Party Autonomy and Default Rules Regarding the Choice of Number of Arbitrators

It would have been futile if the law-whether the law of the seat or institutional rules—rendered the selection of the number of arbitrators a matter of compulsion on the parties. The parties to international arbitration are presumed to understand which number suits their particular needs, for the purposes of amassing sufficient expertise for the exigencies of their dispute. Moreover, given that the appointment of arbitrators gives rise to significant expenditure, arbitral proceedings would be out of the parties' control if the state dictated the appropriate number of arbitrators. Even so, it is not always clear how many arbitrators the parties have chosen, or that in the event of multi-party arbitration each party is entitled to select one arbitrator. Hence, default rules are important in order for arbitral proceedings to continue unabated, as well as to avoid rendering arbitration too expensive or too onerous for one or more parties. Although there is some divergence among states as to whether or not the parties may appoint an even or odd number of arbitrators, the general positions on party autonomy and its default counterpart are generally not contentious. These have been expressed in the two key international arbitration instruments: Article 10 of the United Nations Convention on International Trade Law ("UNCITRAL") Model Law on International Commercial Arbitration and Article 7 of the UNCITRAL Arbitration Rules.' The former contemplates that: "i) The parties are free to determine the number of arbitrators.] ii) [Failing such determination, the number of arbitrators shall be three."