The procedural framework

The framework for the arbitral process can be created in three ways:

1. by the arbitration agreement
2. by the chosen rules (whether ad hoc or institutional), or
3. by the law governing the arbitral proceedings (overwhelmingly this will be the law of the seat).

Also, it is important to have in mind that the law governing the arbitral proceedings is variously described as the procedural law, the curial law or the lex arbitri.

Do not get confused between the law that governs the arbitration agreement and the law that governs the arbitration proceedings. They might be the same or they might be different. For example, the law governing the agreement itself might be the same as that governing the substantive contract, but different from the law governing the arbitration proceedings.

The law which governs the proceedings of an international arbitration is capable of having a significant impact on the proceedings themselves.

Although the law governing the proceedings is sometimes referred to as the “procedural law”, in most states it is actually much more than that.

In respect of procedure, however, the law governing the proceedings will typically determine what assistance the national court may lend to the arbitral process aggrieved party and what powers of review it has.

Most national arbitration laws include within the lex arbitri a default set of procedures for the conduct of arbitration seated in the jurisdiction. This allows for the orderly progression of a case if the parties have not made other arrangements through the adoption of institutional (or other) arbitral rules.

In practical terms, parties will frequently make alternative provision for matters of procedure, though they may not state in terms that they have made a conscious choice to opt out of particular (non-mandatory) provisions of the lex arbitri. Instead, they will typically do so by specifying applicable rules for resolution of their dispute and that will have the effect of displacing the non-mandatory default provisions in the applicable law to the extent that the non-mandatory provisions are inconsistent.

Whether the applicable rules are institutional (such as the Singapore International Arbitration Centre (SIAC), the Hong Kong International Arbitration Centre (HKIAC), the China International Economic and Trade Arbitration Commission (CIETAC) or the International Chamber of Commerce (ICC)) or ad hoc (typically, the United Nations Commission on International Trade Law (UNICTRAL) Rules) and with or without additional agreed “bolt ons”, the parties are, in effect, choosing to conduct their arbitration according to the detailed procedural code laid out therein, thereby supplementing or supplanting the procedural portions of the lex arbitri.