Is arbitration only as good as the arbitrator? Undoubtedly. Choosing an arbitrator is therefore one of the most pivotal decisions a party makes in the arbitration proceedings.

In practice in Vietnam, many arbitration proceedings have been significantly prolonged because of multiple unsuccessful appointments arising from conflicts of interest, challenges by the opposing party, or subsequent unavailability. In other cases, additional expenses were incurred where appointed arbitrators were located far from the hearing venue or were unfamiliar with the arbitration language or applicable law.

To preempt these issues and secure a more efficient and cost-effective appointment, this article proposes a practical, step-by-step approach to arbitrator selection.

Step 1: Know Your Own Case

At the outset, it is essential to develop a clear understanding of the dispute by addressing the following key considerations:

• Nature of the dispute: From which sector does it arise (e.g., construction, international trade, investment, banking and finance, technology, intellectual property)?
• Value and complexity: Is the dispute high or low in value? Does it involve multiple parties, multiple legal systems, or foreign elements? Is its crux related to multiple legal matters?
• Existing arbitration agreement: Does the agreement specify the seat, language, and governing law? If not, what would be appropriate considering the parties’ conduct and the applicable arbitration rules?

Having clear answers to these questions in mind will help identify, from the outset, the core criteria for selecting an appropriate arbitrator.

Step 2: Form Your Candidate Pool

Based on the understanding developed in Step 1, a candidate pool should be formed through a structured and careful process:

Researching Arbitrator Profiles

At the initial stage, comprehensive research should be conducted via reliable sources to ensure both accuracy and diversity of candidates. Official sources, such as lists of arbitrators published by arbitral institutions, most notably the Vietnam International Arbitration Centre (VIAC), are primary points of reference. Institutional websites typically provide detailed information on the arbitrator’s academic background, professional experience, areas of expertise, and working languages.

Parties may also broaden their search through referrals from legal counsel or industry experts, as well as publicly available information on similar disputes previously handled by the arbitrator. Where the dispute involves international or complex elements, candidates with experience before major arbitration institutions such as SIAC, ICC, or HKIAC may be taken into consideration. Such exposure may indicate familiarity with international standards of procedure and modern case management tools.

Screening the Preliminary List of Candidates

Once identified, the preliminary list should be carefully screened. The focus at this stage shifts from identification to evaluation, narrowing the pool based on both legal requirements and case-specific criteria established in Step 1.

First, the parties should assess legal eligibility. Arbitrators must be independent and impartial, free from conflicts of interest, and satisfy the statutory conditions prescribed under Vietnam’s 2010 Law on Commercial Arbitration, and any additional requirements under the applicable institutional rule. For ease of reference, parties may go through materials such as VIAC’s Guidance on Selecting Arbitrators, or its Arbitrator Statement template.

Second, the candidate’s expertise and legal approach should be evaluated carefully to ensure if such candidate fits with the predefined case-specific considerations. The objective is not to select someone predisposed to a party’s case, but to ensure that the arbitrator’s analytical style and professional background are compatible with the nature of the dispute. Academic publications, professional presentations, authored books, or publicly available awards (where accessible) may provide insight into the arbitrator’s legal reasoning and mindset.

It is worth noting that arbitration remains a side job for most Vietnamese arbitrators, whose primary professions are lawyers, lecturers, government officials, etc. This may result in their limited availability or procedural experience to allocate adequate time and attention to the case. Accordingly, appointment should not be based solely on reputation, but also on practical suitability.

Although foreign arbitrators are included in the panels of Vietnamese arbitral institutions, their appointment should be considered carefully, particularly for lower-value disputes. They may be more selective in accepting appointments due to unfamiliarity with Vietnamese law, language, or practice, leading to a reluctance to accept, and a delay in the proceedings. For instance, arbitrators from common-law jurisdictions may find it challenging to adapt to Vietnam’s more inquisitorial style of proceedings, and similarly, parties may need to adjust to the arbitrator’s approach.

Another consideration is that in emerging and highly specialized sectors such as intellectual property, AI technology, or blockchain, Vietnamese arbitral institutions may not maintain an extensive pool of experts on their panels. In such circumstances, the parties may consider appointing arbitrators outside the institutional list, provided the candidate’s qualifications, independence, impartiality, and expertise can be clearly demonstrated.

By the end of Step 2, there should ideally be a prioritized shortlist of three to five candidates. However, certain concerns, such as suitability, availability, and unknown potential conflicts, may remain at this stage and can be addressed through the careful implementation of Step 3 below.

Step 3: Conduct a Pre-Appointment Interview

Based on the shortlisted candidates, parties may consider conducting pre-appointment interviews. In Vietnam, this typically takes the form of an email or notice providing fundamental information about the prospective arbitration (e.g., the nature of the dispute, the parties’ names, and the value in dispute) and requesting confirmation of availability and absence of conflicts of interest.

Internationally, pre-appointment interviews are a recognized practice. The IBA Guidelines on Conflicts of Interest in International Arbitration permits limited initial contact with prospective arbitrators, provided that discussions are confined to availability, qualifications, and a general understanding of the case, without addressing the merits or procedural strategy. Similarly, the CIArb Practice Guidelines on Interviews for Prospective Arbitrators provide practical guidance on permissible and prohibited topics during such interviews, with an emphasis on transparency and integrity.

In Vietnam, however, pre-appointment interviews remain relatively novel and are not yet clearly regulated. Accordingly, it would not be surprising if certain arbitrators are reluctant or decline to engage when approached by disputing parties for pre-appointment interviews. Nevertheless, when conducted carefully, these interviews can serve as a useful tool. A preliminary confirmation of availability and independence at this stage can facilitate a smoother and more predictable appointment process.

Communications should be conducted on a one-on-one basis, and only with candidates the party would appoint if they confirmed availability and freedom from conflicts. To ensure compliance with the Law on Commercial Arbitration and avoid procedural challenges, any communication should be handled by experienced counsel, strictly limited to non-substantive matters, and conducted in line with confidentiality obligations. If not properly managed, such contact could be perceived as compromising independence or impartiality, potentially giving rise to challenges or disqualification.

Remarks

Ultimately, arbitrator appointment should not be treated as a mere procedural formality, but as a strategic decision that can shape a due-processed and effective arbitration proceeding. In Vietnam-seated arbitrations, where institutional practice continues to evolve and cross-border transactions are increasingly common, careful arbitrator selection is all the more significant.

By approaching the process methodically, parties can reduce procedural uncertainty, safeguard the integrity of the proceedings and reinforce one of arbitration’s prominent advantages over court litigation, as a dispute resolution mechanism that is efficient, flexible, and commercially sensible — anchored in the parties’ right to choose their own arbitrator.

This article was prepared with the research and drafting assistance of Ms. Ngan Kim Nguyen.