Power in the pick: How arbitrators selection shapes outcomes

In both domestic and international commercial disputes, the appointment of an arbitrator is one of the most strategic decisions that parties can make. While arbitration is often chosen for its flexibility, neutrality, enforceability and cost efficiency, these benefits don't arise automatically. They instead depend, in large part, on the quality, expertise, independence and impartiality of the arbitrator presiding over the dispute.

In complex matters, particularly those involving technical evidence or cross-border dynamics, the choice of arbitrator can materially influence not only how the proceedings are conducted but ultimately how the dispute is resolved.

As South Africa continues to align with global arbitration standards and cross-border investment grows across the continent, the strategic selection of an appropriate arbitrator is critical for corporates, state-owned enterprises, financial institutions and commercial counterparties.

This article considers how arbitrator selection shapes outcomes in practice and why it should be approached as a central component of dispute strategy.

How arbitrator choice shapes fairness and efficiency

Under section 14 of the Arbitration Act¹ and consistent with the UNCITRAL Model Law, parties enjoy broad autonomy to determine procedural rules. Where they do not, the tribunal has discretion to conduct proceedings “in such manner as it considers appropriate”². This makes the arbitrator the primary driver of:

• proportional case management;
• avoiding unnecessary delays;
• controlling costs; and
• ensuring that both sides have a fair opportunity to present their case.

In Telcordia Technologies Inc v Telkom SA Ltd,³ the Supreme Court of Appeal reaffirmed that arbitrators must exercise procedural discretion fairly, as a failure to do so may constitute a “gross irregularity” capable of review under section 33(1).⁴

Similarly, leading international arbitral rules reinforce this principle. The latest arbitration rules of the International Chamber of Commerce International Court of Arbitration (the ICC Rules), which entered into force on 1 June 2026, emphasise both procedural fairness and efficiency. Article 21(1) requires tribunals to conduct proceedings in a fair and expeditious manner, while Article 21(2) empowers arbitrators to adopt appropriate case-management techniques aimed at controlling time and costs. A well-chosen arbitrator is therefore not merely a decision-maker but the architect of a fair, efficient and enforceable process.

Why subject-matter expertise elevates arbitration outcomes

One of the key advantages of arbitration over litigation is the ability to appoint a specialist decision-maker. This is particularly crucial in sectors such as:

• construction and infrastructure (including FIDIC disputes);
• mining and resources;
• telecommunications;
• banking and finance;
• energy, including renewables; and
• corporate mergers and acquisitions and shareholder disputes.

Arbitral bodies such as the International Chamber of Commerce (the ICC) expressly require consideration of the arbitrator’s “relevant experience”.⁵ Locally, the Arbitration Foundation of South Africa (AFSA) Rules similarly emphasise subject-matter competence.

In complex matters involving expert testimony, which is common in mining, energy and construction disputes, an arbitrator without industry literacy may fail to interrogate technical evidence effectively, weakening the credibility of the award.

This has been illustrated in international practice, particularly in infrastructure disputes involving FIDIC contracts, where tribunals with industry expertise are better equipped to evaluate delay analyses, quantum models and expert methodologies. By contrast, tribunals lacking such expertise may struggle to interrogate technical evidence properly, increasing the risk of flawed findings.

Why independence and full disclosure define tribunal legitimacy

Independence and impartiality are central to the legitimacy of any arbitral process. The UNCITRAL Model Law, the New York Convention, the AFSA Rules, the London Convention of International Arbitration (LCIA) Rules and the ICC Rules impose strict disclosure obligations on arbitrators.

International jurisprudence illustrates the importance of full and timely disclosure. Case law has clarified that undisclosed repeat appointments may give rise to perceptions of apparent bias.⁶

The ICC goes further by requiring arbitrators to sign a statement of independence and disclose any circumstances that may give rise to doubts about their impartiality.⁷ A failure to make such disclosures can lead to challenges and, in some instances, the annulment of an award.

Given the relatively small size of South Africa’s legal community, particularly in specialist sectors, conflict analysis is rarely straightforward. It is therefore essential to appoint an arbitrator with a demonstrably strong record of independence, impartiality and transparency.

Cross-border competence: why cultural and procedural fluency matters

International arbitration often involves parties from diverse legal traditions and multiple jurisdictions. The arbitrator must be able to:

• balance common-law and civil-law procedural expectations;
• appropriately apply or adapt the applicable arbitral rules on evidence;
• manage competing expectations regarding document production;
• navigate differing approaches to expert evidence, including concurrent testimony; and
• ensure that no procedural culture is unfairly advantaged.

An arbitrator experienced in both local and international forums will set a tone that is neutral, commercially sensible and sensitive to the expectations of all participants.

Why arbitrator selection determines efficiency and costs

Arbitration is frequently criticised for rising costs and increasing delays. These problems are often attributable not to the system itself but to the arbitrator’s management style. Modern arbitral rules reflect this reality. Article 22 of the ICC Rules imposes express duties on tribunals to act efficiently and encourages early case-management conferences. Similarly, article 14 of the LCIA Rules and the AFSA Rules empower arbitrators to limit discovery, restrict duplicative evidence and streamline hearings.

A proactive arbitrator can materially reduce: (i) the length and scope of the dispute; (ii) costs incurred by both parties; and (iii) the likelihood of satellite disputes. A passive arbitrator, by contrast, often leads to an arbitration that is indistinguishable from High Court litigation, undermining the rationale for choosing arbitration in the first place.

The true test of an award: domestic and international enforcement

South Africa is a party to the New York Convention and the enforcement of foreign arbitral awards is governed by the Recognition and Enforcement of Foreign Arbitral Awards Act 40 of 1977 and the International Arbitration Act 15 of 2017, which incorporates the UNCITRAL Model Law (the International Arbitration Act).

International arbitration frameworks provide parties with the advantage of awards that are broadly recognised and enforceable across multiple jurisdictions. However, most grounds for refusing enforcement under Article V of the New York Convention relate directly to arbitrator competence and conduct, such as a lack of impartiality, an inability to present one’s case or failure to follow proper procedure.

Locally, poorly reasoned or overly broad awards risk being set aside under section 33(1)(b) of the International Arbitration Act.

Accordingly, parties should appoint arbitrators known for: well-structured and logical reasoning; a sound command of the governing law; clear articulation of factual findings; strict compliance with procedural fairness; and drafting awards that can withstand Model Law-based scrutiny. An award is only as valuable as its enforceability.

Arbitrator selection as a strategic safeguard

In both South African and international arbitration, the choice of arbitrator is decisive. The right arbitrator enhances efficiency, controls cost, strengthens legitimacy and improves enforceability. The wrong choice creates procedural risk, increases delays and exposes the award to challenge.

For commercial clients, financial institutions, infrastructure developers and cross-border investors, thoughtful arbitrator selection is therefore not a perfunctory step, it is a strategic safeguard and an essential component of effective dispute resolution planning.

1. Act No 42 of 1965 ↩
2. UNCITRAL Model Law on International Commercial Arbitration (1985, as amended 2006) art 19(2). ↩
3. 2007 (3) SA 266 (SCA) ↩
4. Act No 42 of 1965 ↩
5. Article 13(5) ↩
6. Halliburton v Chubb [2020] UKSC 48 ↩
7. Article 11(2) ↩