PROCEDURES FOR CHALLENGING

ARBITRATORS: LESSONS FOR AND FROM

TAIWAN

Winnie Jo-Mei Ma

ABSTRACT
The parties to arbitration may challenge their arbitrators for
genuine reasons, such as lack of impartiality, independence or
competence. However, the parties may also misuse or abuse the
challenge procedures as dilatory (and even as guerrilla) tactics.
Ideally, the procedures for challenging arbitrators should uphold
arbitral integrity and legitimacy without unduly compromising
arbitral expediency and efficiency.
This article explores two controversies concerning the
arbitrator challenge procedures. First, who should decide on the
challenge – the arbitral tribunal including or excluding the
challenged arbitrators, or a separate and neutral entity such as an
arbitral institution? Second, should the arbitral proceedings
continue or be discontinued during the challenge process?
Following a comparative and critical survey of the various
procedures for challenging arbitrators, recommendations will be
tailor-made for Taiwan in light of some unique features of
Taiwan’s arbitration law.


Assistant Professor, Bond University Faculty of Law, Australia; Member of the Chinese
Arbitration Association (Taiwan). The author would like to thank Emeritus Professor Mary
Hiscock for her comments on an earlier draft of this article, which was presented at the 2012 Taipei
International Conference on Arbitration and Mediation on 3 September 2012. The author can be
reached at wma@bond.edu.au.

Electronic copy available at: http://ssrn.com/abstract=2192041

294 5(2) CONTEMP. ASIA ARB. J. 293 [2012

KEYWORDS: arbitrator challenge, removal, disqualification or withdrawal,

international commercial arbitration, dilatory or guerrilla tactics, UNCITRAL
Model Law

Electronic copy available at: http://ssrn.com/abstract=2192041

2012] PROCEDURES FOR CHALLENGING ARBITRATORS 295

I. INTRODUCTION

“Empirical and anecdotal evidence confirms that the rate of [arbitrator]

challenge has been increasing since the early 1990s.” 1 “Whether these
challenges are genuinely motivated or tactical, their growing impact on the
legitimacy and efficacy of the entire arbitral process is undeniable.”2
Challenging (disqualifying or withdrawing) arbitrators is an essential
mechanism for ensuring arbitrators’ independence and competence,
impartiality and propriety. Common grounds for challenging arbitrators are
conflict of interest, lack of qualifications and improper conduct. The
procedures for challenging arbitrators may be governed by the parties’
agreement or, in the absence of contractually agreed procedures, by the
parties’ choice of arbitration rules, or by the law of the seat of arbitration.3
Statistics from various arbitral institutions reveal increasing arbitrator
challenges. 4 One reason is that “interlocking corporate relationships and
larger international law firms have increased the potential for conflicts of
interest.” 5 Another reason is that “guerrilla tactics” 6 and “tactical
challenges for dilatory purposes or procedural advantages have become
more common,”7 which is “just one aspect of the general tendency” that
international arbitration has become more litigious in procedural aspects.8
This raises the question of whether there has been a shift in the “balance
between uninterrupted and expeditious proceedings and independent and
impartial decision-making.”9

1
Gabriel Moens & Sam Luttrell, The Appointment and Challenge of Arbitrators Under the Rules of
the Australian Centre for International Commercial Arbitration, 12(5) INT’L ARB. L. REV. 84, 89
(2009).
2
Geoff Nicholas & Constantine Partasides, LCIA Court Decisions on Challenges to Arbitrators: A
Proposal to Publish, 23(1) ARB. INT’L 1, 2 (2007).
3
SIMON GREENBERG ET AL., INTERNATIONAL COMMERCIAL ARBITRATION: AN ASIA-PACIFIC
PERSPECTIVE ¶ 6.112 (2011); JULIAN D.M. LEW ET AL., COMPARATIVE INTERNATIONAL
COMMERCIAL ARBITRATION § 13-25 (2003).
4
For statistics of International Chamber of Commerce [ICC], London Court of International
Arbitration [LCIA] and Arbitration Institute of the Stockholm Chamber of Commerce [SCC], see
Jason Fry & Simon Greenberg, The Arbitral Tribunal: Applications of Articles 7-12 of the ICC
Rules in Recent Cases, 20(2) ICC INT’L CT. ARB. BULL. 12, 30 (2009); David Hacking, Challenges:
Theirs Is to Reason Why, 1(6) GLOBAL ARB. REV. 26, 26 (2006).
5
Noah Rubins & Bernhard Lauterburg, Independence, Impartiality and Duty of Disclosure in
Investment Arbitration, in INVESTMENT AND COMMERCIAL ARBITRATION – SIMILARITIES AND
DIVERGENCES 153, 161 (C. Knahr et al. eds., 2010).
6
“Guerrilla tactics” are unjustifiable challenges to arbitrators intended to frustrate the arbitral
proceedings, deny the other party his/her preferred arbitrator, or reverse unwanted decisions: see
Günther Horvath, Guerrilla Tactics in Arbitration, an Ethical Battle: Is there Need for a Universal
Code of Ethics?, in AUSTRIAN Y.B. ON INT’L ARB. 297, 297, 302 (Peter Klein et al. eds., 2011).
7
LEW ET AL., supra note 3, § 13-7.
8
Albert Jan Van den Berg, Report on the Challenge Procedure, in INTERNATIONAL COMMERCIAL
ARBITRATION: A TRANSNATIONAL PERSPECTIVE 416, 418 (Tibor Varady et al. eds., 2006).
9
Lars Markert, Challenging Arbitrators in Investment Arbitration: The Challenging Search for
Relevant Standards and Ethical Guidelines, 3(2) CONTEMP. ASIA ARB. J. 237, 239 (2010).
296 5(2) CONTEMP. ASIA ARB. J. 293 [2012

This article explores two procedural issues of practical importance and

persisting debate. First, who should decide on the challenge to arbitrators –
the arbitral tribunal including or excluding the challenged arbitrators, or
someone detached from the arbitral tribunal? Second, should the arbitral
proceedings continue or be discontinued while the challenge decision is
pending? Both issues have special significance for Taiwan’s arbitration law,
which is currently under review. Distinctive features of Taiwan’s
arbitration law include time limits on arbitrators’ decision-making, 10 and
the lack of recognition for ad hoc arbitration.11 Should Taiwan follow the
current trends in the arbitrator challenge procedures, or should it swim
against the tide in light of its special circumstances? In any event, any
recommendations on the two procedural issues should, ideally, “prevent
unmeritorious challenges from being used as a means of delaying the
process, of influencing the composition of the tribunal or as an attempt to
evade the finality of an unfavourable award.”12

II. OVERVIEW OF TAIWAN’S CHALLENGE PROCEDURES

Article 17 of Taiwan’s Arbitration Law13 was drafted with Article 13

of the UNCITRAL Model Law on International Commercial Arbitration
[hereinafter the Model Law] 14 in mind, albeit with some noteworthy
differences.
Assuming that the parties have no agreed procedures for challenging
arbitrators, the process begins when the challenging party submits written
application to the arbitral tribunal within 14 days of knowing the grounds
for challenge or the constitution of the arbitral tribunal.15
Assuming that the challenged arbitrator does not withdraw and the
other party does not agree to the challenge, the arbitral tribunal will decide

10
See Taiwan’s Arbitration Law art. 17 para. 1 (ten days for deciding arbitrator challenge), art. 21
para. 1 (maximum of nine months for award-making).
11
A series of Taiwanese court judgments (including Taiwan High Court Decision 99 Fei-Kan-Zi
No. 122 (2010)) held that domestic ad hoc awards made in Taiwan were not enforceable.
Fortunately, a Taiwan Supreme Court Decision 100 Tai-Shang-Zi No. 1875 (2011) expressed a
contrary view in October 2011. See the discussions of these cases in Wei-Jen Chen, Separate but
Equal in Arbitration? An Analysis on Ad Hoc Arbitration of Taiwan and East Asia, 5(1) CONTEMP.
ASIA ARB. J. 107, 123-26 (2012).
12
C. Harris, Arbitrator Challenges in International Investment Arbitration, 5(4) TRANSNAT’L DISP.
MGMT. 1, 21 (2008).
13
Taiwan’s Arbitration Law. Appendix1 reproduces Article 17 for ease of reference.
14
United Nations Commission on International Trade Law, UNCITRAL Model Law on
International Commercial Arbitration, U.N. Doc. A/40/17, Annex 1 (June 21, 1985) [hereinafter
Model Law]. Appendix 2 reproduces article 13 of the Model Law for ease of reference.
15
Taiwan’s Arbitration Law art. 17 paras. 1 and 2. The time limit in Model Law art. 13(2) is 15
days.
2012] PROCEDURES FOR CHALLENGING ARBITRATORS 297

on the challenge.16 This arbitral (internal) decision is the first stage of the
challenge process. Requiring the arbitral tribunal to decide on the challenge
within a short timeframe of ten days is a unique (and commendable) feature
of Taiwan’s Arbitration Law.17 Here the two procedural issues may arise.
First, does the “arbitral tribunal” which decides on arbitrator challenges
include or exclude the challenged arbitrator(s)? Second, should the arbitral
tribunal continue or suspend its arbitral proceedings while its decision on
arbitrator challenge is pending?
Assuming that the arbitral tribunal decides against the challenge, the
challenging party may apply for judicial ruling on this arbitral decision
(within 14 days of receiving notice of the arbitral decision).18 This judicial
(external) decision is the second and final19 stage of the challenge process.
Here the second procedural issue arises again: should the arbitral
proceedings continue or be discontinued while the judicial decision on
arbitrator challenge is pending?
At the outset, it should be noted that the two procedural issues are
interrelated and even interdependent. The choice of decision-maker for
arbitrator challenges has substantial influence on the continuity of the
arbitral proceedings. The following factors or variations further influence
the two procedural issues.
1. Challenging a sole arbitrator: The challenging party must apply to the
court in Taiwan in the first instance, 20 whereas the Model Law
seemingly applies the same two-stage process.21
2. Challenging the majority or entirety of the arbitral tribunal: Taiwan’s
Arbitration Law’s silence on this question has made the first procedural
issue more controversial, as the inclusion and exclusion of the
challenged arbitrators from the arbitral tribunal have significant impact
on the arbitral tribunal’s voting power and outcomes.22
3. Single and final decision on arbitrator challenge: For time and cost-
saving purposes, some arbitration laws designate the court as the first
and only decider on arbitrator challenges, 23 while other institutional

16
Model Law art. 13(2). Note Taiwan’s Arbitration Law article 17 paragraph 5 requires the
challenged arbitrator to withdraw if both parties to arbitration request the withdrawal.
17
Taiwan’s Arbitration Law art. 17 para. 1.
18
Taiwan’s Arbitration Law art. 17 para. 3. Model Law Article 13(3) provides a longer time limit
of 30 days.
19
Taiwan’s Arbitration Law art. 17 para. 4; Model Law art. 13(3).
20
Taiwan’s Arbitration Law art. 17 para. 6.
21
A sole arbitrator’s refusal to resign would constitute a rejection of the challenge, making
available resort to the court under Model Law article 13(3): General Assembly, Report of the
United Nations Commission International Trade Law on the Work of Its Eighteenth Session
(Vienna, June 3 – 21, 1985), ¶ 129, U.N. Doc. A/40/17.
22
Interestingly, the same challenge procedure in Model Law article 13(2) applies to “the challenge
of one or more arbitrators of a multi-arbitrator tribunal”; id.
23
See, e.g., Tunisia’s Arbitration Code (promulgated by Law No. 93-42) art. 58(3); Belgium’s
Judicial Code art. 1691(2); Netherlands’ Arbitration Act (Code of Civil Procedure) art. 1035(2);
298 5(2) CONTEMP. ASIA ARB. J. 293 [2012

rules empower the relevant arbitral institutions to be the sole and final
decision-maker. 24 The latter situation seems inconsistent with the
mandatory provision for judicial review in Model Law Art. 13(3).25 In
light of Taiwan’s two-stage decision-making process for arbitrator
challenges, issues concerning the compatibility between institutional
challenge procedures and judicial review are unlikely to arise, and are
therefore beyond the scope of this article.26
The second stage of judicial decision on arbitrator challenges remains
desirable (if not necessary) for safeguarding arbitral impartiality, integrity
and legitimacy. The ten days’ time limit on the first stage of arbitral
decision on arbitrator challenges is also warranted in the interests of arbitral
expediency and efficiency. However, is the arbitral tribunal an appropriate
decision-maker for arbitrator challenges? If so, should the arbitral tribunal
include or exclude its challenged arbitrators when deciding on challenges?

III. QUESTION 1: WHO SHOULD DECIDE ON ARBITRATOR

CHALLENGES?

A. Arbitral Tribunal or Separate and Neutral Decision-maker?

Most institutional rules for international commercial arbitration entrust

the relevant arbitration institutions or appointing authorities to decide on
arbitrator challenges (instead of the arbitral tribunal). The examples in
Table 2 of Appendix 4 include ICC (International Chamber of
Commerce), 27 LCIA (London Court of International Arbitration), SCC
(Arbitration Institute of the Stockholm Chamber of Commerce), CIETAC
(Chinese International Economic and Trade Arbitration Centre), SIAC
(Singapore International Arbitration Centre) and ACICA (Australian
Centre for International Commercial Arbitration). The reasons against
allowing the arbitral tribunal to determine arbitrator challenges are as
follows.
1. The nature and grounds of challenges may prejudice the arbitral
tribunal’s views regarding the challenged arbitrators or the challenging
parties, and thereby impact upon the further conduct of the arbitral

Switzerland’s Federal Code on Private International Law art. 180(3); Indonesia’s Arbitration and
Dispute Resolution Act 1999 art. 25.
24
Examples of institutional arbitration rules preventing or precluding judicial review of their
institutions’ challenge decisions include ACICA Arbitration Rules art. 43.2, CIETAC Arbitration
Rules 2012 art. 20(6), ICA Rules of Arbitration 1998 art. 26, ICC Rules of Arbitration 1998 art.
7(4), SCC Arbitration Rules 2010 art. 15(4), SIAC Rules 2010 art. 13.5, WIPO Arbitration Rules
art. 29 (see Appendix 4 Table 2).
25
GREENBERG ET AL., supra note 3, ¶ 6.116.
26
For the diverse approaches to “interlocutory judicial challenges to international arbitrators” in
other countries, see GARY BORN, INTERNATIONAL COMMERCIAL ARBITRATION, 1562-63 (2009).
27
Appendix 3 reproduces Article 11 of the ICC Rules of Arbitration 1998.
2012] PROCEDURES FOR CHALLENGING ARBITRATORS 299

proceedings.28
2. The unchallenged arbitrators’ voting on the challenge may be affected
by their relationships with the challenged arbitrators, as well as by their
personal experiences with challenges – hence the risk of undue lenience
towards the challenged arbitrators.29
3. If the arbitral tribunal includes the challenged arbitrator or if the
challenged arbitrator is a sole arbitrator, then this would contravene the
notion that “justice must be seen to be done and that a judge should not
sit in his or her own cause.”30
4. Even if the arbitral tribunal excludes the challenged arbitrator, most
arbitrators “do not wish to sit in judgment of their peers.”31 Regardless
of any “psychological difficulties” in deciding on their peers’
challenges,32 the peer review system itself “raises serious questions as
to the impartiality and independence of the co-arbitrators themselves.”33
On the other hand, the reasons for entrusting the arbitral tribunal to
decide on arbitrator challenges are as follows.
1. Allowing arbitrators to determine challenges to themselves is “an
application of the Kompetenz-Kompetenz principle according to which
each tribunal is entitled to decide matters concerning its own
competence.”34
2. It may be more time-consuming to outsource the briefing and decision-
making to an external body.35
3. The unchallenged arbitrators may be better placed to evaluate the
morality, competence and reliability of the challenged arbitrators.36
4. The self-policing feature of the arbitral process is worth protecting – “if
the process cannot be self-policing, it must be regulated by the very
public authorities to which arbitration is intended to be an
alternative.”37
From an institutional perspective, the Chinese Arbitration Association
of Taiwan (CAA) may wish to align with other international arbitration
institutions by enabling itself to determine arbitrator challenges instead of,

28
KAREL DAELE, CHALLENGE AND DISQUALIFICATION OF ARBITRATORS IN INTERNATIONAL
ARBITRATION 4-003 (2012).
29
Id. at 4-004, 4-006; Audley Sheppard, Arbitrator Independence in ICSID Arbitration, in
INTERNATIONAL INVESTMENT LAW FOR THE 21ST CENTURY – ESSAYS IN HONOUR OF CHRISTOPH
SCHREUER 131, 155 (C. Binder et al eds., 2009).
30
Christopher Koch, Standards and Procedures for Disqualifying Arbitrators, 20(4) J. INT’L ARB.
325, 336 (2003).
31
Harris, supra note 12, at 1.
32
General Assembly, Report of the Working Group on Arbitration on the Work of Its Eighteenth
Session (Vienna, 3 – 21 June 1985), 32, U.N. Doc. A/CN.9/264 (Mar. 25, 1985).
33
DAELE, supra note 28, at 4-003.
34
Id. at 4-002.
35
Id. at 4-002.
36
Id. at 4-002.
37
Id. at xix.
300 5(2) CONTEMP. ASIA ARB. J. 293 [2012

or at least in addition to, the arbitral tribunal. The membership and size of
such a separate and neutral decision-making entity, as well as the duration
and deliberation of the decision-making process should be, ideally, a
“healthy hybrid”38 between administrative and adjudicative roles.
However, in light of the prevalent adoption of the Model Law, 39
Taiwan’s legislature may prefer to retain the arbitral tribunal as the
decision-maker for arbitrator challenges at the first stage, especially when
judicial review of the arbitral decision at the second stage already alleviates
some of the concerns arising from this self-policing system. Yet judges,
academics, policy-makers and practitioners in Taiwan’s arbitral community
remain divided on the issue of whether or not the arbitral tribunal should
include the challenged arbitrators. This has primarily arisen from a series of
Taiwanese judicial opinions which seemingly switched from exclusion to
inclusion of the challenged arbitrators.40

B. Include or Exclude the Challenged Arbitrators from Deciding

Arbitrator Challenges?

The Working Group was agreed that the decision entrusted to

the arbitral tribunal by [Article 13(2) of the Model Law] . . .
was entrusted to all members of the tribunal, including the
challenged arbitrator. In an arbitration with more than one
arbitrator, that decision may be made by a majority of all its
members.41

Counter-intuitive (and even illogical) as this may seem, the Model Law
intended the challenged arbitrators to decide on their own challenges.
However, in the absence of any express provision to this effect, the
domestic laws of some countries expressly include the challenged
arbitrators (e.g. Austria, Canada, Portugal and Slovenia), 42 while others

38
Ruth Teitelbaum, Challenges of Arbitrators at the Iran-United States Claims Tribunal, 23(6) J.
INT’L ARB. 547, 560 (2006).
39
See the list of domestic arbitration laws under Table 1 in Appendix 4.
40
Taiwan Sup. Ct. Decision 96 Tai-Shang-Zi No. 1845 (2007); Taiwan Taipei D. Ct. Decision 100
Zhong-Sheng-Zi No. 7 (2011); Taiwan High Ct. and Its Branch Ct. Legal Forum on Civil Law
Issues No. 65 (Nov. 2011).
41
General Assembly, Report of the Working Group on Arbitration on the Work of Its Seventh
Session (New York, 6 – 17 February 1984), ¶ 38, U.N. Doc. A/CN.9/246 (Mar. 6, 1984); See also
General Assembly, Summary Record of the 314th Meeting of the United Nations Commission
International Trade Law, ¶ 45, U.N. Doc. A/CN.9/246, annex; A/CN.9/263 and Add.1-2,
A/CN.9/264 (June 7, 1985): “there was a general feeling that the challenged arbitrator should
remain and thus rule on the challenge.”
42
Austria’s Arbitration Act 2006 art. 589(2); Canada’s Arbitration Act 2000 (Alberta) art. 13(5);
Portugal’s Arbitration Law 2011 art. 14(2); Slovenia’s Arbitration Law art. 16(2). See Table 1 in
Appendix 4.
2012] PROCEDURES FOR CHALLENGING ARBITRATORS 301

expressly exclude the challenged arbitrators (e.g. Guatemala and Peru).43

The main arguments for excluding the challenged arbitrators are as
follows.
1. It is difficult to expect an arbitral tribunal to be objective if its
challenged arbitrators participate in the decision-making.44
2. No one should be allowed to be his/her own judge.45 The self-policing
feature of the arbitral process should be qualified by the principle that
“only the non-challenged arbitrators can decide on the challenge.”46
3. Judges are prohibited from deciding on challenges to themselves.47 The
same rule should apply to arbitrators, notwithstanding the differences
between litigation and arbitration. This is because all parties expect the
adjudicators of their disputes (whether judges or arbitrators) to be
independent and impartial.48
4. Furthermore, arbitral awards have “the same force” as court
judgments.49 Arbitral integrity and legitimacy should take precedence
over arbitral expediency and efficiency. Public confidence is crucial for
the utility and longevity of the arbitration system.
5. As previously mentioned, Taiwan’s Arbitration Law provides a
separate and different procedure for challenging a sole arbitrator –
namely, application to the court from the outset.50 This arguably reflects
the legislative intention of disallowing the challenged arbitrators to
decide their own challenges, at least where the majority or entirety of
the arbitral tribunal is being challenged.
By contrast, the arguments for including the challenged arbitrators
include the following.
1. In accordance with the Model Law’s objective and intention, the
prevailing practice is to include the challenged arbitrators (either
implicit or explicit).
2. The same procedure applies regardless of the number of the challenged
arbitrators. Simplicity and certainty are desirable, because the more
complicated the challenge procedures, the more likely they may be
manipulated for dilatory or tactical purposes.
A prevalent debate in Taiwan is whether the exclusion of the
challenged arbitrators would create imbalance of voting power (and

43
Guatemala’s Decree No. 67-95 of 1995 art. 17(2); Peru’s Arbitration Act 2008 (Legislative
Decree No. 1071) art. 29(2)(d)(ii).
44
General Assembly, Report of the Working Group on Arbitration on the Work of Its Eighteenth
Session (Vienna, 3 – 21 June 1985), art. 13 para. (2), U.N. Doc. A/CN.9/263/Add. 1 (Apr. 15,
1985).
45
Supra note 40.
46
DAELE, supra note 28, at xviiii.
47
See, e.g., Taiwan’s Code of Civil Procedure art. 35 para. 2.
48
Rubins & Lauterburg, supra note 5, at 153.
49
Taiwan’s Arbitration Law art. 37 para. 1.
50
Taiwan’s Arbitration Law art. 17 para. 6.
302 5(2) CONTEMP. ASIA ARB. J. 293 [2012

therefore unfair treatment of the parties) or impasse in decision-making

(and therefore delay and additional costs). This is because the arbitral
tribunal’s voting power and outcomes would differ depending on the
number of the challenged arbitrators. In a hypothetical scenario, an arbitral
tribunal consists of Arbitrator A (appointed by Party A), Arbitrator B
(appointed by Party B) and Arbitrator C (the neutral chairperson appointed
by both parties). Each arbitrator would have one-third of voting power.
1. Assuming Party A challenges Arbitrator B and Arbitrator B is excluded
from deciding on the challenge (Variation A) – the remaining Arbitrator
A and Arbitrator C would each have half of the voting power. Two
problems may arise here. First, the additional one-sixth of voting power
gained by Arbitrator A (from excluding Arbitrator B) may lead to a
decision on the challenge to Arbitrator B that favours Party A at the
expense of Party B. Second, the two remaining arbitrators may be
evenly divided on the challenge issue, resulting in deadlock and delay
in decision-making.
2. Now assume Party A challenges Arbitrator B and Party B challenges
Arbitrator A. The two challenged arbitrators are excluded from
deciding their challenges (Variation B). Such challenges to the majority
of the arbitral tribunal may result in lack of quorum, meaning that the
remaining Arbitrator C is unable to decide on the challenges.
In both Variation A and Variation B of the above hypothetical
scenario, additional or alternative mechanisms are necessary to progress the
challenge procedure. Resorting to the courts is the usual option, as this is
already contemplated by the two-stage process for determining arbitrator
challenges. However, critics of interlocutory judicial involvement in
arbitration fear that using the courts to determine arbitrator challenges may
delay and even disrupt the arbitral process.51 Mindful of these concerns,
Article 29 of Peru’s Arbitration Act 2008 uses a combination of unanimous
voting and alternative decision-makers (arbitral tribunal or non-judicial
entities) to address the problems of deadlocks and delays caused by split
decisions and lack of quorum, while at the same time precluding judicial
review of decisions on arbitrator challenges.52
1. Challenge to more than one arbitrator: the unchallenged arbitrators in
the arbitral tribunal decide by “absolute majority”.53 In the event of a
tie, the chairman of the arbitral tribunal decides. If the chairman is
being challenged, the appointing arbitral institution or the relevant
Chamber of Commerce will decide: Art. 29(2)(d)(ii).

51
See, e.g., Koch, supra note 30, at 337.
52
Peru’s Arbitration Act 2008 (Legislative Decree No. 1071) art. 29(7): “The decision resolving
the challenge is final and unappealable.”
53
Similarly, Guatemala’s Decree No. 67-95 Article 17(2) requires the non-challenged arbitrators to
decide by absolute majority.
2012] PROCEDURES FOR CHALLENGING ARBITRATORS 303

2. Challenge to more than one arbitrator on the same ground: chairman (if
unchallenged) decides, or the relevant Chamber of Commerce decides
(if chairman is challenged): Art. 29(2)(d)(iii).
3. Challenge to a sole arbitrator: the appointing arbitral institution or the
relevant Chamber of Commerce decides: Art. 29(2)(d)(i).
The Peruvian model is referable and insightful if Taiwan prefers using
the non-challenged arbitrators only to decide arbitrator challenges. Yet
retaining the second stage of judicial review would provide the necessary
checks and balances, particularly when the arbitral tribunal remains
involved in the decision-making process, albeit the non-challenged
arbitrators only. As mentioned above, the non-challenged arbitrators may
be unduly lenient towards their challenged co-arbitrators, as they inevitably
“set standards that one day may be invoked against themselves.”54

In an extreme but definitely not hypothetical scenario, an

arbitrator may even be challenged in one arbitration while,
concurrently, having to decide a challenge to a colleague in
another arbitration. In another extreme example, but again far
from hypothetical, both of the deciding co-arbitrators may
already have been challenged themselves.55

Here the experiences of ICSID (International Centre for Settlement of

Investment Disputes) are thought-provoking. Like the Peruvian approach,
Article 58 of the ICSID Convention 56 provides a one-stage decision-
making by the non-challenged arbitrators of the arbitral tribunal, or,
alternatively, by the Chairman (of the ICSID Administrative Council)57 if
the non-challenged arbitrators are equally divided or if the challenge relates
to a sole arbitrator or a majority of the arbitral tribunal. Some challenges
were decided “within a matter of days”.58 To date 32.5% of the arbitrators
(14 out of 43) have been challenged while deciding challenges made
against fellow arbitrators, and “no arbitrator has ever been disqualified by
the other members of the tribunal.”59 While there are multiple reasons for
these statistics (such as higher thresholds for arbitrator challenges and other
distinctive features of investment treaty arbitration), 60 these statistics

54
DAELE, supra note 28, at 4-005.
55
Id. at 4-006.
56
Convention on the Settlement of Investment Disputes Between States and Nationals of Other
States, Mar. 18, 1965, 17 U.S.T. 1270, T.I.A.S. 6090, 575 U.N.T.S. 159 [hereinafter ICSID
Convention]. Appendix 3 reproduces article 58 of the ICSID Convention.
57
ICSID Convention art. 5.
58
DAELE, supra note 28, at 2-130. ICSID Arbitration Rules Rule 9(5) requires the Chairman to
“use his best efforts” to decide within 30 days (see Appendix 3).
59
Id. at 4-005, 4-009.
60
For differences between international commercial arbitration and investment treaty arbitration,
see Rubins & Lauterburg, supra note 5, at 153, 179; Lars Markert, Improving Efficiency in
304 5(2) CONTEMP. ASIA ARB. J. 293 [2012

nevertheless suggest that the risk of non-challenged arbitrators unduly

favouring the challenged arbitrators “is not entirely illusory”.61

C. Recommendations for Taiwan

The two-stage process for determining challenges to arbitrators is

worth retaining, as the second stage of judicial ruling provides the requisite
objectivity and impartiality. Admittedly such a process is susceptible to
delays at both stages.62 Yet improving the fairness and efficiency of the
first stage may reduce the need for proceeding to the more costly and time-
consuming second stage. Thus the choice of decision-maker for the first
stage is critical. Three options are available in the order of decreasing
preference.
Option 1: Separate and neutral decision-maker such as a specifically
designated committee of the Chinese Arbitration Association (CAA). Apart
from the benefits of having an impartial decision-maker and uniform
procedure irrespective of the number of the challenged arbitrators, this
option may also strengthen the CAA’s competitiveness and compatibility
with other arbitral institutions. The inadequate recognition of ad hoc
arbitration in Taiwan makes this option even more desirable. However, is
the existing time limit of ten days for determining arbitrator challenges
workable even though it is desirable?63 Institutions such as ICC, LCIA and
ICSID range from three weeks to four months in practice.64 Expediency
should not compromise the quality of the decision-making process. The
CAA may consider current institutional practices when designing the size
and composition of the decision-making entity, as well as the nature and
extent of consultation with the challenged arbitrators, the parties and other
members of the arbitral institution.65
Option 2: Arbitral tribunal including the challenged arbitrators. This
option requires minimal changes to the existing law while confirming

Investment Arbitration, 4(2) CONTEMP. ASIA ARB. J. 215, 217, 220, 221 (2011). For the standards
for arbitrator challenges and other distinctive features of ICSID arbitration, see Markert, supra note
9, at 240.
61
DAELE, supra note 28, at 4-005. Cf. Markert, supra note 9, at 249: “the fact that as of 2010 only
one arbitrator challenge has succeeded under the ICSID Convention cannot automatically be
viewed as empirical evidence of a predisposition of the co-arbitrators in favour of their challenged
co-arbitrators.”
62
Van den Berg, supra note 8, at 416, 424.
63
Guatemala’s Decree No. 67-95 article 17(2) requires the arbitral tribunal to decide within 15
days. ICSID Arbitration Rules Rule 9(5) states the Chairman “shall use his best efforts” to decide
within 30 days.
64
See Simon Greenberg, Tackling Guerrilla Challenges Against Arbitrators: Institutional
Perspective, 7(2) TRANSNAT’L DISP. MGMT. 1, 10 (2010) (re ICC); DAELE, supra note 28, at 4-055
(re ICC), 4-056 (re LCIA), 4-054 (re ICSID).
65
For a good summary of ICC, ICDR, SCC, LCIA, SIAC and HKIAC in this regard, see Hacking,
supra note 4, at 28-29.
2012] PROCEDURES FOR CHALLENGING ARBITRATORS 305

consistency with the Model Law. Other benefits include simplicity and
certainty, as the same procedure applies regardless of the number of the
challenged arbitrators. A potential question is whether the current (and
different) procedure for sole arbitrators should remain intact. This may be
one of the exceptional circumstances whereby applying to the court from
the outset may be quicker and cheaper.
Option 3: Arbitral tribunal excluding the challenged arbitrators. It has
already been said that procedures with more complications induce more
manipulations. The Peruvian model, while useful for resolving split
decisions and deadlocks arising from inadequate or even number of the
unchallenged arbitrators, 66 nevertheless necessitates the use of other
decision-makers as alternatives. Why not engage the CAA (or another
person detached from the arbitral tribunal) from the outset if such
alternative decision-makers may be involved later in the challenge process?
In the (unlikely) event that the CAA does not wish to be involved in
determining arbitrator challenges, the courts in Taiwan would most likely
decide on challenges to the majority (or at least entirety) of the arbitral
tribunal. Yet resorting to the courts may aggravate existing concerns about
delaying and disrupting the arbitral process. These concerns may be
“partially alleviated” by allowing the arbitration to proceed while the
arbitrator challenge is pending before the court. 67 The two procedural
questions are inter-connected. Continuity of arbitration during the
challenge process depends on the choice of decision-maker for arbitrator
challenges.

IV. QUESTION 2: SHOULD ARBITRATOR CHALLENGES SUSPEND

ARBITRAL PROCEEDINGS?

“Article 13 [of the Model Law] embodied a compromise procedure

whereby the final decision on the challenge rested with the court but the
arbitral tribunal could continue its proceedings pending that decision.”68
Article 13 paragraph (2) of the Model Law empowers the arbitral
tribunal (implicitly including the challenged arbitrators) to decide on
arbitrator challenges at the first stage. Paragraph (3) then allows the same
arbitral tribunal (explicitly including the challenged arbitrators) to
“continue the arbitral proceedings and make an award” while the challenge
decision at the second stage is pending. These provisions take an in-

66
Article 32 paragraph 2 of Taiwan’s Arbitration Law requires “a majority vote” if there is more
than one arbitrator. Paragraph 4 states: “In the event that a majority consensus of the arbitrators
cannot be reached, the arbitral proceedings are deemed terminated, unless otherwise agreed by the
parties.”
67
Koch, supra note 30, at 337.
68
General Assembly, Summary Record of the 314th Meeting of the United Nations Commission
International Trade Law, supra note 41, ¶ 1.
306 5(2) CONTEMP. ASIA ARB. J. 293 [2012

between stance on two competing views on “the controversy of whether

any resort to a court should be allowed only after the final award is made or
whether a decision during the arbitral proceedings is preferable.”69
One view is that “resort to a court should not be allowed during the
arbitration proceedings but only by way of an application for setting aside
the award.”70 Accordingly, rejected arbitrator challenges cannot be subject
to judicial review but can constitute grounds for setting aside awards made
by the challenged arbitrators. Examples include the United States and
India. 71 The preclusion of interlocutory judicial challenges to arbitrators
means that the challenging party needs to raise the challenge “on the
record” and then wait until the end of the arbitration before challenging the
award “in an action to vacate (or in defence of an action to enforce) the
award”.72
This leads to the opposing view that it is unacceptable to continue the
arbitral proceedings “without first settling the matter by a final decision on
the challenge”. 73 The arbitral tribunal’s decision on arbitrator challenges
should be subject to immediate judicial review, and arbitration proceedings
should suspend until the challenge is either sustained (when the tribunal’s
composition changes before it can proceed), or the challenge is rejected
(when the same tribunal can continue its work).74
Thus the Model Law’s compromising approach (as adopted by many
jurisdictions including Taiwan) is to allow challenges to arbitrators “to be
made during the course of arbitration as well as on an application to set
aside the award.”75 It also gives arbitral tribunal the discretion (instead of
obligation) to continue the arbitration in order to “limit the adverse effects
of an unjustified challenge for dilatory purposes.”76
However, Model Law Art. 13(3) “ostensibly only” allows the arbitral
tribunal to continue the arbitration at the second stage (of challenging
arbitrators before the court), and is silent on whether the arbitral tribunal
can also do so at the first stage (of challenging arbitrators before the arbitral

69
Id.; General Assembly, Report of the Working Group on Arbitration on the Work of Its Seventh
Session (New York, 6 – 17 February 1984), supra note 41, ¶ 36.
70
General Assembly, Report of the Working Group on Arbitration on the Work of Its Sixth Session
(Vienna, 29 August – 9 September 1983), ¶ 209, U.N. Doc. A/CN.9/245 (Sept. 22, 1983).
71
U.S. Federal Arbitration Acts, 9 U.S.C. art. 10; India’s Arbitration and Conciliation Act 1996 art.
13; ICA Rules of Arbitration 1998 art. 26 (Indian Council of Arbitration).
72
For more discussions and critique of the U.S. approach, see ALAN REDFERN ET AL., REDFERN
AND HUNTER ON INTERNATIONAL ARBITRATION 277 (2009); FRANK-BERND WEIGAND,
PRACTITIONER’S HANDBOOK ON INTERNATIONAL COMMERCIAL ARBITRATION, at 13.81 (2d ed.
2010); BORN, supra note 26, at 1562-63.
73
General Assembly, supra note 70, ¶ 210.
74
General Assembly, Summary Record of the 314th Meeting of the United Nations Commission
International Trade Law, supra note 41, ¶ 1.
75
REDFERN ET AL., supra note 72, at 276.
76
General Assembly, supra note 70, ¶ 211.
2012] PROCEDURES FOR CHALLENGING ARBITRATORS 307

tribunal).77 Hence the persisting debate in Taiwan on whether or not arbitral

proceedings should continue during both stages of the challenge process.
However, the issue at the first stage may have less significance in Taiwan,
because Taiwan’s Arbitral Law requires the arbitral tribunal to decide on
the challenge within ten days.78

A. Survey of Existing Rules and Practices

A survey of various national laws and institutional rules reveal the

following patterns and trends.79
Those which require suspension of arbitral proceedings usually
designate the relevant courts as the first and only decision-maker for
arbitrator challenges. Examples include Belgium, France, Tunisia, and the
Netherlands.80 As previously mentioned, ICSID also implements the one-
stage process but entrusts the non-challenged arbitrators and the Chairman
to determine arbitrator challenges in different circumstances.81 Suspension
of ICSID arbitration is “immediate and automatic.”82
By contrast, there are diverse approaches to the continuation of arbitral
proceedings, although most rules give arbitral tribunal the discretion to
decide. Institutional rules which expressly allow the arbitral tribunal to
proceed with arbitration commonly adopt the one-stage process whereby
the relevant arbitral institutions (or their delegates) determine arbitrator
challenges conclusively (e.g. WIPO).83 Three variations are noteworthy.
1. SIAC: The arbitral tribunal “shall” continue unless the Registrar orders
suspension.84 This is similar to Egypt’s proposal during UNCITRAL’s
debate on Model Law Art. 13, which allows the arbitral tribunal to
continue the arbitral proceedings “unless the court orders their
suspension”, as “it would be preferable to give the court power to order
the suspension of arbitral proceedings when it was made aware of
reasons which might justify such a measure.”85
2. VIAC: The challenged arbitrators “may continue the proceedings”, but
“an award may not be rendered until after the final and binding decision

77
Koch, supra note 30, at 339; Greenberg, supra note 64, at 11.
78
Taiwan’s Arbitration Law art. 17 para. 1.
79
See the two comparative tables in Appendix 4.
80
See Belgium’s Judicial Code art. 1691(1)(2); France’s New Code of Civil Procedure arts. 1473,
1456; Tunisia’s Arbitration Code art. 58(3); Netherland’s Arbitration Act art. 1035(1)(2)
(suspension is non-mandatory in Netherlands).
81
ICSID Convention art. 58; ICSID Arbitration Rules Rule 9.
82
DAELE, supra note 28, at 2-130.
83
WIPO Arbitration Rules arts. 27, 29.
84
SIAC Rules 2010 art. 13.3.
85
General Assembly, Summary Record of the 314th Meeting of the United Nations Commission
International Trade Law, supra note 41, ¶ 2. Supporters of the Egyptian proposal included India (¶
3), the United Kingdom (¶ 9) and Australia (¶ 11).
308 5(2) CONTEMP. ASIA ARB. J. 293 [2012

of the [VIAC] Board.”86 This is an interesting and unusual compromise

between suspending and continuing the arbitration during the arbitrator
challenge process.
3. LCIA: In contemplation of a second stage of judicial review required
by mandatory laws, the LCIA Court (rather than the arbitral tribunal)
decides whether the arbitral proceedings should continue
notwithstanding such a judicial review. 87 In practice the LCIA Court
usually allows the arbitration to proceed.88
Where the institutional rules are silent on the suspension/continuation
issue, suspension is the usual practice of ICC, SCC and ACICA.89
National laws (especially those of the Model Law countries) which
allow the arbitral tribunal to continue the arbitration commonly adopt the
two-stage process of arbitral decision followed by judicial decision. 90
Variations of this approach include the following.
1. Canada (Alberta) effectively implements the above-mentioned Egyptian
approach of allowing the challenged arbitrators to continue the
arbitration and make an award “unless the court orders otherwise”.91
2. Hong Kong expressly empowers the courts to refuse the enforcement of
awards made before the courts’ decisions on arbitrator challenges, as
well as to set aside such awards after upholding the arbitrator
challenges.92
3. Peru adopts a one-stage process involving multiple and alternative
decision-makers for arbitrator challenges (see the earlier discussions).
The general rule is that the challenge procedure “does not suspend the
arbitral proceedings”, unless the arbitrators exercise their discretion to
suspend.93

B. Reasons for the Suspension / Continuation Debate and Factors of

Consideration

Contrary to the expectation that a challenge to arbitrators “would

86
VIAC Rules of Arbitration and Conciliation (Vienna Rules) art. 16.4.
87
LCIA Arbitration Rules art. 29.2.
88
DAELE, supra note 28, at 2-111.
89
Id. at 2-110 (re ICC), 2-112 (re SCC). For ACICA, see Moens & Luttrell, supra note 1, at 94.
90
Examples include Australia’s Commercial Arbitration Act 2010 (NSW) art. 13(6), Austria’s
Arbitration Act 2006 art. 589(3), Germany’s Arbitration Law 1998 art. 1037(3), Guatemala’s
Decree No. 67-75 art. 17, Korea’s Arbitration Act 1999 art. 14(3), Japan’s Arbitration Law 2003
art. 19(5), Malaysia’s Arbitration Act 2004 art. 15(4), Portugal’s Arbitration Law 2011 art. 14(3),
Singapore’s Arbitration Act 2001 art. 15(6), and Slovenia’s Arbitration Law art. 16(3) (see Table 1
in Appendix 4).
91
Arbitration Act 2000 (Alberta) art. 13(7).
92
Hong Kong’s Arbitration Ordinance 2011 art. 26(2)(5).
93
Peru’s Arbitration Act 2008 (Legislative Decree No. 1071) art. 29(4).
2012] PROCEDURES FOR CHALLENGING ARBITRATORS 309

suspend the arbitration until it has been decided”,94 the prevailing approach
is to continue the arbitration notwithstanding the challenge. 95 The main
reasons are expediency and efficiency, particularly to “reduce the risk and
effect of any dilatory tactics”. 96 Yet these reasons for continuation are
balanced with, and arguably outweighed by, the reasons for suspension.
First and already stated, despite the differences between litigation and
arbitration, arbitral awards have the same force as court judgments. The
suspension of judicial proceedings pending challenges to judges is
appropriately applicable to the suspension of arbitral proceedings pending
challenges to arbitrators. Impartiality and quality of the decision-making
process are as important as impartiality and quality of the decision-makers
themselves. It is inappropriate for the challenged arbitrators to make
awards before their challenges are determined, especially if the challenged
arbitrators are involved in determining their own challenges.97 Allowing the
arbitral tribunal to “concurrently proceed with the challenge procedure and
the arbitral proceedings” 98 risks achieving expediency at the expense of
impartiality and efficacy. This would threaten the legitimacy and integrity
of the arbitral system.
Second, annulment of awards made by the challenged arbitrators
before their challenges are determined provides belated and often
inadequate remedies. Imagine the arbitral tribunal rejects the challenge to
one of its arbitrators. It proceeds with the arbitration but falls short of
making an award before the court upholds the challenge. Regardless of
whether the newly constituted arbitral tribunal repeats the arbitral process
partially or wholly, the waste of time and resources already affects all
parties.
Now imagine the more disastrous scenario where the arbitral tribunal
has made an award before the court upholds the challenge to one of its
arbitrators. The challenging party may be able to use the successful
arbitrator challenge to set aside the award. Yet annulment effectively takes
the parties back to the starting point as if their arbitration never took place
(except for all the wasted time and resources). On the other hand, the court
may be reluctant to set aside “an otherwise acceptable award” 99
notwithstanding the challenged arbitrator’s involvement in making that

94
Koch, supra note 30, at 339.
95
BORN, supra note 26, at 1572; DAELE, supra note 28, at 2-130; LEW ET AL., supra note 3, § 13-3.
96
Explanatory Note on the Model Law, ¶ 24; Markert, Improving Efficiency in Investment
Arbitration, supra note 60, at 217: “the legitimacy of the arbitral system is called into question if
the length of proceedings and the associated prohibitive costs impact legal certainty and render
adequate legal remedies unavailable.”
97
Cf. the opposing view in Koch, supra note 30, at 339: If the arbitral tribunal may continue the
arbitration before the court’s decision on the challenge, it “ought to be able” to continue the
arbitration before its own decision on the challenge.
98
DAELE, supra note 28, at 2-130.
99
GARY BORN, INTERNATIONAL ARBITRATION 707 (2011).
310 5(2) CONTEMP. ASIA ARB. J. 293 [2012

award. All of these possible outcomes are unsatisfactory. Expediency in the

concurrent progression of both the challenge procedures and arbitral
proceedings may ultimately result in inefficiency and futility of the entire
arbitral process.
It follows that the arbitral tribunal should, with caution and
consistency, exercise its discretion to continue the arbitration in parallel
with the challenge procedure. The following factors of consideration may
assist in this regard.100
1. The likelihood of success of the arbitrator challenge. Meritorious
challenges would justify suspension, whereas dilatory challenges or
guerrilla tactics would justify continuation. Yet no one except the
challenging party really knows whether the challenge is genuine or
groundless. 101 Some grounds for challenge (such as lack of
qualifications and conflict of interest) are more likely to succeed than
other circumstances which raise justifiable doubt as to the arbitrator’s
impartiality or independence. The frequency, number and timing of
challenges are also relevant. For instance, repeated challenges in a short
period of time or at inconvenient or late times may be regarded as
tactical or dilatory challenges.102
2. The stage of the arbitral proceedings. The arbitral tribunal is unlikely to
suspend an inactive phase of arbitration (e.g. the parties are preparing
and exchanging written materials).103 By contrast, an active phase may
warrant suspension (e.g. before hearings, on-site visits, deliberations or
rulings on procedural matters).104
3. Whether the continuation or suspension would seriously affect the
parties’ rights and obligations. Suspension would be appropriate where
“the rendering of awards may be called into question later if arbitrators
are replaced.”105
4. Whether (and to what extent) the arbitral process would be repeated if
the challenge is upheld (and the challenged arbitrator is replaced).
National laws and institutional rules prescribe different consequences,
ranging from mandatory repetition to prohibition against repetition, and
the in-between approach of giving arbitral tribunal the discretion to
decide.106 Substantial repetition of arbitral proceedings in the event of
successful challenge would justify suspending the arbitration pending
the challenge decision.

100
Greenberg, supra note 64, at 11; DAELE, supra note 28, at 2-110.
101
Greenberg, supra note 64, at 4.
102
Id. at 5-8.
103
Koch, supra note 30, at 339.
104
Id.
105
DAELE, supra note 28, at 2-110.
106
See BORN, supra note 26, at 1583-85; Koch, supra note 30, at 341.
2012] PROCEDURES FOR CHALLENGING ARBITRATORS 311

C. Recommendations for Taiwan

Article 17 of Taiwan’s Arbitration Law is silent on the

suspension/continuation issue at both stages of the challenge process.
Additional complications and controversies arise from other provisions in
Taiwan’s Arbitration Law.
According to Article 30 item 6, the parties “may still proceed with the
arbitration” in the event that the arbitral tribunal finds the parties’ asserted
ground for annulment (including arbitrator challenge) “unjustifiable”. This
seemingly allows (if not requires) the arbitral tribunal to continue the
arbitration after deciding against the arbitrator challenge at the end of stage
one of the challenge process, regardless of whether stage two of the
challenge process is pending. Yet it does not state that the arbitration can
proceed while the arbitral tribunal is determining the challenge during stage
one.
Article 19 enables the arbitral tribunal to “adopt the Code of Civil
Procedure mutatis mutandi” where the parties’ agreement and Taiwan’s
Arbitration Law are both silent on the issue. Since Article 37 of Taiwan’s
Code of Civil Procedure requires suspension of judicial proceedings
pending challenges to judges, the arbitral tribunal may accordingly suspend
its arbitral proceedings until its decision on the arbitrator challenge at stage
one.
Article 40 also encourages (and even necessitates) suspension. Item 5
of paragraph 1 enables the party to apply to the court to set aside an award
where the challenged arbitrator “continues to participate” and the court has
not dismissed the challenge. Yet the proviso at the end of Article 40 limits
this ground for annulment “to the extent sufficient to affect the arbitral
award”.107 This complicates the already difficult task of challenging awards
made by challenged arbitrators. The challenging party would need to show
that the grounds for challenging the arbitrator and the challenged
arbitrator’s involvement in the arbitral process are sufficient to affect the
award.
Article 21 paragraph 1 seems to be the only disincentive or deterrence
for suspension, as it requires the arbitral tribunal to make an award within a
maximum period of nine months from the commencement of arbitration.108
However, the better approach is to suspend this time limit and the arbitral
proceedings simultaneously. In other words, the time for award-making
stops running against the arbitral tribunal when the arbitral tribunal stops

107
The last paragraph of article 40 states: “items 5 to 9 referred to in Paragraph 1 of this article are
limited to the extent sufficient to affect the arbitral award.”
108
Art. 21 para. 1: “The arbitral tribunal shall render an arbitral award within six months of
commencement of the arbitration. However, the arbitral tribunal may extend this period an
additional three months if the circumstances so require.”
312 5(2) CONTEMP. ASIA ARB. J. 293 [2012

the arbitration during the arbitrator challenge process. This leads to the
following recommendations for Taiwan.
Stage one of the challenge process:
1. If the arbitral tribunal is the preferred decision-maker, arbitration
should be discontinued. As explained above, the arbitral tribunal,
particularly the challenged arbitrators, should not continue the
arbitration and the challenge process concurrently during this period of
ten days.
2. If the decision-maker is CAA or another person detached from the
arbitral tribunal, arbitration should still be discontinued, even though it
is “practically possible” 109 for the arbitral tribunal to continue the
arbitration while another person determines the challenge at the same
time. Suspending arbitration is further warranted if, firstly, the time
limit of ten days for determining arbitrator challenge remains
applicable; and secondly, the time limit for making awards is also
suspended at the same time. This avoids the deduction of ten days from
the maximum period of nine months.
Stage two of the challenge process:
1. Owing to the uncertain duration of the judicial decision-making
process, as well as the associated risks and effects of delay caused by
suspending the arbitration, the arbitral tribunal should have the
discretion to decide whether or not to continue the arbitration.
2. The above-mentioned factors of consideration can guide the arbitral
tribunal in exercising this discretion. These include the likelihood of
success of the arbitrator challenge, the stage of the arbitral proceedings,
any substantial effect on the parties’ rights and obligations if the
arbitration continues or discontinues, the potential and extent for
repeating the arbitral process if the challenge succeeds.
3. If the arbitral tribunal decides to suspend the arbitration, the time limit
for award-making should also suspend.
4. In order to minimise potential detriment caused by continuing the
arbitration, Taiwan may consider prohibiting the arbitral tribunal from
making awards before judicial or otherwise final decisions on arbitrator
challenges (similar to VIAC Rules Art. 16.4). However, the
practicalities of this unusual approach remain to be proven.
5. The recommended approach is to empower the court to refuse the
enforcement of an award made before the final decision on arbitrator
challenge, as well as to set aside such an award after the arbitrator
challenge is upheld (similar to Hong Kong’s Arbitration Ordinance s
26(2)(5)). This entails amending (if not deleting) the problematic
proviso in Art. 40 of Taiwan’s Arbitration Law, which requires the

109
DAELE, supra note 28, at 2-130.
2012] PROCEDURES FOR CHALLENGING ARBITRATORS 313

challenged arbitrator’s continued involvement in the arbitration to

sufficiently affect the arbitral award in order to justify setting aside that
award.
Another effective tool to “blunt the harm of frivolous challenges”110 to
arbitrators is the arbitral tribunal’s allocation of costs, although this may be
“difficult to put into practice”. 111 The CAA may refer to the various
institutional rules and practices, as this issue is beyond the scope of this
article.112

V. CONCLUSION

The diverse procedures for challenging arbitrators reflect the tension

between the need for arbitrator challenges and the risks of dilatory
challenges, which arises from the tension between impartiality and
expediency in arbitral decision-making. 113 The two interrelated questions
on the choice of decision-makers for arbitrator challenges and the
continuity of arbitration during the challenge process strike at the heart of
this balancing exercise. In light of its distinctive features of arbitration law,
Taiwan may need to depart from some of the current approaches to these
two questions, lest arbitral expediency be achieved at the expense of
arbitral quality and legitimacy.
It is recommended that, at least for Taiwan, the decision-maker at the
first stage of the challenge process be the arbitral institution (such as CAA)
or another entity detached from the arbitral tribunal, and that both the
arbitral proceedings and the time limit for award-making be suspended.
The decision-maker’s impartiality, neutrality and objectivity would reduce
the need for resorting to the second stage of judicial review. Simplicity and
consistency in applying the same procedure regardless of the number of the
challenged arbitrators are additional advantages. Furthermore, the time
limit of ten days for determining the challenge ensures expediency by
limiting the effects of dilatory challenges and suspended arbitral
proceedings.
Retaining the second stage of judicial ruling on arbitrator challenge
reinforces the impartiality of the challenge process. Any potential or
additional delay caused by this additional procedure may be alleviated by
giving the arbitral tribunal a guided discretion to continue or suspend the
arbitration in appropriate circumstances. Any potential injustice arising

110
Thomas Walsh & Ruth Teitelbaum, The LCIA Court Decisions on Challenges to Arbitrators:
An Introduction, 27(3) ARB. INT’L 283, 311 (2011).
111
Greenberg, supra note 64, at 12.
112
See, e.g., DAELE, supra note 28, at 4-088 to 4-093 (re ICSID), 4-106 (re LCIA, ICC and SCC).
113
Markert, supra note 9, at 274: “establishing a balance between uninterrupted and efficient
arbitral proceedings and independent and impartial decision making remains difficult.”
314 5(2) CONTEMP. ASIA ARB. J. 293 [2012

from the arbitral tribunal’s inappropriate continuation of arbitration

notwithstanding a strongly meritorious arbitrator challenge may be
remedied by allowing the court to set aside or refuse enforcement of the
award made with the challenged arbitrator’s involvement. Suspending the
time limit for award-making further encourages the arbitral tribunal to
suspend the arbitral proceedings in appropriate circumstances.
These recommendations reorient the perceived tension between
impartiality and expediency (or at least re-balance these interests in
arbitration). Instead of viewing impartiality and expediency as competing
or incompatible interests, it would be more constructive to view them as
interactive and interdependent interests with the same objective of
promoting the utility and desirability of arbitration. The co-existence of
these interests within the procedures for challenging arbitrators can instill
and sustain public confidence in arbitration.
2012] PROCEDURES FOR CHALLENGING ARBITRATORS 315

APPENDIX 1: EXCERPTS FROM TAIWAN’S ARBITRATION LAW

Article 17
A party intending to request for the withdrawal of an arbitrator shall do
so within fourteen days of knowing the cause. Such party shall submit a
written application stating the reasons for the withdrawal to the arbitral
tribunal. The arbitral tribunal shall make a decision within ten days upon
receipt of such application, unless the parties have agreed otherwise.
In the event that the arbitral tribunal has not been constituted, the time
period for requesting a withdrawal mentioned in the preceding paragraph
shall commence from the date that the arbitral tribunal is constituted.
Where a party wishes to challenge a decision made hereunder by the
arbitral tribunal, such party shall apply for a judicial ruling within fourteen
days of receiving notice of the arbitral decision.
A party shall not challenge the ruling reached by the court mentioned
in the preceding paragraph of this article.
An arbitrator shall withdraw in the event that both parties request his
removal.
In the event that a party wishes to remove a sole arbitrator, the request
shall be submitted to the court for determination.
316 5(2) CONTEMP. ASIA ARB. J. 293 [2012

APPENDIX 2: EXCERPTS FROM THE UNCITRAL MODEL LAW ON

INTERNATIONAL COMMERCIAL ARBITRATION

Article 13: Challenge procedure

(1) The parties are free to agree on a procedure for challenging an
arbitrator, subject to the provisions of paragraph (3) of this article.
(2) Failing such agreement, a party who intends to challenge an arbitrator
shall, within 15 days after becoming aware of the constitution of the
arbitral tribunal or after becoming aware of any circumstances referred
to in article 12(2), send a written statement of the reasons for the
challenge to the arbitral tribunal. Unless the challenge arbitrator
withdraws from his office or other party agrees to the challenge, the
arbitral tribunal shall decide on the challenge.
(3) If a challenge under any procedure agreed upon by the parties or under
the procedure of paragraph (2) of this article is not successful, the
challenging party may request, within 30 days after having received
notice of the decision rejecting the challenge, which decision shall be
subject to no appeal; while such a request is pending, the arbitral
tribunal, including the challenged arbitrator, may continue the arbitral
proceedings and make an award.
2012] PROCEDURES FOR CHALLENGING ARBITRATORS 317

APPENDIX 3: EXCERPTS FROM OTHER ARBITRAL RULES

ICC Rules of Arbitration 1998 (International Chamber of Commerce)

Article 11: Challenge of Arbitrators
1. A challenge of an arbitrator, whether of an alleged lack of
independence or otherwise, shall be made by the submission to the
Secretariat of a written statement specifying the facts and circumstances
on which the challenge is based.
2. For a challenge to be admissible, it must be sent by a party either within
30 days from receipt by that party of the notification of the appointment
or confirmation of the arbitrator, or within 30 days from the date when
the party making the challenge was informed of the facts and
circumstances on which the challenge is based if such date is
subsequent to the receipt of such notification.
3. The [International] Court [of Arbitration of the ICC] shall decide on the
admissibility and, at the same time, if necessary, on the merits of a
challenge after the Secretariat has afforded an opportunity for the
arbitrator concerned, the other party or parties and other members of the
Arbitral Tribunal to comment in writing within a suitable period of
time. Such comments shall be communicated to the parties and to the
arbitrators.

ICSID Convention on Settlement of Investment Disputes between

States and Nationals of Other States (International Centre for Settlement of
Investment Disputes) Article 58:
The decision on any proposal to disqualify a conciliator or arbitrator
shall be taken by the other members of the Commission or Tribunal as the
case may be, provided that where those members are equally divided, or in
the case of a proposal to disqualify a sole conciliator or arbitrator, or a
majority of the conciliators or arbitrators, the Chairman shall take that
decision.

ICSID Arbitration Rules Rule 9: Disqualification of Arbitrators

(1) A party proposing the disqualification of an arbitration pursuant to
Article 57 of the Convention shall promptly, and in the event before the
proceeding is declared closed, file its proposal with the Secretary-
General, stating its reasons therefor.
(2) The Secretary-General shall forthwith: (a) transmit the proposal to the
members of the Tribunal and, if it relates to a sole arbitrator or to a
majority of the members of the Tribunal, to the Chairman of the
318 5(2) CONTEMP. ASIA ARB. J. 293 [2012

Administrative Council; and (b) notify the other party of the proposal.
(3) The arbitrator to whom the proposal relates may, without delay, furnish
explanations to the Tribunal or the Chairman, as the case may be.
(4) Unless the proposal relates to a majority of the members of the
Tribunal, the other members shall promptly consider and vote on the
proposal in the absence of the arbitrator concerned. If those members
are equally divided, they shall, through the Secretary-General, promptly
notify the Chairman of the proposal, of any explanation furnished by
the arbitrator concerned and of their failure to reach a decision.
(5) Whenever the Chairman has to decide on a proposal to disqualify an
arbitrator, he shall use his best efforts to take that decision within 30
days after he has received the proposal.
(6) The proceeding shall be suspended until a decision has been taken on
the proposal.
2012] PROCEDURES FOR CHALLENGING ARBITRATORS 319

APPENDIX 4: COMPARATIVE TABLES OF CHALLENGE PROCEDURES

TABLE 1: Arbitral tribunal and Court decide on challenges (two-stage

process)

Include or Suspend or Time limits on

exclude continue parties
challenged arbitral
arbitrator? proceedings?
Taiwan: Silent(time limit Silent 14 days for
Arbitration Law of 10 days ) tribunal, 14 days
Art. 17 Court decides if for court
sole arbitrator
UNCITRAL Include (implied Continue at 2nd 15 days for
Model Law Art. only) stage tribunal, 30 days
13 for court
Austria: Include Continue at 2nd 28 days for
Arbitration Act stage tribunal, 28 days
2006 s 589 for court
Canada Include Continue 15 days for
(Alberta): (unless the court tribunal, 10 days
Arbitration Act orders for court
2000 s 13 otherwise)
Guatemala: Exclude (time Continue at 2nd 15 days for
Decree No. 67- limit of 15 days) stage tribunal, 15 days
95 Art. 17 Court decides if for court
sole arbitrator
Portugal: Include Continue at 2nd 15 days for
Arbitration Law stage tribunal, 15 days
2011 Art. 14 for court
Slovenia: Include Continue at 2nd 15 days for
Arbitration Law stage tribunal, 30 days
Art. 16 for tribunal

Other domestic laws which are substantially similar to UNCITRAL

Model Law Article 13:
1. Australia’s Commercial Arbitration Act 2010 (NSW) section 13
2. Germany’s Arbitration Law 1998 section 1037
3. Hong Kong’s Arbitration Ordinance 2011 section 26 (with additional
provisions for annulment and non-enforcement of arbitral awards)
4. Japan’s Arbitration Law 2003 Article 19 (with minor differences)
5. Korea’s Arbitration Act 1999 Article 14 (implicit inclusion of the
320 5(2) CONTEMP. ASIA ARB. J. 293 [2012

challenged arbitrators114)
6. Malaysia’s Arbitration Act 2005 section 15
7. Singapore’s Arbitration Act 2001 section 15 (with minor differences)

TABLE 2: Separate entity decides on challenges

Decision-maker Suspend or Time limits

continue arbitral on parties
proceedings?
AAA AAA decision is Silent
Art. 17 conclusive
ACICA ACICA decision is final Silent (usually 15 days
Art. 14 (Art. 43.2) suspended in
practice115)
CIETAC CIETAC Chairman Continue117 10 or 15
Art. 20 decision is final116 days
DIS Arbitral tribunal or DIS Silent 14 (+ 30)
Appointing days
Committee118
HKIAC HKIAC Council Silent 15 days
Art. 11
ICA ICA Committee Silent 30 days
Art. 26 decision is final
ICC ICC Court decision is Silent (usually 30 days
Art. 11 final (Art. 7.4) suspended in
practice119)
ICDR Administrator Silent 15 days
Art. 9 (Art. 8)
JCAA JCAA Silent 14 days
Rule 29
KCAB KCAB Secretariat Silent 15 days
Art. 13

114
Kap-You (Kevin) Kim et al., National Report for Republic of Korea (2012), in INTERNATIONAL
HANDBOOK ON COMMERCIAL ARBITRATION 1, 1 (Jan Paulsson ed., 2012).
115
Moens & Luttrell, supra note 1, at 94.
116
See also Article 36 of the Arbitration Law of the People’s Republic of China 1994: “The
decision as to whether or not the arbitrator should withdraw shall be made by the chairman of the
arbitration commission.”
117
CIETAC Arbitration Rules 2012 Article 20.7: “An arbitrator who has been challenged shall
continue to serve on the arbitral tribunal until a final decision on the challenge has been made by
the Chairman of CIETAC.”
118
Arbitral tribunal (DIS Rules art. 18.2) or DIS Appointing Committee if arbitration is
administered under UNCTRAL Arbitration Rules (UNCITRAL Arbitration Rules administered by
DIS art. 13.4).
119
DAELE, supra note 28, at 2-110.
2012] PROCEDURES FOR CHALLENGING ARBITRATORS 321

KLRCA KLRCA/appointing Silent 15 (+ 30)

Art. 13 authority days
LCIA LCIA Court LCIA ‘shall’ 15 days
Art. 10 decide (usually not
suspended120)
SCC SCC Board decision is Silent (usually 15 days
Art. 15 final suspended in
practice121)
SIAC Committee of SIAC ‘shall’ continue 14 days
Art. 13 Board decision is final unless Registrar (Rule 12)
orders suspension
VIAC VIAC Board Continue (but ‘without
Art. 16 can’t make delay’
awards)
WIPO Arbitration & Arbitral tribunal’s 15 days
Mediation Centre’s discretion (Art. 27) (Art. 25)
decision is final (Art.
29)

120
Id. at 2-111.
121
Id. at 2-112.
322 5(2) CONTEMP. ASIA ARB. J. 293 [2012

ABBREVIATIONS:

AAA Arbitration Rules (American Arbitration Association)

ACICA Arbitration Rules 2005 (Australian Centre for International
Commercial Arbitration)
CIETAC Arbitration Rules 2012 (Chinese International Economic and
Trade Arbitration Commission)
DIS Rules 1998 and UNCITRAL Arbitration Rules Administered by DIS
(German Institute of Arbitration)
HKIAC Administrated Arbitration Rules 2008 (Hong Kong International
Arbitration Centre)
ICA Rules of Arbitration 1998 (Indian Council of Arbitration)
ICC Rules of Arbitration 1998 (International Chamber of Commerce)
ICDR International Arbitration Rules 2009 (International Centre for
Dispute Resolution)
JCAA Commercial Arbitration Rules 2008 (Japanese Commercial
Arbitration Association)
KCAB International Arbitration Rules 2011 (Korean Commercial
Arbitration Board)
KLRCA Arbitration Rules 2010 (Kuala Lumpur Regional Centre for
Arbitration)
LCIA Arbitration Rules 1998 (London Court of International Arbitration)
SCC Arbitration Rules 2010 (Arbitration Institute of the Stockholm
Chamber of Commerce)
SIAC Rules 2010 (Singapore International Arbitration Centre)
VIAC Rules of Arbitration and Conciliation (Vienna Rules) 2006 (Vienna
International Arbitral Centre of the Austrian Federal Economic Chamber)
WIPO Arbitration Rules (World Intellectual Property Organization)
2012] PROCEDURES FOR CHALLENGING ARBITRATORS 323

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2012] PROCEDURES FOR CHALLENGING ARBITRATORS 325

Germany: Arbitration Law 1998 (Tenth Book of the Code of Civil

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Japan: Arbitration Law 2003.
Korea: Arbitration Act 1999.
Malaysia: Arbitration Act 2005.
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Peru: Arbitration Act 2008 (Legislative Decree No. 1071).
Portugal: Arbitration Law 2011 (Legislative Decree No. 1071).
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Slovenia: Arbitration Law.
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London Court of International Arbitration, LCIA Arbitration Rules 1998.
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Kuala Lumpur Regional Centre for Arbitration, KLRCA Arbitration Rules
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326 5(2) CONTEMP. ASIA ARB. J. 293 [2012

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