Arbitrators are individuals entrusted by the parties to the dispute with the task of resolving the dispute, based on confidence in their ability and integrity; therefore, a good arbitrator must possess a leadership personality capable of solving problems and making sound decisions; Given the considerable discretion enjoyed by the parties in selecting arbitrators, and the fear that this might be abused, most legal systems have moved to establish certain requirements that an arbitrator must meet. These requirements can be divided into mandatory and contractual conditions; the mandatory conditions are those that an arbitrator must fulfil, and failure to meet them renders the arbitration null and void.
An analysis of the Saudi arbitration system and the literature on arbitration reveals that these can be summarised as five requirements: the arbitrator’s legal capacity, independence, good character and conduct, academic qualifications[1], and acceptance of the appointment[2].
We shall now outline these five mandatory requirements:
Firstly: The arbitrator must possess full legal capacity:
it is accepted that the arbitrator must be a natural person and must not be afflicted by any impediment to legal capacity, whether the arbitrator is selected by the parties to the arbitration or appointed by the competent court; legal capacity is a matter of public policy and therefore may not be waived, even by agreement.
Secondly: He must be of good character and conduct:
No person may serve as an arbitrator who has previously been convicted of a felony or a misdemeanour involving a breach of honour, or who has been declared bankrupt, unless their reputation has been restored. The importance of the arbitrator’s good character and conduct lies in their connection to justice; and in the absence of established rules under private international law, the requirement for an arbitrator to possess good character and conduct is considered one of the most important means of achieving justice.
Thirdly: Academic Qualifications:
The Arbitration Regulations stipulate the condition that “the arbitrator must hold at least a university degree in Islamic or secular law; if the arbitral tribunal consists of more than one arbitrator, it is sufficient for the chairperson to meet this condition” [4]. The arbitrator’s distinguished academic background is of the utmost importance, as it enhances confidence in the integrity of the arbitration proceedings.
Fourthly: Independence and impartiality of the arbitrator:
In order for the arbitrator to carry out their judicial duties, they must be impartial and independent, as impartiality and independence are considered fundamental safeguards in litigation; thus, their award must not be issued out of personal interest or bias. The Arbitration Law stipulates that “An arbitrator must have no interest in the dispute – from the time of his appointment and throughout the arbitration proceedings – and must disclose, in writing, to both parties to the arbitration any circumstances that might give rise to justified doubts as to his impartiality and independence, unless he has already brought such circumstances to their attention” [5] Like a judge, the arbitrator upholds the scales of justice in the arbitration proceedings and ensures equality between the disputing parties. The Arbitration Law emphasises this by stipulating that “an arbitrator shall be prohibited from considering and hearing a case – even if neither party to the arbitration so requests – in the same circumstances in which a judge would be prohibited from doing so.”[6]
Fifth: The arbitrator’s acceptance of the appointment:
No one may be compelled to undergo arbitration unless the arbitrator accepts the appointment; the period for arbitration shall not commence until the arbitrator, or the last of the arbitrators, has accepted the appointment, either expressly or impliedly
As for the contractual terms, these are based on the agreement of the parties; the parties may agree on specific terms to which they are bound, as stipulated in the Arbitration Regulations: ‘The competent court shall, in selecting the arbitrator, take into account the terms stipulated in the agreement between the parties…’ [7] The parties may agree on the arbitrator’s nationality or religion, or that they should possess specific expertise, or that the arbitrator should be selected from a list drawn up by the parties or through a specific centre, and so on.
Mandatory conditions are established to provide a minimum level of safeguards to ensure justice for those who resort to arbitration, whilst contractual conditions are established to allow the parties to choose the terms that best serve their interests and to respect the intentions of the parties as expressed in the arbitration agreement.