Preliminary and Interlocutory Matters In Arbitration [2005] 4 MLJ xcvii

Once a decision to refer a dispute to arbitration is made, the parties have to choose and appoint the arbitrator. This selection of arbitrator represents the single most important decision that the parties make in the arbitral process. The quality of the arbitrator represents the key to an efficient arbitration. During the process of choosing a suitable arbitrator, the parties or their representatives would be in touch with each other.

As far as possible, parties should try to reach agreement on the arbitrator rather than to leave it to an appointing body. Failing which, parties should also consider carefully their choice of the appointing body. They should avoid those that have developed a reputation for appointing incompetent or inappropriate arbitrators. It is too late to reconsider the appointment of the arbitrator once it is made and accepted.

It is general practice for the arbitrator, once appointed, to notify the parties of his appointment and call for a preliminary meeting to initiate a preliminary dialogue with the parties. 1 It may be helpful to establish a framework for the arbitration proceedings and what the parties have agreed by way of procedure for the arbitration. It may also enable the arbitrator to ascertain from the terms of appointment as to whether the dispute is to be determined by documents only. It is usual for the representatives of the parties to discuss beforehand and present an agreed position to the arbitrator on the question of his fees and expenses to avoid any possible embarrassment. 2 The preliminary meeting should not take place until the arbitrator has accepted the nomination as arbitrator. Otherwise, his appointment is not complete and he would have no jurisdiction to convene the preliminary meeting.