Language

As a general rule, the arbitration will be conducted in the language chosen by the parties. In the absence of such a choice, the tribunal will decide. It is usually the case that the parties, or the tribunal, will choose the language of the underlying contract. Accordingly, the parties, or any arbitral institution, should ensure that the arbitrator(s) chosen have, at least, fluency in that language.

Problems can arise where the underlying contract is made in two (or more) languages. Conducting an arbitration in more than one language is very difficult and expensive and should be avoided if at all possible (by, for example, requiring arbitrators to be fluent in both languages, but agreeing, or having the tribunal determine, a single language for the conduct of the arbitration).

Where the dealings between the parties, or a substantial part of the evidence, is in a language different from that of the arbitration then it is clearly advisable for the parties or the institution to require arbitrators with fluency in both languages to reduce the need for expensive translation of documents and interpreters at the hearing.

A word of warning: It is not unknown for potential arbitrators to claim to be fluent in a language of which they have only a limited command. If the parties are appointing the arbitrators then this should be checked, if possible, by interview.