Institutional Arbitration Notes

INSITUTIONAL ARBITRATION

• institutional arbitration - arbitral institution acts as authority in default / administrator or supervisor

• ad hoc arbitration - no institution, only parties and arbitrator(s) involved

• UNCITRAL Arbitration Rules 2010

  • UN agency - harmonises international commercial law within UN

  • govern arbitrations not otherwise governed by institution i.e. ad hoc arbitrations can use half way between ad hoc and institutional

• history

  • ad hoc arbitration ancient

  • 1892 LCIA set up institutional started C19th

ADVANTAGES AND DISADVANTAGES

What kind of disputes go to institutional / ad hoc?

• generally (but are exceptions)

  • small disputes ad hoc as don't have to pay institution

  • state-state disputes go ad hoc as don’t have to submit to private institution

• BUT no set formula

Cost

• not clear cut, depends on circumstances which cheaper

• not necessarily cheaper for smaller institutions to go ad hoc

• institutions usually not for profit - assist business community

• arbitrators in ad hoc arbitrations ARE run for profit

• pricing structures for institutional

  1. ad valorem system: cost is percentage of amount in dispute

  2. hourly rate

  • depends on circumstances which is cheaper

INSTITUTIONS

• big 3:

1. International Chamber of Commerce (ICC) - Paris

2. London Court of International Arbitration (LCIA)

3. American Arbitration Association (AAA)

• also regional ones

• trend towards more institutions

• full list EXAM - know names

  • AAA American Arbitration Association wide range, domestic + international

  • CEDR Centre for Effective Dispute Resolution commercial, applies UNCITRAL rules

  • CIA Chartered Institute of Arbitrators for trade associations + prof bodies

  • CIETAC China International Economic + Trade international commercial ssssssss Arbitration Commission

  • FOSFA Federation of Oils Seeds + Fats Association commodity disputes

  • GAFTA Grain and Feed Trade Association commodity disputes

  • HKIAC Hong Kong International Arbitration Centre international commercial

  • ICC International chamber of Commerce international commercial, financial, technical

  • ICE Institute of Civil Engineer civil engineering

  • ICSID International Centre for Settlement of Investment investment disputes ffffffffffff ggggg gg Disputes

  • JCT Joint Contracts Tribunal building disputes

  • LCIA London Court of International Arbitration international commercial

  • LMAA London Maritime Arbitrators Association shipping

  • LME London Metal Exchange metals trade

  • PCA Permanent Court of Arbitration differences between states

  • SIAC Singapore International Arbitration Centre shipping, banking, insurance, construction

• rules

  • UNCITRAL UN Commission on International international commercial contracts dd Trade Law

• structure

  • court / board: non-permanent; supervisory; well-known practitioners, academics, retired judges volunteer; apply institutional rules; make decision

  • secretariat: permanent; admin of cases; headed by registrar

LEGAL STATUS OF INSTITUTIONAL RULES

• contractual in nature - incorporate institutional rules into contract by reference, unless expressly agree to vary / exclude

• agree to submit to future disputes authority of institution

STAGES

1. initiate proceedings

   • file request with institution: basics of claim, contact details, constitution of tribunal

2. send copy of request to respondent (sometimes institution does, sometimes C does)

3. response to request

4. tribunal appointed

   • parties nominate

   • institution confirm appointment (ensures impartiality, any challenges decided by institution)

5. parties submit 'SoCs'

6. usually hearing(s) (sometimes on papers)

7. award(s) made in name of arbitrator send to institution

8. scrutiny / review of award by instutution

FOUNTAIN COURT PODCASTS

BIAS

• 3 routes to disqualification

  • automatic disqualification = decision maker = party and / or has direct interest in common with one party; subject to waiver i.e. man may not be judge in own cause

    • what type of interest? financial; shareholding in party; close connection of interests with related party

    • barristers - no financial interest (if no CFA)

    • solicitors share profit

  • actual bias = conclusive vitiating factor (largely redundant)

  • apparent bias = "real danger or real possibility of bias" cf s24(1)(a) AA "justifiable doubt"; objective test - perceptions of a "fair minded and informed...

Buy the full version of these notes or essay plans and more in our Alternative Dispute Resolution Notes.