Commentary on Rules

Important: This is a commentary on the Rules of the International Expedited Arbitration Centre and their regular revision. It is in the manner of unofficial guidance, and will regularly change.

Consent Awards

The different institutional rules deal with consent awards in respect of settlements in broadly the same way. However, the LCIA rules do make it clear that reasons are not required for consent awards, and that it was only to be provided on the basis of the parties’ request. The SIAC rules do not appear to require an unanimous request but do make it clear that conclusion/termination of the Arbitration shall be on the full payment of accrued fees and costs. The preferred IEAC approach is an amalgam of the two, with unanimity required, reasons optional, and conclusions of the arbitration predicated on full payment of outstanding fees.

Absolute Discretion

Generally, the use of “absolute discretion” is used to characterise a decision that will not require the provision of reasons.

Challenges as to Jurisdiction

The PCA and ACICA don’t allow challenges to jurisdiction after the statement of defence. The PCA rules requires submission as to whether a tribunal is exceeding its authority made as soon as possible and explicits rules out or that a party’s participation in choosing an arbitrator precludes a challenges to an arbitrator’s jurisdiction. It is unclear how relevant this challenge is but may be a response to a “guerilla tactic.” The ICC has no restriction. LCIA doesn’t allow challenges after the defence other than if the delay is justified. Disallowing late challenges may affect enforceability. It is worthwhile allowing challenges only based on justification and allowing the tribunal to review such delayed jurisdictional challenges as the challenge may creatively and justifiably emerge from new circumstances.

Non-payment of fees by a claimant

The major institutions react to non-payment of claimant fees vary from simple outright termination (German -DIS) to refusal of acknowledgement of the claim (LCIA), to closure of the file after a certain time without prejudice to the party’s ability to return with one or more claims. The SIAC approach is a general suspension of a claim of a non-paying party. This approach may be preferable to allowing parties to “test the water” and waste the institution’s time. The SIAC approach also requires payment of the fee with the arbitration request. This may be the preferred to constant follow-ups from an institution for payment.

Consolidation

The most advanced rules contemplate the consolidation of parallel proceedings between the same parties under the same arbitration agreement. This is probably as far as the institutional rules can go without seriously impacting enforceability of awards. The ICC discusses the issue of “compatibility” of the arbitrations whereas the LCIA has the ability to force two arbitrations together after soliciting the parties’ views. To avoid bringing together disputes of entirely different natures into one arbitration, but having the ability to force two arbitrations, involving the same parties and the same agreement, to prevent race conditions between parallel claims under different tribunals, the preferred approach will be to incorporate both concepts. Some institutions contemplate the addition of third parties (Joinder) and additional claims. The Rules contemplate both these.

Control of a award

The ICC approach is preferred where the institution can control form of the award. The award is submitted in draft form to the institution before finalising. The ICC rules allow the institution to draw attention off the tribunal to points of substance. The SIAC rules allow the registrar to dictate form. Since a number of challenges towards relate to tribunals not making a decision based on the information put forward for them or making decision missed on other information, it will be important for the centre to be able to, like the ICC, draw the tribunal’s attention to points of substance.

Commencement of the Arbitration

The ICC determines the date of commencement of the petition to be the date on which the request for arbitration is received. The LCIA considers the date of commencement as the date on which the fees have been paid. The SIAC approach appears to be closer to the ICC approach in that they do not specify the receipt of fees (however, they do require the fees to be paid the application to be complete.) Given that the IEAC process is online and expedited, and the registration fee is low, commencement on payment of both sets of fees is preferred.

Impartiality and Independence

In respect of impartiality and independence, the ICC approach is the most stringent, (see s. 11) requiring a written declaration of acceptance, availability, impartiality and independence, and a continuing obligation to maintain that. The LCIA approach is  similar. The SIAC does not, like the preceding institutions, require such a declaration of the Arbitrator before appointment. It is worth considering whether the most stringent declaratory requirement be at least placed upon a presiding arbitrator or a sole arbitrator, as concerns about impartiality and independence of these people are more likely to impugn and award. At present the Rules at section 12 require such a declaration.

Apportionment of Costs

In respect of costs, the SIAC provides no guidance to arbitrators. The ICC gives them carte blanche. The LCIA makes the loser pays principle the default one with an escape hatch to the tribunal. For our approach as an effort towards levelling the playing field, some fees have been allocated by default in the schedule and additionally as with the ICC, the tribunal has the ability to reallocate costs based on the behaviour of the parties. It is unclear why the loser must pay the costs of the procedure. Our position is in place to prevent a situation where a party may attempt to bully the other side by stacking up expenses and altering the risk allocation of the dispute resolution process.

Hot Tubbing

“Hot tubbing” is a process of concurrent expert witness examination originating from Australia. Using a hot tub process may assist a tribunal in countering any conscious or unconscious bias present in expert testimony. Although party appointed experts are part of our opt-in procedures, in the interests of efficiency and fairness, we explicitly reserve the power of the Tribunal to require concurrent hearings for all experts.

Secretarial Support

There is a growing recognition among arbitration institutions and institutional rules that efficiency of the arbitration may benefit from explicitly contemplating the appointment of administrative secretaries to the tribunal. Some institutions (SCC) leave the decision with the parties while others (FAI, HKIAC) provide wider powers to the Tribunal to overrule party objections to such an appointment. Given that it is an obvious increase in upfront cost and unlike with expert appointments not necessarily impacting the a substantive examination of the issues by the Tribunal, the Rules, at present, leave the appointment subject to an unanimous request by the Parties. A secretary may provide administrative support or even provide assistance in drafting awards. Subsection 10(g) contemplate appointment and subsection 30(i) provide for the assistance in drafting. The former is in aid of efficiency and the latter to recognise that arbitrators and the quality of their awards may be well served by assistance and that awards should not be subject to attack for such assistance.

 

Time periods

In trying to settle on how time period are to be calculated, it is important to remember that not only do various jurisdictions have different national holidays, they can have different holidays on a weekly basis, for example the days constituting the weekend in Iran are very different from the days constituting the weekend in Sydney. The various institutional rules are in broad agreement that periods start the day after the communication or notification that leads to them. They also bump the end of a period from a non-business day to the first business day in the future. The small divergence appears to be which jurisdiction’s holiday is relevant to deciding that. The ICC focuses on a holiday in the jurisdiction where the communication is made while the SIAC states that it is a holiday in the jurisdiction of the receiving party. Those may be the same thing. The IEAC rules focus on the party which may be discomfited through no action of its own. The start date for a party should be a business day for it. However when assessing the end of a period, the sending party should not be curtailed by the other side’s holiday and yet the receiving party should not be forced to wait by the phone on a holiday for it. Thus the end date is extended to the end of the next business day in the jurisdiction of the receiver.

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