In which cases can the change of arbitrator settling dispute be requested by the litigant?

Legal situation: Currently, I have involved a dispute with Company B, which is resolved at a commercial arbitration center. However, Mr. H, who is working as a regular counsel at Company B and often negotiates with me to address the problems, attends the arbitration council.  I do not trust Mr. H’s impartiality and objectivity. Can I request a change of arbitrator?

FDVN’s opinion:

Thank you for sending your questions to FDVN Law Firm (FDVN). For your consultation requests, after studying the relevant legal regulations, FDVN has the following opinion:

[1] Cases in which a change of Arbitrator is required

According to Clause 1, Article 42 of the Law on Commercial Arbitration, “An arbitrator shall refuse to settle a dispute and the parties may request change of an arbitrator to settle the dispute in the following cases:

a) The arbitrator is a relative or representative of one party:

b) The arbitrator has an interest related to the dispute;

c) There is a clear ground to conclude that the arbitrator is neither impartial nor objective;

d) The arbitrator was a conciliator, representative or lawyer of one party before the dispute is brought to arbitration for settlement, unless such is consented in writing by the parties.”

After being selected or designated, the arbitrator shall notify in writing the arbitration center or arbitration council and parties of the circumstances which may affect his/her objectivity or impartiality. 

Accordingly, if the arbitrator is Mr. H, who used to be the lawyer for B company, you may base on the above provisions to file a request for change of arbitrator to protect your rights and interests.

[2] Competence to decide to change arbitrators: It is stipulated in Clauses 3 and 4, Article 42 of the Law on Commercial Arbitration

For a dispute to be settled at an arbitration center:

+ If the arbitration council has not been formed, the arbitration center’s Chairman shall decide on change of the arbitrator.

+ If the arbitration council has been formed, change of an arbitrator shall be decided by other members of the arbitration council. When these members cannot make decision or if the arbitrators or the sole arbitrator refuse(s) to settle the dispute, the arbitration center’s chairman shall decide on change of the arbitrator.

For a dispute to be settled by an ad hoc arbitration council, change of an arbitrator shall be decided by other members of the arbitration council. When these members cannot make decision or if the arbitrators or the sole arbitrator refuse(s) to settle the dispute, within 15 days after receiving a request from the arbitrator(s) and one disputing party or all disputing parties, the Chief Justice of the competent court shall assign a judge to decide on change of the arbitrator.

The above is FDVN’s advice regarding your request for advice on the basis of studying legal regulations. Hope FDVN’s advice will be useful for you.

Pham Thao – FDVN Law Firm