. There is a long-standing controversy over whether the arbitral tribunal should be composed of lawyers only, or whether experts or commercial men should act as arbitrators. In general, however, no clear-cut answer can be given to this important question. It all depends on the particularities of the case. However, in a regular international commercial arbitration, only lawyers should be appointed as arbitrators. According to the most arbitration laws and rules, any decision by the tribunal on the substance of the dispute must be made, unless otherwise agreed by the parties, by a majority of all its members. Questions of procedure may be decided during the arbitration by the chairman alone if authorized to do so by the parties or by all members of the arbitral tribunal. It is indeed a usual procedure in international commercial arbitration for the chairman of the tribunal to formulate a fist draft of the award after the final deliberations with the co-arbitrators. This draft is then circulated among the co-arbitrators. Very often, the draft is discussed in a meeting of the arbitrators. The chairman will then take account of the comments of the co-arbitrators in drafting the final version of the award. This version will then be circulated again among the arbitrators for signature.