Conduct of arbitration proceedings
As mentioned in Part 1, different arbitration organisations apply different rules, but there are some provisions that all abide by. The Rules of the London Court of International Arbitration (the "LCIA Rules") are often used for commercial arbitration, and are a good example of rules that have been tried and tested.
The rules provide for what is essentially an adversarial proceeding, in which one party initiates the arbitration with a Request for Arbitration. The other party is then to provide a Response to the Request for Arbitration within a certain period of time.
After the parties have initiated arbitration in this way, the LCIA will appoint an arbitral tribunal - giving due regard to any method of nominating arbitrators that the parties have agreed between themselves.
The arbitral tribunal sets the rules for the proceedings themselves. The LCIA provides certain default rules for the submission of written proceedings, which allow for a Statement of Case by the claimant, a Statement of Defence by the defending party (which is to include any counterclaim) and a Statement of Reply by the claimant (which is to include any defence to any counterclaim advanced by the defending party).
The arbitral tribunal fixes the date, time and place for any hearings to be held. It can also require the parties to identify witnesses before a hearing, and appoint experts to report on specific issues.
Moreover, the tribunal can take interim measures, such as requiring a party to make a deposit on account of costs, to provide security to be held against the amount in dispute, and to make a provisional order for the payment of an amount from one party to the other.
In effect, the rules enable the arbitral tribunal to act as an informal court - which is generally the objective of arbitration law.
In many commercial agreements, the parties will include an arbitration clause. It is, however, sometimes worth considering whether this is desirable. For example, a lender who, in the event the borrower defaults in payment, might simply want to be able to sue and get judgment quickly on a promissory note may prefer not to be compelled to arbitrate.
Some standard form agreements (such as an agreement for opening an account with a stockbroker) include what might be regarded as industry-specific arbitration clauses, giving the customer or client little choice but to sign up to them.
Where, however, there is a bespoke commercial agreement the parties will often agree an arbitration clause that sets out details as to how a party can initiate an arbitration, what rules it will follow, where the proceedings will be held, how many arbitrators will be involved and how they will be selected. Usually, the clause will not spell out the rules of the arbitration in detail, but simply refer to the rules of a recognised arbitration organisation such as the International Chamber of Commerce or the LCIA (referred to above).
Getting advice about arbitration
Solicitors who do general commercial work will usually be able to advise you in detail about arbitration clauses and their effect. For advice relating to an actual arbitration proceeding, a solicitor who specialises in litigation will probably be best suited to advise.
Whatever type of advice you require in relation to arbitration law, Contact Law can introduce you to a solicitor in your area with the appropriate skills and experience, and will do so at no cost to you.