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Preliminary phase

Preliminary phase: running from the commencement of the case (with notice being served on the defendant) until the tribunal is constituted.

Where a party decides to commence arbitration, it is important for it to follow the agreed procedure set out in an arbitration agreement. If the parties have chosen to arbitrate according to a particular set of institutional rules, those must also be adhered to. The applicable arbitral rules should, therefore, be studied carefully in preparation for the commencement of the arbitration.

The commencement of an arbitration will invariably begin by the claimant filing a notice or request for arbitration. Do not underestimate the importance of getting the notice or request for arbitration right. Failure to commence an arbitration properly may lead to a claim being time-barred or it may affect the jurisdiction of the tribunal to make a binding award.

Issues for consideration

Important issues to consider for an effective commencement of arbitration include:

Conduct a thorough check to ascertain whether the dispute resolution clause(s) require the parties to take any steps before commencement of arbitration (such as negotiation or mediation). Such a step might be a condition precedent.

Ensure that the substantive claim (whether contractual or otherwise) is not time-barred. (Whether a claim is time-barred will turn on the contractual terms and the law governing the contract in a contractual dispute, and on statutory provisions in the case of a tortious or statutory liability claim.)

Where institutional arbitration has been chosen by the parties, comply with any conditions imposed by the applicable rules, especially as to the contents and the method of delivery of the notice. The arbitration rules will normally specify the nature and content of the document by which the claimant submits the matter to arbitration.

Ensure that the correct party/parties are served with the notice. (Consider whether any principal/agent or affiliate company issue arises and exactly who is bound by the arbitration agreement.)

In addition to considerations in respect of commencement itself, there may be other strategic issues to consider at an early stage, including:

Whether recourse should be the emergency arbitrator scheme (if available) or to the national court for interim measures before the tribunal is established. Consideration might be needed in respect of evidence/asset preservation, attachments and injunctions; the applicable arbitral rules and arbitration law should be consulted.

Whether the matter is suitable for an expedited arbitration (and whether the applicable rules provide for an expedited arbitration).

Under some institutional rules, the respondent is required to submit its own initial pleading, known as an answer or response. The answer/response generally mirrors the request, outlining the respondent’s position on the claimant’s claims and nominating its choice of arbitrator if a three-member tribunal is called for. Some practical considerations in drafting the answer/response include the following:

Without delay, determine the deadline for responding to the request and seek an extension if possible and appropriate.

Where a respondent has an objection to the tribunal’s jurisdiction, it should raise the objection at this stage, as it is likely to be held to have waived any objection if it remains silent now.

If the respondent has a counterclaims, it will be expected to introduce them in its answer/response.

The answer/response should be drafted in compliance with the pleading requirements in the applicable rules.

Constitution of the tribunal

Once the series of initial pleadings is complete, the focus will turn to the constitution of the arbitral tribunal. The appointment and composition of the tribunal was considered in detail in Module 4. As a reminder, the important procedural issues to consider when constituting a tribunal include:

the procedures (including default procedures) for appointment under the applicable rules and law

whether a sole arbitrator or a panel will be appointed, and

what qualifications (if any) the tribunal must possess.

It will be recalled that the parties’ arbitration agreement or the applicable arbitration rules will typically require the parties to attempt to agree on the joint nomination of a sole arbitrator or, in the case of a three-member tribunal, require the parties to nominate an arbitrator each and then the co-arbitrators to attempt to agree on the joint nomination of the chair. It should be stressed that it is essential that the parties to the arbitration agreement comply with the terms of the agreement that address the appointment and constitution of the tribunal.

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International Arbitration: Process and Procedure

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