Author: Clyde & Co LLP
In ARI v WXJ, the English High Court has ruled that the appointment of an arbitrator may be valid, regardless of whether a binding contract had been concluded. Instead, what is essential is whether there has been a “clear and unconditional communication of acceptance of the appointment by the arbitrator”, and whether such communication has been notified to the other party. Alternatively, it is sufficient for there to be communication of an unconditional willingness by the arbitrator to accept the appointment, and for the appointing party to act on this by communicating the appointment both to the appointee and to the other party. This flexible approach has benefits, but may sometimes lead to arbitrators being appointed without their knowledge, or before fees are agreed.
