Authors
Tribunal constitution is often described as an early procedural step. In reality, it is one of the most strategic phases of a dispute.
The first choice is structural: sole arbitrator or three-member tribunal. A sole arbitrator may save time and cost. A three-member tribunal may offer greater resilience and legitimacy in high-value, cross-border, or technically demanding disputes. Under leading arbitration rules such as the 2018 DIS and 2026 ICC Rules, the institutional framework supports that choice, and the respective institution plays a central role in making appointments work in practice.
The second issue is independence and impartiality. Under § 1036(1) ZPO, a prospective arbitrator must disclose circumstances likely to give rise to doubts as to impartiality or independence. Under section 1036(2) ZPO, an arbitrator may be challenged if justifiable doubts arise or if the arbitrator does not possess the agreed qualifications. Section 1037 ZPO then sets a default framework for challenges. On top of that, institutional practice is unforgiving on timing. The 2018 DIS Rules provide a 14-day objection window, whilst the 2026 ICC Rules allow 30 days from the relevant notification (Article 15(2) ICC). Both institutions reinforce the waiver concept: failure to raise objections promptly may result in a loss of that right (Article 43 DIS; Article 42 ICC).
The German arbitration reform would also expressly permit dissenting opinions under proposed section 1054a ZPO-E, which gives parties one more reason to think carefully about tribunal composition and internal decision-making dynamics from the outset.
For this reason, conflict checks are not a one-off box-ticking exercise and should continue throughout the case. The IBA Guidelines on Conflicts of Interest remain a common practical reference point, even if they are not binding law. A late conflict issue can cause challenge proceedings, delay, replacement of the arbitrator, and later attempts to set aside the award under section 1059 ZPO. The “constitution phase” is therefore not administrative - it is risk management.
Key takeaway
In arbitration, tribunal constitution should be handled as a strategic work stream, because the right structure, the right individuals, and timely conflict handling can materially affect both the process and the enforceability of the outcome.
German Disputes Bites series
We hope you are enjoying our series of blogs on Litigation vs Arbitration. This series will cover different aspects of the choice between a litigation or arbitration forum. Previous posts in the series: