Arbitrator Replacement—When, Why and How

By Leslie King O’Neal

What Happens When an Arbitrator Must Be Replaced?

Must the entire panel be replaced? How is a successor chosen? The answer depends on several factors: (1) the arbitration agreement terms; (2) the applicable rules; (3) when the vacancy occurs; (4) how the arbitrator was selected (party appointed or appointed by the arbitration tribunal). Replacing an arbitrator can have a major impact on the arbitration outcome, so it’s important for counsel (and arbitrators) to understand the process.

A Recent Case Illustrates Replacement Arbitrator Issues

A recent post https://theconstructionadrtoolbox.com/2025/09/motion-to-vacate-denied-because-too-late/ discussed the decision in Virgin Islands Housing and Finance Authority v. FEMA[i] where the court denied VIHFA’s motion to vacate because it was served one day late. The motion to vacate asserted the arbitration award was invalid because only two of the three arbitrators decided it. The third arbitrator passed away after the hearing but before the award was issued. The applicable rules[ii] did not provide a means to replace an arbitrator, even though the rules required the “full panel” to issue any decision. VIHFA did not request appointment of a replacement arbitrator before or after the award.

Read the Applicable Rules and the FAA

As noted in the VIHFA case, it’s important to review the applicable arbitration rules. In that case, the rules offered no method to appoint a replacement arbitrator. However, VIHFA could have applied to the federal district court to appoint an arbitrator under Section 5 of the Federal Arbitration Act.[iii]

Section 5 Federal Arbitration Act

This section states, in part: [I]f . . .there shall be a lapse in the naming of an arbitrator or arbitrators . . . or in filling a vacancy, then upon the application of either party . . . the court shall designate and appoint an arbitrator or arbitrators.  . . who shall act under the said agreement with the same force and effect as if he or they had been specifically named therein . . .

Since the hearing had already been held, the court might have decided that replacing the entire arbitration panel was necessary, as occurred in Cia de Navegacion Omsil v. Hugo Neu Corporation,[iv]  This could have influenced VIHFA’s decision regarding asking for a replacement arbitrator.

The Marine Products Export Corp. v. M.T. Globe Galaxy Rule

In Marine Products Export Corp. v. M.T. Globe Galaxy,[v] a party arbitrator died after the panel issued several interlocutory discovery orders but before hearings on the merits.  Appointing a new arbitration panel to hear the case, the court held that “where one member of a three-person panel dies before the rendering of an award and the arbitration agreement does not anticipate that circumstance, the arbitration must commence anew with a full panel.”[vi] The Second Circuit follows this rule based on the perceived unfairness of replacing a member of a panel after the members have worked together. The Second Circuit has put limits on the rule: (1) it does not require redoing an arbitration which resulted in an interim final award and (2) it applies only where the arbitrator’s death caused the vacancy. It doesn’t apply to arbitrator resignations because that could allow parties to manipulate the panel.[vii] However, other circuits have not followed this rule. Check the case law in the jurisdiction where the arbitration is pending to determine if this rule applies there.

Standard Arbitration Rules Vary on Replacement Process

Most construction arbitrations are conducted under an arbitral organization’s rules. AAA, JAMS and CPR have specific rules about replacing arbitrators. If the arbitration is non-administered, then the arbitration agreement should specify the method for replacing an arbitrator. Failing to do so may result in starting the arbitration over again. (See post: Naked Arbitration: Should You Go Bare? https://theconstructionadrtoolbox.com/2025/09/pros-cons-of-non-administered-arbitration/).

AAA Rules

For example, AAA Rule 22(b) [viii] states that if there is a vacancy on a panel of neutral arbitrators, the remaining arbitrator or arbitrators may continue with the hearing and render an award, unless the parties agree otherwise.  The arbitration panel has the sole discretion to determine if appointing a substitute arbitrator requires repeating all or part of any prior hearings.

JAMS Rules

In contrast, JAMS Rule 15[ix] provides that if an arbitrator is unable to perform his or her duties, “a new Arbitrator will be chosen in accordance with this Rule, unless, in the case of a tripartite panel, the Parties agree to proceed with the remaining two Arbitrators.” JAMS makes the final decision regarding an arbitrator’s ability to perform his or her duties.

CPR Rules

CPR Administered Arbitration Rule 7.9[x] provides that replacement arbitrators shall be selected in the same manner as the original arbitrators. If a party appointed the arbitrator to be replaced, the party must notify the Tribunal and the other party that it is designating a replacement arbitrator within 20 days of learning of the vacancy. If the party misses this deadline, CPR may appoint a replacement arbitrator.

ICC Rules

In international arbitration, the ICC Rules give the Tribunal discretion whether to follow the original method to appoint a replacement arbitrator.[xi] The ICC decides whether to allow the remaining arbitrators to render an award or whether it is necessary to repeat any prior proceedings for a replacement arbitrator.

Takeaways

• If drafting an ad hoc arbitration agreement, include a method for selecting a replacement arbitrator to avoid delay if this situation arises.
• If the arbitration is administered by an organization, check the applicable rules and the arbitration agreement to determine the procedure for appointing a replacement arbitrator.
• If asking the district court to appoint a replacement arbitrator, keep the Marine Products rule in mind. Check the case law in the jurisdiction.

---

[i] (Case No. 24-5122, D. C. Cir. August 15, 2025) https://law.justia.com/cases/federal/appellate-courts/cadc/24-5122/24-5122-2025-08-15.html

[ii] Under the Stafford Act, cost eligibility disputes between FEMA and grantees are subject to arbitration by the Civilian Board of Contract Appeals. 42 U.S.C. § 5189a(d)(1); 48 C.F.R. § 6106.603. The Board conducts arbitration proceedings under the Rules of Procedure for Arbitration of Public Assistance Eligibility or Repayment, codified at 48 C.F.R. Part 6106. The full panel must issue any decision. §§ 6106.606, 6106.613.

[iii] 9 U.S.C. §5

[iv] 359 F. Supp. 898 (SDNY 1973) (party appointed arbitrator died before the award. The appointing party requested the district court appoint a successor arbitrator under FAA §5. Originally each party selected an arbitrator and the two wings selected the chair. Noting that the arbitration agreement did not address this situation, the district court held that a new panel was necessary.

[v] 977 F.2d 66 (2d Cir. 1992).

[vi]  Id. For a thorough discussion of the cases relating to replacement arbitrators see Robert M. Hall’s excellent article, Arbitrator Resignation: Replace the Arbitrator or the Whole Panel? https://debrahalljd.wordpress.com/wp-content/uploads/2018/02/replacearbart.pdf; https://robertmhalladr.com/publications.

[vii]See The Arbitration Law Forum, Replacement Arbitrator: Does Section 5 Authorize Replacement of Deceased Arbitrator? (May 5, 2020).

https://loreelawfirm.com/blog/replacement-arbitrator-section-5-authorize-replacement-of-deceased-arbitrator/.

[viii]  AAA Construction Industry Arbitration Rules and Mediation Procedures, https://www.adr.org/construction.

[ix] JAMS Construction Arbitration Rules & Procedures, https://www.jamsadr.com/rules-construction-arbitration/#Rule-15.

[x]  CPR 2019 Administered Arbitration Rules https://drs.cpradr.org/rules/arbitration/administered-arbitration-rules-2019.

[xi]Article 15, International Chamber of Commerce 2021 Arbitration Rules, https://iccwbo.org/dispute-resolution/dispute-resolution-services/arbitration/rules-procedure/2021-arbitration-rules/#block-accordion-15.