1. Introduction to Terms of Appointment in International Arbitration

International arbitration stands as a cornerstone of global dispute resolution, offering parties a neutral, flexible, and enforceable means of settling cross-border commercial disagreements.¹ Central to the integrity and efficacy of this process is the role of the international arbitrator. The relationship between the arbitrator(s) and the parties appointing them is formalized through a critical document or set of understandings known as the Terms of Appointment.

Defining Terms of Appointment

The Terms of Appointment constitute the formal contractual agreement between the arbitrator(s) and the retaining parties. In institutional arbitrations, the arbitral institution may also be an implicit or explicit party to certain aspects of these terms, particularly concerning fees and administrative oversight. This agreement establishes the legal basis for the arbitrator’s engagement and delineates their mandate, responsibilities, remuneration, and other conditions governing their service.³ It is important to distinguish the Terms of Appointment from the “Terms of Reference,” a document commonly used in arbitrations administered by the International Chamber of Commerce (ICC), which outlines the scope of the dispute, the parties’ claims, and the issues to be determined by the tribunal once constituted.⁴ While related, the Terms of Appointment specifically govern the arbitrator’s engagement, whereas the Terms of Reference map out the arbitral proceedings themselves.

The establishment of this contractual nexus is fundamental. Even in ad hoc arbitrations where a comprehensive written document might not always be executed with the same formality as in institutional settings, the acceptance of an appointment by an arbitrator inherently creates a contractual relationship.³ However, best practice, particularly in international contexts, strongly dictates that these terms be recorded in writing. This written record serves to codify the mutual obligations of the arbitrator and the appointing parties, thereby minimizing ambiguity and providing a clear, accessible reference point throughout the arbitration. Such clarity is indispensable for managing expectations and addressing any potential disagreements concerning the arbitrator’s role, fees, or conduct.

Purpose and Critical Importance of Well-Defined Terms

The primary purpose of establishing clear Terms of Appointment is to inject certainty and predictability into the arbitrator-party relationship. They provide a mutually agreed framework that defines the arbitrator’s mandate, their duties, the basis for their remuneration, and key procedural aspects directly pertinent to their role.³ Well-defined terms are crucial for several reasons:

• Preventing Misunderstandings: They clearly articulate the expectations of all involved, reducing the likelihood of disputes arising over the arbitrator’s conduct or compensation.³
• Managing Expectations: Parties and arbitrators alike benefit from a clear understanding of time commitments, fee structures, and procedural obligations.
• Ensuring Arbitrator Effectiveness: Clear terms empower the arbitrator to manage the proceedings efficiently and with the confidence that their authority and responsibilities are well-defined.
• Safeguarding Integrity: Explicit provisions on independence, impartiality, and confidentiality reinforce the ethical underpinnings of the arbitral process.
• Enhancing Enforceability: While the Terms of Appointment primarily govern the arbitrator’s engagement, clarity in this foundational document contributes to the overall robustness and perceived fairness of the process, indirectly supporting the enforceability of the eventual award.

Meticulously drafted Terms of Appointment function as a proactive measure against ancillary disputes that can arise concerning the arbitrator’s engagement itself. In the absence of such clarity, issues related to fees, the scope of the arbitrator’s duties, disclosure obligations, or potential liability can become new points of contention. These ancillary disputes can derail the primary arbitration, escalate costs, and erode the parties’ trust in the process. By addressing these critical aspects comprehensively and upfront, the Terms of Appointment ensure that the focus remains on the substantive resolution of the underlying commercial dispute. This is particularly vital in international arbitration, where parties often hail from diverse legal and cultural backgrounds, bringing with them varied expectations about the arbitral process and the role of the arbitrator.

2. Essential Components of an International Arbitrator’s Terms of Appointment

A comprehensive set of Terms of Appointment for an international arbitrator should address a range of critical elements to ensure clarity, fairness, and the smooth conduct of the arbitration. These components form the contractual backbone of the arbitrator’s engagement.

2.1. Identification of the Parties and the Arbitrator(s)

The Terms of Appointment must begin by clearly and accurately identifying all participants. This includes the full legal names, registered addresses, and primary contact details (email, telephone) of each party to the arbitration agreement (Claimant(s) and Respondent(s)).¹ Similarly, the full name, professional address, and contact details of each appointed arbitrator must be stated, along with their designated role (e.g., sole arbitrator, co-arbitrator, presiding arbitrator).³ For example, the template for ad hoc arbitration by William G. Horton explicitly requires setting out the names of the parties and their roles, as well as the arbitrator’s full details.⁶

This seemingly basic step is foundational. Precision in identifying the legal entities involved is not merely an administrative formality; it is crucial for the subsequent enforceability of any award rendered and for ensuring that all official communications, notices, and procedural orders are correctly directed throughout the arbitration. Any errors or ambiguities in the identification of parties could potentially create grounds for challenging the award or resisting its enforcement in national courts. For the arbitrator, correct identification is vital for their professional record and for interactions with arbitral institutions and the parties.

2.2. Reference to the Arbitration Agreement and Applicable Institutional/Ad Hoc Rules

The Terms of Appointment must explicitly reference the specific arbitration clause within the underlying contract, or the separate arbitration agreement, that empowers the arbitrator(s) to resolve the dispute.³ This section should also clearly identify the arbitral institution, if any, that will administer the arbitration (e.g., the International Chamber of Commerce (ICC), the London Court of International Arbitration (LCIA), the Singapore International Arbitration Centre (SIAC), the Hong Kong International Arbitration Centre (HKIAC)) and specify the particular version of its rules that will govern the proceedings.⁷ For instance, an ICC standard arbitration clause states, “All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce…”.⁷ If the arbitration is ad hoc, the Terms should specify the agreed-upon set of procedural rules, such as the UNCITRAL Arbitration Rules (and its applicable version) ⁸, or any bespoke procedures the parties have adopted. Sample clauses often incorporate such references, such as those providing for HKIAC or AAA rules.⁹

This clause effectively defines the “procedural universe” within which the arbitration will operate. The applicable arbitral rules dictate numerous aspects of the arbitrator’s powers, duties, the mechanics of their appointment, challenge procedures, and, in many institutional cases, the structure for their fees.¹ By explicitly stating these governing rules in the Terms of Appointment, all participants—arbitrator(s) and parties alike—formally acknowledge this framework from the outset. This preempts potential future disputes over which rules apply or how they should be interpreted concerning the arbitrator’s specific role and responsibilities.

2.3. Confirmation of the Arbitrator’s Mandate: Jurisdiction, Scope of Duties, and Powers

While the arbitration agreement and the applicable rules will broadly define the arbitrator’s jurisdiction, the Terms of Appointment should confirm the arbitrator’s understanding and acceptance of this mandate.³ This typically includes a brief, neutral description of the dispute submitted to arbitration. More importantly, it confirms the arbitrator’s core duties and powers. These include the duty to conduct the proceedings fairly, impartially, and efficiently; the power to rule on their own jurisdiction (the principle of Kompetenz-Kompetenz) ¹⁰; the power to determine the applicable procedure (unless otherwise agreed by the parties or prescribed by mandatory rules) ¹⁰; the power to grant interim or conservatory measures, if so empowered by the applicable rules or law ¹⁰; the power to summon witnesses and order the production of evidence, often with the assistance of national courts if necessary ¹⁰; and the ultimate duty to render a final, binding, and typically reasoned award.¹⁰

The clear articulation of the arbitrator’s mandate serves a dual purpose. It acts as the arbitrator’s “sword,” empowering them to effectively manage the case, issue necessary procedural orders, and guide the dispute towards a resolution. Concurrently, it functions as a “shield,” as it delineates the boundaries of their authority. An arbitrator who acts ultra petita (beyond the scope of the issues submitted to them) or extra petita (deciding on matters not submitted at all) risks having their award challenged or annulled. Confirming this understanding of the mandate within the Terms of Appointment helps ensure an alignment of expectations between the arbitrator and the parties regarding the scope of the arbitrator’s decision-making authority.

2.4. Arbitrator’s Declarations: Independence, Impartiality, Availability, Competence, and Ongoing Disclosure Obligations

This is arguably the most critical section concerning the arbitrator’s personal undertakings and is a cornerstone of modern international arbitration practice. The arbitrator must make several key declarations:

• Independence and Impartiality: A clear statement that the arbitrator is, and will remain, independent of the parties, their counsel, any co-arbitrators, and any other relevant entities (such as third-party funders, if known). They must also declare their impartiality with respect to the subject matter of the dispute.⁵ The IBA Rules of Ethics and the IBA Guidelines on Conflicts of Interest in International Arbitration provide detailed standards for assessing these qualities.¹²
• Availability: A confirmation that the arbitrator has sufficient time and availability to dedicate to the arbitration proceedings, including attending hearings, conducting deliberations, and drafting the award in an expeditious manner, as reasonably expected by the parties and any administering institution.⁵
• Competence: An affirmation that the arbitrator possesses the necessary competence, including legal knowledge, relevant industry experience (if applicable), and language proficiency, to determine the issues in dispute.¹²
• Ongoing Duty of Disclosure: A crucial undertaking by the arbitrator to promptly disclose to the parties and any administering institution any facts or circumstances that may arise during the course of the arbitration that could give rise to justifiable doubts as to their independence or impartiality.¹² This duty is continuous, from pre-appointment inquiries through to the final award. Reference to adherence with the latest version of the IBA Guidelines on Conflicts of Interest in International Arbitration is considered best practice. Many institutional rules, like those of the ICC, require a formal signed statement covering these points.⁵

The duty of disclosure is not a static, one-time event at the moment of appointment; it is a dynamic and ongoing obligation that persists throughout the entire arbitral process. An arbitrator’s personal or professional circumstances can change (e.g., their law firm might merge with another firm that has a relationship with one of the parties, or their firm might take on a new client that creates an unforeseen connection). The continuing nature of this duty ensures that any new information that could potentially be perceived as a conflict is brought to the attention of the parties and the institution without delay.

The 2024 IBA Guidelines on Conflicts of Interest in International Arbitration reinforce a nuanced approach often referred to as the “double test” for disclosure and conflicts.¹⁵ Firstly, there is a subjective test for what must be disclosed: an arbitrator should disclose any facts or circumstances which, in the eyes of the parties, might give rise to doubts as to their impartiality or independence. This means erring on the side of transparency, even if the arbitrator personally believes the matter is trivial or does not constitute an actual conflict. Secondly, there is an objective test for what constitutes a disqualifying conflict: whether a reasonable third person, having knowledge of all relevant facts, would reach the conclusion that there are justifiable doubts as to the arbitrator’s impartiality or independence. An arbitrator might therefore disclose a matter under the subjective test that does not ultimately lead to disqualification under the objective test. This system promotes maximum transparency, allowing parties to make informed assessments and voice any concerns, thereby strengthening the award against subsequent challenges based on alleged bias or lack of independence. The 2024 IBA Guidelines also introduced General Standard 3(e), which provides that an arbitrator should decline an appointment or resign if they are required to make a disclosure but are prevented from doing so by professional secrecy rules or other rules of practice or professional conduct.¹⁵ This underscores that the integrity of the arbitral process, which relies on full transparency regarding potential conflicts, may take precedence over an individual’s appointment if such transparency cannot be achieved.

2.5. Remuneration and Expenses

Clear and comprehensive terms regarding the arbitrator’s fees and the reimbursement of expenses are vital to prevent misunderstandings and potential disputes. This section should be detailed, especially in ad hoc arbitrations where institutional fee schedules do not apply.

2.5.1. Fee Structures

The method for calculating the arbitrator’s fees must be explicitly stated. Common structures include:

• Hourly or Daily Rates: This is the most prevalent method in ad hoc arbitrations and is also used by some institutions like the LCIA (which sets a maximum hourly rate, e.g., £650 as of December 2023).³ The specific rate(s) should be clearly defined. It is also common to specify if different rates apply for different types of work (e.g., hearing days, travel days, preparation/deliberation/award-writing days). In a three-member tribunal, the presiding arbitrator may sometimes command a higher rate due to their additional responsibilities.
• Ad Valorem Basis: Some institutions, notably the ICC, calculate arbitrator fees based on a percentage of the monetary value of the claims and counterclaims in dispute.²⁴ The institution’s rules and fee scales will govern this, and the Terms of Appointment would typically acknowledge adherence to this system.
• Fixed Fee: Less commonly, a single fixed fee for the entire arbitration may be agreed upon in advance.³ This is more feasible for disputes with a clearly defined and limited scope.

2.5.2. Reimbursement of Expenses

The Terms should confirm that the arbitrator will be reimbursed for all reasonable and properly vouched out-of-pocket expenses incurred in connection with the arbitration.3 Examples include:

• Travel expenses (specifying the class of travel, e.g., business class for international flights).
• Accommodation and subsistence costs during hearings or meetings.
• Communication costs (e.g., international calls, courier services).
• Costs of printing, photocopying, and materials.
• Fees for administrative or secretarial assistance, if agreed separately and not covered by the arbitrator’s own overheads.
• Costs associated with hearing room rentals, if not provided by an institution or borne directly by the parties. The Horton ad hoc template, for example, allows the arbitrator to recover reasonable charges for necessarily incidental costs.⁶

2.5.3. Payment Terms

This sub-section should detail the mechanics of payment:

• Advances or Deposits: It is standard practice, particularly in ad hoc arbitrations, for parties to pay an advance or deposit to cover the arbitrator’s anticipated fees and expenses for initial stages of the work.³ The amount of the deposit, how it will be held (e.g., by the arbitral institution, or in the arbitrator’s designated client/trust account as in the Horton template ⁶), and the mechanism for replenishment if it is depleted should be specified. Institutional rules, like those of the ICC, have established systems for advances on costs.²⁴ It is also common to state that the parties are jointly and severally liable for the arbitrator’s fees and expenses, meaning the arbitrator can seek payment from any party if another defaults.³
• Interim Payments: The schedule for interim invoicing should be outlined (e.g., monthly, quarterly, or upon completion of specific milestones). Payment deadlines for such invoices (e.g., within 30 days) should also be included.³
• Final Account: The procedure for the arbitrator rendering a final account for all fees and expenses upon the conclusion of the arbitration should be described.
• Currency: The currency in which fees and expenses are to be calculated and paid must be specified (e.g., USD, EUR, GBP).
• Taxes: The Terms should clarify how Value Added Tax (VAT) or other applicable taxes on the arbitrator’s fees will be handled (e.g., whether the quoted rates are inclusive or exclusive of VAT, and which party is responsible for bearing such taxes).³
• Cancellation or Commitment Fees: To protect the arbitrator’s time, especially for scheduled hearing dates, it is common to include provisions for cancellation or commitment fees if hearings are cancelled or postponed by the parties with insufficient notice.³ The Horton template includes specific terms for such fees.⁶
• Early Termination or Settlement: The Terms should address how the arbitrator’s fees and expenses will be calculated and paid if the arbitration is terminated early due to settlement or withdrawal of claims before a final award is rendered.³

The establishment of clear and comprehensive fee terms is not merely for the arbitrator’s financial security; it is fundamental to maintaining the parties’ trust and confidence in the financial probity and management of the arbitration. Ambiguity or disputes over arbitrator fees can create a negative atmosphere, distract from the substantive issues, and, in extreme cases, even lead to challenges against the arbitrator or difficulties in the enforcement of the award. By detailing rates, expense policies, advance payment mechanisms, cancellation policies, and the treatment of taxes, both the arbitrator and the parties operate with a shared understanding from the commencement of the proceedings. This transparency minimizes the potential for surprises or grievances, allowing the arbitration to proceed with a focus on the merits of the dispute. For example, the inclusion of a joint and several liability clause for fees ³ provides crucial protection for the arbitrator in the event one party becomes unwilling or unable to meet its share of the costs.

2.6. Procedural Framework (Confirmation of Key Elements)

The Terms of Appointment should confirm the key elements of the procedural framework within which the arbitration will be conducted.

• 2.6.1. Seat of Arbitration: The legal place (seat) of the arbitration must be confirmed.¹ The seat is critical as it determines the lex arbitri (the procedural law governing the arbitration), the extent of national court supervision and support, and the jurisdiction for any action to set aside the arbitral award.²⁵
• 2.6.2. Language of the Arbitration: The language (or languages) to be used in written submissions, correspondence, and oral hearings should be confirmed.¹
• 2.6.3. Governing Law: While the arbitrator does not determine the governing law unless empowered to do so by the parties or applicable rules, the Terms of Appointment may acknowledge the parties’ agreement on the law governing the substantive contract, the law governing the arbitration agreement itself (which can be different), and the procedural law of the arbitration (largely determined by the seat and any institutional rules).⁷

The choice of the seat of arbitration serves as the legal anchor for the entire process. It has profound and far-reaching implications, influencing the procedural conduct, the availability of interim measures from national courts, the grounds upon which an award may be challenged, and ultimately, the international enforceability of the award under conventions like the New York Convention. By confirming the seat in the Terms of Appointment, the arbitrator formally acknowledges the specific legal environment in which they will be operating and making decisions. It is important to distinguish the legal seat from the physical venue of hearings, although they can coincide. Parties may choose a neutral and arbitration-friendly seat even if hearings are conducted elsewhere for convenience.

2.7. Confidentiality Obligations of the Arbitrator

The arbitrator should undertake to maintain the confidentiality of all aspects of the arbitration proceedings.¹⁰ This includes the existence of the arbitration (unless publicly known), the evidence and documents disclosed, the deliberations of the arbitral tribunal, and the content of any orders or awards issued. This duty is typically subject to exceptions, such as disclosure required by law, for the purpose of enforcing or challenging an award, or if all parties expressly consent to disclosure.²⁷

Arbitrators frequently navigate a delicate balance between their comprehensive duty of disclosure regarding potential conflicts of interest and their equally important duty to maintain confidentiality concerning other arbitrations in which they may have been involved.¹⁹ For instance, an arbitrator may have previously served in a case involving counsel for one of the current parties. While the fact of this prior service is generally disclosable (and often required under guidelines like the IBA’s), revealing specific, non-public details of that confidential arbitration would constitute a breach of their confidentiality obligations in that prior matter. The Terms of Appointment should clearly reflect the arbitrator’s commitment to upholding confidentiality, while institutional rules and ethical guidelines (such as the IBA Guidelines on Conflicts of Interest in International Arbitration ¹²) provide frameworks for making necessary disclosures about relationships or prior involvement without improperly divulging confidential information from other proceedings. This requires careful judgment and adherence to professional ethical standards.

2.8. Liability and Immunity of the Arbitrator

Provisions regarding the arbitrator’s liability and immunity are standard in Terms of Appointment. These typically state that the arbitrator will not be liable for any act or omission in connection with the arbitration, except in cases of proven bad faith, willful misconduct, or conscious and reckless disregard of their legal obligations.³ Reference should be made to any applicable statutory immunity (e.g., under the English Arbitration Act 1996 or the recently discussed Arbitration Act 2025 ²⁰) or immunity provisions within institutional rules. Some argue against overly broad immunity, particularly for negligence, on the basis that arbitrators are engaged contractually.²⁸

The landscape of arbitrator immunity, while traditionally robust, is subject to ongoing legal development and, in some jurisdictions, statutory codification.²⁰ The fundamental rationale for arbitrator immunity is to enable arbitrators to perform their quasi-judicial functions freely and decisively, without the fear of personal lawsuits stemming from their decisions, akin to the immunity enjoyed by national court judges. However, a distinction is often drawn: judges are state-appointed officials serving a public function, whereas arbitrators are typically chosen and compensated by private parties under a contractual arrangement.²⁸ This distinction has fueled debates about the appropriate scope of arbitrator immunity, particularly concerning liability for negligence. The prevailing trend, as seen in legislative reforms like the UK’s Arbitration Act 2025 ²⁰, is to codify and often enhance immunity for arbitrators acting in good faith, while explicitly retaining liability for more egregious conduct such as bad faith or deliberate wrongdoing. Absolute immunity is rare. The Terms of Appointment should therefore accurately reflect the prevailing legal standard or the specific provisions of the applicable institutional rules. Arbitrators should exercise caution regarding clauses that might attempt to grant immunity that is excessively broad, especially concerning simple negligence, as such clauses can be contentious and are criticized in some quarters.²⁸

2.9. Administrative Arrangements (Secretarial support, hearing facilities, communication protocols)

This section outlines the practical administrative support for the arbitration.

• Secretarial Support: It should clarify whether the arbitrator will utilize their own personal assistant for administrative tasks (the cost of which is usually subsumed in their fees) or if a formal tribunal secretary will be appointed. If a tribunal secretary is contemplated, the Terms should address how they will be selected, their qualifications, conflict checks, remuneration, and the scope of tasks they may perform, ensuring no delegation of the arbitrator’s decision-making functions.²⁹ The ICC, for instance, has specific notes on the appointment and duties of administrative secretaries.²⁹
• Hearing Facilities: Arrangements for hearing facilities should be mentioned, e.g., whether they will be provided by an arbitral institution ³⁰, rented by the parties, or if the arbitrator has suitable facilities.
• Communication Protocols: Clear protocols for communications between the arbitrator(s), the parties, and their counsel are essential.³¹ This typically includes stipulating that all substantive communications should be copied to all parties and all members of the tribunal simultaneously, and often designates a primary channel for communications (e.g., a specific email address or through a case manager at an institution).

The use of tribunal secretaries has become increasingly common as a means to enhance the efficiency of arbitral proceedings, particularly in complex and document-heavy cases. A well-qualified secretary can significantly assist the tribunal with organizational tasks, managing correspondence and documents, conducting legal research, and even preparing drafts of non-substantive parts of procedural orders or sections of the award, thereby freeing up the arbitrators’ time to focus on core adjudicative functions.²⁹ However, the appointment and role of a tribunal secretary must be managed with care to address potential concerns regarding improper delegation of the arbitrator’s essential decision-making responsibilities and the associated costs. The Terms of Appointment, or a subsequent procedural order issued after consultation with the parties, should transparently address the process for selecting a tribunal secretary (including necessary conflict checks, which should be as rigorous as those for arbitrators), the basis for their remuneration (and who bears this cost), and a clearly defined list of tasks they are permitted to perform. Party consent to the appointment and role of a tribunal secretary is highly advisable to maintain confidence in the process.

2.10. Provisions for Resignation, Removal, and Replacement of the Arbitrator

The Terms should reference the applicable institutional rules or agreed ad hoc procedures that govern an arbitrator’s resignation (e.g., whether institutional consent is required, as under ICC Rules ³⁵), the grounds and procedure for challenging and removing an arbitrator, and the process for appointing a substitute arbitrator if a vacancy arises.⁵

The continuity of arbitral proceedings is paramount. The departure of an arbitrator before the conclusion of a case, whether due to resignation, death, successful challenge, or other reasons, can cause significant disruption, delays, and increased costs for the parties. Therefore, clear and effective provisions for the replacement of an arbitrator are vital. Most institutional rules, such as those of the ICC ⁵, contain detailed mechanisms addressing how and when an arbitrator may be replaced and the procedure for appointing a successor. In ad hoc arbitrations, where no such institutional framework automatically applies, it is particularly important that the Terms of Appointment, or the initial arbitration agreement itself, anticipate the possibility of an arbitrator needing to be replaced and outline a clear procedure. This should include how a substitute arbitrator will be selected (e.g., by the parties, by the remaining arbitrators, or by an agreed appointing authority) and address the critical question of whether, and to what extent, prior stages of the proceedings (such as hearings already conducted) need to be repeated before the newly constituted tribunal.³⁵

2.11. Modification of Terms

It is advisable to include a clause stating that any amendments or modifications to the Terms of Appointment must be made in writing and signed by all parties and the arbitrator(s).³

Given that the Terms of Appointment form a contract between the arbitrator(s) and the appointing parties, the integrity of this agreement must be maintained. Any subsequent changes to these terms, therefore, should only be made with the mutual consent of all signatories. Circumstances can evolve during the course of an arbitration, which may sometimes be lengthy. For example, the scope of the dispute might expand significantly due to the introduction of new claims or counterclaims, or unforeseen complexities may arise that require a greater investment of the arbitrator’s time and resources than initially anticipated. In such situations, a review of certain terms, such as the fee arrangements or the timeline, might be warranted. A modification clause ensures that any such changes are formally discussed, acknowledged, and agreed upon by everyone involved, preventing unilateral alterations and preserving the validity and enforceability of the Terms of Appointment as a whole.

3. Negotiating Terms of Appointment: A Practical Guide for New International Arbitrators

For new and aspiring international arbitrators, the process of negotiating and finalizing Terms of Appointment can be as crucial as it is challenging. A well-structured approach, beginning with thorough diligence and understanding key negotiation points, can set the stage for a successful mandate.

3.1. Pre-Appointment Diligence: The Foundation of a Successful Mandate

Before an arbitrator even considers discussing or negotiating specific terms, comprehensive pre-appointment diligence is paramount. This foundational step involves more than a cursory review of the case; it requires a deep and honest assessment of various factors:

• Conflict Checks: This is the foremost duty. A prospective arbitrator must conduct exhaustive checks for any past or present relationships – professional, financial, personal, or social – with the parties involved in the dispute, their legal counsel, parent companies or significant affiliates, any known key witnesses, other members of the arbitral tribunal (if already identified), and even third-party funders if their identity is disclosed.¹⁸ This involves meticulously searching personal records, law firm databases (if applicable), and publicly available information. The IBA Guidelines on Conflicts of Interest in International Arbitration (particularly the 2024 version) provide detailed Application Lists (Non-Waivable Red List, Waivable Red List, Orange List, Green List) and General Standards that are indispensable in this process.¹³ Any potential issue, however remote it may seem, should be identified.
• Assessing Suitability and Competence: The arbitrator must candidly evaluate whether they possess the requisite legal expertise, specific industry knowledge (if the dispute is technical, e.g., construction, energy, intellectual property), and language skills necessary to effectively adjudicate the particular dispute presented.¹² Accepting an appointment for which one is not adequately qualified can undermine the entire process. A review of the nature and complexity of the dispute, often gleaned from initial communications or a Request for Arbitration, is essential.³⁷
• Understanding Case Complexity and Scope: An effort should be made to gather preliminary information about the dispute’s subject matter, the approximate amount in dispute, the number of parties involved, and the likely procedural complexity (e.g., anticipated volume of documents, number of witnesses, potential for jurisdictional challenges).³⁷ This helps in gauging the potential workload and time commitment.
• Availability: One of the most critical yet often underestimated aspects is a realistic assessment of one’s current and anticipated future commitments. The arbitrator must be confident they can dedicate sufficient time and attention to the arbitration, including timely review of submissions, participation in procedural conferences and hearings, thorough deliberations, and the expeditious drafting of the award.⁵ Over-commitment is a common pitfall and can lead to delays and party dissatisfaction.
• Review of Arbitration Agreement and Applicable Rules: The prospective arbitrator must carefully scrutinize the arbitration clause in the underlying contract or the separate arbitration agreement. It is also vital to identify and review any applicable institutional rules (e.g., ICC, LCIA, SIAC) or ad hoc procedural rules (e.g., UNCITRAL Arbitration Rules) that will govern the proceedings, as these often contain specific provisions regarding arbitrator qualifications, appointment procedures, duties, and sometimes fee structures.³⁹

Being transparent and forthright about any potential, even borderline, conflicts of interest or limitations (such as upcoming extended unavailability) during these pre-appointment discussions can be a powerful tool. While it might seem counterintuitive, proactive disclosure, as advocated by the IBA Guidelines ¹², builds trust with the parties and any appointing institution from the outset. Parties are more likely to perceive an arbitrator who makes full and frank disclosures as ethical and reliable. This can, in turn, make them more receptive and reasonable when discussing other terms of the appointment, such as fees or procedural matters. Conversely, a failure to disclose a relevant circumstance that comes to light later can severely damage the arbitrator’s credibility, potentially leading to challenges, the derailment of the appointment, or even the annulment of an award. Thus, erring on the side of disclosure ¹⁹ is not just an ethical imperative but also a strategically sound approach.

3.2. Key Negotiation Points for the Arbitrator

Once pre-appointment diligence is complete and the arbitrator is provisionally satisfied with their suitability and ability to serve, the focus shifts to the specific terms of engagement. For new arbitrators, several areas warrant careful attention:

3.2.1. Fees and Expenses

This is often the most sensitive and challenging aspect of negotiation, particularly for those newer to the role.

• Institutional Context: In arbitrations administered by major institutions, the fee structure is often largely predetermined. For example, the ICC typically uses an ad valorem scale, where arbitrator fees are calculated based on the amount in dispute, subject to the ICC Court’s oversight and potential adjustment.²⁴ The LCIA, on the other hand, operates on an hourly rate basis for arbitrators, though these rates are subject to LCIA approval and a maximum cap (e.g., £650 per hour as of December 2023).²² In such cases, the arbitrator’s “negotiation” is more about understanding and confirming their acceptance of the institution’s established fee policy rather than setting an independent rate. The primary document here is the arbitrator’s signed Statement of Acceptance, Availability, Impartiality, and Independence, which includes an acceptance of the institution’s fee arrangements.
• Ad Hoc Context: Ad hoc arbitrations offer significantly more scope for direct negotiation of fees between the arbitrator and the parties.³ New arbitrators should:
  • Research Market Rates: Investigate prevailing hourly or daily rates for arbitrators with comparable experience levels, handling cases of similar complexity, quantum, and in the relevant geographic or industry sector. Online resources, peer networks, and publications from arbitral bodies can provide guidance.
  • Justify Proposed Rate: Be prepared to articulate the basis for the proposed rate, referencing experience, specific expertise relevant to the dispute, and the anticipated demands of the case.
  • Differentiate Work: Consider whether to propose different rates for different types of work (e.g., a rate for hearing days, a rate for travel time, and a rate for reading, research, deliberation, and award writing).
  • Clarity on “All-inclusive” vs. Separate Expenses: Ensure it is unequivocally clear what the quoted fee covers (e.g., personal overheads) and what will be charged separately as reimbursable expenses (e.g., travel, accommodation, printing, courier).³
  • Advances and Deposits: Particularly in ad hoc cases, it is crucial to negotiate reasonable advance payments from the parties to cover anticipated fees and expenses for the initial phases of the arbitration and to ensure adequate cash flow.³ The mechanism for holding and replenishing these deposits should be agreed.
  • Cancellation/Postponement Fees: These are vital for protecting the arbitrator’s time. If parties cancel or postpone scheduled hearing days with little notice, it can significantly disrupt an arbitrator’s schedule and result in lost income from other potential engagements. The Terms should include a clear policy on cancellation fees, specifying the notice period required to avoid such fees and the amount or calculation method for the fee.³

3.2.2. Scope of Mandate and Availability

While the arbitration agreement defines the substantive scope, the arbitrator should ensure there is a shared understanding of the anticipated workload. If the case appears unusually complex, involves multiple parties, or is likely to be protracted, this should be discussed. The arbitrator must be realistic about their time commitments and clearly communicate their availability, ensuring they can meet procedural timetables and dedicate the necessary focus to the case without undue delay.12 Avoid over-committing, as this is a common source of party frustration.

3.2.3. Liability and Immunity

In most established arbitral seats and under major institutional rules, arbitrators benefit from a degree of immunity for acts performed in their arbitral capacity, typically excluding gross negligence, bad faith, or willful misconduct.20 In ad hoc arbitrations, it is important to ensure that the Terms of Appointment include a clause reflecting an appropriate level of immunity consistent with international best practice and the law of the seat. Arbitrators should be wary of, and generally resist, attempts by parties to impose overly broad liability or to waive standard immunities.

3.2.4. Administrative Support

If the arbitrator anticipates needing significant administrative support beyond their own personal capacity (e.g., for managing extensive documentation, organizing complex hearings, or assisting with research in a very large case), the potential appointment of a tribunal secretary should be discussed early, especially in ad hoc settings.29 The process for selecting a secretary, their terms of engagement (including fees and conflict checks), and how their costs will be covered must be agreed upon with the parties.

The negotiation of fees, availability, and the anticipated complexity of a case are not isolated discussions; they are interconnected. An arbitrator considering a highly complex, document-intensive case that will require a significant investment of their time and intellectual effort may be justified in proposing a higher fee (in an ad hoc setting where fees are negotiable) or, at a minimum, must be exceptionally clear and firm about their availability and the need to potentially limit other professional commitments to adequately serve the arbitration. Accepting a demanding case at a rate that does not reflect its complexity, or without clearly ring-fencing the necessary time, can lead to the arbitrator being overwhelmed, potentially resulting in delays, a lower quality of work, and dissatisfaction from the parties, which could even culminate in challenges. A holistic approach to negotiating these points allows the arbitrator to set realistic and sustainable expectations for both themselves and the appointing parties. For instance, if a case involves numerous parties, extensive counterclaims, and multiple rounds of expert evidence, the arbitrator should anticipate a more demanding schedule and ensure their terms of appointment (and fee, if negotiable) adequately reflect this increased burden.

3.3. Navigating Institutional vs. Ad Hoc Appointments: Key Differences in Term Negotiation

The context of the appointment—whether institutional or ad hoc—significantly shapes the negotiation landscape for an arbitrator’s terms.

• Institutional Arbitration:
  • Prescribed Terms: Many crucial terms, such as the method of fee calculation (e.g., ICC’s ad valorem system ²⁴, LCIA’s capped hourly rates ²²), procedures for challenging arbitrators, immunity provisions, and sometimes confidentiality standards, are often predetermined by the institution’s rules and policies.
  • Limited Direct Negotiation: The arbitrator’s direct negotiation with the parties on these fixed terms is usually minimal. Instead, the arbitrator confirms their acceptance of the institution’s established framework.
  • Statement of Acceptance: The primary “negotiable” aspects from the arbitrator’s side are conveyed through their signed Statement of Acceptance, Availability, Impartiality, and Independence (or similar document required by the institution).⁵ This is where the arbitrator confirms their ability to meet the time demands of the case and makes all necessary disclosures regarding potential conflicts.
  • Focus: The arbitrator’s main focus during the appointment phase in an institutional context is on thoroughly understanding the institution’s specific rules and disclosure standards, ensuring their availability aligns with the case’s anticipated needs, and making comprehensive conflict disclosures.
• Ad Hoc Arbitration:
  • Maximum Flexibility: Ad hoc arbitration provides the greatest degree of flexibility, allowing the parties and the arbitrator(s) to tailor almost all terms of appointment to the specific needs of the case.³
  • Direct Negotiation: Fees, payment schedules, cancellation policies, the scope of administrative support, specific confidentiality undertakings, liability/immunity clauses (within the bounds of applicable law), and procedures for resignation or replacement are all subject to direct negotiation.
  • Comprehensive Terms Document: Because there is no overarching institutional framework to rely on, a detailed and comprehensive written Terms of Appointment document is essential. This document becomes the primary charter for the arbitrator’s engagement.
  • Arbitrator Initiative: The arbitrator(s), particularly the presiding arbitrator in a three-member panel, often needs to take a more proactive role in proposing and finalizing these terms with the parties.

In institutional arbitration, the administering body provides a significant “safety net” and a detailed procedural and administrative framework. This reduces the burden on the arbitrator to negotiate many fundamental terms from scratch. However, in ad hoc arbitrations, this institutional support structure is absent. Consequently, the arbitrator (or the tribunal as a whole, once constituted) must assume a much greater degree of proactivity in ensuring that all necessary terms of appointment are thoroughly discussed, mutually agreed upon with the parties, and meticulously documented in a formal agreement.³ This includes addressing potentially contentious issues like fee structures, advance deposits, cancellation policies, arrangements for administrative or secretarial support if needed, the precise scope of confidentiality obligations, and the standards for arbitrator liability and immunity (consistent with the lex arbitri). Failure to comprehensively address these elements in an ad hoc setting can lead to significant procedural difficulties, misunderstandings, or disputes later in the proceedings, potentially jeopardizing the efficiency and integrity of the arbitration.

3.4. Common Challenges in Negotiation and How to Address Them

New arbitrators, in particular, may encounter certain challenges when discussing their Terms of Appointment:

• Fee Resistance: Parties, especially if unfamiliar with the arbitrator or seeking to minimize costs, may push back on proposed fee rates, particularly in ad hoc settings.
  • Strategy: Be prepared with a clear justification for the proposed rate, referencing market benchmarks for arbitrators of similar experience and for cases of comparable size and complexity. Highlight any specific expertise or qualifications that bring particular value to the dispute. While some flexibility may be appropriate, especially for a first-time appointment to gain experience, avoid significantly undervaluing your time and professional expertise. Clearly articulate the work involved in an international arbitration beyond just hearing days.
• Unclear Scope or Availability Mismatch: Parties may sometimes underestimate the time and effort required for a thorough arbitration, or their expectations regarding the arbitrator’s availability may be unrealistic.³⁸
  • Strategy: During pre-appointment discussions, ask detailed questions to gain a better understanding of the case’s potential complexity, the likely volume of submissions, the number of witnesses, the anticipated length of hearings, and any party expectations regarding the overall timeline. Based on this, be firm but fair in defining your availability and managing the parties’ expectations regarding your capacity to meet their desired schedule. It is better to decline an appointment than to accept it and then be unable to fulfill the time commitments.
• Attempts to Impose Onerous Liability or Limit Immunity: Occasionally, parties might propose terms that seek to impose a higher level of liability on the arbitrator than is standard or attempt to unduly restrict customary immunities.
  • Strategy: Politely but firmly decline terms that deviate significantly from established international norms and the protections afforded by applicable institutional rules or national arbitration laws (which typically grant immunity except for acts of bad faith or willful misconduct).²⁰ Reference to these standards can be persuasive.
• Disagreements on Cancellation Fees: Parties may be reluctant to agree to cancellation fees for hearings.
  • Strategy: Clearly explain the rationale: cancellation fees are not punitive but are intended to compensate the arbitrator for the loss of opportunity to undertake other work when specific dates have been reserved and then cancelled with insufficient notice.³ Propose a reasonable notice period (e.g., 30-60 days) and a fair fee structure for late cancellations.

While the arbitrator is offering a professional service, they are also entering into a significant professional engagement that carries substantial responsibilities and requires a considerable investment of their time and expertise. The negotiation of Terms of Appointment should therefore be a professional and respectful discussion aimed at achieving mutually acceptable terms that will facilitate the fair, efficient, and effective conduct of the arbitration.⁴⁴ An arbitrator should not feel unduly pressured to accept terms that they consider unreasonable, unworkable, or that could compromise their ability to discharge their duties properly. If parties are overly aggressive in seeking to reduce fees to an unrealistic level, or if they attempt to impose unusual or onerous liability clauses, it might serve as an early indicator of potential difficulties in managing the arbitration itself. A new arbitrator should be prepared to decline an appointment if fair and professional terms that uphold the integrity of the arbitral process cannot be agreed upon. Maintaining a professional demeanor and clearly articulating the reasons behind certain requested terms (such as cancellation fees or the need for adequate deposits in ad hoc cases) is key to a constructive negotiation.

3.5. Table: Checklist for New Arbitrators Before Accepting an Appointment

To assist new arbitrators in navigating the critical pre-appointment phase, the following checklist outlines key considerations:

4. Sample Template: Terms of Appointment for an International Arbitrator

The following template is provided as a comprehensive model for Terms of Appointment, particularly suitable for an ad hoc international arbitration. It should be adapted to the specific circumstances of each case. Where the arbitration is administered by an institution (e.g., ICC, LCIA, SIAC, HKIAC), many of these provisions may be supplemented or superseded by the institution’s rules and standard practices, and the arbitrator will typically be required to sign the institution’s standard form of acceptance and declaration. Notes are included to indicate areas for particular attention or modification.

TERMS OF APPOINTMENT OF ASARBITRATOR

Case Reference (if any): [Insert if applicable]

Date:

Between:

1. [Full Legal Name of Claimant]
   Represented by:
   (hereinafter “Claimant”)

2.    

• Represented by:
  (hereinafter “Respondent”)
  (Claimant and Respondent hereinafter collectively referred to as “the Parties”)

And:

• [Arbitrator’s Full Legal Name]
  (hereinafter “the Arbitrator” or, if a three-member tribunal, specify role, e.g., “the Presiding Arbitrator” / “Co-Arbitrator appointed by [Party]”)

Preamble:

A. Disputes have arisen between the Claimant and the Respondent (collectively, “the Disputes”) in connection with concerning”].

B. The Parties have agreed to resolve the Disputes by arbitration pursuant to an arbitration agreement contained in”] OR”] (hereinafter “the Arbitration Agreement”). A copy of the Arbitration Agreement is attached hereto as Annex 1.

C. The Parties have agreed to appoint the Arbitrator appointed by Claimant, [Name] appointed by Respondent, and [Arbitrator’s Full Name] appointed as Presiding Arbitrator by [Method of appointment, e.g., agreement of the co-arbitrators / by [Appointing Authority]]”] to determine the Disputes.

NOW IT IS HEREBY AGREED as follows:

1. Acceptance of Appointment

1.1. The Arbitrator accepts the appointment to act asArbitrator to determine the Disputes in accordance with these Terms of Appointment, the Arbitration Agreement, and the agreed procedural rules.

Note: In institutional arbitration, acceptance is often formalized by signing the institution’s Statement of Acceptance.

2. Arbitrator’s Declarations

2.1. Independence and Impartiality: The Arbitrator declares that, to the best of their knowledge, there are no facts or circumstances, past or present, that would give rise to justifiable doubts as to their independence or impartiality in the eyes of the Parties. The Arbitrator confirms their independence from the Parties, their counsel, any affiliates, and (if applicable) other members of the Arbitral Tribunal. The Arbitrator undertakes to remain independent and impartial throughout the arbitral proceedings. The Arbitrator’s signed Statement of Independence and Impartiality, making reference to the IBA Guidelines on Conflicts of Interest in International Arbitration (current version), is attached hereto as Annex 2. 3

2.2. Ongoing Duty of Disclosure: The Arbitrator undertakes to immediately disclose in writing to the Parties and (if applicable) to other members of the Arbitral Tribunal and any administering institution any facts or circumstances of a similar nature that may arise during the course of the arbitration. 12

2.3. Availability: The Arbitrator confirms that they have sufficient time and availability to devote to this arbitration to ensure its diligent, efficient, and expeditious conduct, including attending hearings on dates to be agreed, conducting deliberations, and preparing any orders and the award(s). 3

2.4. Competence: The Arbitrator confirms that they possess the necessary qualifications, experience, and competence to determine the issues in dispute, including an adequate knowledge of the language of the arbitration. 3

3. Scope of Mandate

3.1. The Arbitrator’s mandate is to determine the Disputes submitted by the Parties in accordance with the Arbitration Agreement, the applicable procedural rules, and the governing law(s).

3.2. The Arbitrator shall have all powers conferred upon them by the Arbitration Agreement, the applicable procedural rules, and any mandatory provisions of the law of the seat of arbitration, including but not limited to the power to rule on their own jurisdiction (Kompetenz-Kompetenz), determine the procedure, order interim measures, and render a final and binding award. 10

4. Procedural Matters

4.1. Seat of Arbitration: The seat of the arbitration shall be [City, Country]. 1

4.2. Language of Arbitration: The language of the arbitration shall be [Language]. 1

4.3. Applicable Procedural Rules: The arbitration shall be conducted in accordance with Arbitration Rules ([Year] version)” or “such other ad hoc procedures as may be agreed by the Parties and the Arbitrator”]. 8

4.4. Governing Law: The Arbitrator acknowledges the Parties’ agreement (if any) that the substantive law governing the contract is, the law governing the Arbitration Agreement is, and the procedural law of the arbitration is primarily that of the seat. 9

Note: The Arbitrator does not determine these laws unless specifically empowered.

5. Fees

5.1. The Arbitrator’s fees shall be calculated at an hourly rate of[Amount] per hour for all time properly spent on the arbitration, including but not limited to:

(a) Reading case materials and submissions;

(b) Correspondence and communications;

(c) Preparation for, attendance at, and conduct of procedural conferences and hearings;

(d) Deliberations with co-arbitrators (if applicable);

(e) Research and legal analysis;

(f) Drafting of procedural orders, decisions, and the award(s).

3

Alternative for daily rate: The Arbitrator’s fees shall be calculated at a daily rate of [Currency][Amount] for each day or part thereof spent on hearings or meetings, and [Currency][Amount] per hour for all other work.

Note: In institutional arbitration, fees are typically determined by the institution’s rules and scales, e.g., ICC ad valorem 24, LCIA hourly rates with caps.22 This clause would then refer to the institution’s fee policy.

5.2. The Arbitrator shall maintain contemporaneous records of time spent.

6. Expenses

6.1. The Arbitrator shall be reimbursed for all reasonable and vouched out-of-pocket expenses properly incurred in connection with this arbitration, including but not limited to:

(a) Travel expenses (e.g., airfare, rail, local transport);

(b) Accommodation and reasonable subsistence costs when away from their normal place of residence for the purposes of the arbitration;

(c) Costs of telephone calls, courier services, printing, and photocopying;

(d) Fees for hearing rooms or necessary equipment, if not provided by an institution or borne directly by the Parties;

(e) Costs of administrative or secretarial assistance specifically engaged for this arbitration, if agreed with the Parties in advance.

3

7. Payment Terms

7.1. Deposits/Advances:

(a) Upon signature of these Terms of Appointment, the Parties shall jointly and severally pay to the Arbitrator an initial deposit of [Currency][Amount] to cover anticipated fees and expenses. This deposit shall be held by the Arbitrator in. 3

(b) The Arbitrator may request further deposits from time to time as reasonably required to cover future fees and expenses, providing at least [e.g., 14] days’ notice.

(c) The Arbitrator shall not be obliged to proceed with the arbitration or issue any award if requested deposits are not paid in full.

Note: In institutional arbitration, deposits are managed by the institution.24

7.2. Invoicing: The Arbitrator shall render interim invoices [e.g., monthly/quarterly/upon completion of milestones] detailing fees accrued and expenses incurred. A final invoice will be rendered upon conclusion of the arbitration.

7.3. Payment Deadline: All invoices shall be payable by the Parties jointly and severally within [e.g., 30] days of receipt.

7.4. Currency: All fees and expenses shall be invoiced and paid in.

7.5. Taxes: The Arbitrator’s fees are [exclusive/inclusive] of any applicable Value Added Tax (VAT) or other similar taxes. If applicable, such taxes will be added to the invoices and are payable by the Parties. The Parties shall be responsible for any withholding taxes, if applicable under relevant law. 3

7.6. Cancellation Fees: In the event that any scheduled hearing day(s) are cancelled or postponed by the Parties with less than [e.g., 30] days’ written notice to the Arbitrator, a cancellation fee of[Amount] per cancelled day”] shall be payable by the Party/Parties requesting the cancellation/postponement, unless the Arbitrator is able to mitigate this loss by securing alternative work for the reserved dates. 3

7.7. Late Payment: Interest at a rate of may be charged on any overdue amounts.

8. Confidentiality

8.1. The Arbitrator undertakes to keep confidential all matters relating to the arbitration proceedings, including all documents, evidence, deliberations, and the award(s), and shall not disclose them to any third party without the prior written consent of all Parties or as may be required by applicable law or for the purpose of enforcing or challenging an award. 10

9. Liability and Immunity

9.1. The Arbitrator shall not be liable to any Party for any act or omission in connection with this arbitration, save for the consequences of conscious and deliberate wrongdoing or bad faith. The Arbitrator shall have such immunity as is provided under the law of the seat of arbitration and any applicable institutional rules. 6

9.2. The Parties agree not to call the Arbitrator as a witness in any court or other proceedings relating to this arbitration or the award(s).

10. Administrative Assistance

10.1. [Optional: If a tribunal secretary is contemplated] The Arbitrator may, after consultation with the Parties, appoint an administrative secretary to assist with organizational and administrative tasks. The terms of the secretary’s appointment, including remuneration and scope of duties (which shall not involve any delegation of the Arbitrator’s decision-making functions), shall be subject to the Parties’ agreement. The costs of such a secretary shall be. 29

11. Communication Protocol

11.1. All communications between the Parties and the Arbitrator, and between the Arbitrator and any co-arbitrators, relating to the substance of the dispute shall be made in writing and copied simultaneously to all Parties and all members of the Arbitral Tribunal (if applicable).

11.2. Communications may be made by email to the addresses specified herein, unless otherwise directed.

12. Resignation and Replacement

12.1. In the event the Arbitrator resigns, is removed, or becomes unable to act, a substitute arbitrator shall be appointed in accordance with. 5

Note: Institutional rules will govern this process in administered arbitrations.

13. Modification of Terms

13.1. These Terms of Appointment may only be modified by written agreement signed by all Parties and the Arbitrator. 3

14. Entire Agreement

14.1. These Terms of Appointment (including its Annexes) constitute the entire agreement between the Parties and the Arbitrator with respect to the Arbitrator’s appointment and supersede all prior discussions, negotiations, and understandings.

Agreed and Signed:

For and on behalf of Claimant:

Name:

Title:

Date:

For and on behalf of Respondent:

Name:

Title:

Date:

The Arbitrator:

[Arbitrator’s Full Name]

Date:

Annexes:

Annex 1: Copy of the Arbitration Agreement

Annex 2: Arbitrator’s Signed Statement of Independence and Impartiality (incorporating availability and competence declarations)

Disclaimer: This sample template is for informational purposes only and does not constitute legal advice. It should be adapted by qualified legal professionals to the specific circumstances of each case and the applicable legal and regulatory framework.

5. Conclusion

The Terms of Appointment for an international arbitrator are far more than a mere administrative formality; they are the indispensable blueprint that defines and governs the arbitrator’s engagement. Meticulously drafted and carefully negotiated terms are paramount for the smooth, efficient, and fair conduct of international arbitration proceedings. They provide essential clarity on the arbitrator’s mandate, independence, impartiality, availability, and remuneration, thereby minimizing the potential for misunderstandings or ancillary disputes that could otherwise derail the primary objective of resolving the parties’ substantive conflict.

Upholding the highest ethical standards is intrinsic to the role of an international arbitrator. Clear declarations of independence and impartiality, coupled with a steadfast commitment to ongoing disclosure obligations as emphasized by guidelines such as those from the IBA, are fundamental to maintaining the legitimacy and integrity of the arbitral process. Well-defined terms foster an environment of trust and cooperation between the arbitrator(s) and the parties. They ensure that all participants have a shared understanding of the procedural framework, financial arrangements, and expectations concerning the arbitrator’s conduct and responsibilities.

Ultimately, robust and transparent Terms of Appointment contribute significantly to the overall quality, perceived fairness, and finality of the arbitral process. By proactively addressing key aspects of the arbitrator’s engagement, these terms not only facilitate the effective management of the arbitration but also strengthen the resulting award against potential challenges, thereby enhancing its enforceability across jurisdictions. For both seasoned practitioners and new entrants to the field of international arbitration, a thorough understanding and diligent application of these principles in crafting and agreeing to Terms of Appointment are essential for the continued success and credibility of international arbitration as a preferred method for resolving global disputes.

6. Annex: Key Documents and Articles for Further Reference

This annex provides a curated list of significant documents, guidelines, and articles relevant to the Terms of Appointment of international arbitrators. Each entry includes a citation (where available from the source material) and a concise synopsis of its relevance.

1. Chartered Institute of Arbitrators (CIArb) Practice Guideline: Terms of Appointment including Remuneration (2015/2016)
   1. Author/Issuing Body: Chartered Institute of Arbitrators
   1. Year/Date of Publication/Version: 08 December 2016 ³
   1. Valid Citation/URL: ³ (Conceptual reference: https://www.ciarb.org/media/0jqpif5s/2-terms-of-appointment-including-remuneration-2015.pdf)
   1. Synopsis of Relevance: Provides comprehensive guidance on the nature and content of an arbitrator’s terms of appointment in ad hoc international commercial arbitrations. Details general principles, essential components of the terms (including a detailed section on remuneration covering calculation methods, rates, expenses, payment terms, cancellation fees, and early termination), and optional additional terms like confidentiality and immunity. Emphasizes the importance of a written agreement to avoid misunderstandings.
2. International Bar Association (IBA) Rules of Ethics for International Arbitrators (1987)
   1. Author/Issuing Body: International Bar Association
   1. Year/Date of Publication/Version: 1987 (still influential, though often supplemented by IBA Guidelines on Conflicts of Interest)
   1. Valid Citation/URL: ¹² (Conceptual reference: https://prod-bo.ibanet.org/document?id=Rules-of-ethics-for-international-arbitrators)
   1. Synopsis of Relevance: Sets out fundamental ethical principles for international arbitrators concerning impartiality, independence, competence, diligence, and discretion. Addresses acceptance of appointment, elements of bias, the duty of disclosure (including specific circumstances to disclose like business or social relationships), communications with parties, fees (discouraging individual arrangements unless agreed or party default), and confidentiality of deliberations. These rules inform the declarations and conduct expected under Terms of Appointment.
3. International Bar Association (IBA) Guidelines on Conflicts of Interest in International Arbitration (2024)
   1. Author/Issuing Body: International Bar Association
   1. Year/Date of Publication/Version: 25 May 2024
   1. Valid Citation/URL: ¹³ (Conceptual reference: https://www.ibanet.org/document?id=Guidelines-on-Conflicts-of-Interest-in-International-Arbitration-2024 and summaries at https://gowlingwlg.com/en-ae/insights-resources/articles/2024/update-to-the-iba-guidelines and https://www.lawsonlundell.com/Commercial-Litigation-and-Dispute-Resolution-Blog/iba-updates-guidelines-on-conflicts-of-interest-in-international-arbitration)
   1. Synopsis of Relevance: Provides the prevailing international standards for assessing and disclosing conflicts of interest. Crucial for an arbitrator’s declarations of independence and impartiality within the Terms of Appointment. The 2024 update refines General Standards on determining conflicts (objective “reasonable third person” test), disclosure duties (subjective “in the eyes of the parties” test, new rules on secrecy preventing disclosure, and clarification that non-disclosure isn’t automatic disqualification), party waiver (presumption of knowledge from reasonable enquiry), and expands the Orange List of disclosable situations (e.g., relationships with experts, co-arbitrators, social media statements). Directly impacts the arbitrator’s ongoing disclosure obligations.
4. ICC Rules of Arbitration (e.g., 2021 version)
   1. Author/Issuing Body: International Chamber of Commerce (ICC)
   1. Year/Date of Publication/Version: 1 January 2021
   1. Valid Citation/URL: ⁵ (Conceptual reference: https://iccwbo.org/dispute-resolution/dispute-resolution-services/arbitration/rules-procedure/2021-arbitration-rules/)
   1. Synopsis of Relevance: Contains key provisions that directly inform or are incorporated by reference into an ICC arbitrator’s Terms of Appointment. Relevant articles cover: arbitrator impartiality and independence (Art. 11), the requirement for a signed statement of acceptance, availability, impartiality, and independence (Art. 11), number and appointment of arbitrators (Art. 12, 13), challenge and replacement of arbitrators (Art. 14, 15), conduct of the arbitration (Art. 22), Terms of Reference (Art. 23 – distinct from Terms of Appointment but related to mandate), and costs of arbitration including arbitrator fees and expenses (Art. 38 and Appendix III).
5. ICC Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration
   1. Author/Issuing Body: Secretariat of the ICC International Court of Arbitration
   1. Year/Date of Publication/Version: Current version often updated (e.g., 1 January 2021 referenced in snippets)
   1. Valid Citation/URL: ²¹ (Conceptual reference: https://iccwbo.org/dispute-resolution/dispute-resolution-services/arbitration/practice-notes-forms-and-checklists/)
   1. Synopsis of Relevance: Provides practical guidance on the application of ICC Rules and practices of the ICC Court. Relevant to an arbitrator’s understanding of their duties, case management expectations, and interaction with the ICC Secretariat, all of which underpin their appointment terms. Sections on disclosure, tribunal secretaries, and costs are particularly pertinent.
6. ICC Arbitrator Statement of Acceptance, Availability, Impartiality and Independence Form
   1. Author/Issuing Body: International Chamber of Commerce (ICC)
   1. Year/Date of Publication/Version: Periodically updated
   1. Valid Citation/URL: ²¹ (Conceptual reference: Link available via https://iccwbo.org/dispute-resolution/dispute-resolution-services/arbitration/practice-notes-forms-and-checklists/)
   1. Synopsis of Relevance: This is the standard form an arbitrator nominated or appointed in an ICC arbitration must sign. It embodies the core declarations (acceptance, availability, impartiality, independence, and disclosure) that are fundamental to their Terms of Appointment within the ICC framework. Specific forms exist for standard procedure, expedited procedure, emergency arbitrators, and when ICC acts as appointing authority.
7. LCIA Arbitration Rules and Schedule of Costs (e.g., 2020 Rules, 2023 Schedule of Costs)
   1. Author/Issuing Body: London Court of International Arbitration (LCIA)
   1. Year/Date of Publication/Version: Rules (e.g., 1 October 2020), Schedule of Costs (e.g., effective 1 December 2023)
   1. Valid Citation/URL: ²²²³
   1. Synopsis of Relevance: The LCIA Rules contain provisions on arbitrator appointment, independence, impartiality, duties, challenges, and replacement. The Schedule of Costs is critical as it outlines the LCIA’s administrative charges and, importantly, the basis for arbitrators’ fees (hourly rates subject to a maximum, e.g., £650/hr from Dec 2023) and expenses. These directly dictate the remuneration terms for an LCIA arbitrator.
8. LCIA Guidance Note for Parties and Arbitrators (2023)
   1. Author/Issuing Body: London Court of International Arbitration (LCIA)
   1. Year/Date of Publication/Version: November 2023 (effective 1 December 2023)
   1. Valid Citation/URL: ²³²³
   1. Synopsis of Relevance: Consolidates previous notes and aligns with the 2020 LCIA Rules and 2023 Schedule of Costs. Provides updated guidance on arbitrator disclosure of potential conflicts of interest and the process for challenging arbitrators, directly relevant to the ethical and procedural aspects of an arbitrator’s appointment.
9. UNCITRAL Arbitration Rules (e.g., 2010, 2013, or 2021 versions)
   1. Author/Issuing Body: United Nations Commission on International Trade Law (UNCITRAL)
   1. Year/Date of Publication/Version: Various versions (2010, 2013 incorporating transparency, 2021 incorporating expedited rules)
   1. Valid Citation/URL: ⁸ (Conceptual reference: https://uncitral.un.org/en/texts/arbitration/contractualtexts/arbitration)
   1. Synopsis of Relevance: Widely used in ad hoc arbitrations and sometimes in institutional arbitrations where parties agree. The Rules provide a comprehensive procedural framework, including articles on the appointment of arbitrators, disclosure obligations, challenges, replacement, conduct of proceedings, and costs. These provisions heavily inform the content of Terms of Appointment in arbitrations conducted under these rules, especially regarding mandate, fees (reasonableness of costs), and responsibilities.
10. Arbitration Act 2025 ²⁰
    1. Author/Issuing Body: National Legislature (e.g., UK Parliament)
    1. Year/Date of Publication/Version: Example: 2025 ²⁰
    1. Valid Citation/URL: ²⁰ (Conceptual, as this refers to a future/hypothetical Act in the snippet for illustrative purposes of legal development)
    1. Synopsis of Relevance: National arbitration laws of the seat of arbitration are crucial as they provide the overriding legal framework. Snippet ²⁰ discusses codification of an arbitrator’s duty of disclosure and enhancement of immunity from personal liability (e.g., unless resignation is unreasonable or bad faith in removal applications). Such statutory provisions directly impact the liability and disclosure clauses in an arbitrator’s Terms of Appointment.

Table: Comparative Overview of Arbitrator Fee Structures/Policies of Major Arbitral Institutions

This table provides a simplified comparison of how leading arbitral institutions approach arbitrator fees, which is a critical component of the Terms of Appointment.

Note: Fee structures and institutional policies are subject to change. Users should always consult the latest versions of the applicable institutional rules and fee schedules.

Works cited

The Indispensable Blueprint: Crafting and Negotiating an International Arbitrator’s Terms of Appointment

1. Introduction to Terms of Appointment in International Arbitration

International arbitration stands as a cornerstone of global dispute resolution, offering parties a neutral, flexible, and enforceable means of settling cross-border commercial disagreements.¹ Central to the integrity and efficacy of this process is the role of the international arbitrator. The relationship between the arbitrator(s) and the parties appointing them is formalized through a critical document or set of understandings known as the Terms of Appointment.

Defining Terms of Appointment

The Terms of Appointment constitute the formal contractual agreement between the arbitrator(s) and the retaining parties. In institutional arbitrations, the arbitral institution may also be an implicit or explicit party to certain aspects of these terms, particularly concerning fees and administrative oversight. This agreement establishes the legal basis for the arbitrator’s engagement and delineates their mandate, responsibilities, remuneration, and other conditions governing their service.³ It is important to distinguish the Terms of Appointment from the “Terms of Reference,” a document commonly used in arbitrations administered by the International Chamber of Commerce (ICC), which outlines the scope of the dispute, the parties’ claims, and the issues to be determined by the tribunal once constituted.⁴ While related, the Terms of Appointment specifically govern the arbitrator’s engagement, whereas the Terms of Reference map out the arbitral proceedings themselves.

The establishment of this contractual nexus is fundamental. Even in ad hoc arbitrations where a comprehensive written document might not always be executed with the same formality as in institutional settings, the acceptance of an appointment by an arbitrator inherently creates a contractual relationship.³ However, best practice, particularly in international contexts, strongly dictates that these terms be recorded in writing. This written record serves to codify the mutual obligations of the arbitrator and the appointing parties, thereby minimizing ambiguity and providing a clear, accessible reference point throughout the arbitration. Such clarity is indispensable for managing expectations and addressing any potential disagreements concerning the arbitrator’s role, fees, or conduct.

Purpose and Critical Importance of Well-Defined Terms

The primary purpose of establishing clear Terms of Appointment is to inject certainty and predictability into the arbitrator-party relationship. They provide a mutually agreed framework that defines the arbitrator’s mandate, their duties, the basis for their remuneration, and key procedural aspects directly pertinent to their role.³ Well-defined terms are crucial for several reasons:

• Preventing Misunderstandings: They clearly articulate the expectations of all involved, reducing the likelihood of disputes arising over the arbitrator’s conduct or compensation.³
• Managing Expectations: Parties and arbitrators alike benefit from a clear understanding of time commitments, fee structures, and procedural obligations.
• Ensuring Arbitrator Effectiveness: Clear terms empower the arbitrator to manage the proceedings efficiently and with the confidence that their authority and responsibilities are well-defined.
• Safeguarding Integrity: Explicit provisions on independence, impartiality, and confidentiality reinforce the ethical underpinnings of the arbitral process.
• Enhancing Enforceability: While the Terms of Appointment primarily govern the arbitrator’s engagement, clarity in this foundational document contributes to the overall robustness and perceived fairness of the process, indirectly supporting the enforceability of the eventual award.

Meticulously drafted Terms of Appointment function as a proactive measure against ancillary disputes that can arise concerning the arbitrator’s engagement itself. In the absence of such clarity, issues related to fees, the scope of the arbitrator’s duties, disclosure obligations, or potential liability can become new points of contention. These ancillary disputes can derail the primary arbitration, escalate costs, and erode the parties’ trust in the process. By addressing these critical aspects comprehensively and upfront, the Terms of Appointment ensure that the focus remains on the substantive resolution of the underlying commercial dispute. This is particularly vital in international arbitration, where parties often hail from diverse legal and cultural backgrounds, bringing with them varied expectations about the arbitral process and the role of the arbitrator.

2. Essential Components of an International Arbitrator’s Terms of Appointment

A comprehensive set of Terms of Appointment for an international arbitrator should address a range of critical elements to ensure clarity, fairness, and the smooth conduct of the arbitration. These components form the contractual backbone of the arbitrator’s engagement.

2.1. Identification of the Parties and the Arbitrator(s)

The Terms of Appointment must begin by clearly and accurately identifying all participants. This includes the full legal names, registered addresses, and primary contact details (email, telephone) of each party to the arbitration agreement (Claimant(s) and Respondent(s)).¹ Similarly, the full name, professional address, and contact details of each appointed arbitrator must be stated, along with their designated role (e.g., sole arbitrator, co-arbitrator, presiding arbitrator).³ For example, the template for ad hoc arbitration by William G. Horton explicitly requires setting out the names of the parties and their roles, as well as the arbitrator’s full details.⁶

This seemingly basic step is foundational. Precision in identifying the legal entities involved is not merely an administrative formality; it is crucial for the subsequent enforceability of any award rendered and for ensuring that all official communications, notices, and procedural orders are correctly directed throughout the arbitration. Any errors or ambiguities in the identification of parties could potentially create grounds for challenging the award or resisting its enforcement in national courts. For the arbitrator, correct identification is vital for their professional record and for interactions with arbitral institutions and the parties.

2.2. Reference to the Arbitration Agreement and Applicable Institutional/Ad Hoc Rules

The Terms of Appointment must explicitly reference the specific arbitration clause within the underlying contract, or the separate arbitration agreement, that empowers the arbitrator(s) to resolve the dispute.³ This section should also clearly identify the arbitral institution, if any, that will administer the arbitration (e.g., the International Chamber of Commerce (ICC), the London Court of International Arbitration (LCIA), the Singapore International Arbitration Centre (SIAC), the Hong Kong International Arbitration Centre (HKIAC)) and specify the particular version of its rules that will govern the proceedings.⁷ For instance, an ICC standard arbitration clause states, “All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce…”.⁷ If the arbitration is ad hoc, the Terms should specify the agreed-upon set of procedural rules, such as the UNCITRAL Arbitration Rules (and its applicable version) ⁸, or any bespoke procedures the parties have adopted. Sample clauses often incorporate such references, such as those providing for HKIAC or AAA rules.⁹

This clause effectively defines the “procedural universe” within which the arbitration will operate. The applicable arbitral rules dictate numerous aspects of the arbitrator’s powers, duties, the mechanics of their appointment, challenge procedures, and, in many institutional cases, the structure for their fees.¹ By explicitly stating these governing rules in the Terms of Appointment, all participants—arbitrator(s) and parties alike—formally acknowledge this framework from the outset. This preempts potential future disputes over which rules apply or how they should be interpreted concerning the arbitrator’s specific role and responsibilities.

2.3. Confirmation of the Arbitrator’s Mandate: Jurisdiction, Scope of Duties, and Powers

While the arbitration agreement and the applicable rules will broadly define the arbitrator’s jurisdiction, the Terms of Appointment should confirm the arbitrator’s understanding and acceptance of this mandate.³ This typically includes a brief, neutral description of the dispute submitted to arbitration. More importantly, it confirms the arbitrator’s core duties and powers. These include the duty to conduct the proceedings fairly, impartially, and efficiently; the power to rule on their own jurisdiction (the principle of Kompetenz-Kompetenz) ¹⁰; the power to determine the applicable procedure (unless otherwise agreed by the parties or prescribed by mandatory rules) ¹⁰; the power to grant interim or conservatory measures, if so empowered by the applicable rules or law ¹⁰; the power to summon witnesses and order the production of evidence, often with the assistance of national courts if necessary ¹⁰; and the ultimate duty to render a final, binding, and typically reasoned award.¹⁰

The clear articulation of the arbitrator’s mandate serves a dual purpose. It acts as the arbitrator’s “sword,” empowering them to effectively manage the case, issue necessary procedural orders, and guide the dispute towards a resolution. Concurrently, it functions as a “shield,” as it delineates the boundaries of their authority. An arbitrator who acts ultra petita (beyond the scope of the issues submitted to them) or extra petita (deciding on matters not submitted at all) risks having their award challenged or annulled. Confirming this understanding of the mandate within the Terms of Appointment helps ensure an alignment of expectations between the arbitrator and the parties regarding the scope of the arbitrator’s decision-making authority.

2.4. Arbitrator’s Declarations: Independence, Impartiality, Availability, Competence, and Ongoing Disclosure Obligations

This is arguably the most critical section concerning the arbitrator’s personal undertakings and is a cornerstone of modern international arbitration practice. The arbitrator must make several key declarations:

• Independence and Impartiality: A clear statement that the arbitrator is, and will remain, independent of the parties, their counsel, any co-arbitrators, and any other relevant entities (such as third-party funders, if known). They must also declare their impartiality with respect to the subject matter of the dispute.⁵ The IBA Rules of Ethics and the IBA Guidelines on Conflicts of Interest in International Arbitration provide detailed standards for assessing these qualities.¹²
• Availability: A confirmation that the arbitrator has sufficient time and availability to dedicate to the arbitration proceedings, including attending hearings, conducting deliberations, and drafting the award in an expeditious manner, as reasonably expected by the parties and any administering institution.⁵
• Competence: An affirmation that the arbitrator possesses the necessary competence, including legal knowledge, relevant industry experience (if applicable), and language proficiency, to determine the issues in dispute.¹²
• Ongoing Duty of Disclosure: A crucial undertaking by the arbitrator to promptly disclose to the parties and any administering institution any facts or circumstances that may arise during the course of the arbitration that could give rise to justifiable doubts as to their independence or impartiality.¹² This duty is continuous, from pre-appointment inquiries through to the final award. Reference to adherence with the latest version of the IBA Guidelines on Conflicts of Interest in International Arbitration is considered best practice. Many institutional rules, like those of the ICC, require a formal signed statement covering these points.⁵

The duty of disclosure is not a static, one-time event at the moment of appointment; it is a dynamic and ongoing obligation that persists throughout the entire arbitral process. An arbitrator’s personal or professional circumstances can change (e.g., their law firm might merge with another firm that has a relationship with one of the parties, or their firm might take on a new client that creates an unforeseen connection). The continuing nature of this duty ensures that any new information that could potentially be perceived as a conflict is brought to the attention of the parties and the institution without delay.

The 2024 IBA Guidelines on Conflicts of Interest in International Arbitration reinforce a nuanced approach often referred to as the “double test” for disclosure and conflicts.¹⁵ Firstly, there is a subjective test for what must be disclosed: an arbitrator should disclose any facts or circumstances which, in the eyes of the parties, might give rise to doubts as to their impartiality or independence. This means erring on the side of transparency, even if the arbitrator personally believes the matter is trivial or does not constitute an actual conflict. Secondly, there is an objective test for what constitutes a disqualifying conflict: whether a reasonable third person, having knowledge of all relevant facts, would reach the conclusion that there are justifiable doubts as to the arbitrator’s impartiality or independence. An arbitrator might therefore disclose a matter under the subjective test that does not ultimately lead to disqualification under the objective test. This system promotes maximum transparency, allowing parties to make informed assessments and voice any concerns, thereby strengthening the award against subsequent challenges based on alleged bias or lack of independence. The 2024 IBA Guidelines also introduced General Standard 3(e), which provides that an arbitrator should decline an appointment or resign if they are required to make a disclosure but are prevented from doing so by professional secrecy rules or other rules of practice or professional conduct.¹⁵ This underscores that the integrity of the arbitral process, which relies on full transparency regarding potential conflicts, may take precedence over an individual’s appointment if such transparency cannot be achieved.

2.5. Remuneration and Expenses

Clear and comprehensive terms regarding the arbitrator’s fees and the reimbursement of expenses are vital to prevent misunderstandings and potential disputes. This section should be detailed, especially in ad hoc arbitrations where institutional fee schedules do not apply.

2.5.1. Fee Structures

The method for calculating the arbitrator’s fees must be explicitly stated. Common structures include:

• Hourly or Daily Rates: This is the most prevalent method in ad hoc arbitrations and is also used by some institutions like the LCIA (which sets a maximum hourly rate, e.g., £650 as of December 2023).³ The specific rate(s) should be clearly defined. It is also common to specify if different rates apply for different types of work (e.g., hearing days, travel days, preparation/deliberation/award-writing days). In a three-member tribunal, the presiding arbitrator may sometimes command a higher rate due to their additional responsibilities.
• Ad Valorem Basis: Some institutions, notably the ICC, calculate arbitrator fees based on a percentage of the monetary value of the claims and counterclaims in dispute.²⁴ The institution’s rules and fee scales will govern this, and the Terms of Appointment would typically acknowledge adherence to this system.
• Fixed Fee: Less commonly, a single fixed fee for the entire arbitration may be agreed upon in advance.³ This is more feasible for disputes with a clearly defined and limited scope.

2.5.2. Reimbursement of Expenses

The Terms should confirm that the arbitrator will be reimbursed for all reasonable and properly vouched out-of-pocket expenses incurred in connection with the arbitration.3 Examples include:

• Travel expenses (specifying the class of travel, e.g., business class for international flights).
• Accommodation and subsistence costs during hearings or meetings.
• Communication costs (e.g., international calls, courier services).
• Costs of printing, photocopying, and materials.
• Fees for administrative or secretarial assistance, if agreed separately and not covered by the arbitrator’s own overheads.
• Costs associated with hearing room rentals, if not provided by an institution or borne directly by the parties. The Horton ad hoc template, for example, allows the arbitrator to recover reasonable charges for necessarily incidental costs.⁶

2.5.3. Payment Terms

This sub-section should detail the mechanics of payment:

• Advances or Deposits: It is standard practice, particularly in ad hoc arbitrations, for parties to pay an advance or deposit to cover the arbitrator’s anticipated fees and expenses for initial stages of the work.³ The amount of the deposit, how it will be held (e.g., by the arbitral institution, or in the arbitrator’s designated client/trust account as in the Horton template ⁶), and the mechanism for replenishment if it is depleted should be specified. Institutional rules, like those of the ICC, have established systems for advances on costs.²⁴ It is also common to state that the parties are jointly and severally liable for the arbitrator’s fees and expenses, meaning the arbitrator can seek payment from any party if another defaults.³
• Interim Payments: The schedule for interim invoicing should be outlined (e.g., monthly, quarterly, or upon completion of specific milestones). Payment deadlines for such invoices (e.g., within 30 days) should also be included.³
• Final Account: The procedure for the arbitrator rendering a final account for all fees and expenses upon the conclusion of the arbitration should be described.
• Currency: The currency in which fees and expenses are to be calculated and paid must be specified (e.g., USD, EUR, GBP).
• Taxes: The Terms should clarify how Value Added Tax (VAT) or other applicable taxes on the arbitrator’s fees will be handled (e.g., whether the quoted rates are inclusive or exclusive of VAT, and which party is responsible for bearing such taxes).³
• Cancellation or Commitment Fees: To protect the arbitrator’s time, especially for scheduled hearing dates, it is common to include provisions for cancellation or commitment fees if hearings are cancelled or postponed by the parties with insufficient notice.³ The Horton template includes specific terms for such fees.⁶
• Early Termination or Settlement: The Terms should address how the arbitrator’s fees and expenses will be calculated and paid if the arbitration is terminated early due to settlement or withdrawal of claims before a final award is rendered.³

The establishment of clear and comprehensive fee terms is not merely for the arbitrator’s financial security; it is fundamental to maintaining the parties’ trust and confidence in the financial probity and management of the arbitration. Ambiguity or disputes over arbitrator fees can create a negative atmosphere, distract from the substantive issues, and, in extreme cases, even lead to challenges against the arbitrator or difficulties in the enforcement of the award. By detailing rates, expense policies, advance payment mechanisms, cancellation policies, and the treatment of taxes, both the arbitrator and the parties operate with a shared understanding from the commencement of the proceedings. This transparency minimizes the potential for surprises or grievances, allowing the arbitration to proceed with a focus on the merits of the dispute. For example, the inclusion of a joint and several liability clause for fees ³ provides crucial protection for the arbitrator in the event one party becomes unwilling or unable to meet its share of the costs.

2.6. Procedural Framework (Confirmation of Key Elements)

The Terms of Appointment should confirm the key elements of the procedural framework within which the arbitration will be conducted.

• 2.6.1. Seat of Arbitration: The legal place (seat) of the arbitration must be confirmed.¹ The seat is critical as it determines the lex arbitri (the procedural law governing the arbitration), the extent of national court supervision and support, and the jurisdiction for any action to set aside the arbitral award.²⁵
• 2.6.2. Language of the Arbitration: The language (or languages) to be used in written submissions, correspondence, and oral hearings should be confirmed.¹
• 2.6.3. Governing Law: While the arbitrator does not determine the governing law unless empowered to do so by the parties or applicable rules, the Terms of Appointment may acknowledge the parties’ agreement on the law governing the substantive contract, the law governing the arbitration agreement itself (which can be different), and the procedural law of the arbitration (largely determined by the seat and any institutional rules).⁷

The choice of the seat of arbitration serves as the legal anchor for the entire process. It has profound and far-reaching implications, influencing the procedural conduct, the availability of interim measures from national courts, the grounds upon which an award may be challenged, and ultimately, the international enforceability of the award under conventions like the New York Convention. By confirming the seat in the Terms of Appointment, the arbitrator formally acknowledges the specific legal environment in which they will be operating and making decisions. It is important to distinguish the legal seat from the physical venue of hearings, although they can coincide. Parties may choose a neutral and arbitration-friendly seat even if hearings are conducted elsewhere for convenience.

2.7. Confidentiality Obligations of the Arbitrator

The arbitrator should undertake to maintain the confidentiality of all aspects of the arbitration proceedings.¹⁰ This includes the existence of the arbitration (unless publicly known), the evidence and documents disclosed, the deliberations of the arbitral tribunal, and the content of any orders or awards issued. This duty is typically subject to exceptions, such as disclosure required by law, for the purpose of enforcing or challenging an award, or if all parties expressly consent to disclosure.²⁷

Arbitrators frequently navigate a delicate balance between their comprehensive duty of disclosure regarding potential conflicts of interest and their equally important duty to maintain confidentiality concerning other arbitrations in which they may have been involved.¹⁹ For instance, an arbitrator may have previously served in a case involving counsel for one of the current parties. While the fact of this prior service is generally disclosable (and often required under guidelines like the IBA’s), revealing specific, non-public details of that confidential arbitration would constitute a breach of their confidentiality obligations in that prior matter. The Terms of Appointment should clearly reflect the arbitrator’s commitment to upholding confidentiality, while institutional rules and ethical guidelines (such as the IBA Guidelines on Conflicts of Interest in International Arbitration ¹²) provide frameworks for making necessary disclosures about relationships or prior involvement without improperly divulging confidential information from other proceedings. This requires careful judgment and adherence to professional ethical standards.

2.8. Liability and Immunity of the Arbitrator

Provisions regarding the arbitrator’s liability and immunity are standard in Terms of Appointment. These typically state that the arbitrator will not be liable for any act or omission in connection with the arbitration, except in cases of proven bad faith, willful misconduct, or conscious and reckless disregard of their legal obligations.³ Reference should be made to any applicable statutory immunity (e.g., under the English Arbitration Act 1996 or the recently discussed Arbitration Act 2025 ²⁰) or immunity provisions within institutional rules. Some argue against overly broad immunity, particularly for negligence, on the basis that arbitrators are engaged contractually.²⁸

The landscape of arbitrator immunity, while traditionally robust, is subject to ongoing legal development and, in some jurisdictions, statutory codification.²⁰ The fundamental rationale for arbitrator immunity is to enable arbitrators to perform their quasi-judicial functions freely and decisively, without the fear of personal lawsuits stemming from their decisions, akin to the immunity enjoyed by national court judges. However, a distinction is often drawn: judges are state-appointed officials serving a public function, whereas arbitrators are typically chosen and compensated by private parties under a contractual arrangement.²⁸ This distinction has fueled debates about the appropriate scope of arbitrator immunity, particularly concerning liability for negligence. The prevailing trend, as seen in legislative reforms like the UK’s Arbitration Act 2025 ²⁰, is to codify and often enhance immunity for arbitrators acting in good faith, while explicitly retaining liability for more egregious conduct such as bad faith or deliberate wrongdoing. Absolute immunity is rare. The Terms of Appointment should therefore accurately reflect the prevailing legal standard or the specific provisions of the applicable institutional rules. Arbitrators should exercise caution regarding clauses that might attempt to grant immunity that is excessively broad, especially concerning simple negligence, as such clauses can be contentious and are criticized in some quarters.²⁸

2.9. Administrative Arrangements (Secretarial support, hearing facilities, communication protocols)

This section outlines the practical administrative support for the arbitration.

• Secretarial Support: It should clarify whether the arbitrator will utilize their own personal assistant for administrative tasks (the cost of which is usually subsumed in their fees) or if a formal tribunal secretary will be appointed. If a tribunal secretary is contemplated, the Terms should address how they will be selected, their qualifications, conflict checks, remuneration, and the scope of tasks they may perform, ensuring no delegation of the arbitrator’s decision-making functions.²⁹ The ICC, for instance, has specific notes on the appointment and duties of administrative secretaries.²⁹
• Hearing Facilities: Arrangements for hearing facilities should be mentioned, e.g., whether they will be provided by an arbitral institution ³⁰, rented by the parties, or if the arbitrator has suitable facilities.
• Communication Protocols: Clear protocols for communications between the arbitrator(s), the parties, and their counsel are essential.³¹ This typically includes stipulating that all substantive communications should be copied to all parties and all members of the tribunal simultaneously, and often designates a primary channel for communications (e.g., a specific email address or through a case manager at an institution).

The use of tribunal secretaries has become increasingly common as a means to enhance the efficiency of arbitral proceedings, particularly in complex and document-heavy cases. A well-qualified secretary can significantly assist the tribunal with organizational tasks, managing correspondence and documents, conducting legal research, and even preparing drafts of non-substantive parts of procedural orders or sections of the award, thereby freeing up the arbitrators’ time to focus on core adjudicative functions.²⁹ However, the appointment and role of a tribunal secretary must be managed with care to address potential concerns regarding improper delegation of the arbitrator’s essential decision-making responsibilities and the associated costs. The Terms of Appointment, or a subsequent procedural order issued after consultation with the parties, should transparently address the process for selecting a tribunal secretary (including necessary conflict checks, which should be as rigorous as those for arbitrators), the basis for their remuneration (and who bears this cost), and a clearly defined list of tasks they are permitted to perform. Party consent to the appointment and role of a tribunal secretary is highly advisable to maintain confidence in the process.

2.10. Provisions for Resignation, Removal, and Replacement of the Arbitrator

The Terms should reference the applicable institutional rules or agreed ad hoc procedures that govern an arbitrator’s resignation (e.g., whether institutional consent is required, as under ICC Rules ³⁵), the grounds and procedure for challenging and removing an arbitrator, and the process for appointing a substitute arbitrator if a vacancy arises.⁵

The continuity of arbitral proceedings is paramount. The departure of an arbitrator before the conclusion of a case, whether due to resignation, death, successful challenge, or other reasons, can cause significant disruption, delays, and increased costs for the parties. Therefore, clear and effective provisions for the replacement of an arbitrator are vital. Most institutional rules, such as those of the ICC ⁵, contain detailed mechanisms addressing how and when an arbitrator may be replaced and the procedure for appointing a successor. In ad hoc arbitrations, where no such institutional framework automatically applies, it is particularly important that the Terms of Appointment, or the initial arbitration agreement itself, anticipate the possibility of an arbitrator needing to be replaced and outline a clear procedure. This should include how a substitute arbitrator will be selected (e.g., by the parties, by the remaining arbitrators, or by an agreed appointing authority) and address the critical question of whether, and to what extent, prior stages of the proceedings (such as hearings already conducted) need to be repeated before the newly constituted tribunal.³⁵

2.11. Modification of Terms

It is advisable to include a clause stating that any amendments or modifications to the Terms of Appointment must be made in writing and signed by all parties and the arbitrator(s).³

Given that the Terms of Appointment form a contract between the arbitrator(s) and the appointing parties, the integrity of this agreement must be maintained. Any subsequent changes to these terms, therefore, should only be made with the mutual consent of all signatories. Circumstances can evolve during the course of an arbitration, which may sometimes be lengthy. For example, the scope of the dispute might expand significantly due to the introduction of new claims or counterclaims, or unforeseen complexities may arise that require a greater investment of the arbitrator’s time and resources than initially anticipated. In such situations, a review of certain terms, such as the fee arrangements or the timeline, might be warranted. A modification clause ensures that any such changes are formally discussed, acknowledged, and agreed upon by everyone involved, preventing unilateral alterations and preserving the validity and enforceability of the Terms of Appointment as a whole.

3. Negotiating Terms of Appointment: A Practical Guide for New International Arbitrators

For new and aspiring international arbitrators, the process of negotiating and finalizing Terms of Appointment can be as crucial as it is challenging. A well-structured approach, beginning with thorough diligence and understanding key negotiation points, can set the stage for a successful mandate.

3.1. Pre-Appointment Diligence: The Foundation of a Successful Mandate

Before an arbitrator even considers discussing or negotiating specific terms, comprehensive pre-appointment diligence is paramount. This foundational step involves more than a cursory review of the case; it requires a deep and honest assessment of various factors:

• Conflict Checks: This is the foremost duty. A prospective arbitrator must conduct exhaustive checks for any past or present relationships – professional, financial, personal, or social – with the parties involved in the dispute, their legal counsel, parent companies or significant affiliates, any known key witnesses, other members of the arbitral tribunal (if already identified), and even third-party funders if their identity is disclosed.¹⁸ This involves meticulously searching personal records, law firm databases (if applicable), and publicly available information. The IBA Guidelines on Conflicts of Interest in International Arbitration (particularly the 2024 version) provide detailed Application Lists (Non-Waivable Red List, Waivable Red List, Orange List, Green List) and General Standards that are indispensable in this process.¹³ Any potential issue, however remote it may seem, should be identified.
• Assessing Suitability and Competence: The arbitrator must candidly evaluate whether they possess the requisite legal expertise, specific industry knowledge (if the dispute is technical, e.g., construction, energy, intellectual property), and language skills necessary to effectively adjudicate the particular dispute presented.¹² Accepting an appointment for which one is not adequately qualified can undermine the entire process. A review of the nature and complexity of the dispute, often gleaned from initial communications or a Request for Arbitration, is essential.³⁷
• Understanding Case Complexity and Scope: An effort should be made to gather preliminary information about the dispute’s subject matter, the approximate amount in dispute, the number of parties involved, and the likely procedural complexity (e.g., anticipated volume of documents, number of witnesses, potential for jurisdictional challenges).³⁷ This helps in gauging the potential workload and time commitment.
• Availability: One of the most critical yet often underestimated aspects is a realistic assessment of one’s current and anticipated future commitments. The arbitrator must be confident they can dedicate sufficient time and attention to the arbitration, including timely review of submissions, participation in procedural conferences and hearings, thorough deliberations, and the expeditious drafting of the award.⁵ Over-commitment is a common pitfall and can lead to delays and party dissatisfaction.
• Review of Arbitration Agreement and Applicable Rules: The prospective arbitrator must carefully scrutinize the arbitration clause in the underlying contract or the separate arbitration agreement. It is also vital to identify and review any applicable institutional rules (e.g., ICC, LCIA, SIAC) or ad hoc procedural rules (e.g., UNCITRAL Arbitration Rules) that will govern the proceedings, as these often contain specific provisions regarding arbitrator qualifications, appointment procedures, duties, and sometimes fee structures.³⁹

Being transparent and forthright about any potential, even borderline, conflicts of interest or limitations (such as upcoming extended unavailability) during these pre-appointment discussions can be a powerful tool. While it might seem counterintuitive, proactive disclosure, as advocated by the IBA Guidelines ¹², builds trust with the parties and any appointing institution from the outset. Parties are more likely to perceive an arbitrator who makes full and frank disclosures as ethical and reliable. This can, in turn, make them more receptive and reasonable when discussing other terms of the appointment, such as fees or procedural matters. Conversely, a failure to disclose a relevant circumstance that comes to light later can severely damage the arbitrator’s credibility, potentially leading to challenges, the derailment of the appointment, or even the annulment of an award. Thus, erring on the side of disclosure ¹⁹ is not just an ethical imperative but also a strategically sound approach.

3.2. Key Negotiation Points for the Arbitrator

Once pre-appointment diligence is complete and the arbitrator is provisionally satisfied with their suitability and ability to serve, the focus shifts to the specific terms of engagement. For new arbitrators, several areas warrant careful attention:

3.2.1. Fees and Expenses

This is often the most sensitive and challenging aspect of negotiation, particularly for those newer to the role.

• Institutional Context: In arbitrations administered by major institutions, the fee structure is often largely predetermined. For example, the ICC typically uses an ad valorem scale, where arbitrator fees are calculated based on the amount in dispute, subject to the ICC Court’s oversight and potential adjustment.²⁴ The LCIA, on the other hand, operates on an hourly rate basis for arbitrators, though these rates are subject to LCIA approval and a maximum cap (e.g., £650 per hour as of December 2023).²² In such cases, the arbitrator’s “negotiation” is more about understanding and confirming their acceptance of the institution’s established fee policy rather than setting an independent rate. The primary document here is the arbitrator’s signed Statement of Acceptance, Availability, Impartiality, and Independence, which includes an acceptance of the institution’s fee arrangements.
• Ad Hoc Context: Ad hoc arbitrations offer significantly more scope for direct negotiation of fees between the arbitrator and the parties.³ New arbitrators should:
  • Research Market Rates: Investigate prevailing hourly or daily rates for arbitrators with comparable experience levels, handling cases of similar complexity, quantum, and in the relevant geographic or industry sector. Online resources, peer networks, and publications from arbitral bodies can provide guidance.
  • Justify Proposed Rate: Be prepared to articulate the basis for the proposed rate, referencing experience, specific expertise relevant to the dispute, and the anticipated demands of the case.
  • Differentiate Work: Consider whether to propose different rates for different types of work (e.g., a rate for hearing days, a rate for travel time, and a rate for reading, research, deliberation, and award writing).
  • Clarity on “All-inclusive” vs. Separate Expenses: Ensure it is unequivocally clear what the quoted fee covers (e.g., personal overheads) and what will be charged separately as reimbursable expenses (e.g., travel, accommodation, printing, courier).³
  • Advances and Deposits: Particularly in ad hoc cases, it is crucial to negotiate reasonable advance payments from the parties to cover anticipated fees and expenses for the initial phases of the arbitration and to ensure adequate cash flow.³ The mechanism for holding and replenishing these deposits should be agreed.
  • Cancellation/Postponement Fees: These are vital for protecting the arbitrator’s time. If parties cancel or postpone scheduled hearing days with little notice, it can significantly disrupt an arbitrator’s schedule and result in lost income from other potential engagements. The Terms should include a clear policy on cancellation fees, specifying the notice period required to avoid such fees and the amount or calculation method for the fee.³

3.2.2. Scope of Mandate and Availability

While the arbitration agreement defines the substantive scope, the arbitrator should ensure there is a shared understanding of the anticipated workload. If the case appears unusually complex, involves multiple parties, or is likely to be protracted, this should be discussed. The arbitrator must be realistic about their time commitments and clearly communicate their availability, ensuring they can meet procedural timetables and dedicate the necessary focus to the case without undue delay.12 Avoid over-committing, as this is a common source of party frustration.

3.2.3. Liability and Immunity

In most established arbitral seats and under major institutional rules, arbitrators benefit from a degree of immunity for acts performed in their arbitral capacity, typically excluding gross negligence, bad faith, or willful misconduct.20 In ad hoc arbitrations, it is important to ensure that the Terms of Appointment include a clause reflecting an appropriate level of immunity consistent with international best practice and the law of the seat. Arbitrators should be wary of, and generally resist, attempts by parties to impose overly broad liability or to waive standard immunities.

3.2.4. Administrative Support

If the arbitrator anticipates needing significant administrative support beyond their own personal capacity (e.g., for managing extensive documentation, organizing complex hearings, or assisting with research in a very large case), the potential appointment of a tribunal secretary should be discussed early, especially in ad hoc settings.29 The process for selecting a secretary, their terms of engagement (including fees and conflict checks), and how their costs will be covered must be agreed upon with the parties.

The negotiation of fees, availability, and the anticipated complexity of a case are not isolated discussions; they are interconnected. An arbitrator considering a highly complex, document-intensive case that will require a significant investment of their time and intellectual effort may be justified in proposing a higher fee (in an ad hoc setting where fees are negotiable) or, at a minimum, must be exceptionally clear and firm about their availability and the need to potentially limit other professional commitments to adequately serve the arbitration. Accepting a demanding case at a rate that does not reflect its complexity, or without clearly ring-fencing the necessary time, can lead to the arbitrator being overwhelmed, potentially resulting in delays, a lower quality of work, and dissatisfaction from the parties, which could even culminate in challenges. A holistic approach to negotiating these points allows the arbitrator to set realistic and sustainable expectations for both themselves and the appointing parties. For instance, if a case involves numerous parties, extensive counterclaims, and multiple rounds of expert evidence, the arbitrator should anticipate a more demanding schedule and ensure their terms of appointment (and fee, if negotiable) adequately reflect this increased burden.

3.3. Navigating Institutional vs. Ad Hoc Appointments: Key Differences in Term Negotiation

The context of the appointment—whether institutional or ad hoc—significantly shapes the negotiation landscape for an arbitrator’s terms.

• Institutional Arbitration:
  • Prescribed Terms: Many crucial terms, such as the method of fee calculation (e.g., ICC’s ad valorem system ²⁴, LCIA’s capped hourly rates ²²), procedures for challenging arbitrators, immunity provisions, and sometimes confidentiality standards, are often predetermined by the institution’s rules and policies.
  • Limited Direct Negotiation: The arbitrator’s direct negotiation with the parties on these fixed terms is usually minimal. Instead, the arbitrator confirms their acceptance of the institution’s established framework.
  • Statement of Acceptance: The primary “negotiable” aspects from the arbitrator’s side are conveyed through their signed Statement of Acceptance, Availability, Impartiality, and Independence (or similar document required by the institution).⁵ This is where the arbitrator confirms their ability to meet the time demands of the case and makes all necessary disclosures regarding potential conflicts.
  • Focus: The arbitrator’s main focus during the appointment phase in an institutional context is on thoroughly understanding the institution’s specific rules and disclosure standards, ensuring their availability aligns with the case’s anticipated needs, and making comprehensive conflict disclosures.
• Ad Hoc Arbitration:
  • Maximum Flexibility: Ad hoc arbitration provides the greatest degree of flexibility, allowing the parties and the arbitrator(s) to tailor almost all terms of appointment to the specific needs of the case.³
  • Direct Negotiation: Fees, payment schedules, cancellation policies, the scope of administrative support, specific confidentiality undertakings, liability/immunity clauses (within the bounds of applicable law), and procedures for resignation or replacement are all subject to direct negotiation.
  • Comprehensive Terms Document: Because there is no overarching institutional framework to rely on, a detailed and comprehensive written Terms of Appointment document is essential. This document becomes the primary charter for the arbitrator’s engagement.
  • Arbitrator Initiative: The arbitrator(s), particularly the presiding arbitrator in a three-member panel, often needs to take a more proactive role in proposing and finalizing these terms with the parties.

In institutional arbitration, the administering body provides a significant “safety net” and a detailed procedural and administrative framework. This reduces the burden on the arbitrator to negotiate many fundamental terms from scratch. However, in ad hoc arbitrations, this institutional support structure is absent. Consequently, the arbitrator (or the tribunal as a whole, once constituted) must assume a much greater degree of proactivity in ensuring that all necessary terms of appointment are thoroughly discussed, mutually agreed upon with the parties, and meticulously documented in a formal agreement.³ This includes addressing potentially contentious issues like fee structures, advance deposits, cancellation policies, arrangements for administrative or secretarial support if needed, the precise scope of confidentiality obligations, and the standards for arbitrator liability and immunity (consistent with the lex arbitri). Failure to comprehensively address these elements in an ad hoc setting can lead to significant procedural difficulties, misunderstandings, or disputes later in the proceedings, potentially jeopardizing the efficiency and integrity of the arbitration.

3.4. Common Challenges in Negotiation and How to Address Them

New arbitrators, in particular, may encounter certain challenges when discussing their Terms of Appointment:

• Fee Resistance: Parties, especially if unfamiliar with the arbitrator or seeking to minimize costs, may push back on proposed fee rates, particularly in ad hoc settings.
  • Strategy: Be prepared with a clear justification for the proposed rate, referencing market benchmarks for arbitrators of similar experience and for cases of comparable size and complexity. Highlight any specific expertise or qualifications that bring particular value to the dispute. While some flexibility may be appropriate, especially for a first-time appointment to gain experience, avoid significantly undervaluing your time and professional expertise. Clearly articulate the work involved in an international arbitration beyond just hearing days.
• Unclear Scope or Availability Mismatch: Parties may sometimes underestimate the time and effort required for a thorough arbitration, or their expectations regarding the arbitrator’s availability may be unrealistic.³⁸
  • Strategy: During pre-appointment discussions, ask detailed questions to gain a better understanding of the case’s potential complexity, the likely volume of submissions, the number of witnesses, the anticipated length of hearings, and any party expectations regarding the overall timeline. Based on this, be firm but fair in defining your availability and managing the parties’ expectations regarding your capacity to meet their desired schedule. It is better to decline an appointment than to accept it and then be unable to fulfill the time commitments.
• Attempts to Impose Onerous Liability or Limit Immunity: Occasionally, parties might propose terms that seek to impose a higher level of liability on the arbitrator than is standard or attempt to unduly restrict customary immunities.
  • Strategy: Politely but firmly decline terms that deviate significantly from established international norms and the protections afforded by applicable institutional rules or national arbitration laws (which typically grant immunity except for acts of bad faith or willful misconduct).²⁰ Reference to these standards can be persuasive.
• Disagreements on Cancellation Fees: Parties may be reluctant to agree to cancellation fees for hearings.
  • Strategy: Clearly explain the rationale: cancellation fees are not punitive but are intended to compensate the arbitrator for the loss of opportunity to undertake other work when specific dates have been reserved and then cancelled with insufficient notice.³ Propose a reasonable notice period (e.g., 30-60 days) and a fair fee structure for late cancellations.

While the arbitrator is offering a professional service, they are also entering into a significant professional engagement that carries substantial responsibilities and requires a considerable investment of their time and expertise. The negotiation of Terms of Appointment should therefore be a professional and respectful discussion aimed at achieving mutually acceptable terms that will facilitate the fair, efficient, and effective conduct of the arbitration.⁴⁴ An arbitrator should not feel unduly pressured to accept terms that they consider unreasonable, unworkable, or that could compromise their ability to discharge their duties properly. If parties are overly aggressive in seeking to reduce fees to an unrealistic level, or if they attempt to impose unusual or onerous liability clauses, it might serve as an early indicator of potential difficulties in managing the arbitration itself. A new arbitrator should be prepared to decline an appointment if fair and professional terms that uphold the integrity of the arbitral process cannot be agreed upon. Maintaining a professional demeanor and clearly articulating the reasons behind certain requested terms (such as cancellation fees or the need for adequate deposits in ad hoc cases) is key to a constructive negotiation.

3.5. Table: Checklist for New Arbitrators Before Accepting an Appointment

To assist new arbitrators in navigating the critical pre-appointment phase, the following checklist outlines key considerations:

4. Sample Template: Terms of Appointment for an International Arbitrator

The following template is provided as a comprehensive model for Terms of Appointment, particularly suitable for an ad hoc international arbitration. It should be adapted to the specific circumstances of each case. Where the arbitration is administered by an institution (e.g., ICC, LCIA, SIAC, HKIAC), many of these provisions may be supplemented or superseded by the institution’s rules and standard practices, and the arbitrator will typically be required to sign the institution’s standard form of acceptance and declaration. Notes are included to indicate areas for particular attention or modification.

TERMS OF APPOINTMENT OF ASARBITRATOR

Case Reference (if any): [Insert if applicable]

Date:

Between:

1. [Full Legal Name of Claimant]
   Represented by:
   (hereinafter “Claimant”)

2.    

• Represented by:
  (hereinafter “Respondent”)
  (Claimant and Respondent hereinafter collectively referred to as “the Parties”)

And:

• [Arbitrator’s Full Legal Name]
  (hereinafter “the Arbitrator” or, if a three-member tribunal, specify role, e.g., “the Presiding Arbitrator” / “Co-Arbitrator appointed by [Party]”)

Preamble:

A. Disputes have arisen between the Claimant and the Respondent (collectively, “the Disputes”) in connection with concerning”].

B. The Parties have agreed to resolve the Disputes by arbitration pursuant to an arbitration agreement contained in”] OR”] (hereinafter “the Arbitration Agreement”). A copy of the Arbitration Agreement is attached hereto as Annex 1.

C. The Parties have agreed to appoint the Arbitrator appointed by Claimant, [Name] appointed by Respondent, and [Arbitrator’s Full Name] appointed as Presiding Arbitrator by [Method of appointment, e.g., agreement of the co-arbitrators / by [Appointing Authority]]”] to determine the Disputes.

NOW IT IS HEREBY AGREED as follows:

1. Acceptance of Appointment

1.1. The Arbitrator accepts the appointment to act asArbitrator to determine the Disputes in accordance with these Terms of Appointment, the Arbitration Agreement, and the agreed procedural rules.

Note: In institutional arbitration, acceptance is often formalized by signing the institution’s Statement of Acceptance.

2. Arbitrator’s Declarations

2.1. Independence and Impartiality: The Arbitrator declares that, to the best of their knowledge, there are no facts or circumstances, past or present, that would give rise to justifiable doubts as to their independence or impartiality in the eyes of the Parties. The Arbitrator confirms their independence from the Parties, their counsel, any affiliates, and (if applicable) other members of the Arbitral Tribunal. The Arbitrator undertakes to remain independent and impartial throughout the arbitral proceedings. The Arbitrator’s signed Statement of Independence and Impartiality, making reference to the IBA Guidelines on Conflicts of Interest in International Arbitration (current version), is attached hereto as Annex 2. 3

2.2. Ongoing Duty of Disclosure: The Arbitrator undertakes to immediately disclose in writing to the Parties and (if applicable) to other members of the Arbitral Tribunal and any administering institution any facts or circumstances of a similar nature that may arise during the course of the arbitration. 12

2.3. Availability: The Arbitrator confirms that they have sufficient time and availability to devote to this arbitration to ensure its diligent, efficient, and expeditious conduct, including attending hearings on dates to be agreed, conducting deliberations, and preparing any orders and the award(s). 3

2.4. Competence: The Arbitrator confirms that they possess the necessary qualifications, experience, and competence to determine the issues in dispute, including an adequate knowledge of the language of the arbitration. 3

3. Scope of Mandate

3.1. The Arbitrator’s mandate is to determine the Disputes submitted by the Parties in accordance with the Arbitration Agreement, the applicable procedural rules, and the governing law(s).

3.2. The Arbitrator shall have all powers conferred upon them by the Arbitration Agreement, the applicable procedural rules, and any mandatory provisions of the law of the seat of arbitration, including but not limited to the power to rule on their own jurisdiction (Kompetenz-Kompetenz), determine the procedure, order interim measures, and render a final and binding award. 10

4. Procedural Matters

4.1. Seat of Arbitration: The seat of the arbitration shall be [City, Country]. 1

4.2. Language of Arbitration: The language of the arbitration shall be [Language]. 1

4.3. Applicable Procedural Rules: The arbitration shall be conducted in accordance with Arbitration Rules ([Year] version)” or “such other ad hoc procedures as may be agreed by the Parties and the Arbitrator”]. 8

4.4. Governing Law: The Arbitrator acknowledges the Parties’ agreement (if any) that the substantive law governing the contract is, the law governing the Arbitration Agreement is, and the procedural law of the arbitration is primarily that of the seat. 9

Note: The Arbitrator does not determine these laws unless specifically empowered.

5. Fees

5.1. The Arbitrator’s fees shall be calculated at an hourly rate of[Amount] per hour for all time properly spent on the arbitration, including but not limited to:

(a) Reading case materials and submissions;

(b) Correspondence and communications;

(c) Preparation for, attendance at, and conduct of procedural conferences and hearings;

(d) Deliberations with co-arbitrators (if applicable);

(e) Research and legal analysis;

(f) Drafting of procedural orders, decisions, and the award(s).

3

Alternative for daily rate: The Arbitrator’s fees shall be calculated at a daily rate of [Currency][Amount] for each day or part thereof spent on hearings or meetings, and [Currency][Amount] per hour for all other work.

Note: In institutional arbitration, fees are typically determined by the institution’s rules and scales, e.g., ICC ad valorem 24, LCIA hourly rates with caps.22 This clause would then refer to the institution’s fee policy.

5.2. The Arbitrator shall maintain contemporaneous records of time spent.

6. Expenses

6.1. The Arbitrator shall be reimbursed for all reasonable and vouched out-of-pocket expenses properly incurred in connection with this arbitration, including but not limited to:

(a) Travel expenses (e.g., airfare, rail, local transport);

(b) Accommodation and reasonable subsistence costs when away from their normal place of residence for the purposes of the arbitration;

(c) Costs of telephone calls, courier services, printing, and photocopying;

(d) Fees for hearing rooms or necessary equipment, if not provided by an institution or borne directly by the Parties;

(e) Costs of administrative or secretarial assistance specifically engaged for this arbitration, if agreed with the Parties in advance.

3

7. Payment Terms

7.1. Deposits/Advances:

(a) Upon signature of these Terms of Appointment, the Parties shall jointly and severally pay to the Arbitrator an initial deposit of [Currency][Amount] to cover anticipated fees and expenses. This deposit shall be held by the Arbitrator in. 3

(b) The Arbitrator may request further deposits from time to time as reasonably required to cover future fees and expenses, providing at least [e.g., 14] days’ notice.

(c) The Arbitrator shall not be obliged to proceed with the arbitration or issue any award if requested deposits are not paid in full.

Note: In institutional arbitration, deposits are managed by the institution.24

7.2. Invoicing: The Arbitrator shall render interim invoices [e.g., monthly/quarterly/upon completion of milestones] detailing fees accrued and expenses incurred. A final invoice will be rendered upon conclusion of the arbitration.

7.3. Payment Deadline: All invoices shall be payable by the Parties jointly and severally within [e.g., 30] days of receipt.

7.4. Currency: All fees and expenses shall be invoiced and paid in.

7.5. Taxes: The Arbitrator’s fees are [exclusive/inclusive] of any applicable Value Added Tax (VAT) or other similar taxes. If applicable, such taxes will be added to the invoices and are payable by the Parties. The Parties shall be responsible for any withholding taxes, if applicable under relevant law. 3

7.6. Cancellation Fees: In the event that any scheduled hearing day(s) are cancelled or postponed by the Parties with less than [e.g., 30] days’ written notice to the Arbitrator, a cancellation fee of[Amount] per cancelled day”] shall be payable by the Party/Parties requesting the cancellation/postponement, unless the Arbitrator is able to mitigate this loss by securing alternative work for the reserved dates. 3

7.7. Late Payment: Interest at a rate of may be charged on any overdue amounts.

8. Confidentiality

8.1. The Arbitrator undertakes to keep confidential all matters relating to the arbitration proceedings, including all documents, evidence, deliberations, and the award(s), and shall not disclose them to any third party without the prior written consent of all Parties or as may be required by applicable law or for the purpose of enforcing or challenging an award. 10

9. Liability and Immunity

9.1. The Arbitrator shall not be liable to any Party for any act or omission in connection with this arbitration, save for the consequences of conscious and deliberate wrongdoing or bad faith. The Arbitrator shall have such immunity as is provided under the law of the seat of arbitration and any applicable institutional rules. 6

9.2. The Parties agree not to call the Arbitrator as a witness in any court or other proceedings relating to this arbitration or the award(s).

10. Administrative Assistance

10.1. [Optional: If a tribunal secretary is contemplated] The Arbitrator may, after consultation with the Parties, appoint an administrative secretary to assist with organizational and administrative tasks. The terms of the secretary’s appointment, including remuneration and scope of duties (which shall not involve any delegation of the Arbitrator’s decision-making functions), shall be subject to the Parties’ agreement. The costs of such a secretary shall be. 29

11. Communication Protocol

11.1. All communications between the Parties and the Arbitrator, and between the Arbitrator and any co-arbitrators, relating to the substance of the dispute shall be made in writing and copied simultaneously to all Parties and all members of the Arbitral Tribunal (if applicable).

11.2. Communications may be made by email to the addresses specified herein, unless otherwise directed.

12. Resignation and Replacement

12.1. In the event the Arbitrator resigns, is removed, or becomes unable to act, a substitute arbitrator shall be appointed in accordance with. 5

Note: Institutional rules will govern this process in administered arbitrations.

13. Modification of Terms

13.1. These Terms of Appointment may only be modified by written agreement signed by all Parties and the Arbitrator. 3

14. Entire Agreement

14.1. These Terms of Appointment (including its Annexes) constitute the entire agreement between the Parties and the Arbitrator with respect to the Arbitrator’s appointment and supersede all prior discussions, negotiations, and understandings.

Agreed and Signed:

For and on behalf of Claimant:

Name:

Title:

Date:

For and on behalf of Respondent:

Name:

Title:

Date:

The Arbitrator:

[Arbitrator’s Full Name]

Date:

Annexes:

Annex 1: Copy of the Arbitration Agreement

Annex 2: Arbitrator’s Signed Statement of Independence and Impartiality (incorporating availability and competence declarations)

Disclaimer: This sample template is for informational purposes only and does not constitute legal advice. It should be adapted by qualified legal professionals to the specific circumstances of each case and the applicable legal and regulatory framework.

5. Conclusion

The Terms of Appointment for an international arbitrator are far more than a mere administrative formality; they are the indispensable blueprint that defines and governs the arbitrator’s engagement. Meticulously drafted and carefully negotiated terms are paramount for the smooth, efficient, and fair conduct of international arbitration proceedings. They provide essential clarity on the arbitrator’s mandate, independence, impartiality, availability, and remuneration, thereby minimizing the potential for misunderstandings or ancillary disputes that could otherwise derail the primary objective of resolving the parties’ substantive conflict.

Upholding the highest ethical standards is intrinsic to the role of an international arbitrator. Clear declarations of independence and impartiality, coupled with a steadfast commitment to ongoing disclosure obligations as emphasized by guidelines such as those from the IBA, are fundamental to maintaining the legitimacy and integrity of the arbitral process. Well-defined terms foster an environment of trust and cooperation between the arbitrator(s) and the parties. They ensure that all participants have a shared understanding of the procedural framework, financial arrangements, and expectations concerning the arbitrator’s conduct and responsibilities.

Ultimately, robust and transparent Terms of Appointment contribute significantly to the overall quality, perceived fairness, and finality of the arbitral process. By proactively addressing key aspects of the arbitrator’s engagement, these terms not only facilitate the effective management of the arbitration but also strengthen the resulting award against potential challenges, thereby enhancing its enforceability across jurisdictions. For both seasoned practitioners and new entrants to the field of international arbitration, a thorough understanding and diligent application of these principles in crafting and agreeing to Terms of Appointment are essential for the continued success and credibility of international arbitration as a preferred method for resolving global disputes.

6. Annex: Key Documents and Articles for Further Reference

This annex provides a curated list of significant documents, guidelines, and articles relevant to the Terms of Appointment of international arbitrators. Each entry includes a citation (where available from the source material) and a concise synopsis of its relevance.

1. Chartered Institute of Arbitrators (CIArb) Practice Guideline: Terms of Appointment including Remuneration (2015/2016)
   1. Author/Issuing Body: Chartered Institute of Arbitrators
   1. Year/Date of Publication/Version: 08 December 2016 ³
   1. Valid Citation/URL: ³ (Conceptual reference: https://www.ciarb.org/media/0jqpif5s/2-terms-of-appointment-including-remuneration-2015.pdf)
   1. Synopsis of Relevance: Provides comprehensive guidance on the nature and content of an arbitrator’s terms of appointment in ad hoc international commercial arbitrations. Details general principles, essential components of the terms (including a detailed section on remuneration covering calculation methods, rates, expenses, payment terms, cancellation fees, and early termination), and optional additional terms like confidentiality and immunity. Emphasizes the importance of a written agreement to avoid misunderstandings.
2. International Bar Association (IBA) Rules of Ethics for International Arbitrators (1987)
   1. Author/Issuing Body: International Bar Association
   1. Year/Date of Publication/Version: 1987 (still influential, though often supplemented by IBA Guidelines on Conflicts of Interest)
   1. Valid Citation/URL: ¹² (Conceptual reference: https://prod-bo.ibanet.org/document?id=Rules-of-ethics-for-international-arbitrators)
   1. Synopsis of Relevance: Sets out fundamental ethical principles for international arbitrators concerning impartiality, independence, competence, diligence, and discretion. Addresses acceptance of appointment, elements of bias, the duty of disclosure (including specific circumstances to disclose like business or social relationships), communications with parties, fees (discouraging individual arrangements unless agreed or party default), and confidentiality of deliberations. These rules inform the declarations and conduct expected under Terms of Appointment.
3. International Bar Association (IBA) Guidelines on Conflicts of Interest in International Arbitration (2024)
   1. Author/Issuing Body: International Bar Association
   1. Year/Date of Publication/Version: 25 May 2024
   1. Valid Citation/URL: ¹³ (Conceptual reference: https://www.ibanet.org/document?id=Guidelines-on-Conflicts-of-Interest-in-International-Arbitration-2024 and summaries at https://gowlingwlg.com/en-ae/insights-resources/articles/2024/update-to-the-iba-guidelines and https://www.lawsonlundell.com/Commercial-Litigation-and-Dispute-Resolution-Blog/iba-updates-guidelines-on-conflicts-of-interest-in-international-arbitration)
   1. Synopsis of Relevance: Provides the prevailing international standards for assessing and disclosing conflicts of interest. Crucial for an arbitrator’s declarations of independence and impartiality within the Terms of Appointment. The 2024 update refines General Standards on determining conflicts (objective “reasonable third person” test), disclosure duties (subjective “in the eyes of the parties” test, new rules on secrecy preventing disclosure, and clarification that non-disclosure isn’t automatic disqualification), party waiver (presumption of knowledge from reasonable enquiry), and expands the Orange List of disclosable situations (e.g., relationships with experts, co-arbitrators, social media statements). Directly impacts the arbitrator’s ongoing disclosure obligations.
4. ICC Rules of Arbitration (e.g., 2021 version)
   1. Author/Issuing Body: International Chamber of Commerce (ICC)
   1. Year/Date of Publication/Version: 1 January 2021
   1. Valid Citation/URL: ⁵ (Conceptual reference: https://iccwbo.org/dispute-resolution/dispute-resolution-services/arbitration/rules-procedure/2021-arbitration-rules/)
   1. Synopsis of Relevance: Contains key provisions that directly inform or are incorporated by reference into an ICC arbitrator’s Terms of Appointment. Relevant articles cover: arbitrator impartiality and independence (Art. 11), the requirement for a signed statement of acceptance, availability, impartiality, and independence (Art. 11), number and appointment of arbitrators (Art. 12, 13), challenge and replacement of arbitrators (Art. 14, 15), conduct of the arbitration (Art. 22), Terms of Reference (Art. 23 – distinct from Terms of Appointment but related to mandate), and costs of arbitration including arbitrator fees and expenses (Art. 38 and Appendix III).
5. ICC Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration
   1. Author/Issuing Body: Secretariat of the ICC International Court of Arbitration
   1. Year/Date of Publication/Version: Current version often updated (e.g., 1 January 2021 referenced in snippets)
   1. Valid Citation/URL: ²¹ (Conceptual reference: https://iccwbo.org/dispute-resolution/dispute-resolution-services/arbitration/practice-notes-forms-and-checklists/)
   1. Synopsis of Relevance: Provides practical guidance on the application of ICC Rules and practices of the ICC Court. Relevant to an arbitrator’s understanding of their duties, case management expectations, and interaction with the ICC Secretariat, all of which underpin their appointment terms. Sections on disclosure, tribunal secretaries, and costs are particularly pertinent.
6. ICC Arbitrator Statement of Acceptance, Availability, Impartiality and Independence Form
   1. Author/Issuing Body: International Chamber of Commerce (ICC)
   1. Year/Date of Publication/Version: Periodically updated
   1. Valid Citation/URL: ²¹ (Conceptual reference: Link available via https://iccwbo.org/dispute-resolution/dispute-resolution-services/arbitration/practice-notes-forms-and-checklists/)
   1. Synopsis of Relevance: This is the standard form an arbitrator nominated or appointed in an ICC arbitration must sign. It embodies the core declarations (acceptance, availability, impartiality, independence, and disclosure) that are fundamental to their Terms of Appointment within the ICC framework. Specific forms exist for standard procedure, expedited procedure, emergency arbitrators, and when ICC acts as appointing authority.
7. LCIA Arbitration Rules and Schedule of Costs (e.g., 2020 Rules, 2023 Schedule of Costs)
   1. Author/Issuing Body: London Court of International Arbitration (LCIA)
   1. Year/Date of Publication/Version: Rules (e.g., 1 October 2020), Schedule of Costs (e.g., effective 1 December 2023)
   1. Valid Citation/URL: ²²²³
   1. Synopsis of Relevance: The LCIA Rules contain provisions on arbitrator appointment, independence, impartiality, duties, challenges, and replacement. The Schedule of Costs is critical as it outlines the LCIA’s administrative charges and, importantly, the basis for arbitrators’ fees (hourly rates subject to a maximum, e.g., £650/hr from Dec 2023) and expenses. These directly dictate the remuneration terms for an LCIA arbitrator.
8. LCIA Guidance Note for Parties and Arbitrators (2023)
   1. Author/Issuing Body: London Court of International Arbitration (LCIA)
   1. Year/Date of Publication/Version: November 2023 (effective 1 December 2023)
   1. Valid Citation/URL: ²³²³
   1. Synopsis of Relevance: Consolidates previous notes and aligns with the 2020 LCIA Rules and 2023 Schedule of Costs. Provides updated guidance on arbitrator disclosure of potential conflicts of interest and the process for challenging arbitrators, directly relevant to the ethical and procedural aspects of an arbitrator’s appointment.
9. UNCITRAL Arbitration Rules (e.g., 2010, 2013, or 2021 versions)
   1. Author/Issuing Body: United Nations Commission on International Trade Law (UNCITRAL)
   1. Year/Date of Publication/Version: Various versions (2010, 2013 incorporating transparency, 2021 incorporating expedited rules)
   1. Valid Citation/URL: ⁸ (Conceptual reference: https://uncitral.un.org/en/texts/arbitration/contractualtexts/arbitration)
   1. Synopsis of Relevance: Widely used in ad hoc arbitrations and sometimes in institutional arbitrations where parties agree. The Rules provide a comprehensive procedural framework, including articles on the appointment of arbitrators, disclosure obligations, challenges, replacement, conduct of proceedings, and costs. These provisions heavily inform the content of Terms of Appointment in arbitrations conducted under these rules, especially regarding mandate, fees (reasonableness of costs), and responsibilities.
10. Arbitration Act 2025 ²⁰
    1. Author/Issuing Body: National Legislature (e.g., UK Parliament)
    1. Year/Date of Publication/Version: Example: 2025 ²⁰
    1. Valid Citation/URL: ²⁰ (Conceptual, as this refers to a future/hypothetical Act in the snippet for illustrative purposes of legal development)
    1. Synopsis of Relevance: National arbitration laws of the seat of arbitration are crucial as they provide the overriding legal framework. Snippet ²⁰ discusses codification of an arbitrator’s duty of disclosure and enhancement of immunity from personal liability (e.g., unless resignation is unreasonable or bad faith in removal applications). Such statutory provisions directly impact the liability and disclosure clauses in an arbitrator’s Terms of Appointment.

Table: Comparative Overview of Arbitrator Fee Structures/Policies of Major Arbitral Institutions

This table provides a simplified comparison of how leading arbitral institutions approach arbitrator fees, which is a critical component of the Terms of Appointment.

Note: Fee structures and institutional policies are subject to change. Users should always consult the latest versions of the applicable institutional rules and fee schedules.

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