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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
Introduction
Given the practical importance of the language of the arbitration and especially how it is determined,2 it is perhaps surprising that relatively little has been written on the subject.3 The few articles that have been published deal with a variety of aspects, such as the problems caused by dissociating the applicable law and the language of the arbitration 4 or the increasing recognition and use of several languages in proceedings.5
One aspect which, as far as we are aware, has not as yet been studied in any depth is the need to balance the parties' right to participate in the constitution of the arbitral tribunal against the efficiency of the proceedings. As we shall see, this need arises whenever a party chooses an arbitrator who has an insufficient command of the potential language or languages of the arbitration. Our purpose in this article is to highlight the practical difficulties encountered in such situations, analyse the issues involved and report on how the ICC International Court of Arbitration (hereinafter 'the Court') attempts to deal with this need within the framework of the ICC Rules of Arbitration (hereinafter 'the Rules').
We shall first look at why and when this need arises (I), then consider factors that may complicate the way in which it is handled (II). Lastly, the Court's function of confirming arbitrators will be examined in relation to the language of the arbitration (III).
I. The issue
A. Parties' right to participate in the constitution of the arbitral tribunal
The parties' right to participate in the constitution of the arbitral tribunal is generally regarded as one of the principal advantages of arbitration. This right allows parties to submit their disputes to individuals whom they consider to possess the necessary [Page34:] qualities to resolve the dispute quickly and fairly. This is one of the reasons why many players in international commerce prefer arbitration to litigation in State courts.
The parties' right to participate in the constitution of the arbitral tribunal is recognized in all modern arbitration laws and rules. It applies both to arbitral tribunals composed of a sole arbitrator and to three-member tribunals. In ICC arbitration, when the tribunal is composed of a single arbitrator, the parties may choose the arbitrator by mutual agreement, failing which the sole arbitrator will be appointed by the Court.6 When the arbitral tribunal is composed of three arbitrators, each party nominates an arbitrator (hereinafter 'co-arbitrator')7 and the third arbitrator is chosen either by the parties themselves, by the co-arbitrators or, if need be, by the Court.8 It is in the context of a three-member tribunal that we shall consider the parties' right to 'choose an arbitrator' (which expression shall subsequently be used as synonymous with 'the parties' right to participate in the constitution of the arbitral tribunal').
The parties' right to choose an arbitrator is not an end in itself, but is intended to ensure the quality of the arbitration with respect to both substance (quality of the award) and procedure (efficiency of the procedure). To the extent that procedural efficiency forms part of the parties' wishes when choosing arbitration, it needs to be borne in mind when interpreting contractual clauses relating to the linguistic skills required of the arbitrators and the language of the arbitration, and when confirming and appointing arbitrators.
B. Efficiency of the proceedings
Although the parties' ultimate aim in an arbitration is to obtain from the arbitral tribunal a decision of quality-i.e. acceptable to the parties, capable of enforcement, and in which the facts are taken into consideration and correctly interpreted and the law properly applied-it is also their wish that the proceedings be conducted as efficiently as possible. Efficiency here means rendering an award quickly and inexpensively. There is a chance that such efficiency will be compromised whenever an arbitrator has an inadequate command of the language(s) of the arbitration. Inadequate linguistic skills may indeed slow down the proceedings (as an arbitrator will need more time to study the parties' submissions and the documents produced and to draft procedural orders and awards) and/or generate additional costs (linked to the translation of documents, interpretation, or possibly even higher fees due to the arbitrator having to spend more time on a case on account of his or her inadequate knowledge of the language of the arbitration).
This is not to say that linguistic skills constitute the principal criterion used to select arbitrators, nor that the Court refuses (or should refuse) to confirm an arbitrator on the grounds that his or her knowledge of the language of the arbitration is less than perfect. There are other legitimate aims, such as achieving a balance amongst the members of the arbitral tribunal (in particular, by giving each party the possibility to choose an arbitrator from its own country) and the arbitrator's substantive knowledge (general legal skills, specialized knowledge of the subject matter of the dispute).9 In most cases, it is in fact possible to satisfy the requirements of neutrality and substantive knowledge without sacrificing linguistic skills. [Page35:]
C. Occurrence
It may be necessary to balance the parties' right to choose an arbitrator against the efficiency of the proceedings at three different stages: (i) when an arbitrator is appointed, (ii) when the Court must decide whether to confirm an arbitrator, and (iii) when a challenge is introduced against an arbitrator.
At the appointment stage, the matter lies above all in the hands of the parties and their counsel, for the parties have the possibility of choosing an arbitrator who speaks the (potential) language(s) of the arbitration. The arbitrators themselves (or rather the potential arbitrators) also have a part to play, although to a lesser extent, for they are meant to take their linguistic skills into consideration when deciding whether or not to accept an appointment.
In the event of an objection to a nomination, the Court will decide whether or not the arbitrator should be confirmed 10 and may on such occasions be confronted with the need to balance the parties' right to choose an arbitrator against procedural efficiency.
Lastly, it may be necessary to take this need into consideration when a challenge is introduced against an arbitrator on the basis of Article 11(1) of the Rules.11 There is little likelihood of this, however, as it would mean that the lack of linguistic skills had been neither revealed by the arbitrator in question nor raised by a party when possibly objecting to the confirmation of the arbitrator.
II. Complicating factors
A. Language of the arbitration not decided when choosing arbitrators
There are two factors that may lead to the language of the arbitration not being decided when the arbitrators are appointed or confirmed.
On the one hand, it may be that the language of the arbitration has not been specified in the contract. As the legal relations underlying the dispute will usually be international, the parties will often be from countries with different languages and quite frequently will have used more than one language when negotiating or even drafting their contract (or some of the appendices thereto).12
On the other hand, the system is such that if the parties have not agreed on the language of the arbitration, the question will be decided by the arbitral tribunal pursuant to Article 16 of the Rules,13 i.e. once it has been constituted. In this case, when an arbitrator is appointed or confirmed by the Court or the Secretary General, as the case may be, the language of the arbitration will not have been decided. Yet the arbitrator's command of the language of the arbitration will be one of the elements taken into account when deciding whether or not the arbitrator should be confirmed. [Page36:]
B. More than one language of the arbitration
If the arbitration clause is silent with regard to the language of the arbitration, there might, as we have seen, be more than one potentially applicable language. It is therefore possible that the arbitral tribunal might decide on several languages and that the parties could use any of these as they wished or-a more cumbersome option, less frequently encountered-would be required to use them all simultaneously. It might indeed be the parties' wish that more than one language be used and they might agree on exactly how this should be done (although they rarely do this when negotiating the contract).
The use of more than one language may create considerable problems, in that it demands linguistic abilities on the part of the arbitrator that may be difficult to find, for the arbitrator will need to have a command of not just one, but two or even more languages. It may sometimes be hard for parties to find individuals who are able to satisfy such linguistic requirements without sacrificing the legal knowledge and/or balance of nationalities they seek amongst the members of the tribunal. Another difficulty arising from the use of several languages is how to determine the level of knowledge required. This question will be considered below.
C. Uncertainty over the required level of linguistic knowledge
Quite often, the language of the arbitration is not the arbitrator's mother tongue. Although the majority of international arbitrations are conducted in English, only a minority of arbitrators are native English speakers. The fact that the proceedings are conducted in a language other than the arbitrator's mother tongue means that the arbitrator has a less-than-perfect knowledge of the language of the arbitration (even though it may be of a very high standard).14
The question then arises as to what level of linguistic knowledge should be required of potential arbitrators. Should they be required to have merely a passive knowledge, i.e. the ability to understand the written and spoken language, or should they rather have an active knowledge, including the ability to write in that language? It is not an easy question to answer. A distinction could perhaps be made between the chairman of the tribunal and the co-arbitrators. Practice shows that it is often the chairman of the tribunal who drafts procedural orders and awards. Given the different functions they have, it could therefore be argued that the level of linguistic knowledge could be lowered for co-arbitrators.
The difficulties caused by uncertainty over the required level of linguistic knowledge are exacerbated when more than one language is used. Whilst it is no easy feat to acquire an excellent command of one foreign language, it is even harder to master two or more foreign languages. In this case, the level of linguistic knowledge required will depend on the importance of each of the languages in question (assuming that they are not all of equal importance) and how they will be used (alternatively or simultaneously). [Page37:]
III. Role of the Court
It should be stressed that this section, which gives several examples of the confirmation or non-confirmation of co-arbitrators on grounds linked to the language of the arbitration, does not seek to demonstrate a fixed practice by the Court in this field, but simply to illustrate the approaches the Court has taken in individual cases.15
A. Role of the Court compared with the roles of the parties and the arbitrators
As far as parties are concerned, they may raise objections to the confirmation of arbitrators on the basis of linguistic considerations. An objection, or lack of objection, will be taken into account by the Court when deciding whether or not to confirm the arbitrator.
As far as arbitrators are concerned, the language information they provide in the curriculum vitae they are required to submit in ICC arbitrations may have a bearing on the position adopted by the Court.
Article 9(2) of the Rules states that the Secretary General may confirm as arbitrators persons nominated by the parties 'provided they have filed a statement of independence without qualification or a qualified statement of independence has not given rise to objections'. Therefore, if an objection is raised concerning language, the Secretary General will not confirm and the matter will be submitted to the Court.
When the Court has been asked to decide on the confirmation of an arbitrator without an objection having been raised by the parties, it has generally confirmed the arbitrator in question. For instance, in a case involving two Latin-American parties, the Court confirmed the co-arbitrator nominated by the claimant even though the arbitrator did not speak English, which, according to the arbitration clause, was one of the two languages of the proceedings. This tendency is based on the belief that the constitution of the arbitral tribunal is primarily a matter for the parties and that the Court's refusal to confirm an arbitrator ex officio could represent undue interference in party autonomy and in the exercise of the parties' right to choose an arbitrator.
When agreeing to take up office, potential arbitrators provide the Secretariat with various details including their arbitration experience, specializations and linguistic skills. The Court does not systematically inquire into the accuracy of this information. It can generally be considered that arbitrators do not misrepresent their qualifications, as any information revealed as false in the course of the proceedings could give cause for a challenge and might also seriously harm the arbitrator's reputation.
Thus, the Court does not generally call into question the information provided by arbitrators relating to their linguistic skills. This is illustrated by a case in which the [Page38:] respondent objected to the confirmation of a native English speaker as co-arbitrator nominated by the claimant on the grounds that the arbitrator could not speak Spanish, which was the 'official'16 language of the contract. In the documents sent to the Secretariat at the time of his nomination, the arbitrator did not indicate that he could speak Spanish. Upon being invited by the Secretariat to comment on the objection made by the respondent, the arbitrator explained that although he had never studied Spanish, in the course of his career he had acquired an ability to read and understand written Spanish. In the light of these explanations, the Court decided to confirm the arbitrator. In another similar case, the Court confirmed the co-arbitrator nominated by the claimant because he indicated that he was able to read Spanish, the language of the contract and potential language of the arbitration.
B. Interpretation of the parties' intent
When deciding whether or not to confirm an arbitrator, the Court must take account of the parties' intent as reflected in the arbitration clause, which may contain provisions relating to the language of the arbitration. These provisions may refer to the linguistic skills required of the arbitrators (1) and/or directly to the language of the arbitration (2).
If the parties lay down requirements regarding the arbitrators' linguistic abilities, the Court takes these into account, unless the parties expressly or implicitly waive them.17
If, for example, the arbitration clause states that the language of the proceedings shall be English and that no person shall be appointed as arbitrator who does not speak English, the Court will not in principle confirm an arbitrator who does not satisfy this requirement.
If the arbitration clause simply mentions the language of the arbitration (without referring to the linguistic skills required of the arbitrators) the Court has some discretion in the matter. The fact that the proceedings are to be conducted in a given language does not necessarily mean that the arbitrators must be able to speak that language. The Court has in the past confirmed arbitrators who did not speak the language, or one of the languages, of the proceedings, provided the parties had not objected.
It can be seen from the Court's decisions that a distinction may be made between clauses relating to the language of the proceedings and those relating to the drafting of the award. Reference to the language of the proceedings would seem to suggest that less fluency is required than when reference is made to the language in which the award is to be drafted, as interpreters can be used during proceedings. For example, in a case involving a party from Western Europe and a party from Central Europe, the Court confirmed the co-arbitrator nominated by the claimant even though that arbitrator could not speak the Central European language that was one of the two languages of the proceedings specified in the arbitration clause. On the other hand, [Page39:] in a case involving native English speakers as claimants and a respondent whose native language was Spanish, the Court decided not to confirm a co-arbitrator who could not speak Spanish, given that the arbitration clause provided that the arbitral award should be drafted in English and Spanish.
C. Deciding on the appropriateness of confirming an arbitrator
When the Court considers the parties' wishes in order to decide whether or not to confirm an arbitrator, it will take into account the role of the language of the contract (1). The Court's decisions regarding the confirmation of arbitrators also show that it may tolerate a working knowledge of a language in certain cases (2). These decisions also reveal some practical difficulties caused by rare languages (3). Lastly, the Court's decisions also show a wish not to prejudge the arbitral tribunal's decision concerning the language of the arbitration (4).
When the Court decides whether or not to confirm an arbitrator, it must of course ask itself what the language of the arbitration is or will be. If this is not mentioned in the contract, the Court considers what it is likely to be, so as to decide whether the arbitrator has sufficient knowledge of that language. Like arbitral tribunals under Article 16 of the Rules, the Court will take into account all relevant circumstances, including the language of the contract.
Although the criterion of the language of the contract may appear to be less important than in the previous version of the Rules,18 and although some writers stress the importance of other criteria such as the applicable law,19 the language of the contract continues to occupy a prominent position. The following examples will show how important a role the language of the contract may play when deciding whether or not to confirm arbitrators nominated by the parties after objections had been made.
In a case in which the arbitrator against whom an objection had been raised did not speak Spanish, which was one of the two languages of the contract (the other being English), the Court considered that the two languages in which the contract was drafted could both be used for the proceedings and so decided not to confirm the arbitrator in question. Sometimes the language of the contract is just one of a number of factors taken into consideration by the Court. For instance, in a case in which, in view of the language of the contract, the applicable law and the parties' nationalities, it was very likely that the arbitral tribunal would decide that English should be the language of the arbitration, the Court decided not to confirm a co-arbitrator who could not speak English.
As already mentioned, the language of the arbitration very often does not coincide with the arbitrator's mother tongue. This means that often the arbitrators that are nominated have a less-than-perfect knowledge of the language of the arbitration. If the work of the arbitral tribunal is unlikely to suffer, a certain lack of perfection would seem acceptable and may be tolerated by the Court, especially as far as coarbitrators [Page40:] are concerned. Nonetheless, all arbitrators should at least be able to work in the language of the arbitration. With regard to co-arbitrators, this means that they should at least be able to read and understand the language of the arbitration, although it may not be absolutely necessary for them to be able to write in that language. Although the Court's decisions are always taken in the light of the circumstances of each case, a mere working knowledge has been accepted, especially when other factors such as an arbitrator's specializations justify the arbitrator being confirmed by the Court.
For instance, in a dispute between an Asian claimant and a European respondent the Court confirmed a native French-speaking co-arbitrator nominated by the claimant on the grounds that the arbitrator in question had stated that he was capable of conducting the proceedings and rendering an award in English-the language of the contract and potential language of the arbitration-without assistance from an interpreter or a translator, even though he acknowledged himself that his English was not perfect. In another case, the Court confirmed a native English-speaking arbitrator nominated by the claimant, as he had indicated that he was able to read and understand Spanish, which was the language used to draft the contract.
As mentioned previously, an arbitration clause that lays down linguistic requirements applicable to arbitrators must be taken into consideration by the Court, which therefore will not confirm an arbitrator who does not satisfy those requirements. Arbitration clauses that lay down very strict requirements with respect to linguistic skills may thus give rise to considerable difficulties.
When the arbitration clause contains provisions relating not to the arbitrators' linguistic skills but to the language of the arbitration itself, the Court has a certain amount of discretion.20 The Court may in some cases confirm an arbitrator who does not speak the language, or one of the languages, of the arbitration, given that the services of a translator or interpreter may be used. If one of the languages of the arbitration is a rare language (meaning that, unlike English, Spanish, or even French, German and some other languages, it is generally spoken in only one country), it may well be difficult for parties to nominate an arbitrator with a command of all of the (potential) languages of the arbitration without considerably limiting their right to nominate an arbitrator of their choice.
For instance, in a dispute between a claimant from Western Europe and a respondent from Central Europe, the arbitration clause provided that English and the Central European language in question were the two languages of the arbitration. Despite this provision, the claimant nominated an arbitrator that did not speak the Central European language. Although it may have been easy for the respondent to nominate an arbitrator from 'its' country, who could speak English, it would have been difficult, if not impossible, for the claimant to nominate an arbitrator who did not come from the same country as the respondent and yet spoke the respondent's language, and therefore the Court confirmed the arbitrator.
In another case involving a claimant whose native language was English and a Far Eastern respondent, the contract was drafted in English and a Far Eastern language and made no reference to the language of the arbitration. The Court confirmed the co-arbitrator nominated by the claimant, despite the fact that he could not speak the Far Eastern language in question and even though it ranked equally with English as a [Page41:] potential language of the proceedings. When confirming the co-arbitrator, the Court took into account the practical difficulty for the English-speaking party to nominate an arbitrator who did not come from the same Far Eastern country as the respondent and yet had a sufficient knowledge of the Far Eastern language in question. The Court considered that if it were decided that the Far Eastern language should be the language, or one of the languages, of the arbitration, it would be possible to use translators and interpreters. It should be noted that, pursuant to Article 31(3) of the Rules, the arbitral tribunal may subsequently decide which of the parties should bear the costs of translation and interpreting.21
Although, in theory, the Court's decision regarding the confirmation of an arbitrator does not affect the arbitral tribunal's freedom to determine the language or languages of the arbitration when not already agreed by the parties, it may in practice have an impact on the arbitral tribunal's decision. This is because the linguistic skills of the members of the arbitral tribunal may clearly be one of the factors taken into consideration by the arbitral tribunal when deciding the language or languages of the arbitration. In other words, the Court's confirmation of an arbitrator may influence the arbitral tribunal's decision on the language of the arbitration. In practice, however, the Court endeavours to avoid prejudging the decision that will subsequently be made by the arbitral tribunal.
In a case involving a Far Eastern claimant and a respondent whose native language was English, the claimant argued that French should be the language of the arbitration due to the fact that the applicable Far Eastern law had written French sources. The respondent argued that the language of the contract-English-should be the language of the arbitration. An objection was raised against the native English speaker nominated as co-arbitrator by the respondent. Although the arbitrator had indicated that he had a working knowledge of French, a potential language of the arbitration, this knowledge was considered insufficient and the Court decided not to confirm the arbitrator so as not to undermine the arbitral tribunal's freedom when deciding on the language of the arbitration. The Court considered that only if a perfectly bilingual (English-French) arbitral tribunal were constituted would this freedom be preserved. It could also be thought to be relatively easy for the respondent to nominate another arbitrator with an excellent command of English and French. A similar line was taken in another case involving a claimant whose native language was Spanish and a respondent whose native language was French. An objection was raised against the co-arbitrator nominated by the claimant who did not speak English, which was the language of the contract and potential language of the arbitration. Here, too, the Court decided not to confirm the arbitrator.
The concern not to prejudge the arbitral tribunal's decision on the language of the arbitration may vary depending on how feasible it is for the party nominating an arbitrator to nominate a person of the same nationality as itself. In a dispute between a Central European claimant and a respondent from a Spanish-speaking country, the Court had to decide whether or not to confirm the co-arbitrator nominated by the claimant, who could only read Spanish, which was the language of the contract and potential language of the arbitration. Given the co-arbitrator's knowledge of the applicable law and, in particular, the fact that it would be difficult for the claimant to [Page42:] nominate a Spanish-speaking arbitrator of the same nationality as itself, the Court decided to confirm the arbitrator nominated by the claimant.
Conclusion
We have seen that occasionally, when the language of the arbitration has not been determined or more than one language may be used in the proceedings, it may be difficult to reconcile a parties' right to participate in the constitution of the arbitral tribunal with the efficiency of the proceedings. These difficulties are sometimes exacerbated by the drafting of contractual provisions without due consideration to the practical problems they might create in the event of a dispute.
It is important to stress the need for parties to pay attention to the linguistic skills of the individuals they nominate as arbitrators (without at the same time neglecting the other qualities one is entitled to expect of an arbitrator) and for arbitrators to be fully aware of what is required of them when agreeing to take up office.
Lastly, the language or languages expected to be chosen for the arbitration may be a factor taken into consideration by the Court when deciding whether or not to confirm arbitrators. When making such decisions, the Court aims to ensure that the parties have confidence in the proceedings and that the quality of ICC arbitration is upheld.
1 Neither the ICC International Court of Arbitration nor its Secretariat should be considered bound by any of the opinions expressed in this article, which are those of the authors alone.
2 The work of the arbitral tribunal is (or should be) conditioned by the language of the arbitration and likewise, therefore, the selection of the arbitrators. See e.g. Y. Derains & E.A. Schwartz, A Guide to the ICC Rules of Arbitration (Kluwer Law International, 2005) at 230: 'It is extremely helpful to know in advance what the language of the arbitration will be when choosing counsel or a party-appointed arbitrator . . .'
3 The language of the arbitration has been the subject of a few articles, e.g. D. von Breitenstein, 'La langue de l'arbitrage - une langue arbitraire ?' [1995] ASA Bulletin 18; S. Lazareff, 'The Language of Institutional Arbitration' (1997) 8:1 ICC ICArb. Bull. 18; C. Punzi, 'La lingua del procedimento arbitrale' [1999] Rivista dell'arbitrato 219; P. A. Karrer, 'Arbitration and Language - Look for the Purpose' (2004) 11 Croatian Arbitration Yearbook 7.
4 See D. von Breitenstein, supra note 3.
5 Voir S. Lazareff, supra note 3.
6 Article 8(3) of the Rules.
7 Articles 8(2) and 8(4) of the Rules.
8 Article 8(4) of the Rules.
9 There may also be other, equally legitimate considerations, such as the arbitrators' availability. This is mentioned in Article 9(1) of the Rules and in the form entitled 'Arbitrator's Declaration of Acceptance and Statement of Independence', which the Rules require all prospective arbitrators to complete.
10 If none of the parties objects, it is possible for the Secretary General of the Court to confirm co-arbitrators pursuant to Article 9(2) of the Rules.
11 Article 11(1) of the Rules states that: 'A challenge of an arbitrator, whether for an alleged lack of independence or otherwise, shall be made by the submission to the Secretariat of a written statement specifying the facts and circumstances on which the challenge is based.'
12 Sometimes cases come before the Court in which the contract has been drafted in more than one language, but without indicating which language version should prevail in the event of conflict. It is more common for the 'official' language of the contract to have been determined, but for a number of appendices (forming part of the contract) or a number of pre-contractual documents, which may be relevant to the resolution of the dispute, to have been drafted in a language other than that of the contract.
13 Similar provisions can be found in other rules. See e.g. Article 17(3) of the LCIA Rules, Article 14 of the AAA Rules of International Arbitration (according to which the language of the arbitration is presumed to be that of the contract), Article 23 of the Rules of the Arbitration Institute of the Stockholm Chamber of Commerce, Article 22 of the ICSID Arbitration Rules of Arbitration (the first paragraph of which limits, however, the arbitral tribunal's powers: 'The parties may agree on the use of one or two languages to be used in the proceeding, provided, that, if they agree on any language that is not an official language of the Centre, the Tribunal, after consultation with the Secretary-General, gives its approval. If the parties do not agree on any such procedural language, each of them may select one of the official languages (i.e., English, French and Spanish) for this purpose.'), Article 17 of the UNCITRAL Arbitration Rules.
14 Even if the use of more than one language does not create problems when selecting arbitrators, it may increase the cost of the proceedings and give rise to undesirable risks. Such would be the case, for instance, if the arbitration clause expressly required the award to be drafted in English and French. Whilst it is not difficult to find arbitrators who are perfectly at ease in both languages, the need to translate the award into the other language would increase the costs of the arbitration and, in particular, create a risk of contradiction between the two versions of the award. It is for this reason that some arbitral tribunals try to convince the parties that the award should be rendered in only one language. Their attempts more often than not end in failure, however, as it is most unlikely that a party would agree to give up 'its' language.
15 It is indeed misleading to talk of 'practice' in relation to the Court. The term could give the impression that the Court has developed strict criteria for applying its Rules, from which it never deviates. This is not the case, however. As the Rules are broad-based and flexible, the only real 'practice' of the Court is to examine the characteristics of each case as closely as possible so as to make the most appropriate decisions.
16 The use of the expression 'official language' is explained by the fact there was an unofficial language-English-which had been used for negotiating and drafting the contract.
17 An implicit waiver could be inferred above all from a lack of objection to an arbitrator who does not comply with contractual requirements. The basis for such a waiver could lie in Article 33 of the Rules: 'A party which proceeds with the arbitration without raising its objection to a failure to comply with . . . any requirement under the arbitration agreement relating to the constitution of the Arbitral Tribunal, or the conduct of the proceedings, shall be deemed to have waived its right to object.'
18 Article 15(3) of the 1988 Rules read as follows: 'The arbitrator shall determine the language or languages of the arbitration, due regard being paid to all the relevant circumstances and in particular to the language of the contract.' The use of 'including', rather than 'in particular', in Article 16 of the 1998 Rules is usually regarded as implying that the language of the contract plays a less prominent role. See S. Lazareff, supra note 3 at 20: 'the language of the contract is an important indication given to the arbitrator but-as we read it-it is no longer the priority indication'.
19 See S. Lazareff, supra note 3 at 26: 'the automatic linkage of the language of the proceedings with the language of the contract, combined with disregard of the law applicable to the merits of the case, run the risk of creating situations that are detrimental to one or both of the parties'. See also D. von Breitenstein, supra note 3 at 21: 'in the first place, the applicable law should be taken into account'.
20 See part III.B(2) above.
21 Article 31(3) of the Rules reads as follows: 'The final Award shall fix the costs of the arbitration and decide which of the parties shall bear them or in what proportion they shall be borne by the parties.'