ICDPASO Commercial Arbitration Rules Interpretation Series 10

The professionalism of arbitration depends on the professionalism of arbitrators, and the fairness of arbitration depends on the impartiality of arbitrators. The appointment mechanism of arbitrators is directly related to the fairness, efficiency, and authority of the arbitration process. ICDPASO Commercial Arbitration Rules Article 10 “Panel of Arbitrators”, consisting of two concise paragraphs, establishes an arbitrator appointment model that combines both guidance and openness. This Article aims to safeguard the principle of party autonomy - the cornerstone of arbitration, while providing professional support for the formation of the arbitral tribunal through the institution's management and services. The following is a paragraph-by-paragraph analysis of this Article.

I. The original text of Article 10

Article 10. Panel of Arbitrators

1. The Court of Arbitration provides for a Panel of Arbitrators based on the expertise of each arbitrator.

2. A party may appoint arbitrators from the Panel of Arbitrators provided by the Court of Arbitration or other arbitrators outside the Panel of Arbitrators.

If a party appoints an arbitrator outside the Panel of Arbitrators, it shall comply with the law of the seat of arbitration.

II. Analysis of paragraphs

(1) “The Court of Arbitration provides for a Panel of Arbitrators based on the expertise of each arbitrator”

1. Analysis of Core Characteristics

“Based on the expertise of each arbitrator” means that ICDPASO does not provide a general list but may subdivide it into professional fields such as international trade of goods, intellectual property, construction projects, financial investment, and maritime commerce. This is greatly convenient for the parties to accurately identify arbitrators with relevant knowledge and experience in specific dispute areas, ensuring the professional matching of the arbitral tribunal.

The nature of the panel is “recommended” rather than “mandatory”. This is the cornerstone of the openness of this Article. It provides the parties with a high-quality pool of candidates who possess corresponding qualifications and credibility and have been reviewed by the Court of Arbitration, but does not limit the parties' choices to this Panel.

2.Comparative analysis

ICC (International Court of Arbitration of the International Chamber of Commerce) does not establish a panel of arbitrators and emphasizes party autonomy. Arbitrators are freely appointed by the parties but subject to confirmation by the ICC Court or directly appointed by the ICC Court in special cases.SIAC (Singapore International Arbitration Centre) Arbitration Rules do not explicitly address panel-related content. In practice, SIAC provides panels classified by expertise such as intellectual property and restructuring and insolvency disputes.HKIAC (Hong Kong International Arbitration Centre) Arbitration Rules also do not explicitly address panel-related content. In practice, HKIAC provides arbitrator panels classified by expertise such as Financial Services and Intellectual Property.

ICDPASO's practice of establishing panels based on different areas of expertise is consistent with international customs and clearly regulated in the rules, reflecting the flexible management characteristic of a “recommendation system” rather than a “mandatory system”, and balances party autonomy with the controllability of the process. It not only provides professional guidance akin to institutional management but also retains sufficient space for the parties' free choice.

3.Jurisprudence analysis

The panel system is an organic combination of the principle of party autonomy and the principle of the institution guaranteeing procedural efficiency and fairness. Firstly, the Rules respect the parties' right to choose, and the existence of the panel is to assist rather than restrict this right.

Secondly, it reflects the service function of the arbitration institution. Through professional classification, the institution leverages its information advantages and organizational capabilities to provide a public good for the parties to form an arbitral tribunal efficiently and with high quality, effectively overcoming the “choice difficulty” and “information blind spots” that may arise in a fully open model.

Finally, it indirectly safeguards the credibility of arbitration. A panel that has undergone professional review can ensure the basic quality of the arbitrator team from the source, laying the foundation for the quality of arbitral awards.

(2)“A party may appoint arbitrators from the Panel of Arbitrators provided by the Court of Arbitration or other arbitrators outside the Panel of Arbitrators. If a party appoints an arbitrator outside the Panel of Arbitrators, it shall comply with the law of the seat of arbitration.”

1.Analysis of Core Characteristics

This paragraph defines the freedom and boundaries of the parties to appoint arbitrators under the principle of party autonomy. It clarifies the weakly guiding nature of the panel of arbitrator - which is neither a mandatory scope of choice nor a relative restriction on the parties’ right to choose. Specifically, it is reflected in the following aspects:

Highly free right to choose: The panel in the first paragraph of this Article is the “default option” or “safe harbor”, while this paragraph explicitly grants the parties the right to “sail away from the harbor”. The parties may appoint arbitrators outside the panel based on trust in a specific expert (such as a renowned scholar or a retired judge), matching of specific industry backgrounds, or any other reasons. This maximally reflects the contractual nature of arbitration.

Clear legal boundaries: Freedom is not unlimited. The latter sentence “it shall comply with the law of the seat of arbitration” sets a legal framework for the parties' autonomy. This usually refers to the mandatory provisions of the law of the seat of arbitration regarding the qualifications, independence, and impartiality of arbitrators. For example, the law of the seat of arbitration may stipulate that an arbitrator must have full capacity and shall not have a conflict of interest with the case. This provision ensures the legality of the formation of the arbitral tribunal and is an important prerequisite for the final recognition and enforcement of the arbitral award overseas under the New York Convention.

2.Comparative analysis

According SIAC Arbitration Rules, any arbitrator nominated by the parties shall be subject to appointment by the SIAC President. In appointing an arbitrator, the President shall take into account factors such as the arbitrator’s qualifications, impartiality or independence, sufficient availability and nationality. Additionally, the President may, after considering the views of the parties, the arbitrators already appointed, or the relevant third person, body or organisation, refuse to appoint or revoke the appointment of any arbitrators. For dispute resolution matters collaborated between SIAC and FedArb, the SIAC Arbitration Rules provide model clauses, which explicitly require that for intellectual property disputes, the parties shall agree to select arbitrators from the FedArb IP Panel of Arbitrators and/or SIAC IP Panel of Arbitrators.

Under the HKIAC Arbitration Rules, parties may freely appoint arbitrators meet HKIAC’s eligibility criteria and are confirmed by HKIAC. In the confirmation process, HKIAC shall fully take into account any agreement by the parties as to an arbitrator’s qualifications, any factors that may affect the efficiency or integrity of the arbitration.

As mentioned earlier, both allow appointments outside the panel, and the institutional confirmation procedure in their rules is functionally similar to the review of “compliance with the provisions of the law of the seat of arbitration”. ICDPASO explicitly and primarily assigns this review obligation to the parties and directly invokes the law of the seat of arbitration as the criterion.

Under the ICC model, any nomination by the parties must be confirmed by the ICC Court. The ICC's confirmation criteria are comprehensive, including nationality, residence, other relationships with the countries of which the parties to the other arbitrators are nationals and the prospective arbitrator’s availability and ability. Its scope of review and discretion are far greater than simply reviewing compliance with the law of the seat of arbitration.

On the issue of appointment outside the panel, ICDPASO adopts a unique model that is more flexible than the confirmation system and places greater emphasis on legal alignment than fully free appointment. It minimizes direct intervention of the institution (limited to permission at the rule level), assigns the responsibility of complying with the law to the parties first , while taking the law of the seat of arbitration as the final and objective review standard. Under the ICDPASO Arbitration Rules, the parties may directly select arbitrators from outside the list without needing a written agreement, which is also a significant highlight of the Rules.

3.Jurisprudence analysis

This paragraph reflects the balance between the judicial and contractual nature of arbitration.

The contractual nature is reflected in granting the parties extensive freedom to appoint arbitrators outside the panel, which is a core feature that distinguishes arbitration from litigation and embodies its private nature.

The judicial nature is reflected in compliance with the law of the seat of arbitration. Arbitration is not a lawless area, and its procedures must be subject to the framework of the law of the seat of arbitration to ensure procedural legitimacy and the enforceability of the award. This provision incorporates the parties' autonomy within the rule of law and prevents the risk of the award being set aside due to the illegal formation of the arbitral tribunal.

III. Analysis of Connection and Applicability with the New Arbitration Law of the People's Republic of China

The new Arbitration Law of the People's Republic of China (hereinafter referred to as the “New Arbitration Law”), revised on September 12, 2025, is a milestone in the modernization and internationalization of China's arbitration system. The provisions of Article 10 of ICDPASO prospectively show a high degree of compatibility alignment with the new law. Its advantages are particularly prominent in practice.

1.Embracing Party Autonomy and Following the International Trend

The New Arbitration Law retains and expands the provision that “an arbitration commission shall appoint its arbitrators from among righteous and upright persons”, requiring that “an arbitrator appointed by an arbitration institution shall be fair and upright, possess good professional qualities, be diligent and responsible, honest and clean, and abide by professional ethics”. It quantifies the standards for institutions to select and appoint arbitrators and safeguards the principle of party autonomy. The expression of “may... or...” in Article 10 of the ICDPASO Arbitration Rules is the early implementation and concretization of the spirit of the new law. It endows Chinese parties with the freedom of choice in arbitration, aligning the ICDPASO Rules with international mainstream rules from the very beginning, and enhancing their international attractiveness and competitiveness.

2.Clearly Define the Law of the Seat of Arbitration as the Boundary to Ensure the Validity of the Award

The new Arbitration Law of the People's Republic of China has improved the provisions on the validity of arbitration agreements, arbitration procedures, and the setting aside of awards. Among them, whether the formation of the arbitral tribunal complies with the arbitration rules and legal provisions is an important reason for challenging the validity of the award.

Article 10, paragraph 2 of the ICDPASO Arbitration Rules explicitly takes “comply with the law of the seat of arbitration” as a prerequisite for appointment outside the panel, which is a highly operable and risk-warning provision. It guides the parties and their representatives to conduct due diligence when exercising their free right to choose to ensure that the appointed arbitrators meet the mandatory requirements of the law of the seat of arbitration (which may be Chinese law or the law of other countries or regions) regarding arbitrator qualifications. This provision greatly reduces the risk of procedural defects or even the setting aside of the award due to the illegal formation of the arbitral tribunal, and provides a solid guarantee for the finality and enforceability of the award.

3.The “Panel of Arbitrators” Solves Practical Problems and Takes into Account Both Safety and Efficiency

Under the revision of the new Arbitration Law of the People's Republic of China, the parties may face the new problem of “too many choices”. How to form a professional and impartial arbitral tribunal efficiently and with low risk has become a new practical issue.

The “Panel of Arbitrators” of ICDPASO shows its advantages in this context. For parties unfamiliar with the international arbitration ecosystem, or for cases where the parties hope to advance the process quickly and safely, the panel provides a certified, professional “safe candidates pool”. This is not only an aid to party autonomy but also an efficient case management tool, which can effectively shorten the time for forming the arbitral tribunal and improve the overall efficiency of arbitration.

IV. Conclusion

Through the two paragraph designs of the “Panel of Arbitrators” and “free appointment outside the Panel”, Article 10 of the ICDPASO Arbitration Rules skillfully balances three sets of relationships: institutional guidance and party autonomy, professional efficiency and freedom of choice, and contractual flexibility and juridical normativity. Compared with the rules of international arbitration centers such as SIAC and HKIAC, it provides a more guiding starting point; compared with the ICC rules, it endows the parties with more extensive autonomy.

More importantly, this Article is highly synchronized with the spirit of the new Arbitration Law of China. It not only fully complies with the new legal framework but also, with its forward-looking rule design, provides the parties with an arbitrator appointment scheme that combines international factors, legal security, and practical convenience. This reflects ICDPASO's blueprint as an international organization with arbitration functions, committed to building a truly modern, international, and user-friendly dispute resolution platform.

1.ICC Arbitration Rules art. 13(2021), which provides that: “Appointment and Confirmation of the Arbitrators In confirming or appointing arbitrators, the Court shall consider the prospective arbitrator’s nationality, residence and other relationships with the countries of which the parties or the other arbitrators are nationals and the prospective arbitrator’s availability and ability to conduct the arbitration in accordance with the Rules. The same shall apply where the Secretary General confirms arbitrators pursuant to Article 13(2).The Secretary General may confirm as co-arbitrators, sole arbitrators and presidents of arbitral tribunals persons nominated by the parties or pursuant to their particular agreements, provided that the statement they have submitted contains no qualification regarding impartiality or independence or that a qualified statement regarding impartiality or independence has not given rise to objections. Such confirmation shall be reported to the Court at one of its next sessions. If the Secretary General considers that a co-arbitrator, sole arbitrator or president of an arbitral tribunal should not be confirmed, the matter shall be submitted to the Court.Where the Court is to appoint an arbitrator, it shall make the appointment upon proposal of an ICC National Committee or Group that it considers to be appropriate. If the Court does not accept the proposal made, or if the National Committee or Group fails to make the proposal requested within the time limit fixed by the Court, the Court may repeat its request, request a proposal from another National Committee or Group that it considers to be appropriate, or appoint directly any person whom it regards as suitable.The Court may also appoint directly to act as arbitrator any person whom it regards as suitable where:a) one or more of the parties is a state or may be considered to be a state entity;b) the Court considers that it would be appropriate to appoint an arbitrator from a country or territory where there is no National Committee or Group; orc) the President certifies to the Court that circumstances exist which, in the President’s opinion, make a direct appointment necessary and appropriate.”

2. SIAC Rules art. 19(2025), which provides that: “19. Rules on Appointment19.1 Unless otherwise agreed by the parties, the Tribunal shall comprise one or three arbitrators. In the event that the parties have not agreed on the number of arbitrators, a sole arbitrator shall be appointed unless the Registrar determines, after considering the views of the parties, that the dispute warrants the appointment of three arbitrators.19.4 In all cases, any arbitrator nominated by any or all of the parties, the arbitrators already appointed, or any third person, body or organisation, shall be subject to appointment by the President. The President may, after considering the views of the parties, the arbitrators already appointed, or the relevant third person, body or organisation, refuse to appoint any arbitrator under this Rule 19.4.”

3.HKIAC Rules art. 6(2024), which provides that: “Article 9 – Confirmation of the Arbitral Tribunal 

9.1 All designations of any arbitrator, whether made by the parties or the arbitrators, are subject to confirmation by HKIAC, upon which the appointments shall become effective.

9.2 Where the parties have agreed that an arbitrator is to be appointed by one or more of the parties or by the arbitrators already confirmed or appointed, that agreement shall be deemed an agreement to designate an arbitrator under the Rules. 

9.3 The designation of an arbitrator shall be confirmed taking into account any agreement by the parties as to an arbitrator’s qualifications, any factors that may affect the efficiency or integrity of the arbitration, any information provided under Article 11.4, and in accordance with Article 10.”

4. ICC Arbitration Rules art. 13(2021), which provides that: “ARTICLE 13 Appointment and Confirmation of the Arbitrators

In confirming or appointing arbitrators, the Court shall consider the prospective arbitrator’s nationality, residence and other relationships with the countries of which the parties or the other arbitrators are nationals and the prospective arbitrator’s availability and ability to conduct the arbitration in accordance with the Rules. The same shall apply where the Secretary General confirms arbitrators pursuant to Article 13(2).”