When may a court appoint a missing arbitrator? Section 587 ZPO

Section 587 ZPO governs when a state court may appoint an arbitrator who is still missing from the tribunal. The first question is whether the parties agreed on an appointment procedure or whether the statutory procedure applies.

The triggers differ for a sole arbitrator, a three-member tribunal and an agreed nomination route. Some periods start when a written request is received. Court appointment requires an application and depends on the applicable appointment rule.

This article addresses constitution of the tribunal. A separate article explains the court's preliminary review when the arbitration clause itself is unclear: appointing an arbitrator under an unclear clause. If the parties chose VIAC Rules, the article on a sole arbitrator or a three-member VIAC tribunal also addresses the agreed appointment framework.

Start with the agreed appointment procedure

Under section 587(1) ZPO, the parties may agree how arbitrators are appointed. Start with the arbitration clause, incorporated arbitration rules and any later procedural order. The agreed rule may state which party nominates a member and who selects the chairperson.

If that route stalls, the reason matters. On application, section 587(3) ZPO allows court appointment if a party fails to perform its appointment task, the parties or appointed arbitrators cannot agree, or an appointed third person does not perform within three months after receiving written notice. The agreement may provide another safeguard for making the appointment.

Section 587(5) sets a separate rule where several parties must jointly appoint one or more arbitrators. For other grounds not covered by subsections 2 to 5, subsection 6 permits an application if appointment cannot be made within four weeks after the other party receives corresponding written notice. An application may also be available if the agreed procedure to secure appointment does not lead to an appointment within a reasonable time.

When do the statutory four-week periods run?

If no appointment procedure was agreed, section 587(2) ZPO provides for the parties to agree on a sole arbitrator. If they have not agreed within four weeks after a party's written request is received, either party may apply to the court for appointment.

For a three-member tribunal, each party generally appoints one arbitrator and those two select the chairperson. If a party fails to appoint its member within four weeks after receiving the relevant request, a court application may be available. The same may apply if the two arbitrators do not inform the parties of the chairperson within four weeks after their appointment.

The start of the period therefore depends on receipt and on the appointment step that remains outstanding. Identify the written request, its recipient and the person responsible for the next step. Where several parties must jointly appoint one or more arbitrators, section 587(5) ZPO sets a separate four-week period from receipt of the corresponding written notice. If they do not agree within that period, a party may apply for court appointment unless the agreed procedure provides another safeguard.

What must a request to the other party contain?

The request should identify the arbitrator position to be filled and the appointment step sought. Keep the sent version, the communication channel and proof of receipt. If a third person received the task, record what it had to do and when it received written notice.

Section 587(4) ZPO requires one party's written request to the other for appointment to state the claim asserted and the arbitration agreement relied on. Keep the exact request and proof of receipt. The subsequent court application should set out the appointment rule, the request, the correspondence to date and a chronology of the action that remains undone. This allows the court to connect the alleged failure with the relevant subsection.

When appointing, the court considers qualifications agreed by the parties and the need for independence and impartiality. Appointment is made on application, not automatically when a period expires. Section 587(9) ZPO provides that the court's appointment decision is not appealable.

What the appointment does not finally decide

Appointment constitutes the arbitral tribunal. It does not decide the claim on its merits. If a party also disputes whether an arbitration agreement exists or whether it covers the dispute, that issue must be assessed separately. The article on the court's preliminary review of an unclear clause addresses that question.

If the parties incorporated institutional rules such as the VIAC Rules, read their appointment mechanism alongside the arbitration agreement. The statutory four-week periods do not automatically replace every agreed procedure. The article on choosing a sole arbitrator or three-member VIAC tribunal explains the choice of tribunal size and related costs.

Questions about appointment under section 587 ZPO

Does the four-week period start when the request is sent?
The relevant rules in section 587 ZPO refer to receipt of a written request. An agreed appointment procedure or an appointed third person may be governed by a different rule or period.

Will the court appoint an arbitrator automatically after four weeks?
No. A party must apply for court appointment. Under section 587(4) ZPO, the written request to the other party for appointment must state the claim asserted and the arbitration agreement relied on. The court application should explain the appointment rule and show the request and proof of receipt.

Does the same period apply to an agreed appointing body?
Not in every case. For an appointed third person, section 587(3) ZPO provides for a three-month period after receipt of written notice. Any agreed safeguard and the particular procedure must also be checked.

Next step

Contract, arbitration clause, correspondence and deadlines should be collected. It can then be assessed whether negotiation, preservation or arbitration is central.