Appointing an Arbitrator in Trinidad and Tobago

Every arbitration begins with the same choice: who will decide it. The contract usually answers part of that question; the new Arbitration Act, in force since February 2024, answers the rest. Its appointment rules reward parties who plan ahead and provide a backstop for those who did not.

The default is a tribunal of three

Under the Act the parties are free to fix the number of arbitrators. If the contract is silent, the number is three. That default deserves attention at the drafting stage, because a tribunal of three means three sets of fees and three diaries to coordinate. For a dispute of modest value, a sole arbitrator is usually the sensible choice, and it takes one line in the clause to secure it.

How an appointment actually happens

The parties may agree any appointment procedure they like, including handing the task to an arbitral institution. Where there is no agreed procedure, the Act supplies one. In a three-member tribunal, each party appoints one arbitrator and those two appoint the third, who presides. Each step runs on a thirty-day clock: if a party fails to appoint within thirty days of being asked, or the two arbitrators cannot settle the third within thirty days of their own appointment, the court makes the appointment on request. For a sole arbitrator the rule is simpler: failing agreement, the court appoints.

The court here is the Supreme Court of Judicature, and its appointment decisions are final; the Act allows no appeal from them. In choosing, the court must have regard to any qualifications the parties' agreement requires and to what will secure an independent and impartial arbitrator. For a sole or presiding arbitrator it also considers the advisability of a nationality different from the parties' own. Nationality is otherwise no bar: unless the parties agree to restrict it, an arbitrator may come from anywhere.

What to weigh in a candidate

The Act imposes one duty on candidates themselves. A person approached about an appointment must disclose any circumstances likely to give rise to justifiable doubts about impartiality or independence, and the duty continues throughout the proceedings. Everything else is judgement. An appointing party is choosing command of the law of the seat, fluency in the subject matter, and the discipline to run a fair procedure; availability to see the case through matters as much as any of them. In cross-border disputes there is a further dimension: parties from different countries often want an arbitrator from a neutral jurisdiction trained in the common law that governs the contract. The English-speaking Caribbean supplies exactly that combination. Whether the dispute belongs in arbitration at all is a decision worth taking early.

Appointments and enquiries

Justin Phelps SC accepts appointment as sole, presiding, or party-appointed arbitrator in commercial and construction disputes. He was called to the Bar of England and Wales in 1995 and appointed Senior Counsel of Trinidad and Tobago in 2024. He is admitted in Trinidad and Tobago and in Guyana, St Kitts and Nevis, and Antigua and Barbuda. His practice as counsel spans ICC and ad hoc arbitration, with particular focus on construction and engineering disputes under FIDIC forms. Overseas firms will find the working relationship described in the guide to instructing counsel from abroad. Enquiries about availability and conflicts can be made through the chambers contact page.

Frequently asked questions

How many arbitrators will there be if the contract does not say? Three. The Arbitration Act 2023 lets the parties fix the number, but where the contract is silent the default is a tribunal of three. Parties who want a sole arbitrator, and the lower cost that comes with one, should say so in the arbitration clause.

Who appoints the arbitrator if the parties cannot agree? The Supreme Court of Judicature, on the request of a party. The court must respect any qualifications the parties' agreement requires and appoint someone independent and impartial; its decision is final, with no appeal.

Can a foreign national sit as arbitrator in Trinidad and Tobago? Yes. The Act provides that no one is precluded from acting as an arbitrator by nationality unless the parties agree otherwise. Where the court appoints a sole or presiding arbitrator, it considers whether a nationality different from the parties' own is advisable.