International Commercial Arbitral Institutions and Other International Bodies

Author:Anthony Connerty
Profession:Barrister and member of WIPO arbitration panel
Pages:225-266
SUMMARY

A. International Commercial Arbitral Institutions and their Arbitration Rules: -1) Introduction. -2) The London Court of International Arbitration: i) Introduction. ii) The LCIA Arbitration Rules. iii) Other LCIA Dispute Resolution Processes. -3) The International Chamber of Commerce: i) Introduction. ii) The ICC Arbitration Rules. iii) Other ICC Dispute Resolution Processes. -4) The American... (see full summary)

 
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A International Commercial Arbitral Institutions and Their Arbitration Rules
1) Introduction

The last chapter looked briefly at international commercial arbitration, including the United Nations Commission on International Trade Law (UNCITRAL) Model Arbitration Law and the New York Convention. Part A of this chapter looks at a number of the international commercial arbitral institutions and their arbitration rules, Part B considers the Arbitration Rules of UNCITRAL and Part C looks at arbitration under the Rules of the Chartered Institute of Arbitrators.

It is obviously not possible in this Manual to consider all of the international arbitral institutions: there are many, and only a small selection can be looked at in the space available.81 Moreover, because their rules tend to follow a similar pattern, it is unnecessary to look in detail at each and every one of them. Instead, only the rules of the first institution considered - the London Court of International Arbitration (LCIA) - will be looked at in any detail.

The structure of the arbitration rules of the institutions considered includes:

* commencement of the arbitration;

* constitution of the arbitral tribunal: number of arbitrators, appointment, challenge and replacement of arbitrators;

* duties of arbitrators;

* powers of the tribunal, including competence / competence and interim and conservatory measures;

* place and language of the arbitration;

* governing law, and whether the tribunal may decide ex aequo et bono or act as amiable compositeur;

* pleadings: statement of case, statement of reply, etc;

* documentary evidence and factual and expert evidence;

* provisions as to hearings, which may include provisions relating to the examination of witnesses;

* provisions as to the award, including correction and interpretation and finality of the award.

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However, the rules of different institutions have their particular features. For example:

* The LCIA Rules contain a provision for the expedited constitution of the tribunal in cases of exceptional urgency. The Rules also lay emphasis on the general duty of the tribunal, a reflection of provisions in the English Arbitration Act, and include the warning that arbitrators shall not "act in the arbitration as advocates for any party". The Rules are unusual in that, in the provisions relating to pleadings, there is an express requirement that a Reply be served.

* The International Chamber of Commerce (ICC) Rules provide for Terms of Reference and for the scrutiny of the draft award by the ICC Court.

* The International Rules of the American Arbitration Association's (AAA) international division, the International Centre for Dispute Resolution, contain a very useful provision for a preparatory conference with the parties "for the purpose of organizing, scheduling and agreeing to procedures to expedite the subsequent proceedings". The Rules also contain a provision excluding the award of punitive damages, as well as a unique provision that permits a party to seek emergency relief through the appointment of an emergency arbitrator (who will be appointed within one day of a request for such relief).

* One of the significant features of the China International Economic and Trade Arbitration Commission (CIETAC) Rules is the emphasis on the "combination of arbitration with conciliation".

The next section will consider in some detail the LCIA Arbitration Rules, thus enabling the other institutional rules to be dealt with more briefly.

2) London Court of International Arbitration
i) Introduction

The LCIA is one of the longest established of the major international commercial arbitral institutions and is a truly international organisation. Although it is based in London, there is no more reason for an LCIA arbitration to be held in that city than there is for an ICC arbitration to be held in Paris.

The LCIA operates under a three-tier structure, comprising the Company, the Arbitration Court and the Secretariat. The formation of the Arbitration Court in 1985 is regarded by the LCIA as a major step towards its internationalisation:

"The LCIA Court is made up of up to thirty-five members, selected to provide and maintain a balance of leading practitioners in commercial arbitration, from the major trading areas of the world. UK membership of the LCIA Court is restricted to 25 per cent. Other members are drawn from as far afield as Hungary and Australia, Nigeria and the United States, Tunisia and China.

"The LCIA Court is the final authority for the proper application of the LCIA Rules. Its principal functions are the appointment of tribunals, the determination of challenges to arbitrators, and the control of costs. The functions of the LCIA Court are performed, in the name of the LCIA Court, by the President, by a Vice President or by a DivisionPage 227 of the LCIA Court of three or five members, of whom one will be the President or a Vice President, or, in the case of administrative functions, by the Registrar.

"It is the LCIA's view that a carefully selected and, therefore, specifically suitable tribunal will issue a reasoned, well-drafted award in which the parties may have confidence, without the need for external scrutiny. There is, therefore, no LCIA Court scrutiny of LCIA awards, so parties receive their award promptly, and subject only to the payment of the costs of the arbitration."

The Secretariat of the LCIA is based at the International Dispute Resolution Centre in Fleet Street, London. The Secretariat, headed by the Registrar, is responsible for the administration of arbitrations referred to the LCIA. It "aims to assist the parties and their counsel promptly and with the minimum of bureaucracy, as and when required, and to ensure that proceedings are not allowed to flounder for want of proper supervision."

"The Secretariat also organises all necessary back-up for hearings and meetings, including video and teleconferences, court reporting and simultaneous translation. The Secretariat receives many requests for information each day. Many of these enquiries do not relate to LCIA cases, either projected or pending. The LCIA provides a free information service in the interest of promoting private dispute resolution generally. The aim of the LCIA is first and foremost to provide a service to its users."

The LCIA has established Users' Councils around the world that are aimed at keeping the LCIA "informed about developments in other jurisdictions and provide local support and advice for the London Secretariat". The Users' Councils are

* the European Council, covering Europe and the Middle East;

* the North American Council, covering North America and adjacent countries;

* the Asia-Pacific Council, covering South East Asia and the Pacific Rim;

* the Pan-African Council, covering the whole of Africa; and

* the Latin American Council, covering Central and South America and the Caribbean.

The LCIA says that the nature and value of its arbitration casework is

"very substantial, with major international users entrusting the administration of their arbitrations to the LCIA. Many of the cases are technically and legally complex and sums in issue can run into billions of US dollars. Parties come from a very large number of jurisdictions, of both civil law and common law traditions.

"The subject matter of contracts in dispute is wide and varied, and includes all aspects of international commerce, including, in particular, telecommunications, insurance, oil and gas exploration, construction, shipping, aviation, pharmaceuticals, IT, finance and banking."

Full information concerning the LCIA can be found on its website.82

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ii) The LCIA Arbitration Rules

The current LCIA Arbitration Rules came into effect on 1 January 1998. The revision of the Rules was to some extent made in the light of the new English Arbitration Act of 1996.

Request for Arbitration

The commencement of an LCIA arbitration is made by a Request for Arbitration. The Request seeks a considerable amount of detailed information. Article 1 of the Rules provides that a written request is to be sent to the Registrar and is to contain or be accompanied by:

...

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