III. Appointment of the Arbitrators
While in state court proceedings it is in most jurisdictions seen as an essential element of the fundamental right of due process that a party can influence the selection process of the judge deciding over its dispute only in limited and exceptional cases, this reasoning does not apply to arbitration proceedings. Unlike in state court proceedings, the parties may generally determine the composition of the panel deciding over their dispute. Moreover, the parties may even select arbitrators, which are not practitioners of the law, which might be of particular interest if, for example, a thorough understanding of technical issues is required to find a fair solution to a conflict.
Yet, of course, the principle of due process also applies to arbitration proceedings. Hence, the parties’ freedom to choose their arbitrators is not without limits: also the arbitrators chosen by the parties have to be independent and impartial by all means. In cases of institutionalized arbitration, the institution will normally watch over the impartiality and independence of the arbitrators to a certain degree. Moreover, certain default mechanisms usually exist which will come into play when doubts as to the impartiality or independence of an arbitrator arise.