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CS Professional · Arbitration, Mediation and Conciliation · Challenge to Award and Appeals

Under a clause in their agreement, Delta Pharma and Everest Labs set a procedure for challenging arbitrators that requires a written objection to an appointing institution within 30 days. Delta follows it, but the challenge fails. Which statement is correct?

The agreed procedure is valid because parties are free to agree on how an arbitrator is challenged. When it fails, the tribunal continues the proceedings and makes an award, and Delta may then apply to set the award aside under section 34.

  1. AThe agreed procedure is invalid because only the fifteen-day procedure may be used
  2. BThe tribunal must continue the proceedings and make an award, and Delta may later apply under section 34Correct
  3. CThe agreed procedure fails, so the Court must decide the challenge
  4. DDelta may stop the arbitration until the Court decides the challenge

Explanation

Parties are free to agree a challenge procedure, and the fifteen-day procedure is only a fallback if there is no agreement. If a challenge under an agreed procedure is unsuccessful, the tribunal continues and makes an award. The challenger may then seek to set aside the award under section 34.

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