Arbitral rules

The law governing the arbitration proceedings, the lex arbitri, does not seek to be a complete set of detailed rules governing every aspect of the arbitral process. Instead, that detailed framework is provided by the rules of procedure that the parties will adopt or create for themselves.

The choice of arbitral rules will lie with the parties and will be determined in large part by the parties’ choice of either institutional or ad hoc arbitration. If institutional arbitration is chosen, the parties are likely to adopt the rules of the institution in question (such as SIAC or HKIAC). However, in some institutional arbitrations the parties may choose a set of rules that are not that institution’s own rules, such as the UNCITRAL Arbitration Rules.

Similarly, where parties agree upon an ad hoc arbitration, they will usually adopt an established set of rules rather than create their own.

Institutional rules give great scope and latitude to the parties to shape their own procedure and the rules themselves do not pretend to be comprehensive in all respects. If an arbitral process is to be run effectively and efficiently, the rules must still be added to by the parties (or by the arbitral tribunal) in respect of certain matters, including how a hearing is to be conducted, how witnesses are to be heard and which rules of evidence (if any) will apply.

It is advisable for the parties to seek to reach agreement in the arbitration agreement as to the rules and procedure that will be applicable if a dispute arises. In circumstances where that is not possible or the parties are unwilling to do so, the parities should agree on rules of procedure as early as possible after a dispute has arisen and, in any event, certainly by the start of the arbitration process.