ICDPASO Commercial Arbitration Rules Interpretation Series:Article 16 "Replacement of an Arbitrator"

I. Introduction

The stability of the arbitral tribunal and the continuous fulfillment of duties by arbitrators are prerequisites for the efficient and fair conduct of arbitration proceedings. However, in actual arbitration proceedings, arbitrators may also be unable to continue performing their duties due to various objective or subjective reasons. Without a clear and efficient replacement mechanism, the arbitration proceedings risk stagnation or even termination. Article 16 of the International Commercial Dispute Prevention and Settlement Organization (ICDPASO) "Commercial Arbitration Rules" establishes a clear and comprehensive rule system regarding the "Replacement of an Arbitrator." It not only clarifies the triggering circumstances and operational procedures for replacement but also distinguishes the impact of replacing different types of arbitrators on the proceedings, while granting the Arbitration Court necessary procedural management powers. This clause closely links with Article 15 "Challenge to Arbitrators," Article 12 "Constitution of the Sole Arbitral Tribunal," and Article 13 "Constitution of the Tripartite Arbitral Tribunal," collectively forming a complete institutional chain that ensures the lawful and stable operation of the arbitral tribunal, playing a key role in safeguarding the legitimate rights and interests of the parties and enhancing the efficiency and credibility of the arbitration process.

II. Rule Text

Article 16 Replacement of an Arbitrator

(1) If an arbitrator is unable to perform his or her functions due to withdrawal, challenge, death, or for any other reason, or if all parties jointly request the arbitrator to withdraw from the case, a substitute arbitrator shall be selected or appointed anew in accordance with the provisions of Article 12 or Article 13 of these Rules to replace that arbitrator.

(2) If an arbitrator is de jure or de facto unable to perform his or her functions, or fails to perform his or her functions in accordance with the provisions of these Rules, the Arbitration Court shall have the power to decide on the replacement of that arbitrator, provided that the parties and the other members of the arbitral tribunal are given an opportunity to comment within a period of time to be fixed by the Arbitration Court.

(3) Unless otherwise agreed by the parties, where a sole arbitrator or the presiding arbitrator is replaced, the entire arbitration proceedings shall be repeated. Where another arbitrator is replaced, the arbitral tribunal may, after consulting the parties, decide on its own whether to repeat all or part of the arbitration proceedings.

III. Article Analysis

(1) If an arbitrator is unable to perform his or her functions due to withdrawal, challenge, death, or for any other reason, or if all parties jointly request the arbitrator to withdraw from the case, a substitute arbitrator shall be selected or appointed anew in accordance with the provisions of Article 12 or Article 13 of these Rules to replace that arbitrator.

1.Analysis of Core Features

This paragraph clarifies the triggering circumstances and procedural basis for the replacement of an arbitrator.

(1) Inclusiveness and Flexibility of Triggering Circumstances. It explicitly lists three typical triggering circumstances: "withdrawal, challenge, death," while using "or for any other reason" to cover other situations where an arbitrator is unable to perform their functions (e.g., serious illness, loss of legal capacity, etc.). It also includes the circumstance "if all parties jointly request the arbitrator to withdraw," covering both objectively impossible situations and respecting the parties' right to decide on the arbitrator's removal by agreement.

(2) Clarity of Procedural Basis. It stipulates that the replacement of an arbitrator shall be carried out "in accordance with the provisions of Article 12 or Article 13 of these Rules," meaning that when replacing a sole arbitrator, the rules in Article 12 concerning the constitution of a sole arbitral tribunal apply; when replacing an arbitrator (including the presiding arbitrator) in a tripartite tribunal, the rules in Article 13 concerning the constitution of a tripartite arbitral tribunal apply. This "referential" approach avoids rule duplication, ensures consistency between the replacement procedure and the initial constitution procedure of the tribunal, and enhances the operability and predictability of the procedure.

(3) Party Primacy in the Replacement Method. If the original arbitrator was selected by the parties, the parties are still given priority to re-select the replacement. If the original arbitrator was appointed by the Arbitration Court, and the parties cannot agree on a re-selection, the Arbitration Court will appoint the replacement arbitrator, fully respecting party autonomy and the consistency of the tribunal's composition.

2.Comparative Law Perspective

The Singapore International Arbitration Centre (SIAC) Rules (Rule 30) provide that in the event of an arbitrator's death, incapacity, resignation, withdrawal, or removal during the arbitration, a substitute arbitrator shall be appointed according to the procedure applicable to the nomination and appointment of the arbitrator being replaced. This applies even if a party failed to exercise its right to nominate an arbitrator during the initial appointment process.1

The Hong Kong International Arbitration Centre (HKIAC) Rules (Article 12) clarify that the procedure for replacing an arbitrator should follow the procedure applicable to the appointment of the arbitrator being replaced, which is consistent with ICDPASO's logic of "referencing initial constitution rules," but does not separately list the circumstance of "all parties jointly requesting withdrawal."2

The International Chamber of Commerce (ICC) Arbitration Rules (Article 15) stipulate that an arbitrator shall be replaced upon death, acceptance of resignation by the Court, acceptance of a challenge by the Court, or upon acceptance of a request from all parties. When replacing an arbitrator, the Court has discretion to decide whether to follow the original nominating process.3

The London Court of International Arbitration (LCIA) Rules (Article 11) provide that the LCIA Court has broad powers to replace an arbitrator, including for reasons such as death, resignation, failure to act diligently, or misconduct. When replacing an arbitrator, the LCIA Court may decide whether or not to follow the original nominating process. If a party fails to exercise any opportunity to re-nominate within the prescribed period, the LCIA Court may determine that the party has waived that opportunity and proceed to appoint the replacement arbitrator without re-nomination.4

The Arbitration Institute of the Stockholm Chamber of Commerce (SCC) Rules (Article 21) state that when an arbitrator needs to be replaced due to challenge, resignation, death, or inability to perform, the Board shall appoint a new arbitrator. If the removed arbitrator was appointed by a party, that party shall appoint a new arbitrator unless the Board considers another method more appropriate.5

The advantage of this ICDPASO provision lies in its use of a "referential" approach to ensure high consistency between the replacement procedure and the initial constitution procedure, while comprehensively covering both objective circumstances and party-agreed situations, achieving a balance between respecting party autonomy and ensuring procedural continuity.

3.Jurisprudential Analysis

(1) Extension of the Principle of Party Autonomy. Allowing parties to re-select a substitute arbitrator according to the initial constitution rules when the original arbitrator is unable to act due to statutory circumstances is an extension of the principle of party autonomy in arbitration proceedings. This design ensures that the parties' right to participate in the constitution of the tribunal is not deprived due to the arbitrator's replacement, enhancing the parties' trust in the reconstituted tribunal.

(2) Safeguard of the Principle of Procedural Stability. Clearly requiring the replacement procedure to reference the initial constitution rules avoids procedural confusion or delay caused by unclear replacement procedures, ensuring that the arbitration proceedings can proceed orderly even after the arbitrator is replaced.

(2) If an arbitrator is de jure or de facto unable to perform his or her functions, or fails to perform his or her functions in accordance with the provisions of these Rules, the Arbitration Court shall have the power to decide on the replacement of that arbitrator, provided that the parties and the other members of the arbitral tribunal are given an opportunity to comment within a period of time to be fixed by the Arbitration Court.

1.Analysis of Core Features

This paragraph stipulates the circumstances and procedures for the Arbitration Court to replace an arbitrator on its own authority.

(1) Statutory Circumstances for Replacement on Own Authority. It clearly defines two categories of circumstances: "de jure or de facto unable to perform his or her functions" (e.g., the arbitrator is disbarred, unable to participate due to force majeure) and "fails to perform his or her functions in accordance with these Rules" (e.g., unjustifiably delays the case hearing, refuses to participate in tribunal deliberations). This provides a clear basis for the Arbitration Court to replace an arbitrator on its own authority, covering both the arbitrator's "inability to act" and "failure to act," ensuring the arbitration process is not hindered by the arbitrator's misconduct or objective obstacles.

(2) Guarantee of the Right to Participate in the Procedure. It requires that before deciding to replace an arbitrator, the Arbitration Court must "allow the parties and the other members of the arbitral tribunal to comment within a fixed period." This provision grants the parties and other arbitrators the right to state their views and raise objections, preventing the Arbitration Court from making a unilateral replacement decision, reflecting procedural openness and fairness, and aligning with the requirements of due process.

(3) Arbitration Court's Leading Role and Constraints. Granting the Arbitration Court the power to "decide on the replacement" ensures that when parties cannot resolve the issue of an arbitrator's performance through consensus, the Arbitration Court can intervene promptly to prevent the proceedings from reaching an impasse. Simultaneously, the procedural constraint of "hearing comments" prevents the Arbitration Court from abusing its power, balancing the Court's procedural management authority with the parties' right to participate.

2.Comparative Law Perspective

SIAC Rules (Rule 29) stipulate that the SIAC Court may remove an arbitrator who fails to comply with the Rules or fails to conduct or participate in the arbitration in a manner ensuring a fair, expeditious, and economical resolution, after considering the views of the parties, the arbitrator, and the other arbitrators.6

HKIAC Rules (Article 12) similarly emphasize giving the parties and the remaining arbitrators an opportunity to comment first, but do not elaborate on "special circumstances of the case."7

ICC Rules (Article 15) state that the ICC Court may decide to replace an arbitrator if it considers that the arbitrator is de jure or de facto unable to fulfill his/her functions or is not fulfilling them in accordance with the Rules or within the prescribed time limits, and shall provide an opportunity for the arbitrator concerned, the parties, and the other members of the tribunal to comment in writing within a reasonable period before making its decision.8

LCIA Rules (Article 10) provide that the LCIA Court may determine that an arbitrator is unfit to act if the arbitrator deliberately violates the arbitration agreement, does not act fairly and impartially between the parties, or does not conduct or participate in the arbitration with reasonable efficiency, diligence, and industry.9

SCC Rules (Article 20) state that the SCC Board may remove an arbitrator if the arbitrator is unable or fails to perform his/her duties. Before removing the arbitrator, the Secretariat may give the parties and the arbitrator an opportunity to submit comments, but the definition of "failure to perform duties" is somewhat vague.10

The characteristic of this ICDPASO provision is that it clearly defines the specific circumstances for replacement on the Court's authority, using objective inability and subjective dereliction as triggers for institutional intervention. It also refines the procedural requirements through the "comment within a fixed period" clause, fully safeguarding the procedural participation rights of the parties and other arbitrators while granting the Arbitration Court a leading role.

3.Jurisprudential Analysis

(1) Embodiment of the Due Process Principle. Requiring the Arbitration Court to hear comments from the parties and other arbitrators before deciding on replacement is a direct manifestation of the due process principle. This procedural design ensures that all parties interested in the replacement decision have the opportunity to express their views, enhancing the credibility of the replacement decision.

(2) Specification of the Pro-Arbitration Principle. The Arbitration Court's replacement, on its own authority, of an arbitrator who is unable or fails to perform duties is a specific application of the "pro-arbitration" principle in procedural management. When the arbitration process may stagnate or become unfair due to arbitrator issues, the Arbitration Court's timely intervention to replace the arbitrator ensures the arbitration agreement can be fulfilled, preventing the dispute resolution mechanism from failing, aligning with the core goals of modern arbitration systems to ensure procedural efficiency and fairness.

(3) Strengthening of Tribunal Management Responsibilities. As leaders of the arbitration process, arbitrators' performance directly impacts the procedural progress and award quality. Granting the Arbitration Court the power to replace unqualified arbitrators on its own authority strengthens the Court's supervisory and management responsibilities over the tribunal, helping to regulate arbitrator conduct, ensure strict adherence to the rules during the proceedings, and maintain the authority of the arbitration system.

(3) Unless otherwise agreed by the parties, where a sole arbitrator or the presiding arbitrator is replaced, the entire arbitration proceedings shall be repeated. Where another arbitrator is replaced, the arbitral tribunal may, after consulting the parties, decide on its own whether to repeat all or part of the arbitration proceedings.

1.Analysis of Core Features

This paragraph distinguishes the impact of replacing different types of arbitrators on the arbitration proceedings.

(1) Differentiated Treatment of Procedural Restart. It sets different procedural restart rules based on the type of arbitrator being replaced (sole arbitrator, presiding arbitrator, other arbitrator). When a sole arbitrator or presiding arbitrator is replaced, "the entire arbitration proceedings shall be repeated." This is because the sole arbitrator leads the entire process, and the presiding arbitrator is responsible for tribunal deliberations and procedural coordination. Their replacement might lead to a discontinuity in understanding the case's facts and legal issues; restarting the entire process ensures the new arbitrator fully grasps the case information. When another arbitrator is replaced, "the arbitral tribunal may, after consulting the parties, decide whether to repeat all or part of the proceedings." Since other arbitrators primarily participate in deliberations rather than lead the process, parts of the proceedings (e.g., completed evidence exchanges) may not need to be restarted, balancing procedural fairness and efficiency.

(2) Primacy of Party Autonomy. It explicitly states "Unless otherwise agreed by the parties," allowing parties to adjust the procedural restart rules by consensus. This reflects respect for the parties' right to dispose of procedural matters and enhances the flexibility of the rules.

(3) Prudent Grant of Discretion to the Tribunal. When replacing another arbitrator, it grants the arbitral tribunal the discretion to "decide whether to repeat all or part of the proceedings," but requires it to "consult the parties." This design respects the tribunal's leading role in procedural advancement while safeguarding the parties' right to participate through "consultation," seeking a balance between efficiency and fairness.

2.Comparative Law Perspective

SIAC Rules (Rule 30) state that when the tribunal comprises three or more arbitrators, the SIAC Court may, as appropriate and after considering the views of the parties and the remaining arbitrators, decide that the remaining arbitrators shall proceed with the arbitration without appointing a substitute arbitrator.11

HKIAC Rules (Article 12) provide that if an arbitrator is replaced, the proceedings shall resume from the point where the arbitrator was replaced or ceased to perform duties, unless the tribunal decides otherwise. It does not specify content regarding restarting proceedings.12

ICC Rules (Article 15) state that after the tribunal is reconstituted and after inviting comments from the parties, it shall decide whether and to what extent prior proceedings shall be repeated.13

LCIA Rules (Article 11) provide that, save for any award rendered, the reconstituted arbitral tribunal shall determine whether and to what extent previous proceedings shall stand.14

SCC Rules (Article 20) stipulate that if the tribunal consists of three or more arbitrators, the Board may decide that the remaining arbitrators shall continue the proceedings. Before deciding, the Board shall give the parties and the arbitrators an opportunity to comment. In making its decision, the Board shall consider the stage of the proceedings and other relevant circumstances. After replacement, the newly composed tribunal shall decide whether and to what extent prior proceedings shall be repeated.15

The advantage of this ICDPASO provision is that, through differentiated treatment of the impact of replacing different types of arbitrators, it ensures procedural fairness (restarting all proceedings when a sole/presiding arbitrator is replaced) while enhancing procedural efficiency (flexible decisions when other arbitrators are replaced). It also grants parties the right to agree and the tribunal discretion, achieving a multi-faceted balance between fairness and efficiency, and between autonomy and management.

3.Jurisprudential Analysis

(1) Balancing Procedural Fairness and Efficiency. The differentiated procedural restart rules ensure that when a key arbitrator (sole, presiding) is replaced, the new arbitrator can fully grasp the case information (restarting all proceedings), guaranteeing procedural fairness. It also avoids procedural repetition when a non-key arbitrator (other) is replaced, enhancing efficiency, aligning with the modern arbitration system's value orientation of "fairness first, efficiency considered."

(2) Allocation of Power between Parties and Tribunal. Allowing parties to agree on procedural restart rules reflects the primacy of party autonomy. Granting the tribunal discretion while requiring consultation with the parties achieves a reasonable allocation between the parties' right to participate and the tribunal's procedural management authority. This allocation respects the parties' central role while leveraging the tribunal's professional judgment in advancing the procedure, contributing to optimal procedural outcomes.

(3) Ensuring Coherence of Case Facts and Procedure. Sole and presiding arbitrators have a decisive influence on fact-finding and legal application. Restarting all proceedings after their replacement ensures the new arbitrator fully participates in evidence review, hearings, etc., avoiding factual errors due to incomplete information. When replacing other arbitrators, flexibly deciding on procedural restarts allows the new arbitrator to grasp key information while avoiding repetition of already established facts and procedures, maintaining procedural coherence.

IV. Alignment and Compatibility with China's Newly Amended Arbitration Law

The revised "Arbitration Law of the People's Republic of China" (hereinafter referred to as the "Newly Amended Arbitration Law") promulgated on September 12, 2025, strengthens the guarantee of fairness and efficiency in arbitration proceedings and imposes stricter and more detailed provisions on arbitrators' qualifications, challenges, and responsibilities. ICDPASO Article 16 is highly consistent with the spirit and provisions of this law and demonstrates significant practical advantages.

Responding to the New Law's Standardization Requirements for Arbitrator Replacement. Article 49 of the Newly Amended Arbitration Law stipulates that if an arbitrator is unable to perform duties due to challenge or other reasons, a new arbitrator shall be re-selected or appointed according to the law. After re-selection or appointment due to challenge, the parties may request that the conducted arbitration proceedings be repeated, and whether to permit this is decided by the arbitral tribunal; the arbitral tribunal may also decide on its own whether to repeat the conducted proceedings. ICDPASO Article 16 is entirely consistent with the standardization requirements of the new law and further refines the triggering circumstances, providing clearer guidance for practical operation.

Aligning with the New Law's Dual Pursuit of Procedural Fairness and Efficiency. The Newly Amended Arbitration Law aims to resolve disputes "fairly and promptly," emphasizing enhancing procedural efficiency while ensuring fairness. The differentiated treatment of procedural restarts in ICDPASO Article 16(3) ensures procedural fairness when a sole/presiding arbitrator is replaced and enhances efficiency through flexible handling when other arbitrators are replaced, highly aligning with the new law's value pursuit. In practice, ICDPASO's differentiated rules can reduce unnecessary procedural repetition, lowering parties' time and cost investment, better meeting the new law's requirement for "prompt" dispute resolution.

Highlighting the Practical Advantages of ICDPASO Rules. Compared to the principled provisions of the Newly Amended Arbitration Law, the practical advantages of ICDPASO Article 16 are threefold: First, the triggering circumstances are more comprehensive, including "all parties jointly request withdrawal," respecting party consensus. Second, the procedural rules are more detailed, specifying the timeline for "hearing comments" and specific standards for procedural restarts, avoiding the abuse of discretion in practice. Third, international compatibility is stronger; its rule design is logically consistent with most international arbitration rules and pays more attention to balancing the power between parties and the Arbitration Court. This helps attract international commercial entities to choose ICDPASO for arbitration, enhancing the international competitiveness of arbitration institutions within China's jurisdiction, aligning with the new law's goal of "enhancing the internationalization level of arbitration."

V. Conclusion

ICDPASO Commercial Arbitration Rules Article 16, through three interconnected paragraphs, constructs a comprehensive mechanism for arbitrator replacement. From comprehensive coverage of triggering circumstances, to clear guidance on replacement procedures, to differentiated handling of subsequent proceedings, it closely addresses the core needs of the arbitration process. It maintains procedural coherence and fairness by referencing initial constitution rules and safeguarding party participation rights. It also enhances dispute resolution efficiency through institutional intervention on its own authority and flexible discretion in procedural restarts. This design not only aligns conceptually with the arbitrator duty norms and procedural value orientation emphasized in China's Newly Amended Arbitration Law but also demonstrates significant international advanced nature and practical superiority in terms of rule details and operability, providing a solid institutional guarantee for the stable, efficient, and fair operation of international commercial arbitration proceedings.