Substitute Arbitrator and Expert Appointment Q2 – Estate Agent's Examination Part 1&2

Q.
With reference to the Arbitration Act 2005;

a) Explain the appointment of Substitute Arbitrator. (10 marks)

b) The Expert appointed by the Arbitral Tribunal. (10 marks)

(20 marks, 2014 Q2)

A.
[This type of question with specific Statute, is probably verbatim from the Act itself.]

The Arbitration Act 2005 specify the appointment of substitute arbitrator in its section 17. The section is copied below:

Appointment of substitute arbitrator

Section 17

(1) A substitute arbitrator shall be appointed in accordance with the provisions of this Act where -

(a) the mandate of an arbitrator terminates under section 15 or 16;

(b) an arbitrator withdraws from office for any other reason;

(d) in any other case of termination of mandate.

(2) Unless otherwise agreed by the parties -

(a) where a single or the presiding arbitrator is replaced, any hearings previously held shall be repeated before the substitute arbitrator; or

(b) where an arbitrator other than a single or the presiding arbitrator is replaced, any hearings previously held may be repeated at the discretion of the arbitral tribunal.

(3) Unless otherwise agreed by the parties, any order or ruling of the arbitral tribunal made prior to the replacement of an arbitrator under this section shall not be invalid solely on the ground there has been a change in the composition of the arbitral tribunal.
Ref:
Section 17 of Arbitration Act 2005. Available at,
http://www.agc.gov.my/Akta/Vol.%2013/Act%20646.pdf

b) An expert appointed by Arbitral Tribunal.

28. (1) Unless otherwise agreed by the parties, the arbitral tribunal may -

(a) appoint one or more experts to report to it on specific issues to be determined by the arbitral tribunal; or

(b) require a party to give the expert any relevant information or to produce or to provide access to any relevant documents, goods or other property for the expert’s inspection.

(2) Unless otherwise agreed by the parties, if a party so requests or if the arbitral tribunal considers it necessary, the expert shall, after delivery of a written or oral report, participate in a hearing where the parties have the opportunity to put questions to the expert and to present other expert witnesses in order to testify on the points at issue.

[Expert opinion is an avenue for the arbitrator to listen to a third party who has vast experience in the area of dispute. Of course, an arbitrator being a learned person, may be qualified for the job of arbitration, but is ordinary in the field of expertise in dispute at hand. Thus, appointment of an expert is inevitable. However, who is an expert and which expert can become a dispute in itself.

Owing to above, certain procedures are followed. Section 28 gives such guidance.]

Ref:
Section 28 of Arbitration Act 2005, Available at,
http://www.agc.gov.my/Akta/Vol.%2013/Act%20646.pdf
[Own account]