KluwerArbitration

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Preface
Publication It is often said that the conduct of an arbitration is only as good as the arbitrators. After all,
to a considerable degree, it is the arbitrators who are responsible for helping the parties
The International Arbitration to define an appropriate procedural framework for resolving their dispute, who decide the
Rulebook: A Guide to Arbitral merits of the dispute, and who have the ultimate responsibility for rendering an award that
Regimes is enforceable. But, the maxim can perhaps be extended as follows: an arbitration is only
as good as the arbitrators and the arbitration rules.
Historically, there were limited options available to parties considering which arbitration
Bibliographic reference rules to adopt. Today, there are many more choices, particularly with the spread of
'Preface', in Arif Hyder Ali , regional centers, each of which has adopted its own arbitration rules. Specialized
Jane Wessel , et al., The institutions focused on arbitrations between foreign investors and states (e.g., the
International Arbitration International Centre for Settlement of Investment Disputes (ICSID)) and those involving
Rulebook: A Guide to Arbitral intellectual property disputes (World Intellectual Property Arbitration and Mediation
Regimes, (© Kluwer Law Centre) have not only grown in prominence but have become mainstays of the
International; Kluwer Law international arbitral framework. As newer institutions have gained in experience they
International 2019) pp. xv - have quickly challenged the conventional wisdom of limiting one’s choices to the handful
xx of “established” international arbitral institutions. As a result, there now exists a plethora
of choices of arbitral institutions and rules, each different in ways that can impact how an
arbitration is conducted at its most fundamental levels.
The numerous arbitral regimes available today, although similar in many respects, differ in
subtle and complex ways that can have a profound effect on the procedural rights and
obligations of the parties, the way in which an arbitration is conducted, and the ultimate
enforceability of the award. These differences include: (i) the governance structure of the
administering institutions and the role of their respective governing or administrative
bodies in the arbitration; (ii) the procedures for selecting and vetting arbitrators; (iii) the
process and procedures for making default arbitrator appointments; (iv) the selection of
the place of arbitration or designation of governing law in the absence of party agreement;
(v) the procedures and standards for resolving challenges to proposed and sitting
arbitrators; (vi) the procedures and standards for award scrutiny; (vii) case management
P xv and administrative support; and (viii) other specialized unique features of the institution’s
P xvi arbitral system that may differ from the procedures of other institutions. As such, the
parties’ choice of arbitral regime can affect the duration, expense, and even the outcome
of their dispute.
This book has its genesis in the international commercial and investor-state arbitration
courses that I have had the privilege of teaching at the Georgetown University Law Center
and the University of Dundee’s Centre for Energy, Petroleum, and Mineral Law and Policy,
as well as trainings I have conducted for arbitral institutions, aspiring arbitrators, judges,
and government officials around the world. In planning and teaching the courses, it struck
me that there was an important gap in the otherwise extensive canon of international
arbitration texts. While there are many excellent monographs addressing the rules of
specific institutions, or arbitral jurisprudence and practice in general, I was unable to
identify any dealing specifically with the range of institutional and ad hoc rules on a
comparative basis. This lacuna led to the general structure of this volume. Thereafter, my
coauthors and I set about designing a comprehensive, descriptive, and analytical “road
map” to international commercial and investment arbitration rules. The result of those
efforts is this book. It is based primarily on a comparative guide to the rules of the major
international arbitration institutions and the most widely used ad hoc arbitration rules. It
is designed to cover the broad range of issues that are addressed in arbitration rules in a
straightforward, practical style that we hope will make it a valuable resource for
practitioners and students alike, both those who are new to arbitration and those with
considerable knowledge and experience.
Given the enormous number of arbitration rules that exist, we recognized early on that this
book would have been impossibly unwieldy unless we made some hard choices about
which rules to include and which to omit. The decision that we finally reached—whether
wisely or not—was to include the rules of arbitral regimes that would best serve as vehicles
for our didactic exercise not only because of the variation amongst the regimes with
respect to particular issues but also the similarities. We thus selected the rules of the
American Arbitration Association’s International Centre for Dispute Resolution (AAA-ICDR);
the China International Economic and Trade Arbitration Commission (CIETAC); the Hong
Kong International Arbitration Centre (HKIAC); the International Court of Arbitration of the
International Chamber of Commerce (ICC); the London Court of International Arbitration
(LCIA); the Arbitration Institute of the Stockholm Chamber of Commerce (SCC); and the
Singapore International Arbitration Centre (SIAC). We also included the rules of the ICSID,
which is the leading institution administering investor-state arbitrations. Finally, we
included the arbitration rules promulgated by the United Nations Commission on
International Trade Law (UNCITRAL) which is not itself an institution that administers

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 arbitrations but whose rules have been used in numerous ad hoc arbitrations (both in
commercial and investor-state disputes) and which have served as the model for the rules
used by many of the excellent regional arbitration centers that have emerged over recent
years.
We would be among the first to acknowledge that there are any number of other rules that
could have been included and this was a difficult line to draw. But drawn it had to be.
P xvi Our objective with this book is to provide a practical guide to the institutional and ad hoc
P xvii rules of international arbitration in one book—a one-stop shop—but from a distinctly
“rule” and “guide” point of view. The book is not intended to be a philosophical discourse
on normative international law or arbitration. Instead, it serves to plug the gap between
the treatises that exist on one particular institution, and the helpful tables of cross-
comparison between the institutions that provide no more than a starting point for insight
into what the differences between those rules mean in reality or how the rules are applied
in practice. By providing commentary in this important area based on our combined
experience in commercial, construction, and investor-state arbitration, in addition to
simple and effective guides ranging from clause drafting to costs, our aim is for this volume
to provide a useful guide and comprehensive framework of arbitration rules for
experienced international arbitration practitioners and users of arbitration services alike,
as well as for students and teachers of international arbitration.
For Contract Negotiators: There are several implications resulting from the choice of a
particular arbitral regime versus another that are not always considered by contract
negotiators, i.e., those who are often responsible for drafting the terms of the dispute
resolution provisions of the parties’ agreement, but who, more often than not, are not
involved in any subsequent dispute resolution proceedings. We hope that with this book as
a reference, contract negotiators will be better armed by knowing what the implications
are of the rules of each of the arbitral regimes covered in this book in the event that they
reach a negotiating impasse with a counter-party over such issues as the governing law, the
place of arbitration, or the number of arbitrators, among others.
For Counsel: Where the applicable regime is silent on a particular issue, or leaves the issue
to the discretion of the tribunal, arbitration practitioners should find the rule comparison
tables and accompanying discussion helpful in terms of advocating for a suitable
approach. Our goal was to point out the subtle and often complex differences in approach
taken by different arbitration rules to assist counsel to appreciate the diverse strategies
that are available. Moreover, many international arbitration counsel who practice
regularly before a particular arbitral institution—and who are steeped in that institution’s
rules—may find the book to be a useful guide for understanding the differences of rules
that are new (or relatively new) to them. Some counsel may be surprised at the extent to
which one arbitral regime can differ from another.
For Arbitrators: This book also aims to assist international arbitrators, who must decide
upon an appropriate course of action whenever the parties cannot agree. Oftentimes a
comparison of different approaches among various regimes can uncover the meaning of a
particular rule or inspire a novel approach to even the most routine procedures. As
arbitrators constantly strive to achieve balance—whether between the parties’ conflicting
views of procedure or between the competing demands of due process and efficiency—a
comparative approach to the rules can light the way forward.
For Academia: We also expect that law professors and law students will find this book to be
an important addition to the reading list of any course on international arbitration. The
P xvii chapters are generally organized around the chronological phases of an international
P xviii arbitration, which will allow students to learn each aspect in turn. Every chapter begins
with an introduction to the topic, followed by an easy-to-understand explanation of the
salient features of the relevant rules. We have written this book in the hopes that novices
and experts alike will find it illuminating.
Arbitral Institutions: Lastly we expect this work to make a lasting contribution to the
continuing efforts of arbitral institutions around the world to refine their arbitration rules.
The leadership of the various institutions may now more easily survey the different
approaches and identify emerging best practices in the design and drafting of arbitral
regimes. We hope that the comparison of various rule regimes will encourage arbitral
institutions to keep innovating to meet the most important challenges that confront
arbitration as a mechanism of dispute resolution—lowering costs, increasing efficiency,
while ensuring that parties’ due process rights are respected.
Undoubtedly, each of the institutions covered in this book will amend its rules in the
coming months and years. In fact, as this book goes to press, ICSID is coming to the end of a
lengthy process of rules development and public consultation that will lead to a new set of
arbitration rules. The LCIA has also announced modifications to its arbitration rules.
Nonetheless, we believe that the discussion we have provided of different aspects of
arbitral procedure and case administration, with reference to specific rules, will remain
relevant for teaching, rulemaking, and the development of procedural best practices.
Ultimately, the most valuable aspect of a comparative approach is to illustrate that there
can be new and different ways to handle the same issue. The different rules covered in this
book typically represent the hard work of highly experienced arbitrators, counsel,

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 academics, and institution staff—often from different legal and business cultures in
different parts of the world. A comparative approach necessarily means a collective
approach: it enables the international arbitration bar as a whole to assess and develop
best practices, and at the same time understand that what works well in one setting may
not work well in another. There is much to be learned from the differences as well as the
similarities in the various arbitral regimes covered in this book.
While my students and our classroom discussions inspired this project, its completion is
very much a result of the hard work, tenacity, patience, and experience-based insights and
analysis of my three co-authors: Jane Wessel, Alexandre de Gramont, and Ryan Mellske.
Jane, with whom I had the pleasure of practicing law at the international law firm Crowell &
Moring LLP—an institution to which Alex, Jane, and I owe a deep debt of gratitude for
supporting the “Rulebook Project” in its early stages—was the first to join me at the
coalface of this mammoth endeavor, and I am deeply grateful to Jane for her constant
encouragement to keep pressing forward each time I was ready to throw in the towel
following the announcement by yet another one of the selected arbitral institutions that it
would be revising its rules. Alex, one of my closest friends since our days at NYU Law School
more than 30 years ago, was the next to join the author team, bringing to the discussion
and drafting his vast experience as an international arbitration trial lawyer and insightful
academic. Finally, we were joined by Ryan Mellske, an experienced arbitration
practitioner and scholar, who contributed not only writing and editing but also energy and
much needed organizational skills to the project.
P xviii
P xix
We have many people to thank for their help, support, and encouragement along the way.
Our firms have generously allowed us to devote considerable time and efforts to this
project. Our families have been even more generous and unfailingly patient. Casey Ballard
of Hill Schwartz Spilker Keller LLC provided invaluable assistance with the calculations in
Chapter 8 of the book dealing with arbitration costs. Others who have contributed their
time, effort and scholarship, and who we thank enormously for their hard work include (in
alphabetical order) Hdeel Abdelhady, Emily Alban, Ricardo Ampudia, Anna Avilés-Alfaro,
Justin Bart, Charlotte Baskin-Gerwitz, Lauren Blanchard, Lindsay Bourne, Charlotte Boylan,
Remy Bracey, Jocelyn Burgos, Mary Burgoyne, Becky Carpenter, Jenn Cilingin, Meredith
Craven, Romy Descours-Karmitz, Marc Epstein, Deborah Flinn, Staci Gellman, Sarah
Goodman, Michael Igyarto, Lauren Kim, Ian Laird, Anna Lanshakova, Michael Losco, Athina
Manoli, Gordon McAllister, Nathaniel Morales, John Murino, Ed Norman, Bernard Powell,
Borzu Sabahi, Harsh Sancheti, Tatiana Sainati, Sylvana Sinha, Claire Stockford, Kassi
Tallent, Madeline Tutman, and Erin Yates. To anyone whom we may have omitted, we offer
not only our apologies but also our sincere thanks for your contributions to this project.
Arif Hyder Ali
Washington, D.C.
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Document information
List of Abbreviations
P xxi
Publication P xxii
AAA American Arbitration Association
The International Arbitration
Rulebook: A Guide to Arbitral PPxxiii
xxii AAA-ICDR American Arbitration Association’s International
P xxiii
xxiv Centre for Dispute Resolution
Regimes
AAA-ICDR Rules Arbitration Rules of the International Centre for
Dispute Resolution (Effective as of 1 June 2014)
Bibliographic reference
ADR Amicable Dispute Resolution
'List of Abbreviations', in Arif
Hyder Ali , Jane Wessel , et AIAC Asian International Arbitration Centre (previously
al., The International known as The Kuala Lumpur Regional Centre for
Arbitration Rulebook: A Arbitration)
Guide to Arbitral Regimes, AMA Protocol Arb-Med-Arb Protocol
(© Kluwer Law International;
Kluwer Law International BRI Chinese Belt and Road Initiative
2019) pp. xxi - xxiv CAFTA-DR Dominican Republic-Central America Free Trade
Agreement
CAMCA Commercial Arbitration and Mediation Centre for the
Americas
CIETAC China International Economic and Trade Arbitration
Commission
CIETAC Rules CIETAC Arbitration Rules (Effective as of 1 Jan. 2015)
CIETAC Rules 2005 CIETAC Arbitration Rules (Effective as of 1 May 2005)
CIETAC Rules 2012 CIETAC Arbitration Rules (Effective as of 1 May 2012)
CRCICA Cairo Regional Centre for International Commercial
Arbitration
DAB Dispute Adjudication Board
ECT Energy Charter Treaty (Effective as of April 16 1998)
FAA Federal Arbitration Act
GST Goods and Service Tax
HKIAC Hong Kong International Arbitration Centre
HKIAC Rules HKIAC Administered Arbitration Rules (effective as of
1 November 2018)
HKIAC Rules 2008 HKIAC Arbitration Rules (effective as of 1 September
2008)
HKIAC Rules 2013 HKIAC Arbitration Rules (effective as of 1 November
2013)
IACAC Inter-American Commercial Arbitration Commission
IBA Rules of Ethics IBA Rules of Ethics for International Arbitration
IBA Rules of Evidence International Bar Association’s Rules on the Taking of
Evidence in International Arbitration (Effective 29
May 2010)
ICC International Chamber of Commerce
ICC Court International Court of Arbitration of the International
Chamber of Commerce
ICC Expert Rules 2015 Expert Rules of the International Chamber of
Commerce (Effective as of 1 February 2015)
ICC Mediation Rules Mediation Rules of the International Chamber of
Commerce (Effective as of 1 January 2014)
ICC Rules Arbitration Rules of the International Chamber of
Commerce (Effective as of 1 March 2017)
ICC Rules 1998 Arbitration Rules of the International Chamber of
Commerce (Effective as of 1 January 1998)
ICC Rules 2012 Arbitration Rules of the International Chamber of
Commerce (Effective as of 1 January 2012)

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 ICDR Rules 2009 ICDR Rules (Rules Amended and Effective 1 June
2009)
ICSID International Centre for Settlement of Investment
Disputes
ICSID Arbitration (Additional ICSID Arbitration (Additional Facility) Rules (Effective
Facility) Rules as of 10 April 2006)
ICSID Conciliation Rules Rules of Procedure for Conciliation Proceedings, in
ICSID Convention, Regulations and Rules (Effective as
of 10 April 2006)
ICSID Convention ICSID Convention (Effective as of 10 April 2006)
ICSID Convention, Executive ICSID Convention, Report of the Executive Directors
Report on the Convention on the Settlement of Investment
Disputes between States and Nationals of Other
States (Effective 10 April 2006)
ICSID Institution Rules ICSID Rules of Procedure for the Institution of
Conciliation and Arbitration Proceedings (Effective
as of 10 April 2006)
ICSID Regulations ICSID Administrative and Financial Regulations
(Effective as of 10 April 2006)
ICSID Rules ICSID Rules of Procedure of Arbitration Proceedings
(Effective as of 10 April 2006)
LCIA London Court of International Arbitration
LCIA Rules Arbitration Rules of the London Court of
International Arbitration (Effective as of 1 October
2014)
LCIA Rules 1998 Arbitration Rules of the London Court of
International Arbitration (Effective as of 1 January
1998)

NAFTA North American Free Trade Agreement (Effective as

of 1 January 1994)
New York Convention United Nations Convention on the Recognition and
Enforcement of Foreign Arbitral Awards (Effective as
of 7 June 1959)
OAS Organization of American States
PCA Permanent Court of Arbitration in The Hague
PILA Private International Law Act
SCC Arbitration Institute of the Stockholm Chamber of
Commerce
SCC Mediation Rules The Mediation Rules of the Arbitration Institute of
the Stockholm Chamber of Commerce (Effective as of
1 January 2014)
SCC Rules The SCC’s Arbitration Rules (Effective as of 1 January
2017)
SCIA Shenzhen Court of International Arbitration
SHIAC Shanghai International Arbitration Centre
SIAC Singapore International Arbitration Centre
SIAC Rules Arbitration Rules of the Singapore International
Arbitration Centre (Effective as of 1 August 2016)
SIMC Singapore International Mediation Centre
UNCITRAL United Nations Commission on International Trade
Law
UNCITRAL Conciliation Rules Conciliation Rules of the United Nations Commission
on International Trade Law (Effective as of 4
December 1980)
UNCITRAL Model Law UNCITRAL Model Law on International Commercial
Arbitration (1985) with amendments adopted 4
December 2006
UNCITRAL Notes UNCITRAL Notes on Organizing Arbitral Proceedings
(July 2016)

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 UNCITRAL Rules 1976 UNCITRAL Rules (Effective 15 December 1976)
UNCITRAL Rules 2010 Arbitration Rules of the United Nations Commission
on International Trade Law (as revised in 2010)
(Effective as of 15 August 2010)
UNCITRAL Rules on Transparency UNCITRAL Rules on Transparency in Treaty-based
Investor-State Arbitration (Effective as of 1 April
2014)
U.S. United States of America
VAT Value Added Tax
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Document information
Acknowledgements
Publication Arbitration Rules of the International Centre for Dispute Resolution and International
Centre for Dispute Resolution Rules are reproduced with permission of the International
The International Arbitration Centre for Dispute Resolution - American Arbitration Association.
Rulebook: A Guide to Arbitral
Regimes China International Economic and Trade Arbitration Commission Rules are reproduced
with permission of the Chinese International Economic and Trade Arbitration Commission.
Hong Kong International Arbitration Centre Administered Arbitration Rules are reproduced
Bibliographic reference with permission of the Hong Kong International Arbitration Centre.
'Acknowledgements', in Arif International Chamber of Commerce Rules Copyright © International Chamber of
Hyder Ali , Jane Wessel , et Commerce (ICC). Reproduced with permission of ICC. The text reproduced here is valid at
al., The International the time of reproduction (31 October 2019). As amendments may be made to the text,
Arbitration Rulebook: A please refer to the website https://iccwbo.org/dispute-resolution-services for the latest
Guide to Arbitral Regimes, version and for more information on ICC dispute resolution services. Also available in the
(© Kluwer Law International; ICC Digital Library at http://library.iccwbo.org
Kluwer Law International International Centre for Settlement of Investment Disputes Rules are reproduced with
2019) pp. xxv - xxvi permission of the International Centre for Settlement of Investment Disputes.
London Court of International Arbitration Rules are reproduced with permission of the
London Court of International Arbitration.
Arbitration Rules of the Singapore International Arbitration Centre SIAC Rules (6th Edition,
1 August 2016) Copyright © 2016 Singapore International Arbitration Centre.
The Arbitration Institute of the Stockholm Chamber of Commerce (SCC) Rules have been
reproduced with permission from the SCC. For further information please visit:
https://sccinstitute.com/
UNCITRAL Rules are reproduced with permission of the UNCITRAL Secretariat.
P xv

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Document information
Chapter 1: Overview of Arbitral Institutions and Regimes
Publication In this chapter we look at the institutions behind the arbitral regimes selected for analysis
in this text. The arbitration rules presented in this chapter pertain to the powers and
The International Arbitration duties of each institution related to the administration of the arbitration. Notwithstanding
Rulebook: A Guide to Arbitral the extensive powers of the arbitral tribunal to conduct the proceedings (discussed in
Regimes Chapter 4), and in some cases subject to the parties’ agreement, the institutions variously
may perform the following functions: register or reject requests for arbitration and answers;
determine the seat and/or language of the arbitration; decide preliminary questions of
Organization jurisdiction; apply expedited or emergency procedures; require the parties to make an
advance on costs; calculate final costs; act as a conduit and repository for document
International Centre for submissions and communications; encourage the parties to mediate their dispute; join
Dispute Resolution additional parties; consolidate related cases; determine the number of arbitrators in a
given case; appoint arbitrators; decide challenges to arbitrators; remove arbitrators;
extend deadlines; calculate the arbitrators’ fees; and scrutinize the tribunal’s draft award.
Organization (1) Considering the significant role that institutions play, in this chapter we identify
important aspects of each institution—both in and beyond the rules—that may bear on the
China International parties’ choice of arbitral regime. Therefore, we briefly examine each of the institutions’ (i)
Economic and Trade historical background, (ii) governance structure, (iii) arbitration rules, (iv) panels of
Arbitration Commission arbitrators, (v) approach to case management, and (vi) practice and systems for
scrutinizing awards.
P1
Organization P2
Hong Kong International §1.01 THE AMERICAN ARBITRATION ASSOCIATION/INTERNATIONAL
Arbitration Centre CENTRE FOR DISPUTE RESOLUTION
[A] Overview
Organization
The American Arbitration Association (AAA) is the leading institution providing arbitration
International Court of and alternative dispute resolution services in the United States of America (U.S.) and, in
Arbitration of the terms of the number of cases filed (both domestic and international disputes), is one of the
International Chamber of largest providers of alternative dispute resolution services in the world. (2) The AAA is a
Commerce not-for-profit organization that maintains more than 40 offices in the U.S. and is
headquartered in New York. Through its international division, the International Centre for
Dispute Resolution (ICDR), the AAA also has offices in Mexico City, Singapore; a partnership,
Organization full-service dispute resolution center in Bahrain; as well as a network of alliances and
cooperation agreements with arbitral institutions around the world.
International Centre for
Settlement of Investment The AAA established the ICDR in 1996 to administer international arbitration cases, and, in
Disputes recent years, the ICDR has become one of the leading dispute resolution service providers
for international commercial disputes. The ICDR has specialized administrative facilities
at the AAA headquarters in New York, where a case management team of around 20
Organization handles the administration of all ICDR arbitrations and mediations. The ICDR has also
established cooperation agreements with 64 arbitral institutions in 44 countries and has a
London Court of worldwide panel of more than 650 international arbitrators and mediators. The ICDR
International Arbitration administers hundreds of multinational cases annually. In 2017, the ICDR administered 1,026
international cases with an aggregate amount of claims and counterclaims worth nearly
USD 7 billion. (3)
Organization
[B] Governance
Arbitration Institute of the
Stockholm Chamber of The AAA’s policies, procedures, and overall governance are overseen by a Board of
Commerce Directors. Board members are appointed for two-year terms, and the Board meets
annually to discuss structural, financial, and developmental issues in relation to the
organization as a whole.
Organization Issues such as the interpretation of the AAA’s various dispute resolution rules or arbitrator
challenges are addressed in the first instance by the AAA Vice President responsible for a
Singapore International particular case. These Vice Presidents oversee their case management teams and are
Arbitration Centre essentially in charge of the day-to-day operations of each AAA division (i.e., Construction,
Employment, ICDR, Commercial), reporting directly to the senior vice presidents who are
ultimately responsible for each division.
Organization The AAA’s Office of the General Counsel handles the more complex issues of rule
United Nations Commission P 2 interpretation, including in situations where courts of competent jurisdiction become
on International Trade Law P 3 involved in an arbitration proceeding. The Office of the General Counsel also deals with
matters where the AAA is joined as a party in litigation, or in proceedings where the AAA
deems it appropriate to file briefs as amicus curiae.
Bibliographic reference
[C] Arbitration Rules
'Chapter 1: Overview of
Arbitral Institutions and The International Arbitration Rules, set out in the ICDR Rules, provide the procedural
Regimes', in Arif Hyder Ali , framework of a dispute where there is party agreement that these rules should apply, or
the arbitration agreement in a contract relating to an international business transaction is

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Jane Wessel , et al., The silent as to which of the AAA’s arbitration rules should apply. (4) The most recent version of
International Arbitration the ICDR Rules went into effect on June 1, 2014.
Rulebook: A Guide to Arbitral
Regimes, (© Kluwer Law The ICDR Rules contain several provisions designed to promote efficiency of the arbitral
International; Kluwer Law process and to reflect international best practices, including: (i) introducing a set of
International 2019) pp. 1 - International Expedited Procedures to govern disputes below the threshold of USD
120 250,000; (5) (ii) encouraging mediation, either at the invitation of the Administrator or by
party agreement; (6) (iii) establishing that any mediation agreed by the parties will run
concurrently with the arbitration unless the parties agree otherwise; (7) (iv) setting out
provisions for joinder of additional parties and consolidation of connected arbitration
proceedings; (8) and (v) expressly acknowledging that certain U.S.-style evidentiary
procedures generally are not appropriate for an arbitration under the 2014 ICDR Rules. (9)
In a break with most other institutions, the ICDR does not undertake to decide preliminary
challenges to jurisdiction, as do most other regimes, but instead defers such challenges to
the arbitral tribunal. (10)
The 2014 revisions to the ICDR Rules also reflect the enhanced role of the ICDR in regulating
P 3 arbitrators and party representatives. The ICDR Rules require that, upon accepting
P 4 appointment, an arbitrator must affirm not only his or her independence and
impartiality but also his or her availability to serve. (11) The ICDR Rules also confer upon
the ICDR the authority to remove an arbitrator for failure to perform his or her duties “on
its own initiative” and not merely in response to party challenge. (12) The conduct of party
representatives is subject to regulation by the ICDR and must conform to “such guidelines
as the ICDR may issue on the subject.” (13)
In addition to administering arbitrations under its own rules, the AAA/ICDR oversees or
administers matters pursuant to various additional rules or guidelines. Some of these are
designed to accommodate the demands of particular industries or geographical areas,
while others are available to promote the efficiency of the arbitral process. Among those
that receive the most attention are the Procedures for Cases under the United Nations
Commission on International Trade Law (UNCITRAL) Arbitration Rules, the Commercial
Arbitration and Mediation Centre for the Americas (CAMCA) Mediation and Arbitration
Rules, and the Inter-American Commercial Arbitration Commission (IACAC) Rules.
In international cases filed with the AAA/ICDR in which the parties have selected rules
other than the ICDR Rules, the AAA/ICDR will apply the International Commercial
Arbitration Supplementary Procedures (April 1, 1999), as long as there is no objection from
the parties. Other arbitration rules promulgated by AAA/ICDR include the Optional
Appellate Arbitration Rules, effective November 1, 2013.

[D] Arbitrators
When the AAA is called upon to make an arbitrator appointment or provide a list of names
for an appointment pursuant to the “list” method, it does so from one of several panels of
over 6,000 arbitrators that it has compiled for such purposes. This is also the case for the
ICDR, which will typically refer to the AAA’s International Panel of over 650 arbitrators
worldwide. The names and qualifications of the panelists are not made public. When
called upon by the parties to do so at the administrative conference stage (discussed
below), the ICDR will search for qualified arbitrators throughout all of the AAA’s panels and
rosters.
All AAA/ICDR panelists are carefully screened by the management committee of the
division that deals with arbitrator appointments. This committee annually reviews its
standing list of arbitrators, as well as new applications from arbitrators and mediators who
apply to be included. AAA/ICDR panelists are required to participate in mandatory
training.
The ICDR’s procedures in relation to arbitrator selection are flexible and designed to
P 4 respect party autonomy to the extent possible. The rules themselves encourage parties to
P 5 agree on the procedure for arbitrator appointments, with or without the ICDR’s
assistance, (14) and whether or not the arbitrators they select appear on the AAA/ICDR
rosters. The case manager is guided in his or her efforts to provide suitable arbitrators by
the express wishes of the parties, and in this regard, the case manager will consult with
both sides in relation to the potential arbitrator’s subject matter experience and
expertise.

[E] Case Management

Upon receipt of a Notice of Arbitration, the AAA/ICDR assigns a case manager who
communicates with all parties with respect to the arbitration and who serves as the central
point of administrative contact for the parties and the tribunal throughout arbitration. The
ICDR’s case managers are mostly qualified lawyers, and many are multilingual and
admitted to practice law in the U.S. and at least one other jurisdiction.
At the outset of a dispute, the case manager holds an administrative conference to deal
with the structure and organization of the proceedings. In almost all cases, this is done by
telephone conference call. Typically, the case manager will inquire whether the parties will
consider mediation prior to the commencement of binding arbitration. Other issues that
are typically addressed during the preliminary conference include: (i) the language in

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 which the proceedings will be held; (ii) the law governing the proceedings; (iii) the situs of
the arbitration; (iv) the applicable AAA rules; (v) any qualifications that the parties have
agreed the arbitrators should possess; (vi) the constitution of the arbitral tribunal; (vii) the
timetable of the case; (viii) the significance of time zone differences; (ix) the necessity for
and scheduling of hearings; (x) witness testimony and site visits; (xi) the need, if any, for
interim relief; (xii) methods of communication (e.g., use of e-mail); and (xiii) the form of the
award. The case manager will then aim to assist and guide the parties through the tribunal
appointment process and will seek thereafter to schedule the preliminary hearing
between the parties and the tribunal. Once the tribunal is constituted, the arbitrators in an
ICDR arbitration enjoy considerable discretion in conducting the proceedings, and the role
of the institution is limited to purely administrative matters.

[F] Award Scrutiny

Unlike some of the other arbitration institutions, there is no formal process of award
scrutiny by the AAA/ICDR before the award is issued. However, in practice, the AAA/ICDR
does review draft awards and will bring critical issues to the attention of the tribunal.
P5
P 6 We set out in Table 1.1 the key rules relating to the powers and duties of the ICDR.
P6
P 7 Table 1.1 Powers and Duties of the ICDR
AAA-ICDR
PPP10897 Article 1. Scope of 1. […] The ICDR is the Administrator of these Rules. […]
PPP10
1189 These Rules
[…]
3. These Rules specify the duties and responsibilities of the ICDR, a
division of the AAA, as the Administrator. The Administrator may
provide services through any of the ICDR’s case management offices
or through the facilities of the AAA or arbitral institutions with which
the ICDR or the AAA has agreements of cooperation. Arbitrations
administered under these Rules shall be administered only by the
ICDR or by an individual or organization authorized by the ICDR to
do so.
4. Unless the parties agree or the Administrator determines
otherwise, the International Expedited Procedures shall apply in any
case in which no disclosed claim or counterclaim exceeds USD
$250,000 exclusive of interest and the costs of arbitration. The
parties may also agree to use the International Expedited
Procedures in other cases. The International Expedited Procedures
shall be applied as described in Articles E-1 through E-10 of these
Rules, in addition to any other portion of these Rules that is not in
conflict with the Expedited Procedures. Where no party’s claim or
counterclaim exceeds USD $100,000 exclusive of interest, attorneys’
fees, and other arbitration costs, the dispute shall be resolved by
written submissions only unless the arbitrator determines that an
oral hearing is necessary.

Article 2. Notice of 2. The arbitration shall be deemed to commence on the date on

Arbitration which the Administrator receives the Notice of Arbitration.
[…]
5. Upon receipt of the Notice of Arbitration, the Administrator shall
communicate with all parties with respect to the arbitration and
shall acknowledge the commencement of the arbitration.

Article 3. Answer and 1. Within 30 days after the commencement of the arbitration,
Counterclaim Respondent shall submit to Claimant, to any other parties, and to
the Administrator a written Answer to the Notice of Arbitration. […]
[…]
5. The arbitral tribunal, or the Administrator if the tribunal has not
yet been constituted, may extend any of the time limits established
in this Article if it considers such an extension justified.

Article 4. The Administrator may conduct an administrative conference before

Administrative the arbitral tribunal is constituted to facilitate party discussion and
Conference agreement on issues such as arbitrator selection, mediating the
dispute, process efficiencies, and any other administrative matters.
Article 5. Mediation Following the time for submission of an Answer, the Administrator
may invite the parties to mediate in accordance with the ICDR’s
International Mediation Rules. […]

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 AAA-ICDR
Article 6. Emergency 1. A party may apply for emergency relief before the constitution of
Measures of the arbitral tribunal by submitting a written notice to the
Protection Administrator and to all other parties setting forth the nature of the
relief sought, the reasons why such relief is required on an
emergency basis, and the reasons why the party is entitled to such
relief. […]
2. Within one business day of receipt of the notice as provided in
Article 6(1), the Administrator shall appoint a single emergency
arbitrator. Prior to accepting appointment, a prospective emergency
arbitrator shall, in accordance with Article 13, disclose to the
Administrator any circumstances that may give rise to justifiable
doubts as to the arbitrator’s impartiality or independence. Any
challenge to the appointment of the emergency arbitrator must be
made within one business day of the communication by the
Administrator to the parties of the appointment of the emergency
arbitrator and the circumstances disclosed.

Article 7. Joinder 1. A party wishing to join an additional party to the arbitration shall
submit to the Administrator a Notice of Arbitration against the
additional party. No additional party may be joined after the
appointment of any arbitrator, unless all parties, including the
additional party, otherwise agree. The party wishing to join the
additional party shall, at that same time, submit the Notice of
Arbitration to the additional party and all other parties. The date on
which such Notice of Arbitration is received by the Administrator
shall be deemed to be the date of the commencement of arbitration
against the additional party. Any joinder shall be subject to the
provisions of Articles 12 and 19.
2. The request for joinder shall contain the same information
required of a Notice of Arbitration under Article 2(3) and shall be
accompanied by the appropriate filing fee.
3. The additional party shall submit an Answer in accordance with
the provisions of Article 3.
4. The additional party may make claims, counterclaims, or assert
setoffs against any other party in accordance with the provisions of
Article 3.

Article 8. 1. At the request of a party, the Administrator may appoint a

Consolidation consolidation arbitrator[…]
2. […]
(a) The Administrator shall notify the parties in writing of its
intention to appoint a consolidation arbitrator and invite the parties
to agree upon a procedure for the appointment of a consolidation
arbitrator.
(b) If the parties have not within 15 days of such notice agreed upon
a procedure for appointment of a consolidation arbitrator, the
Administrator shall appoint the consolidation arbitrator.

Article 8. 6. […] The Administrator shall, as necessary, complete the

Consolidation appointment of the tribunal in the consolidated proceeding. Absent
the agreement of all parties, the consolidation arbitrator shall not
be appointed in the consolidated proceeding.
Article 9. […] The tribunal may permit an amendment or supplement subject
Amendment or to an award of costs and/or the payment of filing fees as determined
Supplement of by the Administrator.
Claim, Counterclaim,
or Defense
Article 11. Number of If the parties have not agreed on the number of arbitrators, one
Arbitrators arbitrator shall be appointed unless the Administrator determines in
its discretion that three arbitrators are appropriate because of the
size, complexity, or other circumstances of the case.

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 AAA-ICDR
Article 12. 1. The parties may agree upon any procedure for appointing
Appointment of arbitrators and shall inform the Administrator as to such procedure.
Arbitrators In the absence of party agreement as to the method of appointment,
the Administrator may use the ICDR list method as provided in
Article 12(6).
2. The parties may agree to select arbitrators, with or without the
assistance of the Administrator. When such selections are made, the
parties shall take into account the arbitrators’ availability to serve
and shall notify the Administrator so that a Notice of Appointment
can be communicated to the arbitrators, together with a copy of
these Rules.
3. If within 45 days after the commencement of the arbitration, all
parties have not agreed on a procedure for appointing the
arbitrator(s) or have not agreed on the selection of the arbitrator(s),
the Administrator shall, at the written request of any party, appoint
the arbitrator(s). Where the parties have agreed upon a procedure
for selecting the arbitrator(s), but all appointments have not been
made within the time limits provided by that procedure, the
Administrator shall, at the written request of any party, perform all
functions provided for in that procedure that remain to be
performed.
4. In making appointments, the Administrator shall, after inviting
consultation with the parties, endeavor to appoint suitable
arbitrators, taking into account their availability to serve. At the
request of any party or on its own initiative, the Administrator may
appoint nationals of a country other than that of any of the parties.
5. If there are more than two parties to the arbitration, the
Administrator may appoint all arbitrators unless the parties have
agreed otherwise no later than 45 days after the commencement of
the arbitration.

6. If the parties have not selected an arbitrator(s) and have not

agreed upon any other method of appointment, the Administrator,
at its discretion, may appoint the arbitrator(s) in the following
manner using the ICDR list method.
Article 13. 2. Upon accepting appointment, an arbitrator shall sign the Notice
Impartiality and of Appointment provided by the Administrator affirming that the
Independence of arbitrator is available to serve and is independent and impartial.
Arbitrator
Article 14. Challenge 2. Upon receipt of such a challenge, the Administrator shall notify
of an Arbitrator the other party of the challenge and give such party an opportunity
to respond. The Administrator shall not send the notice of challenge
to any member of the tribunal but shall notify the tribunal that a
challenge has been received, without identifying the party
challenging. The Administrator may advise the challenged arbitrator
of the challenge and request information from the challenged
arbitrator relating to the challenge. When an arbitrator has been
challenged by a party, the other party may agree to the acceptance
of the challenge and, if there is agreement, the arbitrator shall
withdraw. The challenged arbitrator, after consultation with the
Administrator, also may withdraw in the absence of such agreement.
In neither case does withdrawal imply acceptance of the validity of
the grounds for the challenge.
3. If the other party does not agree to the challenge or the
challenged arbitrator does not withdraw, the Administrator in its
sole discretion shall make the decision on the challenge.
4. The Administrator, on its own initiative, may remove an arbitrator
for failing to perform his or her duties.

Article 15. 3. […] In the event that the two other arbitrators determine not to
Replacement of an continue the arbitration without the participation of the third
Arbitrator arbitrator, the Administrator on proof satisfactory to it shall declare
the office vacant, and a substitute arbitrator shall be appointed
pursuant to the provisions of Article 12, unless the parties otherwise
agree.

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 AAA-ICDR
Article 16. Party Unless instructed otherwise by the Administrator, once the arbitral
Representation tribunal has been established, the parties or their representatives
may communicate in writing directly with the tribunal with
simultaneous copies to the other party and, unless otherwise
instructed by the Administrator, to the Administrator.
Article 17. Place of 1. If the parties do not agree on the place of arbitration by a date
Arbitration established by the Administrator, the Administrator may initially
determine the place of arbitration, subject to the power of the
arbitral tribunal to determine finally the place of arbitration within
45 days after its constitution.
Article 19. Arbitral 4. Issues regarding arbitral jurisdiction raised prior to the
Jurisdiction constitution of the tribunal shall not preclude the Administrator
from proceeding with administration and shall be referred to the
tribunal for determination once constituted.
Article 20. Conduct 5. Documents or information submitted to the tribunal by one party
of Proceedings shall at the same time be transmitted by that party to all parties
and, unless instructed otherwise by the Administrator, to the
Administrator.
Article 21. Exchange 10. Depositions, interrogatories, and requests to admit as developed
of Information for use in U.S. court procedures generally are not appropriate
procedures for obtaining information in an arbitration under these
Rules.
Article 30. Time, 1. […] Unless otherwise agreed by the parties, specified by law, or
Form, and Effect of determined by the Administrator, the final award shall be made no
Award later than 60 days from the date of the closing of the hearing. […]
3. An award may be made public only with the consent of all parties
or as required by law, except that the Administrator may publish or
otherwise make publicly available selected awards, orders,
decisions, and rulings that have become public in the course of
enforcement or otherwise and, unless otherwise agreed by the
parties, may publish selected awards, orders, decisions, and rulings
that have been edited to conceal the names of the parties and other
identifying details.
4. The award shall be transmitted in draft form by the tribunal to the
Administrator. The award shall be communicated to the parties by
the Administrator. […]

Article 32. 2. If continuation of the arbitration becomes unnecessary or

Settlement or Other impossible due to the non-payment of deposits required by the
Reasons for Administrator, the arbitration may be suspended or terminated as
Termination provided in Article 36(3).
Article 35. Fees and 2. As soon as practicable after the commencement of the
Expenses of Arbitral arbitration, the Administrator shall designate an appropriate daily
Tribunal or hourly rate of compensation in consultation with the parties and
all arbitrators, taking into account the arbitrators’ stated rate of
compensation and the size and complexity of the case.
3. Any dispute regarding the fees and expenses of the arbitrators
shall be determined by the Administrator.

Article 36. Deposits 1. The Administrator may request that the parties deposit
appropriate amounts as an advance for the costs referred to in
Article 34.
2. During the course of the arbitration, the Administrator may
request supplementary deposits from the parties.
3. If the deposits requested are not paid promptly and in full, the
Administrator shall so inform the parties in order that one or more
of them may make the required payment. If such payment is not
made, the arbitral tribunal may order the suspension or termination
of the proceedings. If the tribunal has not yet been appointed, the
Administrator may suspend or terminate the proceedings.
[…]

5. After the final award has been made, the Administrator shall
render an accounting to the parties of the deposits received and
return any unexpended balance to the parties.

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 AAA-ICDR
Article 37. Confidential information disclosed during the arbitration by the
Confidentiality parties or by witnesses shall not be divulged by an arbitrator or by
the Administrator. Except as provided in Article 30, unless otherwise
agreed by the parties or required by applicable law, the members of
the arbitral tribunal and the Administrator shall keep confidential
all matters relating to the arbitration or the award.
Article 38. Exclusion [T]he Administrator shall not be liable to any party for any act or
of Liability omission in connection with any arbitration under these Rules,
except to the extent that such a limitation of liability is prohibited
by applicable law. The parties agree that no arbitrator, emergency
arbitrator, or consolidation arbitrator, nor the Administrator shall
be under any obligation to make any statement about the
arbitration, and no party shall seek to make any of these persons a
party or witness in any judicial or other proceedings relating to the
arbitration.
Article 39. The arbitral tribunal, any emergency arbitrator appointed under
Interpretation of Article 6, and any consolidation arbitrator appointed under Article 8,
Rules shall interpret and apply these Rules insofar as they relate to their
powers and duties. The Administrator shall interpret and apply all
other Rules.
Article E-3. The Administrator may conduct an administrative conference with
Administrative the parties and their representatives to discuss the application of
Conference these procedures, arbitrator selection, mediating the dispute, and
any other administrative matters.
Article E-4. Objection If an objection is submitted before the arbitrator is appointed, the
to the Applicability Administrator may initially determine the applicability of these
of the Expedited Expedited Procedures, subject to the power of the arbitrator to make
Procedures a final determination. […]
Article E-5. Changes If, after filing of the initial claims and counterclaims, a party
of Claim or amends its claim or counterclaim to exceed USD $250,000.00
Counterclaim exclusive of interest and the costs of arbitration, the case will
continue to be administered pursuant to these Expedited Procedures
unless the parties agree otherwise, or the Administrator or the
arbitrator determines otherwise.
Article E-9. The Administrator will notify the parties in advance of the hearing
Proceedings with an date.
Oral Hearing
Article E-10. The Awards shall be made in writing and shall be final and binding on
Award the parties. Unless otherwise agreed by the parties, specified by law,
or determined by the Administrator, the award shall be made not
later than 30 days from the date of the closing of the hearing or
from the time established for final written submissions.
P 11
P 12

§1.02 CHINA INTERNATIONAL ECONOMIC AND TRADE ARBITRATION

COMMISSION
[A] Overview
China International Economic and Trade Arbitration Commission (CIETAC) is China’s leading
international commercial arbitration institution. (15) It was established in 1956 and is
sponsored by the China Chamber of International Commerce and the China Council for the
Promotion of International Trade. CIETAC has its headquarters in Beijing, with
subcommissions or arbitration centers in Hubei, Fujian, Shenzhen, Shanghai, Hong Kong,
Zhejiang, Tianjin, and Chongqing, (16) as well as liaison offices spread across China. (17)
Unlike many other arbitration institutions, CIETAC does not maintain offices outside of
China but has a growing number of cooperation agreements with arbitration institutions
abroad. (18)
In 2012, following the promulgation of the 2012 CIETAC Rules, the Shanghai and Shenzhen
branches of CIETAC declared their independence from CIETAC Beijing, changing their
names into Shanghai International Arbitration Centre (SHIAC) and Shenzhen Court of
International Arbitration (SCIA), respectively. In response, CIETAC established new
branches in Shanghai and Shenzhen, directly competing with its former Shanghai and
Shenzhen branches. Notwithstanding CIETAC’s prominence, SHIAC and SCIA are growing
quickly and evolving into innovative arbitration institutions in China.
CIETAC administered 2,298 arbitrations in 2018, both domestic and international, the
majority of which involve commercial disputes. (19) The international arbitration cases
administered by CIETAC have involved parties from some 70 different countries.

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 [B] Governance
CIETAC is governed by a Chairman and a number of Vice-Chairmen and members. The
P 12 Chairman is responsible for leading the review and periodic update of the CIETAC Rules,
P 13 confirming the appointment or replacement of arbitrators (20) and deciding upon
challenges to arbitrators. (21) The Chairman can also appoint any Vice-Chairman to
perform these functions. (22)

[C] Arbitration Rules

Cases brought before CIETAC are governed by the CIETAC Rules, adopted and formulated
pursuant to the Arbitration Law of the People’s Republic of China. (23) The CIETAC Rules
provide for Arbitral Proceedings, Summary Procedures, Special Provisions for Domestic
Arbitration, and Supplementary Summary Provisions.
CIETAC adopted its latest revised rules on November 4, 2014. These new rules went into
effect on January 1, 2015. They apply to all arbitrations accepted on or after that date. (24)
The updated rules build on measures previously adopted in the 2012 CIETAC Rules. (25)
There are several characteristics unique to CIETAC arbitration, which, in some measure,
reflect Chinese and East Asian traditions and cultural values regarding the resolution of
disputes. For example, the 2012 CIETAC Rules explicitly required that the parties proceed
with the arbitration “in bona fide cooperation,” and this duty applied to all aspects of the
arbitration proceedings. (26) This provision was changed in the 2015 CIETAC Rules, and the
words “good faith” were substituted for “bona fide cooperation.” Also, the application of
this standard of conduct was expanded in the 2015 update to include all “arbitration
participants” not just to the “parties and their representatives,” as the provision had done
in past iterations of the Rules. (27)
By way of further example, the CIETAC Rules specifically provide for the possibility that the
arbitrators may switch to the role of conciliators at the parties’ joint request and, if
conciliation fails, resume their role as arbitrators. (28) The Rules also contemplate the
possibility that the parties might opt not to have conciliation conducted by the arbitral
tribunal and authorize CIETAC to assist the parties in such cases. (29)
The CIETAC Rules may be said to give the arbitral institution more authority than the other
P 13 regimes. This observation is born out in several examples. First, the CIETAC Rules give the
P 14 arbitral institution, rather than the tribunal, the ultimate authority to decide the seat of
arbitration in the absence of party agreement. (30) Only the International Chamber of
Commerce (ICC) and Arbitration Institute of the Stockholm Chamber of Commerce (SCC)
Rules follow suit; all other regimes leave the final decision to the arbitral tribunal. (31)
Second, CIETAC has the absolute authority to decide preliminary questions on jurisdiction,
including with respect to the joinder of additional parties. (32) Those other regimes that
empower the institution to make a preliminary determination on jurisdiction leave it to
the tribunal to make the final determination. (33) Third, most regimes empower the
tribunal to determine the language of the arbitration, or else supply default rules, in the
absence of party agreement. (34) CIETAC prescribes Chinese or another language as
determined by CIETAC. (35) Parties choosing CIETAC Rules should anticipate a relatively
higher degree of involvement by the institution vis-à-vis the tribunal, compared to other
regimes.
Although this is not reflected in the CIETAC Rules, CIETAC offers tribunals an expert
consulting mechanism whereby issues of law (both substantive and procedural) may be
referred to a standing expert panel responsible for providing consulting services to
tribunals where needed. The parties are not involved in this process and may not even be
informed that it has taken place. (36)
Unlike tribunals under the other regimes under review, CIETAC arbitral tribunals could not
order interim relief prior to 2012. A party could apply to CIETAC for a limited range of
interim relief, and CIETAC then would make an application to the local people’s court.
Interim measures, therefore, were in the hands of the national courts, with CIETAC acting as
a gatekeeper. CIETAC applications to the Court for interim measures were limited to
applications for the preservation of property and the protection of evidence. (37) The 2012
Rules altered this position, bringing the CIETAC Rules into line with others around the world
by giving a CIETAC tribunal the express authority to order any interim measure that it
considers necessary or proper. (38) The 2015 CIETAC Rules further expand the authority of
CIETAC tribunals and now they can also order emergency relief in some situations. (39)
Nonetheless, important restrictions remain, including a restriction on CIETAC arbitral
tribunals ordering such relief except when seated abroad.
P 14
P 15
CIETAC also offers separate rules specifically designed for financial disputes, (40)
construction disputes, (41) and arbitrating disputes online. (42)

[D] Arbitrators
The CIETAC Arbitration Rules assume that the tribunal will consist of three arbitrators
unless the parties have agreed to the appointment of a sole arbitrator. (43) Prior to 2005,
arbitrators in CIETAC arbitrations had to be selected from CIETAC’s approved panel, which

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 included only Chinese arbitrators. The 2005 revisions to the CIETAC Arbitration Rules
altered the landscape, allowing arbitrators who were not on the panel to be appointed,
(44) and also allowing foreign arbitrators to apply for inclusion on the panel. As of January
2019, the panel comprises a total of 1,212 arbitrators, of whom 300 are foreign. (45)
The parties may nominate any arbitrator from CIETAC’s Panel of Arbitrators, or any other
person as agreed between the parties, subject to confirmation of the appointment by the
CIETAC Chairman. (46) In practice, most arbitrators appointed to CIETAC tribunals come
from the CIETAC Panel. In 2010, fewer than 50 presiding arbitrators were appointed from
outside the panel. (47)
In 2011, CIETAC established the CIETAC Foreign Arbitrators’ Forum in London, with the goal
of establishing a platform for CIETAC Foreign Arbitrators to network, learn more about
CIETAC arbitration, and become more acquainted with China’s laws and regulations.

[E] Case Management

Under the CIETAC Rules, an Arbitration Court has replaced the CIETAC Secretariat. The
Arbitration Court takes an active role in assisting CIETAC tribunals in the procedural
administration of a case. Submissions are made through the Arbitration Court, and CIETAC
P 15 personnel assigned to a case usually attend hearings and assist the tribunal with general
P 16 administrative tasks. The Arbitration Court thus effectively fulfills the role that is often
fulfilled by a secretary appointed to a tribunal under the rules of other institutions.
The CIETAC Rules regulate which part of the CIETAC system will be responsible for
administering a dispute. (48)

[F] Award Scrutiny

The CIETAC arbitral regime provides for the review of arbitral awards. A CIETAC arbitral
tribunal must submit its draft award to CIETAC for scrutiny before signing the award, (49)
and the final award will not be valid unless it bears the official seal of CIETAC. (50)
However, CIETAC may only suggest changes to the draft award to the arbitral tribunal
before a final award is rendered and may not independently amend the award.
The key CIETAC rules on these issues are reproduced in Table 1.2.
P 16
P 17 Table 1.2 Powers and Duties of CIETAC
CIETAC
PP 20
18
22
23
24
19
21
17 Article 2. Structure 1. The Chairman of CIETAC shall perform the functions and duties
PP 20
18
22
23
24
25
19 and Duties
21 vested in him/her by these Rules while a Vice Chairman may perform
the Chairman’s functions and duties with the Chairman’s
authorization.
2. CIETAC has an Arbitration Court (the “Arbitration Court”), which
performs its functions in accordance with these Rules under the
direction of the authorized Vice Chairman and the President of the
Arbitration Court.
3. CIETAC is based in Beijing. It has sub-commissions or arbitration
centers (Appendix I). The sub-commissions/arbitration centers are
CIETAC’s branches, which accept arbitration applications and
administer arbitration cases with CIETAC’s authorization.
4. A sub-commission/arbitration center has an arbitration court,
which performs the functions of the Arbitration Court in accordance
with these Rules under the direction of the president of the
arbitration court of the sub-commission/arbitration center.
5. Where a case is administered by a sub-commission/arbitration
center, the functions and duties vested in the President of the
Arbitration Court under these Rules may, by his/her authorization,
be performed by the president of the arbitration court of the
relevant sub-commission/arbitration center.

6. The parties may agree to submit their disputes to CIETAC or a sub-

commission/arbitration center of CIETAC for arbitration. Where the
parties have agreed to arbitration by CIETAC, the Arbitration Court
shall accept the arbitration application and administer the case.
Where the parties have agreed to arbitration by a sub-
commission/arbitration center, the arbitration court of the sub-
commission/arbitration center agreed upon by the parties shall
accept the arbitration application and administer the case. Where
the sub-commission/arbitration center agreed upon by the parties
does not exist or its authorization has been terminated, or where the
agreement is ambiguous, the Arbitration Court shall accept the
arbitration application and administer the case. In the event of any
dispute, a decision shall be made by CIETAC.

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 CIETAC
Article 3. Jurisdiction 1. CIETAC accepts cases involving economic, trade and other
disputes of a contractual or non-contractual nature, based on an
agreement of the parties.
Article 4. Scope of 3. Where the parties have agreed on the application of other
Application arbitration rules, CIETAC shall perform the relevant administrative
duties.
4. Where the parties agree to refer their dispute to arbitration under
these Rules without providing the name of the arbitration institution,
they shall be deemed to have agreed to refer the dispute to
arbitration by CIETAC.

Article 6. Objection 1. CIETAC has the power to determine the existence and validity of an
to Arbitration arbitration agreement and its jurisdiction over an arbitration case.
Agreement and/or CIETAC may, where necessary, delegate such power to the arbitral
Jurisdiction tribunal.
2. Where CIETAC is satisfied by prima facie evidence that a valid
arbitration agreement exists, it may make a decision based on such
evidence that it has jurisdiction over the arbitration case, and the
arbitration shall proceed. Such a decision shall not prevent CIETAC
from making a new decision on jurisdiction based on facts and/or
evidence found by the arbitral tribunal during the arbitral
proceedings that are inconsistent with the prima facie evidence.
3. Where CIETAC has delegated the power to determine jurisdiction to
the arbitral tribunal, the arbitral tribunal may either make a
separate decision on jurisdiction during the arbitral proceedings or
incorporate the decision in the final arbitral award.
6. The aforesaid objections to and/or decisions on jurisdiction by
CIETAC shall include objections to and/or decisions on a party’s
standing to participate in the arbitration.
7. CIETAC or its authorized arbitral tribunal shall decide to dismiss
the case upon finding that CIETAC has no jurisdiction over an
arbitration case. Where a case is to be dismissed before the
formation of the arbitral tribunal, the decision shall be made by the
President of the Arbitration Court.

Article 7. Place of 2. Where the parties have not agreed on the place of arbitration or
Arbitration their agreement is ambiguous, the place of arbitration shall be the
domicile of CIETAC or its sub-commission/arbitration center
administering the case. CIETAC may also determine the place of
arbitration to be another location having regard to the
circumstances of the case.
Article 12. 3. Pay the arbitration fee in advance to CIETAC in accordance with its
Application for Arbitration Fee Schedule.
Arbitration
Article 13. 1. Upon the written application of a party, CIETAC shall accept a case
Acceptance of a in accordance with an arbitration agreement concluded between the
Case parties either before or after the occurrence of the dispute, in which
it is provided that disputes are to be referred to arbitration by
CIETAC.
4. After CIETAC accepts a case, the Arbitration Court shall designate
a case manager to assist with the procedural administration of the
case.

Article 15. Statement The decision on whether to grant the extension of the time period
of Defense shall be made by the Arbitration Court.
Article 16. Where the arbitral tribunal has not yet been formed, the decision on
Counterclaim whether to grant the extension of the time period shall be made by
the Arbitration Court.

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 CIETAC
Article 18. Joinder of 1. During the arbitral proceedings, a party wishing to join an
Additional Parties additional party to the arbitration may file the Request for Joinder
with CIETAC, based on the arbitration agreement invoked in the
arbitration that prima facie binds the additional party. Where the
Request for Joinder is filed after the formation of the arbitral
tribunal, a decision shall be made by CIETAC after the arbitral
tribunal hears from all parties including the additional party if the
arbitral tribunal considers the joinder necessary.
[…]
3. Where any party objects to the arbitration agreement and/or
jurisdiction over the arbitration with respect to the joinder
proceedings, CIETAC has the power to decide on its jurisdiction based
on the arbitration agreement and relevant evidence.
4. After the joinder proceedings commence, the conduct of the
arbitral proceedings shall be decided by the Arbitration Court if the
arbitral tribunal is not formed, or shall be decided by the arbitral
tribunal if it has been formed.
5. Where the joinder takes place prior to the formation of the arbitral
tribunal, the relevant provisions on party’s nominating or entrusting
of the Chairman of CIETAC to appoint arbitrator under these Rules
shall apply to the additional party. The arbitral tribunal shall be
formed in accordance with Article 29 of these Rules.

Where the joinder takes place after the formation of the arbitral
tribunal, the arbitral tribunal shall hear from the additional party of
its comments on the past arbitral proceedings including the
formation of the arbitral tribunal. If the additional party requests to
nominate or entrust the Chairman of CIETAC to appoint an
arbitrator, both parties shall nominate or entrust the Chairman of
CIETAC to appoint arbitrators again. The arbitral tribunal shall be
formed in accordance with Article 29 of these Rules.
[…]
7. CIETAC shall have the power to decide not to join an additional
party where the additional party is prima facie not bound by the
arbitration agreement invoked in the arbitration, or where any other
circumstance exists that makes the joinder inappropriate.

Article 19. 1. At the request of a party, CIETAC may consolidate two or more
Consolidation of arbitrations pending under these Rules into a single arbitration […]
Arbitrations
2. In deciding whether to consolidate the arbitrations […], CIETAC
shall take into account the opinions of all parties and other relevant
factors such as the correlation between the arbitrations concerned,
including the nomination and appointment of arbitrators in the
separate arbitrations.
[…]
4. After the consolidation of arbitrations, the conduct of the arbitral
proceedings shall be decided by the Arbitration Court if the arbitral
tribunal is not formed, or shall be decided by the arbitral tribunal if
it has been formed.

Article 20. 1. All arbitration documents from the parties shall be submitted to
Submission and the Arbitration Court.
Exchange of
Arbitration 2. All arbitration documents to be exchanged during the arbitral
Documents proceedings shall be exchanged among the arbitral tribunal and the
parties by the Arbitration Court unless otherwise agreed by the
parties and with the consent of the arbitral tribunal or otherwise
decided by the arbitral tribunal.

Article 22. A party may be represented by its authorized Chinese and/or foreign
Representation representative(s) in handling matters relating to the arbitration. In
such a case, a Power of Attorney shall be forwarded to the
Arbitration Court by the party or its authorized representative(s).

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 CIETAC
Article 23. 1. Where a party applies for conservatory measures pursuant to the
Conservatory and laws of the People’s Republic of China, CIETAC shall forward the
Interim Measures party’s application to the competent court designated by that party
in accordance with the law.
2. In accordance with the applicable law or the agreement of the
parties, a party may apply to the Arbitration Court for emergency
relief pursuant to the CIETAC Emergency Arbitrator Procedures
(Appendix III).

Article 25. Number of 1. The arbitral tribunal shall be composed of one or three
Arbitrators arbitrators.
2. Unless otherwise agreed by the parties or provided by these Rules,
the arbitral tribunal shall be composed of three arbitrators.

Article 26. 1. CIETAC maintains a Panel of Arbitrators which uniformly applies to

Nomination or itself and all its sub-commissions/arbitration centers. The parties
Appointment of shall nominate arbitrators from the Panel of Arbitrators provided by
Arbitrator CIETAC.
2. Where the parties have agreed to nominate arbitrators from
outside CIETAC’s Panel of Arbitrators, an arbitrator so nominated by
the parties or nominated according to the agreement of the parties
may act as arbitrator subject to the confirmation by the Chairman of
CIETAC.

Article 27. Three- 1. Within fifteen (15) days from the date of receipt of the Notice of
Arbitrator Tribunal Arbitration, the Claimant and the Respondent shall each nominate,
or entrust the Chairman of CIETAC to appoint, an arbitrator, failing
which the arbitrator shall be appointed by the Chairman of CIETAC.
2. Within fifteen (15) days from the date of the Respondent’s receipt
of the Notice of Arbitration, the parties shall jointly nominate, or
entrust the Chairman of CIETAC to appoint, the third arbitrator, who
shall act as the presiding arbitrator. […]
4. Where the parties have failed to jointly nominate the presiding
arbitrator according to the above provisions, the presiding arbitrator
shall be appointed by the Chairman of CIETAC.

Article 28 Sole- Where the arbitral tribunal is composed of one arbitrator, the sole
Arbitrator Tribunal arbitrator shall be nominated pursuant to the procedures stipulated
in Paragraphs 2, 3 and 4 of Article 27 of these Rules.
Article 29. Multiple- 1. Where there are two or more Claimants and/or Respondents in an
Party Tribunal arbitration case, the Claimant side and/or the Respondent side,
following discussion, shall each jointly nominate or jointly entrust
the Chairman of CIETAC to appoint one arbitrator. […]
[…]
3. Where either the Claimant side or the Respondent side fails to
jointly nominate or jointly entrust the Chairman of CIETAC to appoint
one arbitrator within fifteen (15) days from the date of its receipt of
the Notice of Arbitration, the Chairman of CIETAC shall appoint all
three members of the arbitral tribunal and designate one of them to
act as the presiding arbitrator.

Article 30. When appointing arbitrators pursuant to these Rules, the Chairman
Considerations in of CIETAC shall take into consideration the law applicable to the
Appointing dispute, the place of arbitration, the language of arbitration, the
Arbitrators nationalities of the parties, and any other factor(s) the Chairman
considers relevant.
Article 31. Disclosure 6. In circumstances other than those specified in the preceding
Paragraph 5, the Chairman of CIETAC shall make a final decision on
the challenge with or without stating the reasons.
7. An arbitrator who has been challenged shall continue to serve on
the arbitral tribunal until a final decision on the challenge has been
made by the Chairman of CIETAC.

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 CIETAC
Article 32. Challenge 1. Upon receipt of the Declaration and/or the written disclosure of
to Arbitrator an arbitrator, a party wishing to challenge the arbitrator on the
grounds of the disclosed facts or circumstances shall forward the
challenge in writing within ten (10) days from the date of such
receipt. If a party fails to file a challenge within the above time
period, it may not subsequently challenge the arbitrator on the basis
of the matters disclosed by the arbitrator.
2. A party having justifiable doubts as to the impartiality or
independence of an arbitrator may challenge that arbitrator in
writing and shall state the facts and reasons on which the challenge
is based with supporting evidence.
3. A party may challenge an arbitrator in writing within fifteen (15)
days from the date it receives the Notice of Formation of the Arbitral
Tribunal. Where a party becomes aware of a reason for a challenge
after such receipt, the party may challenge the arbitrator in writing
within fifteen (15) days after such reason has become known to it,
but no later than the conclusion of the last oral hearing.
4. The challenge by one party shall be promptly communicated to
the other party, the arbitrator being challenged and the other
members of the arbitral tribunal.
5. Where an arbitrator is challenged by one party and the other
party agrees to the challenge, or the arbitrator being challenged
voluntarily withdraws from his/her office, such arbitrator shall no
longer be a member of the arbitral tribunal. However, in neither case
shall it be implied that the reasons for the challenge are sustained.
6. In circumstances other than those specified in the preceding
Paragraph 5, the Chairman of CIETAC shall make a final decision on
the challenge with or without stating the reasons.
7. An arbitrator who has been challenged shall continue to serve on
the arbitral tribunal until a final decision on the challenge has been
made by the Chairman of CIETAC.

Article 33. 1. In the event that an arbitrator is prevented de jure or de facto

Replacement of from fulfilling his/her functions, or fails to fulfill his/her functions in
Arbitrator accordance with the requirements of these Rules or within the time
period specified in these Rules, the Chairman of CIETAC shall have
the power to replace the arbitrator. Such arbitrator may also
voluntarily withdraw from his/her office.
2. The Chairman of CIETAC shall make a final decision on whether or
not an arbitrator should be replaced with or without stating the
reasons.
3. […] If a party fails to nominate or appoint a substitute arbitrator
accordingly, the substitute arbitrator shall be appointed by the
Chairman of CIETAC.

Article 34. After the conclusion of the last oral hearing, if an arbitrator on a
Continuation of three-member tribunal is unable to participate in the deliberations
Arbitration by and/or to render the award owing to his/her demise or to his/her
Majority removal from CIETAC’s Panel of Arbitrators, or for any other reason,
the other two arbitrators may request the Chairman of CIETAC to
replace that arbitrator pursuant to Article 33 of these Rules. After
consulting with the parties and upon the approval of the Chairman
of CIETAC, the other two arbitrators may also continue the arbitral
proceedings and make decisions, rulings, or render the award. The
Arbitration Court shall notify the parties of the above circumstances.
Article 36. Place of 2. Unless otherwise agreed by the parties, the place of oral hearings
Oral Hearing shall be in Beijing for a case administered by the Arbitration Court or
at the domicile of the sub-commission/arbitration center
administering the case, or if the arbitral tribunal considers it
necessary and with the approval of the President of the Arbitration
Court, at another location.
Article 40. Record of 3. At the request of a party, the Arbitration Court may, having regard
Oral Hearing to the specific circumstances of the arbitration, decide to engage a
stenographer to make a stenographic record of an oral hearing, the
cost of which shall be advanced by the parties.

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 CIETAC
Article 45. 3. The arbitral tribunal shall decide whether to suspend or resume
Suspension of the arbitral proceedings. Where the arbitral tribunal has not yet
Arbitral Proceedings been formed, the decision shall be made by the President of the
Arbitration Court.
Article 46. 3. […] Where a case is to be dismissed prior to the formation of the
Withdrawal and arbitral tribunal, the President of the Arbitration Court shall make a
Dismissal decision on the dismissal. Where a case is to be dismissed after the
formation of the arbitral tribunal, the arbitral tribunal shall make
the decision.
4. The seal of CIETAC shall be affixed to the Dismissal Decision
referred to in the preceding Paragraph 3 and Paragraph 7 of Article 6
of these Rules.

Article 47. 1. Where both parties wish to conciliate, or where one party wishes to
Combination of conciliate and the other party’s consent has been obtained by the
Conciliation with arbitral tribunal, the arbitral tribunal may conciliate the dispute
Arbitration during the arbitral proceedings. The parties may also settle their
dispute by themselves.
6. Where the parties request for a conciliation statement, the
conciliation statement shall clearly set forth the claims of the
parties and the terms of the settlement agreement. It shall be signed
by the arbitrators, sealed by CIETAC, and served upon both parties.
8. Where the parties wish to conciliate their dispute but do not wish
to have conciliation conducted by the arbitral tribunal, CIETAC may,
with the consents of both parties, assist the parties to conciliate the
dispute in a manner and procedure it considers appropriate.
10. Where the parties have reached a settlement agreement by
themselves through negotiation or conciliation before the
commencement of an arbitration, either party may, based on an
arbitration agreement concluded between them that provides for
arbitration by CIETAC and the settlement agreement, request CIETAC
to constitute an arbitral tribunal to render an arbitral award in
accordance with the terms of the settlement agreement. Unless
otherwise agreed by the parties, the Chairman of CIETAC shall
appoint a sole arbitrator to form such an arbitral tribunal, which
shall examine the case in a procedure it considers appropriate and
render an award in due course.

Article 48. Time 1. The arbitral tribunal shall render an arbitral award within six (6)
Period for Rendering months from the date on which the arbitral tribunal is formed.
Award
2. Upon the request of the arbitral tribunal, the President of the
Arbitration Court may extend the time period if he/she considers it
truly necessary and the reasons for the extension truly justified.

Article 49. Making of 4. The seal of CIETAC shall be affixed to the arbitral award.
Award
Article 51. Scrutiny of The arbitral tribunal shall submit its draft award to CIETAC for
Draft Award scrutiny before signing the award. CIETAC may bring to the attention
of the arbitral tribunal issues addressed in the award on the
condition that the arbitral tribunal’s independence in rendering the
award is not affected.
Chapter IV. Summary 2. Where there is no monetary claim or the amount in dispute is not
Procedure-Article clear, CIETAC shall determine whether or not to apply the Summary
56. Application Procedure after full consideration of relevant factors, including but
not limited to the complexity of the case and the interests involved.
Article 57. Notice of Where after examination the Claimant’s arbitration application is
Arbitration accepted for arbitration under the Summary Procedure, the
Arbitration Court shall send a Notice of Arbitration to both parties.
Article 59. Defense 3. If a party has justified reasons to request an extension of the time
and Counterclaim period, the arbitral tribunal shall decide whether to grant such
extension. Where the arbitral tribunal has not yet been formed, such
decision shall be made by the Arbitration Court.

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 CIETAC
Article 62. Time 1. The arbitral tribunal shall render an arbitral award within three (3)
Period for Rendering months from the date on which the arbitral tribunal is formed.
Award
2. Upon the request of the arbitral tribunal, the President of the
Arbitration Court may extend the time period if he/she considers it
truly necessary and the reasons for the extension truly justified.

Chapter V. Special 1. Upon receipt of a Request for Arbitration, where the Arbitration
Provisions for Court finds the Request to meet the requirements specified in Article
Domestic 12 of these Rules, the Arbitration Court shall notify the parties
Arbitration-Article accordingly within five (5) days from its receipt of the Request.
66. Acceptance of a Where a Request for Arbitration is found not to be in conformity with
Case the requirements, the Arbitration Court shall notify the party in
writing of its refusal of acceptance with reasons stated.
2. Upon receipt of a Request for Arbitration, where after
examination, the Arbitration Court finds the Request not to be in
conformity with the formality requirements specified in Article 12 of
these Rules, it may request the Claimant to comply with the
requirements within a specified time period.

Article 68. Defense 3. If a party has justified reasons to request an extension of the time
and Counterclaim period, the arbitral tribunal shall decide whether to grant such
extension. Where the arbitral tribunal has not yet been formed, such
decision shall be made by the Arbitration Court.
Article 71. Time 1. The arbitral tribunal shall render an arbitral award within four (4)
Period for Rendering months from the date on which the arbitral tribunal is formed.
Award
2. Upon the request of the arbitral tribunal, the President of the
Arbitration Court may extend the time period if he/she considers it
truly necessary and the reasons for the extension truly justified.

Chapter VI. Special The CIETAC Panel of Arbitrators in effect shall be recommended in
Provisions for Hong arbitration cases administered by the CIETAC Hong Kong Arbitration
Kong Arbitration- Center. The parties may nominate arbitrators from outside the
Article 76. CIETAC’s Panel of Arbitrators. An arbitrator so nominated shall be
Nomination or subject to the confirmation of the Chairman of CIETAC.
Appointment of
Arbitrator
Article 77. Interim 2. Where the arbitral tribunal has not yet been formed, a party may
Measures and apply for emergency relief pursuant to the CIETAC Emergency
Emergency Relief Arbitrator Procedures (Appendix III).
Chapter VII. 1. Where the parties have agreed on the language of arbitration,
Supplementary their agreement shall prevail. […]CIETAC may also designate another
Provisions- Article language as the language of arbitration having regard to the
81. Language circumstances of the case. […]
3. The arbitral tribunal or the Arbitration Court may, if it considers it
necessary, require the parties to submit a corresponding translation
of their documents and evidence into Chinese or other languages.

Article 81. Language 1. Where the parties have agreed on the language of arbitration,
their agreement shall prevail. In the absence of such agreement, the
language of arbitration to be used in the proceedings shall be
Chinese. CIETAC may also designate another language as the
language of arbitration having regard to the circumstances of the
case.
2. If a party or its representative(s) or witness(es) requires
interpretation at an oral hearing, an interpreter may be provided
either by the Arbitration Court or by the party.
3. The arbitral tribunal or the Arbitration Court may, if it considers it
necessary, require the parties to submit a corresponding translation
of their documents and evidence into Chinese or other languages.

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 CIETAC
Article 82. 1. Apart from the arbitration fees charged in accordance with its
Arbitration Fees and Arbitration Fee Schedule, CIETAC may charge the parties for any
Costs other additional and reasonable actual costs, including but not
limited to arbitrators’ special remuneration, their travel and
accommodation expenses incurred in dealing with the case,
engagement fees of stenographers, as well as the costs and
expenses of experts, appraisers or interpreters appointed by the
arbitral tribunal. The Arbitration Court shall, after hearing from the
arbitrator and the party concerned, determine the arbitrator’s
special remuneration with reference to the standards of arbitrators’
fees and expenses set forth in the CIETAC Arbitration Fee Schedule III
(Appendix II).
2. Where a party has nominated an arbitrator but fails to advance a
deposit for such actual costs as the special remuneration, travel and
accommodation expenses of the nominated arbitrator within the
time period specified by CIETAC, the party shall be deemed not to
have nominated the arbitrator.

Article 83. 2. These Rules shall be interpreted by CIETAC.

Interpretation

§1.03 HONG KONG INTERNATIONAL ARBITRATION CENTRE

[A] Overview
P 25 Hong Kong International Arbitration Centre (HKIAC) is a private, not-for-profit organization
P 26 that has become one of the most preferred and used arbitral institutions
internationally. (51) HKIAC, established in 1985 by the Hong Kong business community to
meet the increased need for dispute resolution services in Asia, initially received funding
from the business community and Hong Kong Government but is now financially self-
sufficient and independent from any influence or control. It is one of the fastest-growing
arbitral institutions with a 66% growth in HKIAC-administered arbitration between 2016
and 2017. (52)
HKIAC markets itself as an ideal dispute resolution forum for so-called Belt and Road
Initiative (BRI) disputes stemming from contracts between Chinese and non-Chinese
parties. (53) In 2017, 55% of HKIAC-administered arbitrations were between Mainland
Chinese parties and a third of its cases were between a Mainland Chinese Party and one
from a BRI jurisdiction. (54) HKIAC emphasizes its unique position as being both part of
China under the “one country two systems” doctrine but having a separate and
independent common law legal system and an independent judiciary with a pro-
arbitration stance. (55) HKIAC is able to provide geographic proximity and cultural
familiarity to Mainland Chinese parties while also providing independence, neutrality, and
international recognition for non-Chinese parties.

[B] Governance
HKIAC is governed by a Council, made up of business people and professionals, and the
HKIAC International Advisory Board, which guides and advises HKIAC on policy. (56) The
Council’s Executive Committee directs HKIAC’s business activities and oversees the
Proceedings, Appointments, and Finance and Administration Committees. In addition to
their business operations, the Committees also perform the functions delegated to HKIAC
under its arbitration rules. The Appointments Committee is the most involved in
arbitrations due to its role as appointing authority, by which it appoints arbitrators,
emergency arbitrators, mediators, and experts; determines the number of arbitrators; and
fixes the costs of the arbitration. (57)
P 26
P 27
[C] Arbitration Rules
HKIAC’s facilities may be used for arbitrations brought under its own institutional rules or
ad hoc arbitrations utilizing the UNCITRAL Rules. (58) HKIAC-administered arbitrations
utilized the UNCITRAL Arbitration Rules until 2005 when HKIAC created the 2005 HKIAC
Procedures for the Administration of International Arbitration. (59)
HKIAC created its first set of institution-specific rules with the 2008 Administered
Arbitration Rules. These aimed at following the 2006 Swiss Rules of International
Arbitration to provide a “soft administration” or “light touch” framework to include both
the hands-off UNCITRAL approach and a structured administered arbitration. (60) As such,
the HKIAC Rules allow for the increased party autonomy of ad hoc proceedings but remove
the parties’ need to focus on the technicality of the procedures. (61)
The HKIAC Administered Arbitration Rules were most recently updated on November 1,
2018. (62) The 2018 Rules apply to arbitrations submitted after November 1, 2018, under

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 agreements providing for the application of the HKIAC Rules or to be administered by
HKIAC. (63) Like their immediate predecessor Rules of 2013, the updated Rules allow for
consolidation of arbitrations and third-party interventions, as well as provide greater
discretion to HKIAC and the tribunal to determine joinder, consolidation, and intervention.
(64) The 2018 update also preserves the Emergency Arbitrator Procedures added in 2013,
similar to those found in other arbitral rules, as an additional addendum. (65)
In addition to the HKIAC Administered Arbitration Rules, HKIAC also offers Short Form
Arbitration Rules, Securities Arbitration Rules, Electronic Transaction Arbitration Rules,
Small Claims and “Documents Only” Procedures, and Domestic Arbitration Rules. (66) The
Short Form Arbitration Rules (similar to other institutional expedited procedure rules), the
Small Claims Procedure for claims of less than USD 50,000, and the “Documents Only”
Procedure have all been incorporated into HKIAC’s Administered Arbitration Rules under
Article 42 on Expedited Procedure. (67)
P 27
P 28
[D] Arbitrators
HKIAC manages and maintains two databases of arbitrators to help parties search for and
identify arbitrators for their disputes: the HKIAC Panel of Arbitrators and the HKIAC List of
Arbitrators. (68) Parties are not required to use these databases, but all arbitrators
designated by either the parties or the other arbitrators must be confirmed by HKIAC
before their appointments become effective. (69) The Panel consists of members with
experience acting as arbitrator, mostly senior members of the arbitration community who
have acted as arbitrator in multiple disputes and thus have significant experience drafting
awards. (70) Those on the List have likewise acted as arbitrators but may not have had as
much experience as those on the Panel; they may have been appointed only once so far or
not at all but have significant experience in arbitration overall and would be well suited
for appointments in smaller value or less complex cases. (71) The Appointments
Committee, a subcommittee of the Executive Committee, maintains and updates these
databases. (72)

[E] Case Management

The HKIAC Secretariat is headquartered in Hong Kong, with local offices in Shanghai and
Seoul, and carries out the daily administration of cases. It is made up of legal and
administrative staff from many nationalities who can work in many different languages. (73)
At the commencement of the arbitration, the parties file the Notice of Arbitration and the
Answer to the Notice with the Secretariat. Once the tribunal has been confirmed by HKIAC,
the Secretariat transmits the file to the tribunal and monitors the arbitration proceedings.
(74) The Secretariat’s more administrative tasks include collecting and managing costs and
fees, assisting in hearing logistics, and acting as a go-between for arbitrators and the
parties. (75) The Secretariat also works closely with the Appointments and Proceedings
Committees of the Executive Committee on tasks such as assisting with amending time
limits set out in the HKIAC Rules and determining the number of and appointment of
arbitrators. (76) If the parties agree, the tribunal may appoint a tribunal secretary, who
may be provided by the Secretariat. (77)
P 28
P 29
[F] Award Scrutiny
The HKIAC has no formal scrutiny process for an award. HKIAC must be given an original
copy of the award but, by releasing the tribunal of the scrutiny requirement, HKIAC seeks to
adhere to a “soft touch” approach in administering arbitrations. (78)
Table 1.3 sets out the key HKIAC rules on these issues.
P 29
P 30 Table 1.3 Powers and Duties of HKIAC
HKIAC
PP 40
30
38
32
33
34
35
36
39
31 Article 1. Scope of
37 1.3. Nothing in these Rules shall prevent parties to a dispute or
PP 40
38
32
33
34
35
36
39
31 Application
37
41 arbitration agreement from naming HKIAC as appointing authority,
or from requesting certain administrative services from HKIAC,
without subjecting the arbitration to the provisions contained in
these Rules. For the avoidance of doubt, these Rules shall not
govern arbitrations where an arbitration agreement provides for
arbitration under other rules, including other rules adopted by
HKIAC from time to time.

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 HKIAC
Article 2. 2.1. HKIAC shall have the power to interpret all provisions of these
Interpretation of Rules. The arbitral tribunal shall interpret the Rules insofar as they
Rules relate to its powers and duties hereunder. In the event of any
inconsistency between such interpretation and any interpretation by
HKIAC, the arbitral tribunal’s interpretation shall prevail. 2.2 HKIAC
has no obligation to give reasons for any decision it makes in
respect of any arbitration commenced under these Rules. Unless
otherwise determined by HKIAC, all decisions made by HKIAC under
these Rules are final and, to the extent permitted by any applicable
law, not subject to appeal. […]
2.18. HKIAC may from time to time issue practice notes and
guidelines to supplement, regulate and implement these Rules for
the purpose of facilitating the administration of arbitrations
governed by these Rules.

Article 3. Written 3.6. If the circumstances of the case so justify, HKIAC may amend the
Communications and time limits provided for in these Rules, as well as any time limits
Calculation of Time that it has set, whether any such time limits have expired. HKIAC
Limits shall not amend any time limits agreed by the parties or set by the
arbitral tribunal or emergency arbitrator unless the parties agree or
the arbitral tribunal or emergency arbitrator directs otherwise.
Article 4. Notice of 4.1. The party initiating arbitration (the “Claimant”) shall
Arbitration communicate a Notice of Arbitration to HKIAC and the other party
(the “Respondent”).
4.2. An arbitration shall be deemed to commence on the date on
which a copy of the Notice of Arbitration is received by HKIAC. For
the avoidance of doubt, this date shall be determined in accordance
with the provisions of Articles 3.1 to 3.5. 4.4 The Notice of Arbitration
shall be accompanied by payment to HKIAC of the Registration Fee
as required by Schedule 1. 4.6 If the Notice of Arbitration does not
comply with these Rules or if the Registration Fee is not paid, HKIAC
may request the Claimant to remedy the defect within an
appropriate time limit. If the Claimant complies with such directions
within the applicable time limit, the arbitration shall be deemed to
have commenced under Article 4.2 on the date the initial version was
received by HKIAC. If the Claimant fails to comply, the arbitration
shall be deemed not to have commenced under Article 4.2 without
prejudice to the Claimant’s right to submit the same claim at a later
date in a subsequent Notice of Arbitration. 4.8 The Claimant shall
notify, and lodge documentary verification with, HKIAC of the date
the Respondent receives the Notice of Arbitration and any
supporting materials included with it.
Article 5. Answer to 5.1. Within 30 days from receipt of the Notice of Arbitration, the
the Notice of Respondent shall communicate an Answer to the Notice of
Arbitration Arbitration to HKIAC and the Claimant. The Answer to the Notice of
Arbitration shall include the following: […]
5.4. HKIAC shall transmit the case file to the arbitral tribunal as soon
as it has been constituted, provided that any deposit requested by
HKIAC has been paid, unless HKIAC determines otherwise.

Article 6. Number of 6.1. If the parties have not agreed upon the number of arbitrators
Arbitrators before the arbitration commences or within 30 days from the date
the Notice of Arbitration is received by the Respondent, HKIAC shall
decide whether the case shall be referred to a sole arbitrator or to
three arbitrators, taking into account the circumstances of the case.
Article 7. 7.2. If the parties fail to designate the sole arbitrator within the
Appointment of Sole applicable time limit, HKIAC shall appoint the sole arbitrator.
Arbitrator
Article 8. 8.1. Where a dispute between two parties is referred to three
Appointment of arbitrators, the arbitral tribunal shall be constituted as follows,
Three Arbitrators unless the parties have agreed otherwise:
(a) where the parties have agreed before the arbitration
commences that the dispute shall be referred to three
arbitrators, each party shall designate in the Notice of
Arbitration and the Answer to the Notice of Arbitration,
respectively, one arbitrator. If either party fails to designate an
arbitrator, HKIAC shall appoint the arbitrator.

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 HKIAC

(b) where the parties have agreed after the arbitration commences
to refer the dispute to three arbitrators, the Claimant shall
designate an arbitrator within 15 days from the date of that
agreement, and the Respondent shall designate an arbitrator
within 15 days from receiving notice of the Claimant’s
designation. If a party fails to designate an arbitrator, HKIAC
shall appoint the arbitrator.
(c) where the parties have not agreed upon the number of
arbitrators and HKIAC has decided that the dispute shall be
referred to three arbitrators, the Claimant shall designate an
arbitrator within 15 days from receipt of HKIAC’s decision, and
the Respondent shall designate an arbitrator within 15 days
from receiving notice of the Claimant’s designation. If a party
fails to designate an arbitrator, HKIAC shall appoint the
arbitrator.
(d) the two arbitrators so appointed shall designate a third
arbitrator, who shall act as the presiding arbitrator. Failing
such designation within 30 days from the confirmation or
appointment of the second arbitrator, HKIAC shall appoint the
presiding arbitrator.
Article 9. 9.1. All designations of any arbitrator, whether made by the parties
Confirmation of the or the arbitrators, are subject to confirmation by HKIAC, upon which
Arbitral Tribunal the appointments shall become effective.
Article 10. Fees and 10.1. The fees and expenses of the arbitral tribunal shall be
Expenses of the determined according to either:
Tribunal
(a) an hourly rate in accordance with Schedule 2; or
(b) the schedule of fees based on the sum in dispute in accordance
with Schedule 3.
The parties shall agree the method for determining the fees and
expenses of the arbitral tribunal, and shall inform HKIAC of the
applicable method within 30 days of the date on which the
Respondent receives the Notice of Arbitration. If the parties fail to
agree on the applicable method, the arbitral tribunal’s fees and
expenses shall be determined in accordance with Schedule 2. […]
10.3. Where the fees of the arbitral tribunal are determined in
accordance with Schedule 3, HKIAC shall fix the fees in accordance
with that Schedule and the following rules: […]
(b) where a case is referred to three arbitrators, HKIAC, at its
discretion, shall have the right to increase the total fees up to
a maximum which shall normally not exceed three times the
fees of a sole arbitrator;

(c) the arbitral tribunal’s fees may exceed the amounts calculated
in accordance with Schedule 3 where, in the opinion of HKIAC,
there are exceptional circumstances, which include, but are
not limited to, the parties conducting the arbitration in a
manner not reasonably contemplated at the time when the
arbitral tribunal was constituted.
Article 11. 11.8. The notice of challenge shall be communicated to HKIAC, all
Qualifications and other parties, the challenged arbitrator and any other members of
Challenge of the the arbitral tribunal. The notice of challenge shall state the reasons
Arbitral Tribunal for the challenge.
11.9. Unless the arbitrator being challenged resigns or the non-
challenging party agrees to the challenge within 15 days from
receiving the notice of challenge, HKIAC shall decide on the
challenge. Pending the determination of the challenge, the arbitral
tribunal (including the challenged arbitrator) may continue the
arbitration.

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 HKIAC
Article 12. 12.2. If, at the request of a party, HKIAC determines that, in view of
Replacement of an the exceptional circumstances of the case, it would be justified for a
Arbitrator party to be deprived of its right to designate a substitute arbitrator,
HKIAC may, after giving an opportunity to the parties and the
remaining arbitrators to express their views:
(a) appoint the substitute arbitrator; or
(b) authorise the other arbitrators to proceed with the arbitration
and make any decision or award.

Article 13. General 13.2. At an early stage of the arbitration and in consultation with the
Provisions parties, the arbitral tribunal shall prepare a provisional timetable
for the arbitration, which shall be provided to the parties and HKIAC.
13.3. Subject to Article 11.5, all written communications between any
party and the arbitral tribunal shall be communicated to all other
parties and HKIAC. […]
13.6. The parties may be represented by persons of their choice,
subject to Article 13.5. The names, addresses, facsimile numbers
and/or email addresses of party representatives shall be
communicated to all other parties, HKIAC, any emergency
arbitrator, and the arbitral tribunal once constituted. The arbitral
tribunal, emergency arbitrator or HKIAC may require proof of
authority of any party representatives.
13.9 In all matters not expressly provided for in these Rules, HKIAC,
the arbitral tribunal, emergency arbitrator and the parties shall act
in the spirit of these Rules.

Article 18. 18.2. HKIAC may adjust its Administrative Fees and the arbitral
Amendments to the tribunal’s fees (where appropriate) if a party amends its claim or
Claim or Defence defence.
Article 19. 19.4. Subject to Article 19.5, if a question arises as to:
Jurisdiction of the
Tribunal (a) the existence, validity or scope of the arbitration agreement; or
(b) whether all of the claims have been properly made in a single
arbitration pursuant to Article 29; or
(c) the competence of HKIAC to administer an arbitration;
before the constitution of the arbitral tribunal, the arbitration shall
proceed and any such question shall be decided by the arbitral
tribunal once constituted.
19.5. The arbitration shall proceed only if and to the extent that
HKIAC is satisfied, prima facie, that an arbitration agreement under
the Rules may exist or the arbitration has been properly commenced
under Article 29. Any question as to the jurisdiction of the arbitral
tribunal shall be decided by the arbitral tribunal once constituted,
pursuant to Article 19.1.
19.6. HKIAC’s decision pursuant to Article 19.5 is without prejudice to
the admissibility or merits of any party’s claim or defence.

Article 23. Interim 23.1. A party may apply for urgent interim or conservatory relief
Measures of (“Emergency Relief”) prior to the constitution of the arbitral tribunal
Protection and pursuant to Schedule 4.
Emergency Relief

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 HKIAC
Article 27. Joinder of 27.3. Any Request for Joinder shall be raised no later than in the
Additional Parties Statement of Defence, except in exceptional circumstances.
27.4. Before the arbitral tribunal is constituted, a party wishing to
join an additional party to the arbitration shall communicate a
Request for Joinder to HKIAC, all other parties and any confirmed or
appointed arbitrators.
27.5. After the arbitral tribunal is constituted, a party wishing to join
an additional party to the arbitration shall communicate a Request
for Joinder to the arbitral tribunal, HKIAC and all other parties. […]
27.7. Within 15 days of receiving the Request for Joinder, the
additional party shall communicate an Answer to the Request for
Joinder to HKIAC, all other parties and any confirmed or appointed
arbitrators. The Answer to the Request for Joinder shall include the
following: […]
27.9. An additional party wishing to be joined to the arbitration shall
communicate a Request for Joinder to HKIAC, all other parties and
any confirmed or appointed arbitrators. The provisions of Article 27.6
shall apply to such Request for Joinder. […]

27.11. Where an additional party is joined to the arbitration, the

arbitration against that additional party shall be deemed to
commence on the date on which HKIAC or the arbitral tribunal once
constituted, received the Request for Joinder. 27.12 Where an
additional party is joined to the arbitration, all parties to the
arbitration shall be deemed to have waived their right to designate
an arbitrator.
27.13. Where an additional party is joined to the arbitration before
the arbitral tribunal is constituted, HKIAC may revoke any
confirmation or appointment of an arbitrator, and shall appoint the
arbitral tribunal with or without regard to any party’s designation.
[…]
27.15. HKIAC may adjust its Administrative Fees and the arbitral
tribunal’s fees (where appropriate) after a Request for Joinder has
been submitted.

Article 28. 28.1. HKIAC shall have the power, at the request of a party and after
Consolidation of consulting with the parties and any confirmed or appointed
Arbitrations arbitrators, to consolidate two or more arbitrations pending under
these Rules where:
(a) the parties agree to consolidate; or
(b) all of the claims in the arbitrations are made under the same
arbitration agreement; or
(c) the claims are made under more than one arbitration
agreement, a common question of law or fact arises in all of
the arbitrations, the rights to relief claimed are in respect of, or
arise out of, the same transaction or a series of related
transactions and the arbitration agreements are compatible.
28.2. Any party wishing to consolidate two or more arbitrations
pursuant to Article 28.1 shall communicate a Request for
Consolidation to HKIAC, all other parties and any confirmed or
appointed arbitrators.
[…]
28.4. HKIAC may vary any of the requirements in Article 28.3 as it
deems appropriate.
[…]
28.6. Where HKIAC decides to consolidate two or more arbitrations,
the arbitrations shall be consolidated into the arbitration that
commenced first, unless all parties agree or HKIAC decides otherwise
taking into account the circumstances of the case. HKIAC shall
communicate such decision to all parties and to any confirmed or
appointed arbitrators in all arbitrations.
[…]

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 HKIAC
28.8. Where HKIAC decides to consolidate two or more arbitrations,
the parties to all such arbitrations shall be deemed to have waived
their right to designate an arbitrator, and HKIAC may revoke any
confirmation or appointment of an arbitrator. HKIAC shall appoint
the arbitral tribunal in respect of the consolidated proceedings with
or without regard to any party’s designation.
[…]
28.10. HKIAC may adjust its Administrative Fees and the arbitral
tribunal’s fees (where appropriate) after a Request for Consolidation
has been submitted.

Article 29. Single Claims arising out of or in connection with more than one contract
Arbitration under may be made in a single arbitration, provided that:
Multiple Contracts
(a) a common question of law or fact arises under each arbitration
agreement giving rise to the arbitration; and
(b) the rights to relief claimed are in respect of, or arise out of, the
same transaction or a series of related transactions; and
(c) the arbitration agreements under which those claims are made
are compatible.

Article 35. Form and 35.6. The arbitral tribunal shall communicate to HKIAC originals of
Effect of the Award the award signed by the arbitral tribunal. HKIAC shall affix its seal to
the award and, subject to any lien, communicate it to the parties.
Article 37. 37.3. The arbitral tribunal shall communicate copies of the order to
Settlement or Other terminate the arbitration or of the arbitral award on agreed terms,
Grounds for signed by the arbitral tribunal, to HKIAC. Subject to any lien, HKIAC
Termination shall communicate the order for termination of the arbitration or
the arbitral award on agreed terms to the parties. Where an arbitral
award on agreed terms is made, the provisions of Articles 35.2, 35.3,
35.5 and 35.6 shall apply.
Article 41. Deposits 41.1. As soon as practicable after receipt of the Notice of Arbitration
for Costs by the Respondent, HKIAC shall, in principle, request the Claimant
and the Respondent each to deposit with HKIAC an equal amount as
an advance for the costs referred to in Article 34.1(a), (b), (c) and (e).
HKIAC shall provide a copy of such request to the arbitral tribunal.
41.2. Where the Respondent submits a counterclaim or cross-claim,
or it otherwise appears appropriate in the circumstances, HKIAC may
request separate deposits.
41.3. During the course of the arbitration, HKIAC may request the
parties to make supplementary deposits with HKIAC. HKIAC shall
provide a copy of such request to the arbitral tribunal.

41.4. If the required deposits are not paid in full to HKIAC within 30
days after receipt of the request, HKIAC shall so inform the parties in
order that one or another of them may make the required payment.
If such payment is not made, the arbitral tribunal may order the
suspension or termination of the arbitration or continue with the
arbitration on such basis and in respect of such claim or
counterclaim as the arbitral tribunal considers fit.
41.5. If a party pays the required deposits on behalf of another party,
the arbitral tribunal may, at the request of the paying party, make
an award for reimbursement of the payment.
41.6. When releasing the final award, HKIAC shall render an account
to the parties of the deposits received by HKIAC. Any unexpended
balance shall be returned to the parties in the shares in which it was
paid by the parties to HKIAC, or as otherwise instructed by the
arbitral tribunal.
41.7. HKIAC shall place the deposits made by the parties in an
account at a reputable licensed deposit-taking institution. In
selecting the account, HKIAC shall have due regard to the possible
need to make the deposited funds available immediately.

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 HKIAC
Article 42. Expedited 42.1. Prior to the constitution of the arbitral tribunal, a party may
Procedure apply to HKIAC for the arbitration to be conducted in accordance
with Article 42.2 where:
(a) the amount in dispute representing the aggregate of any claim
and counterclaim (or any set-off defence or cross-claim) does
not exceed the amount set by HKIAC, as stated on HKIAC’s
website on the date the Notice of Arbitration is submitted; or
(b) the parties so agree; or
(c) in cases of exceptional urgency.
42.2. When HKIAC, after considering the views of the parties, grants
an application made pursuant to Article 42.1, the arbitral
proceedings shall be conducted in accordance with an Expedited
Procedure based upon the foregoing provisions of these Rules,
subject to the following changes:
(a) the case shall be referred to a sole arbitrator, unless the
arbitration agreement provides for three arbitrators;
(b) if the arbitration agreement provides for three arbitrators,
HKIAC shall invite the parties to agree to refer the case to a
sole arbitrator. If the parties do not agree, the case shall be
referred to three arbitrators;
(c) HKIAC may shorten the time limits provided for in the Rules, as
well as any time limits that it has set;

(d) after the submission of the Answer to the Notice of Arbitration,

the parties shall in principle be entitled to submit one
Statement of Claim and one Statement of Defence (and
Counterclaim) and, where applicable, one Statement of
Defence in reply to the Counterclaim;
(e) the arbitral tribunal shall decide the dispute on the basis of
documentary evidence only, unless it decides that it is
appropriate to hold one or more hearings;
(f) subject to any lien, the award shall be communicated to the
parties within six months from the date when HKIAC
transmitted the case file to the arbitral tribunal. In exceptional
circumstances, HKIAC may extend this time limit;
(g) the arbitral tribunal may state the reasons upon which the
award is based in summary form, unless the parties have
agreed that no reasons are to be given.
42.3. Upon the request of any party and after consulting with the
parties and any confirmed or appointed arbitrators, HKIAC may,
having regard to any new circumstances that have arisen, decide
that the Expedited Procedure under Article 42 shall no longer apply
to the case. Unless HKIAC considers that it is appropriate to revoke
the confirmation or appointment of any arbitrator, the arbitral
tribunal shall remain in place.

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 HKIAC
Article 45. 45.1. Unless otherwise agreed by the parties, no party or party
Confidentiality representative may publish, disclose or communicate any
information relating to:
(a) the arbitration under the arbitration agreement; or
(b) an award or Emergency Decision made in the arbitration.
45.2. Article 45.1 also applies to the arbitral tribunal, any emergency
arbitrator, expert, witness, tribunal secretary and HKIAC.
45.3. Article 45.1 does not prevent the publication, disclosure or
communication of information referred to in Article 45.1 by a party
or party representative:
(a)
(i) to protect or pursue a legal right or interest of the party;
or
(ii) to enforce or challenge the award or Emergency Decision
referred to in Article 45.1;
in legal proceedings before a court or other authority; or
(b) to any government body, regulatory body, court or tribunal
where the party is obliged by law to make the publication,
disclosure or communication; or
(c) to a professional or any other adviser of any of the parties,
including any actual or potential witness or expert; or

(d) to any party or additional party and any confirmed or

appointed arbitrator for the purposes of Articles 27, 28, 29 or
30; or
(e) to a person for the purposes of having, or seeking, third party
funding of arbitration.
45.4. The deliberations of the arbitral tribunal are confidential.
45.5. HKIAC may publish any award, whether in its entirety or in the
form of excerpts or a summary, only under the following conditions:
(a) all references to the parties’ names and other identifying
information are deleted; and
(b) no party objects to such publication within the time limit fixed
for that purpose by HKIAC. In the case of an objection, the
award shall not be published.

Article 46. Exclusion 46.1. None of the Council members of HKIAC nor any body or person
of Liability specifically designated by it to perform the functions in these Rules,
nor the Secretary-General of HKIAC or other staff members of the
Secretariat of HKIAC, the arbitral tribunal, any emergency arbitrator,
tribunal-appointed expert or tribunal secretary shall be liable for
any act or omission in connection with an arbitration conducted
under these Rules, save where such act was done or omitted to be
done dishonestly. 46.2 After the award has been made and the
possibilities of correction, interpretation and additional awards
referred to in Articles 38 to 40 have lapsed or been exhausted,
neither HKIAC nor the arbitral tribunal, any emergency arbitrator,
tribunal-appointed expert or tribunal secretary shall be under an
obligation to make statements to any person about any matter
concerning the arbitration, nor shall a party seek to make any of
these persons a witness in any legal or other proceedings arising out
of the arbitration.
Schedule I 1.1. When submitting a Notice of Arbitration, the Claimant shall pay
Registration and a Registration Fee in the amount set by HKIAC, as stated on HKIAC’s
Administrative Fees website on the date the Notice of Arbitration is submitted.
Article 1.
Registration Fee 1.2. If the Claimant fails to pay the Registration Fee, HKIAC shall not
proceed with the arbitration subject to Article 4.6 of the Rules.
1.3. The Registration Fee is not refundable save in exceptional
circumstances as determined by HKIAC in its sole discretion.

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 HKIAC
Schedule I 2.1. HKIAC’s Administrative Fees shall be determined in accordance
Registration and with the following table: [Table omitted (79) ]
Administrative Fees
Article 2. HKIAC’s 2.2. Claims and counterclaims are added for the determination of
Administrative Fees the amount in dispute. The same rule applies to any set-off defence
or cross-claim, unless the arbitral tribunal, after consulting with the
parties, concludes that such set-off defence or cross-claim will not
require significant additional work.
2.3. An interest claim shall not be taken into account for the
calculation of the amount in dispute, except where HKIAC
determines that doing so would be appropriate.
2.4. Where there are alternative claims, only the principal claim
shall be taken into account for the calculation of the amount in
dispute, except where HKIAC considers it appropriate to take into
account the amount of any alternative claim.
2.5. Pursuant to Articles 18.2, 27.15, 28.10 or 30.2 or where in the
opinion of HKIAC there are exceptional circumstances, HKIAC may
depart from the table in paragraph 2.1. when calculating its
Administrative Fees.
2.6. If the amount in dispute is not quantified, HKIAC’s Administrative
Fees shall be fixed by HKIAC, taking into account the circumstances
of the case.
2.7. Amounts in currencies other than Hong Kong Dollars shall be
converted into Hong Kong Dollars at the rate of exchange published
by HSBC Bank on the date the Notice of Arbitration is submitted or
at the time any new claim, set-off defence, cross-claim or
amendment to a claim or defence is filed.
2.8. The parties are jointly and severally liable for HKIAC’s
Administrative Fees.

Schedule II Arbitral 2.1. Payments to the arbitral tribunal shall generally be made by
Tribunal Fees, HKIAC from funds deposited by the parties in accordance with Article
Expenses, Terms and 41 of the Rules. HKIAC may direct the parties, in such proportions as
Conditions Article 2. it considers appropriate, to make one or more interim or final
Payments to the payments to the arbitral tribunal. […]
Arbitral Tribunal
Schedule II Arbitral HKIAC and the arbitral tribunal shall have a lien over any awards
Tribunal Fees, issued by the arbitral tribunal to secure the payment of their
Expenses, Terms and outstanding fees and expenses, and may accordingly refuse to
Conditions Article 7. communicate any such awards to the parties until all such fees and
Lien on Award expenses have been paid in full, whether jointly or by one or other of
the parties.

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 HKIAC
Schedule IV 1. A party requiring Emergency Relief may submit an application (the
Emergency “Application”) for the appointment of an emergency arbitrator to
Arbitrator HKIAC (a) before, (b) concurrent with, or (c) following the filing of a
Procedures Notice of Arbitration, but prior to the constitution of the arbitral
tribunal.
2. The Application shall be submitted in accordance with any of the
means specified in Articles 3.1 and 3.2 of the Rules. The Application
shall include the following information: […]
[…]
4. If HKIAC determines that it should accept the Application, HKIAC
shall seek to appoint an emergency arbitrator within 24 hours after
receipt of both the Application and the Application Deposit.
5. The Application Deposit is the amount set by HKIAC, as stated on
HKIAC’s website on the date the Application is submitted. The
Application Deposit consists of HKIAC’s emergency administrative
fees and the emergency arbitrator’s fees and expenses. The
emergency arbitrator’s fees shall be determined by reference to his
or her hourly rate subject to the terms of Schedule 2 and shall not
exceed the amount set by HKIAC, as stated on HKIAC’s website on the
date the Application is submitted unless the parties agree or HKIAC
determines otherwise in exceptional circumstances. HKIAC may, at
any time during the Emergency Relief proceedings, request
additional deposits to cover any increase in the emergency
arbitrator’s fees or HKIAC’s emergency administrative fees, taking
into account, inter alia, the nature of the case and the nature and
amount of work performed by the emergency arbitrator and HKIAC.
If the party which submitted the Application fails to pay the
additional deposits within the time limit fixed by HKIAC, the
Application shall be dismissed.
6. Once the emergency arbitrator has been appointed, HKIAC shall
communicate the appointment to the parties to the Application and
shall communicate the case file to the emergency arbitrator.
Thereafter, the parties shall communicate with the emergency
arbitrator directly, with a copy to all other parties to the Application
and HKIAC. Any written communications from the emergency
arbitrator to the parties shall also be copied to HKIAC.
7. Article 11 of the Rules shall apply to the emergency arbitrator,
except that the time limits set out in Articles 11.7 and 11.9 are
shortened to three days.

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 HKIAC
8. Where an emergency arbitrator dies, has been successfully
challenged, has been otherwise removed, or has resigned, HKIAC
shall seek to appoint a substitute emergency arbitrator within 24
hours. If an emergency arbitrator withdraws or a party agrees to
terminate an emergency arbitrator’s appointment under paragraph
8 of this Schedule, no acceptance of the validity of any ground
referred to in Article 11.6 of the Rules shall be implied. If the
emergency arbitrator is replaced, the Emergency Relief proceedings
shall resume at the stage where the emergency arbitrator was
replaced or ceased to perform his or her functions, unless the
substitute emergency arbitrator decides otherwise.
[…]
11. Articles 23.2 to 23.8 shall apply, mutatis mutandis, to any
Emergency Relief granted by the emergency arbitrator.
12. Any decision, order or award of the emergency arbitrator on the
Application (the “Emergency Decision”) shall be made within 14 days
from the date on which HKIAC transmitted the case file to the
emergency arbitrator. This time limit may be extended by agreement
of the parties or, in appropriate circumstances, by HKIAC.
[…]
17. Any Emergency Decision ceases to be binding:
[…]
(d) if the arbitral tribunal is not constituted within 90 days from the
date of the Emergency Decision. This time limit may be extended by
agreement of the parties or, in appropriate circumstances, by HKIAC.
[…]
21. The Emergency Arbitrator Procedure shall be terminated if a
Notice of Arbitration has not been submitted by the applicant to
HKIAC within seven days of HKIAC’s receipt of the Application, unless
the emergency arbitrator extends this time limit.
[…]

§1.04 INTERNATIONAL COURT OF ARBITRATION OF THE INTERNATIONAL

CHAMBER OF COMMERCE
[A] Overview
The ICC is a private, not-for-profit business organization that was established in 1919. (80)
P 41 The ICC seeks inclusive and sustainable global economic growth and prosperity by
P 42 promoting international trade, supporting global efforts to streamline customs and
border procedures, encouraging responsible business conduct, and resolving international
commercial disputes. (81)
Among its areas of focus, the ICC has developed special expertise in dealing with
international dispute resolution through the ICC Court, which is widely considered to be
the world’s leading institution for the administration of international commercial
arbitration. The ICC is also beginning to play a more prominent role in arbitrations
between private parties and states. (82)
According to statistics published by the ICC, a total of 810 arbitrations were filed with the
institution in 2017, involving 2,316 parties from a record of 142 different countries. (83)

[B] Governance
The ICC World Council (the World Council) is the ICC’s supreme governing body. The ICC has
over 90 national committees, which represent the ICC at a national level, and name their
respective delegates to the World Council. In addition, 10 members from countries that do
not have a national committee can be invited to participate in the work of the World
Council.
The World Council is responsible for electing the Chairman, Vice-Chairman, and the
Executive Board of the ICC, the latter being in charge of implementing ICC policy on the
Chairman’s recommendation. (84) The World Council also appoints the Secretary-General,
who heads the International Secretariat of the ICC, as well as the members of the ICC Court,
based on recommendations by the national committees. (85)
The ICC Court was established by the ICC in Paris in 1923. It is composed of a President and
a number of Vice Presidents and members, all of whom are appointed for a three-year
term. (86) The ICC Court is not a judicial court and does not resolve disputes. Rather, it is

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 an autonomous administrative body that operates independently from the ICC itself, and
whose role is to administer the resolution of disputes by arbitral tribunals in accordance
with the Rules of Arbitration of the ICC. (87) More specifically, the ICC lists the following
powers, which the Court will exercise as necessary: (i) determine whether there is a prima
P 42 facie agreement to arbitrate a case; (ii) decide on the number of arbitrators; (iii) appoint
P 43 arbitrators; (iv) decide upon any challenges made against arbitrators; (v) ensure that
arbitrations are conducted in accordance with the ICC Rules; (vi) determine the place of
arbitration; (vii) fix and extend time limits in an arbitration; (viii) oversee emergency
arbitrator proceedings; (ix) make necessary decisions in complex multiparty or
multicontract arbitrations; (x) manage and, if necessary, adjust costs of the arbitration,
including ICC administrative expenses and fees and expenses of the arbitrators; and (xi)
scrutinize and approve all arbitral awards. (88)
The ICC Court is the only body with the power to administer arbitrations under the Rules of
Arbitration of the ICC. (89) The ICC Court benefits from the assistance of the ICC Court’s
Secretariat, which acts as the link between the ICC Court, the arbitral tribunal, and the
parties to a case, and which is responsible for the case management of arbitrations
brought under the ICC Rules.
The ICC Court has its own set of governing rules and procedures, which are included in
appendices to the ICC Rules. Appendix I sets out the general statutes of the ICC Court, and
Appendix II provides the internal rules of the ICC Court. These provisions exist to ensure
that the ICC Court, as an entity independent from the ICC, enforces the ICC Rules and
contains all of the necessary powers to do so. (90) Appendix I provides for the appointment
of the ICC Court President, Vice Presidents, and members by the ICC World Council. (91)
Additionally, Appendix I permits the ICC Court to establish committees to assist with its
duties. (92) Currently, the ICC Court has established a three-person committee with the ICC
Court President as the President of the committee. (93)
Appendix I includes a procedural description of the ICC Court’s deliberation process. The
President, or a Vice President designated by an absent President, presides over the
plenary sessions of the ICC Court. (94) Deliberations are valid when at least six members of
the ICC Court are present. All decisions during such deliberations are taken by a majority
vote, and in the case of a tie, the individual presiding over the session holds the power to
cast a tiebreaking vote. (95) The ICC Court can also propose modification of the ICC Rules.
(96)
The work of the ICC Court is highly confidential, and the ICC Court has the power to limit
who can attend its meetings and who is entitled to access its materials. (97) Pursuant to
P 43 Appendix II, materials submitted to the ICC Court and the sessions of the ICC Court are
P 44 available only to the Secretariat, President, and Vice Presidents, and only the President
has the power to allow others to attend meetings. (98) Furthermore, Appendix II gives the
Secretariat guidelines for archiving ICC Court Materials and provides that documents
submitted by the parties or arbitrators may be destroyed unless otherwise requested by a
party or arbitrator. (99)
Appendix II sets forth several other guidelines regarding the relationship of ICC Court
members with the International Court of Arbitration and the ICC national committees. (100)
As a general matter, ICC Court members may not act as either counsel or arbitrators in any
cases submitted to ICC arbitration, although the Vice Presidents and other members may
assume duties within the arbitration if the parties agree to it. (101) Members of the ICC
Court must also remain independent of the ICC national committees and groups and must
ensure the confidentiality of information they have obtained from the ICC Court unless
explicitly authorized by the President, a Vice President authorized by the President, or the
ICC Secretary-General. (102)

[C] Arbitration Rules

The 1998 edition of the ICC Rules were replaced by the 2012 ICC Rules, which were
published in 2011 and came into effect in January 2012. The 1998 ICC Rules remain
applicable to arbitrations commenced prior to January 2012. (103)
The 2012 ICC Rules introduced new provisions addressing the resolution of disputes
involving multiple contracts and parties; (104) disputes involving states and state entities;
(105) provisions for the appointment of an emergency arbitrator in cases where urgent
interim or conservatory measures are required by a party before the constitution of an
arbitral tribunal; (106) expanded rules regarding the independence and impartiality of
arbitrators; (107) and provisions formally giving the tribunal powers to order the
confidentiality of arbitral proceedings carried out before it. (108)
On November 4, 2016, the ICC announced an amendment to the 2012 ICC Rules to
incorporate a set of new Expedited Procedure Rules for smaller claims and to introduce
amendments to increase transparency and efficiency. The Expedited Procedure Rules,
P 44 which form a new Appendix IV to the ICC Arbitration Rules, became effective on March 1,
P 45 2017. The Expedited Procedure Rules apply to claims that do not exceed USD 2,000,000
and to claims for which the parties have agreed that they apply. (109) The Expedited
Procedure Rules limit the number of procedural steps, shorten time limits, and introduce a
specific fee scale for administrative expenses and arbitrator fees in order to reduce the
total duration and cost of the arbitration. (110)

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 The ICC offers additional services to parties in addition to arbitration, including
prearbitral referee procedures, (111) Amicable Dispute Resolution (ADR), and expertise
services. Prearbitral referee procedures are used “to obtain urgent measures when
difficulties arise in contractual relationships, prior to referral to arbitration.” To initiate
prearbitral referee procedures, the parties must make a written request to the Secretariat,
and the parties can either agree on or ask the President to appoint the Referee. (112) The
Referee is an individual who has the power to make an order to resolve differences
between the parties. (113) The orders of the Referee are binding until a court, arbitral
tribunal, or the Referee decides otherwise. (114) The Referee has the power to conduct the
proceeding in any manner he or she deems appropriate and within the scope of the
appointment, including, but not limited to: considering the parties’ written submissions;
visiting the situs of the breach of contract, parties’ residences, and other relevant places;
obtaining expert reports; and hearing any other relevant person. (115)
ADR is a cost-effective alternative for settling commercial disputes in appropriate cases.
Using ADR, parties can choose a method or combination of methods to reach a settlement.
(116) These methods include mediation, conciliation, neutral evaluation, and minitrial.
(117) According to ICC statistics, approximately 80% of all ADR matters where the parties
opt for mediation are settled through that process. (118) ADR is administered by the ICC
International Centre for ADR and governed by the ICC ADR Rules.
Expertise services have been offered by the ICC for the past 25 years through its
International Centre for Expertise (the Centre), which has since been absorbed into the ICC
International Centre for ADR. The Centre confirms or appoints experts with knowledge in
legal, financial, and technical fields, among many others. (119) These experts, who offer
P 45 independent assessments, are used for a variety of purposes, including assisting with the
P 46 ordinary course of business or with a contractual dispute or serving as a witness. (120)
This service is governed by the ICC Expert Rules, which were updated in 2015. (121)

[D] Arbitrators
The appointment of arbitrators to an ICC arbitral tribunal is governed by Articles 11 through
15 of the ICC Rules 2017. Parties can choose to have either one or three arbitrators, and if an
agreement cannot be reached, the ICC Court will typically appoint one arbitrator—subject
to considerations such as the amount in controversy, or the overall complexity of the
dispute. (122) If the parties agree to a single arbitrator, they may nominate an arbitrator
for confirmation by the ICC Court or request the ICC Court to appoint an arbitrator. (123) If
the parties agree to a tribunal of three arbitrators, each party nominates one arbitrator
and the ICC Court appoints the third, unless the parties agree to another appointment
mechanism. (124)
When appointing arbitrators to a tribunal, the ICC Court typically requests a national
committee or group to make a proposal. ICC national committees and groups are networks
of professionals that represent the ICC in their respective countries. They voice their
countries’ concerns to the ICC, helping to shape the ICC’s policies. (125) The ICC currently
has national committees in more than 90 countries and groups in four other regions, and if
there is no committee or group, an individual or company can join the ICC individually
through direct membership. (126) Because national committees are located within their
respective countries, they are assumed to have specialized knowledge to propose local
professionals who are best qualified to act as arbitrator.
Each national committee or group is autonomous and has different structures in place for
membership and for the proposal of arbitrators to the ICC. Regarding proposals of
arbitrators to the ICC, each committee and group differs. Some countries, like the United
Kingdom, employ arbitration consultants who make proposals under the supervision of a
panel of outside lawyers.

[E] Case Management

The ICC Court Secretariat receives copies of all written communications and pleadings in
an arbitration proceeding, and its staff follows every case closely through computerized
case management systems, which are capable of functioning in several different languages.
P 46 The ICC Court Secretariat’s headquarters are located in Paris, and it also maintains
P 47 regional headquarters in Hong Kong and, as of September 2013, New York. (127) In 2017,
the ICC announced that it is setting up a case management team in Singapore. In addition,
the ICC has regional representatives in Latin America, the United Kingdom, and the Eastern
Mediterranean Region and the Middle East and Africa. The Secretariat has a full-time staff
of 80, which includes lawyers of many different nationalities. It is composed of a number of
teams covering different regions, which are all headed by a counsel leading a team of
deputy-counsels and other staff. (128)

[F] Award Scrutiny

Scrutiny of the award by the ICC Court prior to the award being issued is a notable feature
of ICC arbitration. (129) All draft awards written by ICC tribunals undergo a three-step
review process. The first level of review is conducted by the counsel of the team that
managed the arbitration; the second level by the Secretary-General, Deputy Secretary-
General, Managing Counsel, or the General Counsel; and the final level of review is by the

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 ICC Court. The ICC Court’s scrutiny involves a review of the form and substance of the award
to ensure that it is within the framework of the Terms of Reference and that it is in a form
that is enforceable under the New York Convention as well as the law of the situs. The ICC
Court may communicate with the tribunal to point out issues with the form of the award,
suggest appropriate modifications, and direct the tribunal’s attention to any points of
substance before an award is issued. (130) Once this is done, a final award can be served
on the parties by the Secretariat. (131)
P 47 In Table 1.4 we set out the main rules relating to the powers and duties of the ICC Court of
P 48 Arbitration.
P 48
P 49 Table 1.4 Powers and Duties of the ICC Court of Arbitration

51 ICC
PP 60
50
58
49
52
53
54
55
56
59
57
61
PP 60
50
58
52
53
54
55
56
59
51 Article 1.
57
61
62 1. The International Court of Arbitration (the “Court”) of the
P 63 International Court International Chamber of Commerce (the “ICC”) is the independent
of Arbitration arbitration body of the ICC. The statutes of the Court are set forth in
Appendix I.
2. The Court does not itself resolve disputes. It administers the
resolution of disputes by arbitral tribunals, in accordance with the
Rules of Arbitration of the ICC (the “Rules”). The Court is the only
body authorized to administer arbitrations under the Rules,
including the scrutiny and approval of awards rendered in
accordance with the Rules. It draws up its own internal rules, which
are set forth in Appendix II (the “Internal Rules”).
3. The President of the Court (the “President”) or, in the President’s
absence or otherwise at the President’s request, one of its Vice-
Presidents shall have the power to take urgent decisions on behalf of
the Court, provided that any such decision is reported to the Court at
its next session.4. As provided for in the Internal Rules, the Court
may delegate to one or more committees composed of its members
the power to take certain decisions, provided that any such decision
is reported to the Court at its next session.
5. The Court is assisted in its work by the Secretariat of the Court (the
“Secretariat”) under the direction of its Secretary General (the
“Secretary General”).

Article 3. Written 1. All pleadings and other written communications submitted by any
Notifications or party, as well as all documents annexed thereto, shall be supplied in
Communications; a number of copies sufficient to provide one copy for each party,
Time Limits plus one for each arbitrator, and one for the Secretariat. A copy of
any notification or communication from the arbitral tribunal to the
parties shall be sent to the Secretariat.
2. All notifications or communications from the Secretariat and the
arbitral tribunal shall be made to the last address of the party or its
representative for whom the same are intended, as notified either by
the party in question or by the other party. […]
[…]

Article 4. Request for 1. A party wishing to have recourse to arbitration under the Rules
Arbitration shall submit its Request for Arbitration (the “Request”) to the
Secretariat at any of the offices specified in the Internal Rules. The
Secretariat shall notify the claimant and respondent of the receipt
of the Request and the date of such receipt.
[…]
4. Together with the Request, the claimant shall:

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 ICC

(a) submit the number of copies thereof required by Article 3(1);

and
(b) make payment of the filing fee required by Appendix III
(“Arbitration Costs and Fees”) in force on the date the Request
is submitted. In the event that the claimant fails to comply
with either of these requirements, the Secretariat may fix a
time limit within which the claimant must comply, failing
which the file shall be closed without prejudice to the
claimant’s right to submit the same claims at a later date in
another Request.
5) The Secretariat shall transmit a copy of the Request and the
documents annexed thereto to the respondent for its Answer to the
Request once the Secretariat has sufficient copies of the Request
and the required filing fee.

Article 5. Answer to 1. Within 30 days from the receipt of the Request from the
the Request; Secretariat, the respondent shall submit an Answer (the “Answer”)
Counterclaims […]
2. The Secretariat may grant the respondent an extension of the time
for submitting the Answer, provided the application for such an
extension contains the respondent’s observations or proposals
concerning the number of arbitrators and their choice and, where
required by Articles 12 and 13, the nomination of an arbitrator. If the
respondent fails to do so, the Court shall proceed in accordance with
the Rules.
3. The Answer shall be submitted to the Secretariat in the number of
copies specified by Article 3(1).
4. The Secretariat shall communicate the Answer and the documents
annexed thereto to all other parties.
[…]
6. The claimant shall submit a reply to any counterclaim within 30
days from the date of receipt of the counterclaims communicated by
the Secretariat. Prior to the transmission of the file to the arbitral
tribunal, the Secretariat may grant the claimant an extension of
time for submitting the reply.

Article 6. Effect of 2. By agreeing to arbitration under the Rules, the parties have
the Arbitration accepted that the arbitration shall be administered by the Court.
Agreement
3. If any party against which a claim has been made does not submit
an Answer, or if any party raises one or more pleas concerning the
existence, validity or scope of the arbitration agreement or
concerning whether all of the claims made in the arbitration may be
determined together in a single arbitration, the arbitration shall
proceed and any question of jurisdiction or of whether the claims
may be determined together in that arbitration shall be decided
directly by the arbitral tribunal, unless the Secretary General refers
the matter to the Court for its decision pursuant to Article 6(4).

4. In all cases referred to the Court under Article 6(3), the Court shall
decide whether and to what extent the arbitration shall proceed. The
arbitration shall proceed if and to the extent that the Court is prima
facie satisfied that an arbitration agreement under the Rules may
exist. […]
5. In all matters decided by the Court under Article 6(4), any decision
as to the jurisdiction of the arbitral tribunal, except as to parties or
claims with respect to which the Court decides that the arbitration
cannot proceed, shall then be taken by the arbitral tribunal itself.

Article 7. Joinder of 1. A party wishing to join an additional party to the arbitration shall
Additional Parties submit its request for arbitration against the additional party (the
“Request for Joinder”) to the Secretariat. […] The Secretariat may fix
a time limit for the submission of a Request for Joinder.
[…]

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 ICC
Article 8. Claims 1. In an arbitration with multiple parties, claims may be made by
Between Multiple any party against any other party, subject to the provisions of
Parties Articles 6(3)-6(7) and 9 and provided that no new claims may be
made after the Terms of Reference are signed or approved by the
Court without the authorization of the arbitral tribunal pursuant to
Article 23(4).
[…]

Article 10. The Court may, at the request of a party, consolidate two or more
Consolidation of arbitrations pending under the Rules into a single arbitration, where:
Arbitrations
a) the parties have agreed to consolidation; or
b) all of the claims in the arbitrations are made under the same
arbitration agreement; or
c) where the claims in the arbitrations are made under more than
one arbitration agreement, the arbitrations are between the
same parties, the disputes in the arbitrations arise in
connection with the same legal relationship, and the Court
finds the arbitration agreements to be compatible.
In deciding whether to consolidate, the Court may take into account
any circumstances it considers to be relevant, including whether one
or more arbitrators have been confirmed or appointed in more than
one of the arbitrations and, if so, whether the same or different
persons have been confirmed or appointed.
When arbitrations are consolidated, they shall be consolidated into
the arbitration that commenced first, unless otherwise agreed by all
parties.

Article 11. General 2. Before appointment or confirmation, a prospective arbitrator

Provisions shall sign a statement of acceptance, availability, impartiality and
independence. The prospective arbitrator shall disclose in writing to
the Secretariat any facts or circumstances which might be of such a
nature as to call into question the arbitrator’s independence in the
eyes of the parties, as well as any circumstances that could give rise
to reasonable doubts as to the arbitrator’s impartiality. The
Secretariat shall provide such information to the parties in writing
and fix a time limit for any comments from them.
3. An arbitrator shall immediately disclose in writing to the
Secretariat and to the parties any facts or circumstances of a similar
nature to those referred to in Article 11(2) concerning the arbitrator’s
impartiality or independence which may arise during the arbitration.
4. The decisions of the Court as to the appointment, confirmation,
challenge or replacement of an arbitrator shall be final.
[…]

Article 12. 2. Where the parties have not agreed upon the number of arbitrators,
Constitution of the the Court shall appoint a sole arbitrator, save where it appears to
Arbitral Tribunal the Court that the dispute is such as to warrant the appointment of
three arbitrators. In such case, the claimant shall nominate an
arbitrator within a period of 15 days from the receipt of the
notification of the decision of the Court, and the respondent shall
nominate an arbitrator within a period of 15 days from the receipt of
the notification of the nomination made by the claimant. If a party
fails to nominate an arbitrator, the appointment shall be made by
the Court.
3. Where the parties have agreed that the dispute shall be resolved
by a sole arbitrator, they may, by agreement, nominate the sole
arbitrator for confirmation. If the parties fail to nominate a sole
arbitrator within 30 days from the date when the claimant’s Request
for Arbitration has been received by the other party, or within such
additional time as may be allowed by the Secretariat, the sole
arbitrator shall be appointed by the Court.
4. Where the parties have agreed that the dispute shall be resolved
by three arbitrators, each party shall nominate in the Request and
the Answer, respectively, one arbitrator for confirmation. If a party
fails to nominate an arbitrator, the appointment shall be made by
the Court.

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 ICC
5. Where the dispute is to be referred to three arbitrators, the third
arbitrator, who will act as president of the arbitral tribunal, shall be
appointed by the Court, unless the parties have agreed upon another
procedure for such appointment, in which case the nomination will
be subject to confirmation pursuant to Article 13. Should such
procedure not result in a nomination within 30 days from the
confirmation or appointment of the co-arbitrators or any other time
limit agreed by the parties or fixed by the Court, the third arbitrator
shall be appointed by the Court.
[…]
8. [Where there are multiple claimants or multiple respondents:] In
the absence of a joint nomination pursuant to Articles 12(6) or 12(7)
and where all parties are unable to agree to a method for the
constitution of the arbitral tribunal, the Court may appoint each
member of the arbitral tribunal and shall designate one of them to
act as president. In such case, the Court shall be at liberty to choose
any person it regards as suitable to act as arbitrator, applying
Article 13 when it considers this appropriate.

Article 13. 1. In confirming or appointing arbitrators, the Court shall consider

Appointment and the prospective arbitrator’s nationality, residence and other
Confirmation of relationships with the countries of which the parties or the other
Arbitrators arbitrators are nationals and the prospective arbitrator’s availability
and ability to conduct the arbitration in accordance with the Rules.
The same shall apply where the Secretary General confirms
arbitrators pursuant to Article 13(2).
2. The Secretary General may confirm as co-arbitrators, sole
arbitrators and presidents of arbitral tribunals persons nominated
by the parties or pursuant to their particular agreements, provided
that the statement they have submitted contains no qualification
regarding impartiality or independence or that a qualified statement
regarding impartiality or independence has not given rise to
objections. Such confirmation shall be reported to the Court at its
next session. If the Secretary General considers that a co-arbitrator,
sole arbitrator or president of an arbitral tribunal should not be
confirmed, the matter shall be submitted to the Court.
3. Where the Court is to appoint an arbitrator, it shall make the
appointment upon proposal of a National Committee or Group of
the ICC that it considers to be appropriate. If the Court does not
accept the proposal made, or if the National Committee or Group
fails to make the proposal requested within the time limit fixed by
the Court, the Court may repeat its request, request a proposal from
another National Committee or Group that it considers to be
appropriate, or appoint directly any person whom it regards as
suitable.

4. The Court may also appoint directly to act as arbitrator any

person whom it regards as suitable where:
(a) one or more of the parties is a state or may be considered to be
a state entity;
(b) the Court considers that it would be appropriate to appoint an
arbitrator from a country or territory where there is no
National Committee or Group; or
(c) the President certifies to the Court that circumstances exist
which, in the President’s opinion, make a direct appointment
necessary and appropriate.
5. The sole arbitrator or the president of the arbitral tribunal shall be
of a nationality other than those of the parties. However, in suitable
circumstances and provided that none of the parties objects within
the time limit fixed by the Court, the sole arbitrator or the president
of the arbitral tribunal may be chosen from a country of which any
of the parties is a national.

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 ICC
Article 14. Challenge 1. A challenge of an arbitrator, whether for an alleged lack of
of Arbitrators impartiality or independence, or otherwise, shall be made by the
submission to the Secretariat of a written statement specifying the
facts and circumstances on which the challenge is based.
[…]
3. The Court shall decide on the admissibility and, at the same time,
if necessary, on the merits of a challenge after the Secretariat has
afforded an opportunity for the arbitrator concerned, the other party
or parties and any other members of the arbitral tribunal to
comment in writing within a suitable period of time. Such comments
shall be communicated to the parties and to the arbitrators.

Article 15. 1. An arbitrator shall be replaced upon death, upon acceptance by

Replacement of the Court of the arbitrator’s resignation, upon acceptance by the
Arbitrators Court of a challenge, or upon acceptance by the Court of a request
of all the parties.
2. An arbitrator shall also be replaced on the Court’s own initiative
when it decides that the arbitrator is prevented de jure or de facto
from fulfilling the arbitrator’s functions, or that the arbitrator is not
fulfilling those functions in accordance with the Rules or within the
prescribed time limits.
3. When, on the basis of information that has come to its attention,
the Court considers applying Article 15(2), it shall decide on the
matter after the arbitrator concerned, the parties and any other
members of the arbitral tribunal have had an opportunity to
comment in writing within a suitable period of time. Such comments
shall be communicated to the parties and to the arbitrators.

4. When an arbitrator is to be replaced, the Court has discretion to

decide whether or not to follow the original nominating process.
Once reconstituted, and after having invited the parties to comment,
the arbitral tribunal shall determine if and to what extent prior
proceedings shall be repeated before the reconstituted arbitral
tribunal.
5. Subsequent to the closing of the proceedings, instead of replacing
an arbitrator who has died or been removed by the Court pursuant
to Articles 15(1) or 15(2), the Court may decide, when it considers it
appropriate, that the remaining arbitrators shall continue the
arbitration. In making such determination, the Court shall take into
account the views of the remaining arbitrators and of the parties
and such other matters that it considers appropriate in the
circumstances.

Article 16. The Secretariat shall transmit the file to the arbitral tribunal as soon
Transmission of the as it has been constituted, provided the advance on costs requested
File to the Arbitral by the Secretariat at this stage has been paid.
Tribunal
Article 17. Proof of At any time after the commencement of the arbitration, the arbitral
Authority tribunal or the Secretariat may require proof of the authority of any
party representatives.
Article 18. Place of 1. The place of the arbitration shall be fixed by the Court, unless
the Arbitration agreed upon by the parties.
[…]

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 ICC
Article 23. Terms of 2. The Terms of Reference shall be signed by the parties and the
Reference arbitral tribunal. Within 30 days of the date on which the file has
been transmitted to it, the arbitral tribunal shall transmit to the
Court the Terms of Reference signed by it and by the parties. The
Court may extend this time limit pursuant to a reasoned request
from the arbitral tribunal or on its own initiative if it decides it is
necessary to do so.
3. If any of the parties refuses to take part in the drawing up of the
Terms of Reference or to sign the same, they shall be submitted to
the Court for approval. When the Terms of Reference have been
signed in accordance with Article 23(2) or approved by the Court, the
arbitration shall proceed.
4. After the Terms of Reference have been signed or approved by the
Court, no party shall make new claims which fall outside the limits
of the Terms of Reference unless it has been authorized to do so by
the arbitral tribunal, which shall consider the nature of such new
claims, the stage of the arbitration and other relevant
circumstances.

Article 27. Closing of As soon as possible after the last hearing concerning matters to be
the Proceedings and decided in an award or the filing of the last authorized submissions
Date for Submission concerning such matters, whichever is later, the arbitral tribunal
of Draft Awards shall:
(a) declare the proceedings closed with respect to the matters to
be decided in the award; and
(b) inform the Secretariat and the parties of the date by which it
expects to submit its draft award to the Court for approval
pursuant to Article 34. […]

Article 28. 2. Before the file is transmitted to the arbitral tribunal, and in
Conservatory and appropriate circumstances even thereafter, the parties may apply to
Interim Measures any competent judicial authority for interim or conservatory
measures. […] Any such application and any measures taken by the
judicial authority must be notified without delay to the Secretariat.
The Secretariat shall inform the arbitral tribunal thereof.
Article 29. 1. A party that needs urgent interim or conservatory measures that
Emergency cannot await the constitution of an arbitral tribunal (“Emergency
Arbitrator Measures”) may make an application for such measures pursuant to
the Emergency Arbitrator Rules in Appendix V.
[…]
7.
The Emergency Arbitrator Provisions are not intended to prevent any
party from seeking urgent interim or conservatory measures from a
competent judicial authority at any time prior to making an
application for such measures, and in appropriate circumstances
even thereafter, pursuant to the Rules. […] Any such application and
any measures taken by the judicial authority must be notified
without delay to the Secretariat.

Article 30. Expedited 1. By agreeing to arbitration under the Rules, the parties agree that
Procedures this Article 30 and the Expedited Procedure Rules set forth in
Appendix VI (collectively the “Expedited Procedure Provisions”) shall
take precedence over any contrary terms of the arbitration
agreement.
[…]
3.
The Expedited Procedure Provisions shall not apply if:
[…]
(c) the Court, upon the request of a party before the constitution of
the arbitral tribunal or on its own motion, determines that it is
inappropriate in the circumstances to apply the Expedited Procedure
Provisions.

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 ICC
Article 31. Time Limit 1. The time limit within which the arbitral tribunal must render its
for the Final Award final award is six months. Such time limit shall start to run from the
date of the last signature by the arbitral tribunal or by the parties of
the Terms of Reference or, in the case of application of Article 23(3),
the date of the notification to the arbitral tribunal by the Secretariat
of the approval of the Terms of Reference by the Court. The Court
may fix a different time limit based upon the procedural timetable
established pursuant to Article 24(2).
2. The Court may extend the time limit pursuant to a reasoned
request from the arbitral tribunal or on its own initiative if it decides
it is necessary to do so.

Article 34. Scrutiny Before signing any award, the arbitral tribunal shall submit it in
of the Award by the draft form to the Court. The Court may lay down modifications as to
Court the form of the award and, without affecting the arbitral tribunal’s
liberty of decision, may also draw its attention to points of
substance. No award shall be rendered by the arbitral tribunal until
it has been approved by the Court as to its form.
Article 35. 1. Once an award has been made, the Secretariat shall notify to the
Notification, Deposit parties the text signed by the arbitral tribunal, provided always that
and Enforceability of the costs of the arbitration have been fully paid to the ICC by the
the Award parties or by one of them.
2. Additional copies certified true by the Secretary General shall be
made available on request and at any time to the parties, but to no
one else.
[…]
An original of each award made in accordance with the Rules shall
be deposited with the Secretariat.
5. The arbitral tribunal and the Secretariat shall assist the parties in
complying with whatever further formalities may be necessary.
[…]

Article 36. Correction 2. Any application of a party for the correction of [a clerical,
and Interpretation of computational or typographical error, or any errors of similar
the Award; nature], or for the interpretation of an award, must be made to the
Remission of Awards Secretariat within 30 days of the receipt of the award by such party,
in a number of copies as stated in Article 3(1). After transmittal of
the application to the arbitral tribunal, the latter shall grant the
other party a short time limit, normally not exceeding 30 days, from
the receipt of the application by that party, to submit any comments
thereon. The arbitral tribunal shall submit its decision on the
application in draft form to the Court not later than 30 days
following the expiration of the time limit for the receipt of any
comments from the other party or within such other period as the
Court may decide.
[…]

4. Where a court remits an award to the arbitral tribunal, the

provisions of Articles 32, 34, 35 and this Article 36 shall apply mutatis
mutandis to any addendum or award made pursuant to the terms of
such remission. The Court may take any steps as may be necessary
to enable the arbitral tribunal to comply with the terms of such
remission and may fix an advance to cover any additional fees and
expenses of the arbitral tribunal and any additional ICC
administrative expenses.

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 ICC
Article 37. Advance 1. After receipt of the Request, the Secretary General may request
to Cover the Costs of the claimant to pay a provisional advance in an amount intended to
the Arbitration cover the costs of the arbitration […].
[…]
3. Where counterclaims are submitted by the respondent under
Article 5 or otherwise, the Court may fix separate advances on costs
for the claims and the counterclaims. […]
[…]
6. When a request for an advance on costs has not been complied
with, and after consultation with the arbitral tribunal, the Secretary
General may direct the arbitral tribunal to suspend its work and set
a time limit, which must be not less than 15 days, on the expiry of
which the relevant claims shall be considered as withdrawn. Should
the party in question wish to object to this measure, it must make a
request within the aforementioned period for the matter to be
decided by the Court. […]
[…]

Article 38. Decision 1. The costs of the arbitration shall include the fees and expenses of
as to the Costs of the the arbitrators and the ICC administrative expenses fixed by the
Arbitration Court, in accordance with the scale in force at the time of the
commencement of the arbitration, […].
2. The Court may fix the fees of the arbitrators at a figure higher or
lower than that which would result from the application of the
relevant scale should this be deemed necessary due to the
exceptional circumstances of the case.
[…]
6. In the event of the withdrawal of all claims or the termination of
the arbitration before the rendering of a final award, the Court shall
fix the fees and expenses of the arbitrators and the ICC
administrative expenses. If the parties have not agreed upon the
allocation of the costs of the arbitration or other relevant issues
with respect to costs, such matters shall be decided by the arbitral
tribunal. If the arbitral tribunal has not been constituted at the time
of such withdrawal or termination, any party may request the Court
to proceed with the constitution of the arbitral tribunal in
accordance with the Rules so that the arbitral tribunal may make
decisions as to costs.

Article 39. Modified 2. The Court, on its own initiative, may extend any time limit which
Time Limits has been modified pursuant to Article 39(1) if it decides that it is
necessary to do so in order that the arbitral tribunal and the Court
may fulfil their responsibilities in accordance with the Rules.
Article 41. Limitation The arbitrators, any person appointed by the arbitral tribunal, the
of Liability emergency arbitrator, the Court and its members, the ICC and its
employees, and the ICC National Committees and Groups and their
employees and representatives shall not be liable to any person for
any act or omission in connection with the arbitration, except to the
extent such limitation of liability is prohibited by applicable law.
Article 42. General In all matters not expressly provided for in the Rules, the Court and
Rule the arbitral tribunal shall act in the spirit of the Rules and shall
make every effort to make sure that the award is enforceable at law.
Appendix I: Statutes 1. The function of the International Court of Arbitration of the
of the International International Chamber of Commerce (the “Court”) is to ensure the
Court of Arbitration, application of the Rules of Arbitration of the International Chamber
Article 1. Function of Commerce, and it has all the necessary powers for that purpose.
2 As an autonomous body, it carries out these functions in complete
independence from the ICC and its organs.
3 Its members are independent from the ICC National Committees
and Groups.

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 ICC
Appendix I: Statutes The Court shall consist of a President, Vice-Presidents, and members
of the International and alternate members (collectively designated as members). In its
Court of Arbitration, work it is assisted by its Secretariat (Secretariat of the Court).
Article 2.
Composition of the
Court
Appendix I: Statutes The Plenary Sessions of the Court are presided over by the President
of the International or, in the President’s absence, by one of the Vice-Presidents
Court of Arbitration, designated by the President. The deliberations shall be valid when at
Article 4 Plenary least six members are present. Decisions are taken by a majority
Session of the Court vote, the President or Vice-President, as the case may be, having a
casting vote in the event of a tie.
Appendix I: Statutes The Court may set up one or more Committees and establish the
of the International functions and organization of such Committees.
Court of Arbitration,
Article 5 Committees
Appendix I: Statutes The work of the Court is of a confidential nature which must be
of the International respected by everyone who participates in that work in whatever
Court of Arbitration, capacity. The Court lays down the rules regarding the persons who
Article 6 can attend the meetings of the Court and its Committees and who
Confidentiality are entitled to have access to materials related to the work of the
Court and its Secretariat.
Appendix I: Statutes Any proposal of the Court for a modification of the Rules is laid
of the International before the Commission on Arbitration and ADR before submission to
Court of Arbitration, the Executive Board of the ICC for approval, provided, however, that
Article 7 the Court, in order to take account of developments in information
Modification of the technology, may propose to modify or supplement the provisions of
Rules of Arbitration Article 3 of the Rules or any related provisions in the Rules without
laying any such proposal before the Commission.
Appendix II: Internal 1 For the purposes of this Appendix, members of the Court include
Rules of the the President and Vice-Presidents of the Court.
International Court
of Arbitration, Article 2 The sessions of the Court, whether plenary or those of a Committee
1. Confidential of the Court, are open only to its members and to the Secretariat.
Character of the 3 However, in exceptional circumstances, the President of the Court
Work of the may invite other persons to attend. Such persons must respect the
International Court confidential nature of the work of the Court.
of Arbitration
4. The documents submitted to the Court, or drawn up by it or the
Secretariat in the course of the Court’s proceedings, are
communicated only to the members of the Court and to the
Secretariat and to persons authorized by the President to attend
Court sessions
5 The President or the Secretary General of the Court may authorize
researchers undertaking work of an academic nature to acquaint
themselves with awards and other documents of general interest,
with the exception of memoranda, notes, statements and documents
remitted by the parties within the framework of arbitration
proceedings.
6 Such authorization shall not be given unless the beneficiary has
undertaken to respect the confidential character of the documents
made available and to refrain from publishing anything based upon
information contained therein without having previously submitted
the text for approval to the Secretary General of the Court.
7 The Secretariat will in each case submitted to arbitration under the
Rules retain in the archives of the Court all awards, Terms of
Reference and decisions of the Court, as well as copies of the
pertinent correspondence of the Secretariat.
8 Any documents, communications or correspondence submitted by
the parties or the arbitrators may be destroyed unless a party or an
arbitrator requests in writing within a period fixed by the Secretariat
the return of such documents, communications or correspondence.
All related costs and expenses for the return of those documents
shall be paid by such party or arbitrator. […].

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 ICC
Appendix II: Internal 1 The President and the members of the Secretariat of the Court may
Rules of the not act as arbitrators or as counsel in cases submitted to ICC
International Court arbitration.
of Arbitration, Article
2 Participation of 2 The Court shall not appoint Vice-Presidents or members of the
Members of the Court as arbitrators. They may, however, be proposed for such duties
International Court by one or more of the parties, or pursuant to any other procedure
of Arbitration in ICC agreed upon by the parties, subject to confirmation.
Arbitration 3 When the President, a Vice-President or a member of the Court or
of the Secretariat is involved in any capacity whatsoever in
proceedings pending before the Court, such person must inform the
Secretary General of the Court upon becoming aware of such
involvement.
4 Such person must be absent from the Court session whenever the
matter is considered by the Court and shall not participate in the
discussions or in the decisions of the Court.

Appendix II: Internal 1 By virtue of their capacity, the members of the Court are
Rules of the independent of the ICC National Committees and Groups which
International Court proposed them for appointment by the ICC World Council.
of Arbitration, Article
3 Relations Between 2 Furthermore, they must regard as confidential, vis-à-vis the said
the Members of the National Committees and Groups, any information concerning
Court and the ICC individual cases with which they have become acquainted in their
National capacity as members of the Court, except when they have been
Committees and requested by the President of the Court, by a Vice-President of the
Groups Court authorized by the President of the Court, or by the Court’s
Secretary General to communicate specific information to their
respective National Committees or Groups.

Appendix III: 6. The Court may authorize the payment of advances on costs, or
Arbitration Costs any party’s share thereof, in instalments, subject to such conditions
and Fees, Article 1. as the Court thinks fit, including the payment of additional ICC
Advance on Costs administrative expenses.
[…]

Appendix V: 1. A party wishing to have recourse to an emergency arbitrator

Emergency pursuant to Article 29 of the Rules of Arbitration of the ICC (the
Arbitrator Rules, “Rules”) shall submit its Application for Emergency Measures (the
Article 1. Application “Application”) to the Secretariat at any of the offices specified in the
for Emergency Internal Rules of the Court in Appendix II to the Rules.
Measures
[…]
5. If and to the extent that the President of the Court (the
“President”) considers, on the basis of the information contained in
the Application, that the Emergency Arbitrator Provisions apply with
reference to Article 29(5) and Article 29(6) of the Rules, the
Secretariat shall transmit a copy of the Application and the
documents annexed thereto to the responding party. If and to the
extent that the President considers otherwise, the Secretariat shall
inform the parties that the emergency arbitrator proceedings shall
not take place with respect to some or all of the parties and shall
transmit a copy of the Application to them for information.

6. The President shall terminate the emergency arbitrator

proceedings if a Request for Arbitration has not been received by the
Secretariat from the applicant within 10 days of the Secretariat’s
receipt of the Application, unless the emergency arbitrator
determines that a longer period of time is necessary.
Appendix V: 1. The President shall appoint an emergency arbitrator within as
Emergency short a time as possible, normally within two days from the
Arbitrator Rules, Secretariat’s receipt of the Application.
Article 2.
Appointment of the […]
Emergency
Arbitrator;
Transmission of the
File

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 ICC
Appendix V: 2. [A challenge against the emergency arbitrator] shall be decided
Emergency by the Court after the Secretariat has afforded an opportunity for
Arbitrator Rules, the emergency arbitrator and the other party or parties to provide
Article 3. Challenge comments in writing within a suitable period of time.
of an Emergency
Arbitrator
Appendix V: 1. If the parties have agreed upon the place of the arbitration, such
Emergency place shall be the place of the emergency arbitrator proceedings. In
Arbitrator Rules, the absence of such agreement, the President shall fix the place of
Article 4. Place of the emergency arbitrator proceedings, without prejudice to the
the Emergency determination of the place of the arbitration pursuant to Article
Arbitrator 18(1) of the Rules.
Proceedings
Appendix V: 1. Pursuant to Article 29(2) of the Rules, the emergency arbitrator’s
Emergency decision shall take the form of an order (the “Order”).2. The President
Arbitrator Rules, may, at any time during the emergency arbitrator proceedings,
Article 7. Costs of the decide to increase the emergency arbitrator’s fees or the ICC
Emergency administrative expenses taking into account, inter alia, the nature of
Arbitrator the case and the nature and amount of work performed by the
Proceedings emergency arbitrator, the Court, the President and the Secretariat.
[…]
4. The Order shall be made no later than 15 days from the date on
which the file was transmitted to the emergency arbitrator pursuant
to Article 2(3) of this Appendix. The President may extend the time
limit pursuant to a reasoned request from the emergency arbitrator
or on the President’s own initiative if the President decides it is
necessary to do so.
[…]

6. The Order shall cease to be binding on the parties upon:

(a) the President’s termination of the emergency arbitrator
proceedings pursuant to Article 1(6) of this Appendix;
(b) the acceptance by the Court of a challenge against the
emergency arbitrator pursuant to Article 3 of this Appendix;[…]

Appendix V: 1. The President shall have the power to decide, at the President’s
Emergency discretion, all matters relating to the administration of the
Arbitrator Rules, emergency arbitrator proceedings not expressly provided for in this
Article 8. General Appendix.
Rule
2. In the President’s absence or otherwise at the President’s request,
any of the Vice-Presidents of the Court shall have the power to take
decisions on behalf of the President
3. In all matters concerning emergency arbitrator proceedings not
expressly provided for in this Appendix, the Court, the President and
the emergency arbitrator shall act in the spirit of the Rules and this
Appendix.

Appendix VI: 3. Upon receipt of the Answer to the Request pursuant to Article 5 of
Expedited Procedure the Rules, or upon expiry of the time limit for the Answer or at any
Rules, Article 1. relevant time thereafter and subject to Article 30(3) of the Rules, the
Application of the Secretariat will inform the parties that the Expedited Procedure
Expedited Procedure Provisions shall apply in the case.
Rules
4. The Court may, at any time during the arbitral proceedings, on its
own motion or upon the request of a party, and after consultation
with the arbitral tribunal and the parties, decide that the Expedited
Procedure Provisions shall no longer apply to the case. In such case,
unless the Court considers that it is appropriate to replace and/or
reconstitute the arbitral tribunal, the arbitral tribunal shall remain
in place.

Appendix VI: 1. The Court may, notwithstanding any contrary provision of the
Expedited Procedure arbitration agreement, appoint a sole arbitrator.
Rules, Article 2.
Constitution of the 2. The parties may nominate the sole arbitrator within a time limit to
Tribunal be fixed by the Secretariat. In the absence of such nomination, the
sole arbitrator shall be appointed by the Court within as short a time
as possible.

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 ICC
Appendix VI: 3. The case management conference convened pursuant to Article 24
Expedited Procedure of the Rules shall take place no later than 15 days after the date on
Rules, Article 3. which the file was transmitted to the arbitral tribunal. The Court
Proceedings may extend this time limit pursuant to a reasoned request from the
arbitral tribunal or on its own initiative if it decides it is necessary to
do so.
[…]

Appendix VI: 1. The time limit within which the arbitral tribunal must render its
Expedited Procedure final award is six months from the date of the case management
Rules, Article 4. conference. The Court may extend the time limit pursuant to Article
Award 31(2) of the Rules.
Appendix VI: In all matters concerning the expedited procedure not expressly
Expedited Procedure provided for in this Appendix, the Court and the arbitral tribunal
Rules, Article 5. shall act in the spirit of the Rules and this Appendix.
General Rule

§1.05 INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT

DISPUTES (132)
There are several arbitral regimes that contain specific provisions intended to take into
consideration the unique issues that arise in disputes between foreign investors and
investment receiving states. The UNCITRAL Arbitration Rules are among the most
frequently used in investor-state arbitration. Other regimes that are used for such disputes
include the SCC and the ICC. The Washington, D.C.-based International Centre for
Settlement of Investment Disputes (ICSID) provides an arbitral system specifically
designed to deal with investment disputes between private parties and sovereign states or
state-owned entities. (133)

[A] Overview
ICSID was created by the World Bank pursuant to the Convention on the Settlement of
Investment Disputes Between States and Nationals of Other States (the Washington
Convention) in 1966. ICSID is an autonomous international organization that maintains
close ties with the World Bank, which is also responsible for ICSID’s finances. The purpose
underlying the founding of ICSID was to facilitate the settlement of investment disputes
between sovereign states and foreign investors which, in turn, was expected to promote an
increased flow of foreign direct investment from capital-exporting countries to capital-
importing countries. (134) As of April 2019, 154 Contracting States had ratified the ICSID
Convention. (135)
P 63
P 64
According to statistics published by ICSID, a total of 650 cases have been registered with
the Centre since its inception, and more than half of those cases have been filed since
2010. (136) Slightly fewer than half of the cases that have been registered involve States in
South America (23%) and Eastern Europe and Central Asia (26%). (137) The largest
concentration of adjudicators—including arbitrators, conciliators, and ad hoc Committee
Members—appointed in ICSID cases are from Western Europe (47%) and North America
(21%). (138)
The Centre also provides varying levels of administrative assistance, from organizing
hearings to acting as appointing authority in non-ICSID disputes brought under the
UNCITRAL Rules and other ad hoc dispute settlement regimes. (139) In addition, the Centre
provides assistance with organizing hearings in arbitrations conducted under other
institutional rules. (140) In the 10-year period that ended on December 31, 2017, the Centre
administered 85 non-ICSID cases. (141)

[B] Governance
The main governing body is ICSID’s Administrative Council, which comprises one
representative from each ICSID Contracting State. The Council elects the Secretary-General
and any Deputy Secretary-General of ICSID and determines the conditions of their service,
adopts the rules of procedure for arbitration proceedings carried out before it, adopts the
administrative and financial regulations of the Centre, adopts the annual ICSID budget,
and approves the ICSID annual report. (142)
The Secretariat consists of a Secretary-General and one or more Deputy Secretaries-
General and staff. The Secretary-General is responsible for day-to-day operations and acts
as the Registrar of ICSID arbitrations. (143)

[C] Arbitration Rules

Parties may bring arbitration claims for administration by ICSID under two different
regimes: (1) the ICSID Convention and (2) ICSID’s Additional Facility Rules.

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 Under Article 25(1) of the ICSID Convention, “the jurisdiction of the Centre shall extend to
any legal dispute arising directly out of an investment, between a Contracting State (or any
P 64 constituent subdivision or agency of a Contracting State designated to the Centre by that
P 65 State) and a national of another Contracting State, which the parties to the dispute
consent in writing to submit to the Centre.” (144) Thus, cases brought under the ICSID
Convention must involve a claim by a national of a Contracting State against another
Contracting State. ICSID’s jurisdiction derives from the consent of the parties, which, once
given, may not be unilaterally withdrawn. (145) The consent to arbitrate may be contained
in an agreement to arbitrate, in the host state’s laws (e.g., foreign investment law), or in a
treaty for the promotion and protection of foreign investment. (146)
Prior to the mid-1980s, jurisdiction in all cases was predicated upon consents contained in
investment contracts or similar instruments. Since that time, however, an increasing
number of cases have come before ICSID based on consents found in investment laws and
bilateral or multilateral treaties. More than 75 investment laws and some 3,000 bilateral
investment treaties contain ICSID consents. Additionally, several recent multilateral
treaties contain ICSID consents, including the North American Free Trade Agreement
(NAFTA), (147) the United States-Central American-Dominican Republic Free Trade
Agreement, (148) and the Energy Charter Treaty (ECT). (149)
The ICSID Convention is supplemented by the ICSID Arbitration Rules 2006, the most recent
version of which came into effect on April 10, 2006. These deal with the procedural aspects
of an arbitration under the auspices of ICSID, from the formation of a tribunal to a claim for
the annulment of an award rendered by the tribunal.
In 1978, ICSID adopted the Additional Facility Rules, which include the Arbitration
(Additional Facility) Rules, and which apply to cases that do not fall within the general
jurisdictional framework of the ICSID Convention; the Additional Facility Rules were most
recently amended in 2006. The Additional Facility Rules provide a framework for
arbitration of investment disputes between states and nationals of states that are not
signatories to the ICSID Convention. An arbitration may fall within the parameters of the
Additional Facility Rules under two scenarios: (1) where the dispute arises directly out of
an investment, but either the respondent is not a Contracting State or the claimant is not a
national of a Contracting State; or (2) where the dispute does not arise directly out of an
P 65 investment dispute but at least one of the parties is either a Contracting State or a
P 66 national of a Contracting State. (150) The Additional Facility Rules are designed to apply
similar rules as those used for investment disputes under the ICSID Convention, which does
not itself apply to proceedings under the Additional Facility Rules. The Secretary-General
of ICSID must approve any agreement providing for arbitration proceedings under the
Additional Facility Rules. (151)
ICSID Secretary-General Meg Kinnear announced in April 2018 that ICSID would begin
revising its arbitration rules. (152) An initial working draft of proposed amendments was
published in August 2018. (153) Important potential changes include provisions for
electronic filings; shorter deadlines; best efforts by the tribunal to meet deadlines;
disclosure of third-party funders; no suspension of proceedings for arbitrator challenges;
consolidation or coordination of related proceedings; publication of awards and other
documents; open hearings; additional rules for amicus curiae submissions; additional rules
concerning security for costs; additional rules for awards on costs; expedited proceedings;
updated rules for fact-finding proceedings; and new rules for mediation proceedings. (154)
The proposed amendments will be submitted to Member States for a vote in October 2019
or October 2020.

[D] Arbitrators
The parties to an ICSID arbitration are free to agree to nominate arbitrators in any manner
they see fit. The Secretariat maintains a panel of arbitrators representing each of the
Contracting States, but the parties may choose their arbitrators from outside of the ICSID
panel. The Panel of Arbitrators comprises individuals designated either by a Contracting
State or by the Chairman of the ICSID Administrative Council (the Chairman). (155) Each
Contracting State may designate up to four persons to each panel, (156) and the Chairman
may designate ten persons to each panel. (157) State designees may, but need not, be
nationals of that state. (158) Designees must be “persons of high moral character and
recognized competence in the fields of law, commerce, industry or finance, who may be
relied upon to exercise independent judgment.” (159) However, there is no official approval
process for designees.
P 66 ICSID takes a relatively hands-off approach to arbitrator challenge and replacement
P 67 compared to the other institutions under consideration. Most institutions are
empowered to decide a party’s challenge to the appointment of an arbitrator, while ICSID
vests this power in the two unchallenged arbitrators (unless there is a sole arbitrator or the
unchallenged arbitrators do not agree). (160) Also, most regimes authorize the institution
to act sua sponte to remove an arbitrator who fails to perform his or her duties; only the
ICSID Rules (and UNCITRAL Rules) omit this power. (161)

[E] Case Management

The ICSID Secretariat provides administrative support for ICSID proceedings, including

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 assistance in the constitution of arbitral tribunals. The Secretariat’s staff comprises
lawyers, many of whom have significant experience in international arbitration or public
international law. The Secretariat lawyers assigned to a case are typically present at
hearings and may also sit in on arbitral deliberations, even though they do not participate.
Their role is to provide nondispositive assistance to tribunal members, for example by
conducting legal research or finding documents. Secretariat staff also play a role in the
identification of suitable candidates when the Secretary-General is called upon to make a
default appointment, as well as in the review and registration of requests for arbitration.

[F] Award Scrutiny

There is no formal mechanism pursuant to which ICSID or Additional Facility awards are
scrutinized prior to being issued. However, as a practical matter, draft awards are
reviewed by the ICSID Secretariat for form and substantive issues that may be raised with
the tribunal.
P 67
P 68 The rules which provide the powers and duties of ICSID are reproduced in Table 1.5.
P 68
P 69 Table 1.5 Powers and Duties of ICSID
ICSID
PP 70
69
72
73
74
75
76
71 Convention Article 6
77 (1) Without prejudice to the powers and functions vested in it by
PP 78
70
72
73
74
75
76
71
77 other provisions of this Convention, the Administrative Council shall:
(a) adopt the administrative and financial regulations of the
Centre;
(b) adopt the rules of procedure for the institution of conciliation
and arbitration proceedings;
(c) adopt the rules of procedure for conciliation and arbitration
proceedings (hereinafter called the Conciliation Rules and the
Arbitration Rules);
(d) approve arrangements with the Bank for the use of the Bank’s
administrative facilities and services;
(e) determine the conditions of service of the Secretary-General
and of any Deputy Secretary-General;
(f) adopt the annual budget of revenues and expenditures of the
Centre;
(g) approve the annual report on the operation of the Centre. The
decisions referred to in sub-paragraphs (a), (b), (c) and (f)
above shall be adopted by a majority of two-thirds of the
members of the Administrative Council.
(2) The Administrative Council may appoint such committees as it
considers necessary.
(3) The Administrative Council shall also exercise such other powers
and perform such other functions as it shall determine to be
necessary for the implementation of the provisions of this
Convention.
Convention Article 10 (1) The Secretary-General and any Deputy Secretary-General shall be
elected by the Administrative Council by a majority of two-thirds of
its members upon the nomination of the Chairman for a term of
service not exceeding six years and shall be eligible for re-election.
After consulting the members of the Administrative Council, the
Chairman shall propose one or more candidates for each such office.
(2) The offices of Secretary-General and Deputy Secretary-General
shall be incompatible with the exercise of any political function.
Neither the Secretary-General nor any Deputy Secretary-General
may hold any other employment or engage in any other occupation
except with the approval of the Administrative Council.
(3) During the Secretary-General’s absence or inability to act, and
during any vacancy of the office of Secretary-General, the Deputy
Secretary-General shall act as Secretary-General. If there shall be
more than one Deputy Secretary-General, the Administrative Council
shall determine in advance the order in which they shall act as
Secretary General.

Convention Article 11 The Secretary-General shall be the legal representative and the
principal officer of the Centre and shall be responsible for its
administration, including the appointment of staff, in accordance
with the provisions of this Convention and the rules adopted by the
Administrative Council. He shall perform the function of registrar
and shall have the power to authenticate arbitral awards rendered
pursuant to this Convention, and to certify copies thereof

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 ICSID
Convention Article 13 (1) Each Contracting State may designate to each Panel four persons
who may but need not be its nationals.
(2) The Chairman may designate ten persons to each Panel. The
persons so designated to a Panel shall each have a different
nationality

Convention Article 14 (1) Persons designated to serve on the Panels shall be persons of
high moral character and recognized competence in the fields of
law, commerce, industry or finance, who may be relied upon to
exercise independent judgment. Competence in the field of law shall
be of particular importance in the case of persons on the Panel of
Arbitrators.
(2) The Chairman, in designating persons to serve on the Panels,
shall in addition pay due regard to the importance of assuring
representation on the Panels of the principal legal systems of the
world and of the main forms of economic activity

Convention Article 25 (1) The jurisdiction of the Centre shall extend to any legal dispute
arising directly out of an investment, between a Contracting State
(or any constituent subdivision or agency of a Contracting State
designated to the Centre by that State) and a national of another
Contracting State, which the parties to the dispute consent in writing
to submit to the Centre. When the parties have given their consent,
no party may withdraw its consent unilaterally.
Convention Article The decision on any proposal to disqualify a conciliator or arbitrator
58 shall be taken by the other members of the Commission or Tribunal
as the case may be, provided that where those members are equally
divided, or in the case of a proposal to disqualify a sole conciliator
or arbitrator, or a majority of the conciliators or arbitrators, the
Chairman shall take that decision. If it is decided that the proposal
is well-founded the conciliator or arbitrator to whom the decision
relates shall be replaced in accordance with the provisions of
Section 2 of Chapter III or Section 2 of Chapter IV.
Rule 1. General (1) Upon notification of the registration of the request for arbitration,
Obligation the parties shall, with all possible dispatch, proceed to constitute a
Tribunal, with due regard to Section 2 of Chapter IV of the
Convention.
(2) Unless such information is provided in the request, the parties
shall communicate to the Secretary-General as soon as possible any
provisions agreed by them regarding the number of arbitrators and
the method of their appointment. […]
Rule 2. Method of (3) At any time 60 days after the registration of the request, if no
Constituting the agreement on another procedure is reached, either party may inform
Tribunal in the the Secretary-General that it chooses the formula provided for in
Absence of Previous Article 37(2)(b) of the Convention. The Secretary-General shall
Agreement thereupon promptly inform the other party that the Tribunal is to be
constituted in accordance with that Article.
Rule 4. Appointment (1) If the Tribunal is not constituted within 90 days after the dispatch
of Arbitrators by the by the Secretary-General of the notice of registration, or such other
Chairman of the period as the parties may agree, either party may, through the
Administrative Secretary-General, address to the Chairman of the Administrative
Council Council a request in writing to appoint the arbitrator or arbitrators
not yet appointed and to designate an arbitrator to be the President
of the Tribunal.
(2) The provision of paragraph (1) shall apply mutatis mutandis in
the event that the parties have agreed that the arbitrators shall
elect the President of the Tribunal and they fail to do so.
(3) The Secretary-General shall forthwith send a copy of the request
to the other party.
(4) The Chairman shall use his best efforts to comply with that
request within 30 days after its receipt. Before he proceeds to make
an appointment or designation, with due regard to Articles 38 and
40(1) of the Convention, he shall consult both parties as far as
possible.
(5) The Secretary-General shall promptly notify the parties of any
appointment or designation made by the Chairman.

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 ICSID
Rule 5. Acceptance (2) As soon as the Secretary-General has been informed by a party or
of Appointments the Chairman of the Administrative Council of the appointment of an
arbitrator, he shall seek an acceptance from the appointee.
(3) If an arbitrator fails to accept his appointment within 15 days, the
Secretary-General shall promptly notify the parties, and if
appropriate the Chairman, and invite them to proceed to the
appointment of another arbitrator in accordance with the method
followed for the previous appointment.

Rule 6. Constitution (1) The Tribunal shall be deemed to be constituted and the
of the Tribunal proceeding to have begun on the date the Secretary-General notifies
the parties that all the arbitrators have accepted their appointment.
Rule 9. (2) The Secretary-General shall forthwith:
Disqualification of
Arbitrators (a) transmit the proposal to the members of the Tribunal and, if it
relates to a sole arbitrator or to a majority of the members of
the Tribunal, to the Chairman of the Administrative Council;
and
(b) notify the other party of the proposal.
[…]
(4) Unless the proposal relates to a majority of the members of the
Tribunal, the other members shall promptly consider and vote on
the proposal in the absence of the arbitrator concerned. If those
members are equally divided, they shall, through the Secretary-
General, promptly notify the Chairman of the proposal, of any
explanation furnished by the arbitrator concerned and of their
failure to reach a decision.
(5) Whenever the Chairman has to decide on a proposal to disqualify
an arbitrator, he shall use his best efforts to take that decision
within 30 days after he has received the proposal.

Rule 10. Procedure (1) The Secretary-General shall forthwith notify the parties and, if
During a Vacancy on necessary, the Chairman of the Administrative Council of the
the Tribunal disqualification, death, incapacity or resignation of an arbitrator
and of the consent, if any, of the Tribunal to a resignation.
(2) Upon the notification by the Secretary-General of a vacancy on
the Tribunal, the proceeding shall be or remain suspended until the
vacancy has been filled.

Rule 11. Filling (2) In addition to filling vacancies relating to arbitrators appointed
Vacancies on the by him, the Chairman of the Administrative Council shall appoint a
Tribunal person from the Panel of Arbitrators:
(a) to fill a vacancy caused by the resignation, without the
consent of the Tribunal, of an arbitrator appointed by a party;
or
(b) at the request of either party, to fill any other vacancy, if no
new appointment is made and accepted within 45 days of the
notification of the vacancy by the Secretary-General.
(3) The procedure for filling a vacancy shall be in accordance with
Rules 1, 4(4), 4(5), 5 and, mutatis mutandis, 6(2).

Rule 13. Sessions of (1) The Tribunal shall hold its first session within 60 days after its
the Tribunal constitution or such other period as the parties may agree. The dates
of that session shall be fixed by the President of the Tribunal after
consultation with its members and the Secretary-General. If upon its
constitution the Tribunal has no President because the parties have
agreed that the President shall be elected by its members, the
Secretary-General shall fix the dates of that session. In both cases,
the parties shall be consulted as far as possible.

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 ICSID
(2) The dates of subsequent sessions shall be determined by the
Tribunal, after consultation with the Secretary-General and with the
parties as far as possible.
(3) The Tribunal shall meet at the seat of the Centre or at such other
place as may have been agreed by the parties in accordance with
Article 63 of the Convention. If the parties agree that the proceeding
shall be held at a place other than the Centre or an institution with
which the Centre has made the necessary arrangements, they shall
consult with the Secretary-General and request the approval of the
Tribunal. Failing such approval, the Tribunal shall meet at the seat
of the Centre.
(4) The Secretary-General shall notify the members of the Tribunal
and the parties of the dates and place of the sessions of the Tribunal
in good time.

Rule 17. Incapacity of If at any time the President of the Tribunal should be unable to act,
the President his functions shall be performed by one of the other members of the
Tribunal, acting in the order in which the Secretary-General had
received the notice of their acceptance of their appointment to the
Tribunal.
Rule 18. (1) Each party may be represented or assisted by agents, counsel or
Representation of advocates whose names and authority shall be notified by that party
the Parties to the Secretary-General, who shall promptly inform the Tribunal
and the other party.
Rule 21. Pre-hearing (1) At the request of the Secretary-General or at the discretion of the
Conference President of the Tribunal, a pre-hearing conference between the
Tribunal and the parties may be held to arrange for an exchange of
information and the stipulation of uncontested facts in order to
expedite the proceeding.
Rule 22. Procedural (1) The parties may agree on the use of one or two languages to be
Languages used in the proceeding, provided, that, if they agree on any language
that is not an official language of the Centre, the Tribunal, after
consultation with the Secretary-General, gives its approval. If the
parties do not agree on any such procedural language, each of them
may select one of the official languages (i.e., English, French and
Spanish) for this purpose.
Rule 23. Copies of Except as otherwise provided by the Tribunal after consultation with
Instruments the parties and the Secretary-General, every request, pleading,
application, written observation, supporting documentation, if any,
or other instrument shall be filed in the form of a signed original
accompanied by the following number of additional copies:
(a) before the number of members of the Tribunal has been
determined: five;
(b) after the number of members of the Tribunal has been
determined: two more than the number of its members.

Rule 28. Cost of (1) Without prejudice to the final decision on the payment of the cost
Proceeding of the proceeding, the Tribunal may, unless otherwise agreed by the
parties, decide:
(a) at any stage of the proceeding, the portion which each party
shall pay, pursuant to Administrative and Financial Regulation
14, of the fees and expenses of the Tribunal and the charges for
the use of the facilities of the Centre;
(b) with respect to any part of the proceeding, that the related
costs (as determined by the Secretary-General) shall be borne
entirely or in a particular share by one of the parties.
(2) Promptly after the closure of the proceeding, each party shall
submit to the Tribunal a statement of costs reasonably incurred or
borne by it in the proceeding and the Secretary-General shall submit
to the Tribunal an account of all amounts paid by each party to the
Centre and of all costs incurred by the Centre for the proceeding. The
Tribunal may, before the award has been rendered, request the
parties and the Secretary-General to provide additional information
concerning the cost of the proceeding.

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 ICSID
Rule 30. As soon as the Tribunal is constituted, the Secretary-General shall
Transmission of the transmit to each member a copy of the request by which the
Request proceeding was initiated, of the supporting documentation, of the
notice of registration and of any communication received from
either party in response thereto.
Rule 32. The Oral (2) Unless either party objects, the Tribunal, after consultation with
Procedure the Secretary-General, may allow other persons, besides the parties,
their agents, counsel and advocates, witnesses and experts during
their testimony, and officers of the Tribunal, to attend or observe all
or part of the hearings, subject to appropriate logistical
arrangements. The Tribunal shall for such cases establish
procedures for the protection of proprietary or privileged
information.
Rule 33. Marshalling Without prejudice to the rules concerning the production of
of Evidence documents, each party shall, within time limits fixed by the Tribunal,
communicate to the Secretary-General, for transmission to the
Tribunal and the other party, precise information regarding the
evidence which it intends to produce and that which it intends to
request the Tribunal to call for, together with an indication of the
points to which such evidence will be directed.
Rule 39. Provisional (5) If a party makes a request pursuant to paragraph (1) before the
Measures constitution of the Tribunal, the Secretary-General shall, on the
application of either party, fix time limits for the parties to present
observations on the request, so that the request and observations
may be considered by the Tribunal promptly upon its constitution.
Rule 41. Preliminary (1) Any objection that the dispute or any ancillary claim is not within
Objections the jurisdiction of the Centre or, for other reasons, is not within the
competence of the Tribunal shall be made as early as possible. A
party shall file the objection with the Secretary-General no later
than the expiration of the time limit fixed for the filing of the
countermemorial, or, if the objection relates to an ancillary claim,
for the filing of the rejoinder—unless the facts on which the objection
is based are unknown to the party at that time.
Rule 43. Settlement (1) If, before the award is rendered, the parties agree on a settlement
and Discontinuance of the dispute or otherwise to discontinue the proceeding, the
Tribunal, or the Secretary-General if the Tribunal has not yet been
constituted, shall, at their written request, in an order take note of
the discontinuance of the proceeding.
(2) If the parties file with the Secretary-General the full and signed
text of their settlement and in writing request the Tribunal to
embody such settlement in an award, the Tribunal may record the
settlement in the form of its award.

Rule 44. If a party requests the discontinuance of the proceeding, the

Discontinuance at Tribunal, or the Secretary-General if the Tribunal has not yet been
Request of a Party constituted, shall in an order fix a time limit within which the other
party may state whether it opposes the discontinuance. If no
objection is made in writing within the time limit, the other party
shall be deemed to have acquiesced in the discontinuance and the
Tribunal, or if appropriate the Secretary-General, shall in an order
take note of the discontinuance of the proceeding. If objection is
made, the proceeding shall continue.
Rule 45. If the parties fail to take any steps in the proceeding during six
Discontinuance for consecutive months or such period as they may agree with the
Failure of Parties to approval of the Tribunal, or of the Secretary-General if the Tribunal
Act has not yet been constituted, they shall be deemed to have
discontinued the proceeding and the Tribunal, or if appropriate the
Secretary-General, shall, after notice to the parties, in an order take
note of the discontinuance.

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 ICSID
Rule 48. Rendering (1) Upon signature by the last arbitrator to sign, the Secretary-
of the Award General shall promptly:
(a) authenticate the original text of the award and deposit it in the
archives of the Centre, together with any individual opinions
and statements of dissent; and
(b) dispatch a certified copy of the award (including individual
opinions and statements of dissent) to each party, indicating
the date of dispatch on the original text and on all copies.
(2) The award shall be deemed to have been rendered on the date on
which the certified copies were dispatched.
(3) The Secretary-General shall, upon request, make available to a
party additional certified copies of the award.
(4) The Centre shall not publish the award without the consent of the
parties. The Centre shall, however, promptly include in its
publications excerpts of the legal reasoning of the Tribunal.

Rule 49. (1) Within 45 days after the date on which the award was rendered,
Supplementary either party may request, pursuant to Article 49(2) of the Convention,
Decisions and a supplementary decision on, or the rectification of, the award. Such
Rectification a request shall be addressed in writing to the Secretary-General. […]
(2) Upon receipt of the request and of the lodging fee, the Secretary
General shall forthwith:
(a) register the request;
(b) notify the parties of the registration;
(c) transmit to the other party a copy of the request and of any
accompanying documentation; and
(d) transmit to each member of the Tribunal a copy of the notice
of registration, together with a copy of the request and of any
accompanying documentation.
[…]
(5) If a request is received by the Secretary-General more than 45
days after the award was rendered, he shall refuse to register the
request

Rule 50. The (2) Without prejudice to the provisions of paragraph (3), upon
Application [for receiving an application and the lodging fee, the Secretary-General
Interpretation, shall forthwith:
Revision or
Annulment of the (a) register the application;
Award] (b) notify the parties of the registration; and
(c) transmit to the other party a copy of the application and of
any accompanying documentation.

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 ICSID
(3) The Secretary-General shall refuse to register an application for:
(a) revision, if, in accordance with Article 51(2) of the Convention, it
is not made within 90 days after the discovery of the new fact
and in any event within three years after the date on which the
award was rendered (or any subsequent decision or correction);
(b) annulment, if, in accordance with Article 52(2) of the
Convention, it is not made:
(i) within 120 days after the date on which the award was
rendered (or any subsequent decision or correction) if the
application is based on any of the following grounds:
– the Tribunal was not properly constituted;
– the Tribunal has manifestly exceeded its powers;
– there has been a serious departure from a
fundamental
rule of procedure;
– the award has failed to state the reasons on which
it is based;
(ii) in the case of corruption on the part of a member of the
Tribunal, within 120 days after discovery thereof, and in
any event within three years after the date on which the
award was rendered (or any subsequent decision or
correction).
(4) If the Secretary-General refuses to register an application for
revision, or annulment, he shall forthwith notify the requesting party
of his refusal.

Rule 51. (1) Upon registration of an application for the interpretation or

Interpretation or revision of an award, the Secretary-General shall forthwith:
Revision: Further
Procedures (a) transmit to each member of the original Tribunal a copy of the
notice of registration, together with a copy of the application
and of any accompanying documentation; and
(b) request each member of the Tribunal to inform him within a
specified time limit whether that member is willing to take part
in the consideration of the application.
(2) If all members of the Tribunal express their willingness to take
part in the consideration of the application, the Secretary-General
shall so notify the members of the Tribunal and the parties. Upon
dispatch of these notices the Tribunal shall be deemed to be
reconstituted.

(3) If the Tribunal cannot be reconstituted in accordance with

paragraph (2), the Secretary-General shall so notify the parties and
invite them to proceed, as soon as possible, to constitute a new
Tribunal, including the same number of arbitrators, and appointed
by the same method, as the original one.
Rule 52. Annulment: (1) Upon registration of an application for the annulment of an
Further Procedures award, the Secretary-General shall forthwith request the Chairman
of the Administrative Council to appoint an ad hoc Committee in
accordance with Article 52(3) of the Convention.
(2) The Committee shall be deemed to be constituted on the date the
Secretary-General notifies the parties that all members have
accepted their appointment. Before or at the first session of the
Committee, each member shall sign a declaration conforming to
that set forth in Rule 6(2).

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 ICSID
Rule 54. Stay of (2) If an application for the revision or annulment of an award
Enforcement of the contains a request for a stay of its enforcement, the Secretary-
Award General shall, together with the notice of registration, inform both
parties of the provisional stay of the award. As soon as the Tribunal
or Committee is constituted it shall, if either party requests, rule
within 30 days on whether such stay should be continued; unless it
decides to continue the
stay, it shall automatically be terminated.
[…]
(5) The Secretary-General shall promptly notify both parties of the
stay of enforcement of any award and of the modification or
termination of such a stay, which shall become effective on the date
on which he dispatches such notification.

Rule 55. (1) If a Committee annuls part or all of an award, either party may
Resubmission of request the resubmission of the dispute to a new Tribunal. Such a
Dispute after an request shall be addressed in writing to the Secretary-General and
Annulment shall:
(a) identify the award to which it relates;
(b) indicate the date of the request;
(c) explain in detail what aspect of the dispute is to be submitted
to the Tribunal; and
(d) be accompanied by a fee for lodging the request.
(2) Upon receipt of the request and of the lodging fee, the Secretary-
General shall forthwith:

(a) register it in the Arbitration Register;

(b) notify both parties of the registration;
(c) transmit to the other party a copy of the request and of any
accompanying documentation; and
(d) invite the parties to proceed, as soon as possible, to constitute
a new Tribunal, including the same number of arbitrators, and
appointed by the same method, as the original one.
[…]

Institution Rules, (1) The Secretary-General shall, subject to Rule 5(1)(b), as soon as
Rule 6. Registration possible, either:
of the Request
(a) register the request in the Conciliation or the Arbitration
Register and on the same day notify the parties of the
registration; or
(b) if he finds, on the basis of the information contained in the
request, that the dispute is manifestly outside the jurisdiction
of the Centre, notify the parties of his refusal to register the
request and of the reasons therefor.
(2) A proceeding under the Convention shall be deemed to have been
instituted on the date of the registration of the request.

§1.06 LONDON COURT OF INTERNATIONAL ARBITRATION

[A] Overview
The London Court of International Arbitration (LCIA) has a long and distinguished history
and is among the oldest institutions administering international arbitration today. (162) It
traces its origins to a committee of the Court of Common Council of the City of London
which was established in 1883 to draw up proposals for a tribunal to arbitrate disputes,
particularly those with transnational characteristics. The Law Quarterly Review, a peer-
reviewed academic journal, wrote that this tribunal “is to have all the virtues which the law
lacks. It is to be expeditious where the law is slow, cheap where the law is costly, simple
where the law is technical, a peacemaker instead of a stirrer-up of strife.” (163)
The plan developed by the committee was placed on hold until after the passage of the
English Arbitration Act of 1889. Thereafter, in April 1891, the new tribunal was established
as the City of London Chamber of Arbitration, sitting in the Guildhall and governed by a
P 78 committee established jointly by the London Chamber of Commerce and Industry and the
P 79 City of London Corporation. It was inaugurated on November 23, 1892. In April 1903, it was
renamed the London Court of Arbitration. In 1975, the Institute of Arbitration (which

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 subsequently changed its name to the Chartered Institute of Arbitrators) became involved
in the governing committee. In 1981, the institution adopted its present name, the London
Court of International Arbitration. (164)
The LCIA’s focus is on international commercial arbitration, and it is one of the largest
international arbitration institutions in the world. In February 2008, it entered into a joint
venture with the Dubai International Financial Centre to create the DIFC-LCIA. The DIFC-
LCIA was relaunched as the DIFC-LCIA Arbitration Centre from a new location in November
2015 to underline the independence of the institution from the Dubai International
Financial Centre. The DIFC-LCIA Courts were followed in April 2009 by the establishment of
the LCIA’s first independent overseas subsidiary, LCIA-India in New Delhi. LCIA-India
subsequently closed in 2016. Cases that were being administered by LCIA-India will be
administered in the future by LCIA London. In July 2011, the LCIA and a recently
incorporated company, the Mauritius International Arbitration Centre Limited (MIAC),
established the LCIA-MIAC Arbitration Centre in Mauritius, but this Centre ceased
operations in July 2018 when the independent Mauritius International Arbitration Centre
was established. (165)
The LCIA received 285 arbitration referrals in 2017, a total of 31% of which involved sums in
issue of USD 20 million or more. (166) The nationality of the parties involved represented
the international focus of the LCIA’s work, with more than 80% of the parties coming from
outside the United Kingdom. (167) Gender diversity among arbitrators continues to climb
at the LCIA: 24% of arbitrators appointed in 2017 were women. (168)

[B] Governance
The LCIA has three constituent bodies, with the Director General acting in the capacity of
chief executive officer, coordinating the work of each part of the LCIA. (169)
The Board of Directors comprises prominent international arbitration practitioners who
guide the operation and development of the LCIA’s business. The Board does not have any
active involvement in the LCIA’s substantive administration of arbitration cases, but it
oversees the LCIA’s administrative functions.
The LCIA Court is the body charged with the authority to oversee the proper application of
the LCIA Rules. It comprises 35 members selected from among the most prominent
professionals in the international arbitration community. The Board is responsible for
making appointments to the Court on the recommendation of the Court. No more than six
P 79 members of the Court may be from the United Kingdom. The Court’s primary functions in
P 80 relation to arbitrations are to act as appointing authority, to decide upon challenges to
arbitrators, and to control costs. In addition, it has responsibility for making
recommendations to the Board on proposals for new arbitration rules and to work toward
the development of the business of the LCIA. (170) LCIA Court functions are performed by
the President, Vice President, or by a Division of the LCIA Court of three or five members.
(171)
The Secretariat, headed by the Registrar, is responsible for the day-to-day casework and
administration of all disputes that are referred to the LCIA. The Secretariat refers to
appropriate matters that arise in the course of the administration of an arbitration to the
LCIA Court. (172)

[C] Arbitration Rules

In 2014, the LCIA issued new arbitration rules that came into effect on October 1, 2014,
replacing the LCIA Arbitration Rules adopted in 1998. The LCIA recently proposed slight
amendments to its 2014 Rules; however, at the time of publishing, those amendments are
not yet publicly available. Unlike many of the other institutions, the LCIA does not offer a
range of different arbitration rules for different circumstances, preferring to offer a single
set of rules that are generally applicable.
The LCIA Rules were designed to provide parties with maximum flexibility in relation to
procedural matters. The Rules provide for the possibility of expedited proceedings and
give tribunals a range of powers, including the power to issue conservatory and interim
measures—they also include a waiver of the right to appeal. The LCIA Rules are frequently
used for arbitrations with seats in countries around the world, not just in England.
The DIFC-LCIA Arbitration Centre and LCIA-India have their own rules which are based on
the LCIA Rules but slightly modified to take account of local circumstances in those
regions. In the specific case of LCIA-India, the LCIA-India Rules will continue to apply to
existing disputes and contracts concluded before June 1, 2016, which incorporate the Rules,
but the LCIA will only administer disputes under the LCIA Rules 2014 going forward and not
accept any new agreements that rely upon the LCIA-India Rules. (173)
In addition to administering arbitrations under the LCIA Rules, the LCIA also administers
arbitrations under other arbitration rules such as the UNCITRAL Arbitration Rules. The LCIA
also acts as the appointing authority in arbitrations under other institutional rules and
offers a range of alternative dispute resolution services, including mediation and expert
determination.
The LCIA system provides for broad tribunal powers in support of the arbitration process.

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 P 80 For example, the LCIA Court does not undertake to decide preliminary challenges to
P 81 jurisdiction, as do most other regimes, but instead defers such challenges to the arbitral
tribunal. (174) The LCIA does not decide requests for joinder, as many other institutions do;
again, such requests must be submitted to the tribunal. (175) It is the tribunal, rather than
the LCIA Court, that decides whether to consolidate related arbitrations (with the Court’s
approval) unless the tribunal has not yet been constituted. (176) Lastly, the LCIA Court may
make only an initial determination on the language of the arbitration (in the absence of
party agreement), with the final determination to be made by the tribunal. (177) Thus, the
LCIA Rules contemplate a lesser degree of involvement of the institution vis-à-vis the
tribunal.
The LCIA’s regime is attractive to parties who want to maintain the confidentiality of their
dispute. Article 30 of the LCIA Rules provides that all materials, awards, and documents
relating to the arbitration must, “as a general principle,” be kept confidential. (178) Under
the LCIA Rules, awards will not be published unless the parties and arbitral tribunal
provide prior written consent, and the deliberations of the tribunal are confidential to its
members. (179) This approach may be contrasted with that of the ICC Rules, which does not
require confidentiality unless the tribunal so orders. (180)
The 2014 revisions to the LCIA Rules clarify an important, and often hotly debated, aspect
of the arbitration process, namely that the law applicable to both the arbitration
agreement and the arbitration is that of the seat of arbitration. (181) They also augment the
role of the LCIA Court in regulating arbitrators and party representatives. The LCIA Rules
specify that before appointment by the LCIA Court, an arbitral candidate must sign a
written declaration stating “whether the candidate is ready, willing and able to devote
sufficient time, diligence and industry to ensure the expeditious conduct of the
arbitration.” (182) The LCIA Rules also provide that the LCIA Court can, under certain
circumstances, remove an arbitrator “on its own initiative” and not merely in response to
party challenge or at the request of the other arbitrators. (183)
P 81 Perhaps one of the most significant revisions to the LCIA Rules concerns party
P 82 representation. The 2014 LCIA Rules take a dramatically different approach from earlier
versions. (184) In the first instance, the Rules are clear that the party’s representative must
be an “authorised legal representative[] … .” (185) The Rules further provide that, following
the formation of an arbitral tribunal, a party must obtain the tribunal’s approval to change
or add a legal representative. (186) As a condition of appearing before an arbitral tribunal,
legal representatives must agree to comply with a set of guidelines contained in an annex
to the LCIA Rules. (187) The Rules confer upon the arbitral tribunal the authority, either in
response to a complaint by one of the parties or on its own initiative, to impose sanctions
for noncompliance with the guidelines. (188)

[D] Arbitrators
The parties to an LCIA arbitration are free to agree to nominate arbitrators in any manner
that they see fit. However, the LCIA Court fulfills an important role in the appointment of
those nominees to the arbitral tribunal. (189) Although the LCIA Court has broad discretion
to refuse to appoint party-nominated candidates, (190) in practice, the LCIA Court accepts
the parties’ nominations unless it considers that there are compelling grounds to refuse to
do so.
When the parties have agreed that the LCIA should appoint the arbitrators, or in
circumstances where the parties reject a party-nominated arbitrator, the LCIA Court is
responsible for selecting arbitrators. The LCIA maintains a database of arbitrators from
across the globe with a diverse range of specialities for these purposes.
In the absence of an agreement by the parties, the LCIA appoints a sole arbitrator unless it
deems that a three-member arbitrator tribunal is more appropriate in light of the
particular dispute. (191) Under the LCIA Rules, if the parties to a dispute are of different
nationalities, then the LCIA Court may not appoint a sole arbitrator or chairman of the
tribunal who shares the same nationality as any party or controlling shareholder thereof.
(192) In 2015, arbitrators of 30 different nationalities were appointed to LCIA arbitration
tribunals. (193)
P 82
P 83
[E] Case Management
The LCIA prides itself on the flexibility of its case management arrangements. (194) Every
case is computerized and monitored as it progresses by the assigned staff of the
Secretariat, adapting the level of administrative support to the requirements of the
particular parties and tribunal concerned. Confidentiality is a prime concern of the LCIA,
and for this reason, the administrative decisions of the Secretariat are not published.

[F] Award Scrutiny

The arbitral tribunal must issue its final award in writing and state the reasons for the
award. (195) The LCIA Court does not scrutinize arbitral awards, although it may informally
review draft awards before they are issued to advise on any technical amendments that
may be required.

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 The rules in Table 1.6 summarize the powers and duties of the LCIA.
P 83
P 84 Table 1.6 Powers and Duties of the LCIA
LCIA
PP 88
84
85
86
89
90
87
92
93
94
91 Article 1. Request for 1.1. Any party wishing to commence an arbitration under the LCIA
PP 88
85
86
89
90
87
92
93
94
95
91 Arbitration Rules (the “Claimant”) shall deliver to the Registrar of the LCIA Court
(the “Registrar”) a written request for arbitration (the “Request”),
containing or accompanied by: […]
(vii) confirmation that copies of the Request (including all
accompanying documents) have been or are being delivered to all
other parties to the arbitration by one or more means to be
identified specifically in such confirmation, to be supported then or
as soon as possible thereafter by documentary proof satisfactory to
the LCIA Court of actual delivery (including the date of delivery) or, if
actual delivery is demonstrated to be impossible to the LCIA Court’s
satisfaction, sufficient information as to any other effective form of
notification.

Article 2. Response 2.1. Within 28 days of the Commencement Date, or such lesser or
greater period to be determined by the LCIA Court upon application
by any party or upon its own initiative (pursuant to Article 22.5) […]
(vi) confirmation that copies of the Response (including all
accompanying documents) have been or are being delivered to all
other parties to the arbitration by one or more means of delivery to
be identified specifically in such confirmation, to be supported then
or as soon as possible thereafter by documentary proof satisfactory
to the LCIA Court of actual delivery (including the date of delivery)
or, if actual delivery is demonstrated to be impossible to the LCIA
Court’s satisfaction, sufficient information as to any other effective
form of notification.

Article 3. LCIA Court 3.1. The functions of the LCIA Court under the Arbitration Agreement
and Registrar shall be performed in its name by the President of the LCIA Court (or
any of its Vice-Presidents, Honorary Vice-Presidents or former Vice-
Presidents) or by a division of three or more members of the LCIA
Court appointed by its President or any Vice-President (the “LCIA
Court”).
3.2. The functions of the Registrar under the Arbitration Agreement
shall be performed under the supervision of the LCIA Court by the
Registrar or any deputy Registrar.
3.3. All communications in the arbitration to the LCIA Court from any
party, arbitrator or expert to the Arbitral Tribunal shall be addressed
to the Registrar.

Article 5. Formation 5.1. The formation of the Arbitral Tribunal by the LCIA Court shall not
of Arbitral Tribunal be impeded by any controversy between the parties relating to the
sufficiency of the Request or the Response. The LCIA Court may also
proceed with the arbitration notwithstanding that the Request is
incomplete or the Response is missing, late or incomplete.
[…]

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 LCIA
5.4. Before appointment by the LCIA Court, each arbitral candidate
shall furnish to the Registrar (upon the latter’s request) a brief
written summary of his or her qualifications and professional
positions (past and present); the candidate shall also agree in
writing fee-rates conforming to the Schedule of Costs; the candidate
shall sign a written declaration stating: (i) whether there are any
circumstances currently known to the candidate which are likely to
give rise in the mind of any party to any justifiable doubts as to his
or her impartiality or independence and, if so, specifying in full such
circumstances in the declaration; and (ii) whether the candidate is
ready, willing and able to devote sufficient time, diligence and
industry to ensure the expeditious and efficient conduct of the
arbitration. The candidate shall furnish promptly such agreement
and declaration to the Registrar.
5.5. If appointed, each arbitral candidate shall thereby assume a
continuing duty as an arbitrator, until the arbitration is finally
concluded, forthwith to disclose in writing any circumstances
becoming known to that arbitrator after the date of his or her
written declaration (under Article 5.4) which are likely to give rise in
the mind of any party to any justifiable doubts as to his or her
impartiality or independence, to be delivered to the LCIA Court, any
other members of the Arbitral Tribunal and all parties in the
arbitration.
5.6. The LCIA Court shall appoint the Arbitral Tribunal promptly after
receipt by the Registrar of the Response or, if no Response is
received, after 35 days from the Commencement Date (or such other
lesser or greater period to be determined by the LCIA Court pursuant
to Article 22.5).
5.7. No party or third person may appoint any arbitrator under the
Arbitration Agreement: the LCIA Court alone is empowered to
appoint arbitrators (albeit taking into account any written
agreement or joint nomination by the parties).
5.8. A sole arbitrator shall be appointed unless the parties have
agreed in writing otherwise or if the LCIA Court determines that in
the circumstances a three-member tribunal is appropriate (or,
exceptionally, more than three).
5.9. The LCIA Court shall appoint arbitrators with due regard for any
particular method or criteria of selection agreed in writing by the
parties. The LCIA Court shall also take into account the
transaction(s) at issue, the nature and circumstances of the dispute,
its monetary amount or value, the location and languages of the
parties, the number of parties and all other factors which it may
consider relevant in the circumstances.

5.10. The President of the LCIA Court shall only be eligible to be

appointed as an arbitrator if the parties agree in writing to nominate
him or her as the sole or presiding arbitrator; and the Vice Presidents
of the LCIA Court and the Chairman of the LCIA Board of Directors
(the latter being ex officio a member of the LCIA Court) shall only be
eligible to be appointed as arbitrators if nominated in writing by a
party or parties—provided that no such nominee shall have taken or
shall take thereafter any part in any function of the LCIA Court or
LCIA relating to such arbitration.
Article 6. Nationality 6.1 Where the parties are of different nationalities, a sole arbitrator
of Arbitrators or the presiding arbitrator shall not have the same nationality as
any party unless the parties who are not of the same nationality as
the arbitral candidate all agree in writing otherwise.
6.2 The nationality of a party shall be understood to include those of
its controlling shareholders or interests.
6.3 A person who is a citizen of two or more States shall be treated
as a national of each State; citizens of the European Union shall be
treated as nationals of its different Member States and shall not be
treated as having the same nationality; a citizen of a State’s
overseas territory shall be treated as a national of that territory and
not of that State; and a legal person incorporated in a State’s
overseas territory shall be treated as such and not (by such fact
alone) as a national of or a legal person incorporated in that State.

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 LCIA
Article 7. Party and 7.1. If the parties have agreed howsoever that any arbitrator is to be
Other Nominations appointed by one or more of them or by any third person (other than
the LCIA Court), that agreement shall be treated under the
Arbitration Agreement as an agreement to nominate an arbitrator
for all purposes. Such nominee may only be appointed by the LCIA
Court as arbitrator subject to that nominee’s compliance with
Articles 5.3 to 5.5; and the LCIA Court shall refuse to appoint any
nominee if it determines that the nominee is not so compliant or is
otherwise unsuitable.
7.2. Where the parties have howsoever agreed that the Claimant or
the Respondent or any third person (other than the LCIA Court) is to
nominate an arbitrator and such nomination is not made within time
or at all (in the Request, Response or otherwise), the LCIA Court may
appoint an arbitrator notwithstanding any absent or late
nomination.

Article 8. Three or 8.1. Where the Arbitration Agreement entitles each party howsoever
More Parties to nominate an arbitrator, the parties to the dispute number more
than two and such parties have not all agreed in writing that the
disputant parties represent collectively two separate “sides” for the
formation of the Arbitral Tribunal (as Claimants on one side and
Respondents on the other side, each side nominating a single
arbitrator), the LCIA Court shall appoint the Arbitral Tribunal without
regard to any party’s entitlement or nomination.
8.2. In such circumstances, the Arbitration Agreement shall be
treated for all purposes as a written agreement by the parties for the
nomination and appointment of the Arbitral Tribunal by the LCIA
Court alone.

Article 9A. Expedited 9.1. In the case of exceptional urgency, any party may apply to the
Formation of Arbitral LCIA Court for the expedited formation of the Arbitral Tribunal under
Tribunal; Article 9B. Article 5.
Emergency
Arbitrator; 9C. […]
Expedited 9.3. The LCIA Court shall determine the application as expeditiously
Appointment of as possible in the circumstances. If the application is granted, for
Replacement the purpose of forming the Arbitral Tribunal the LCIA Court may
Arbitrator abridge any period of time under the Arbitration Agreement or other
agreement of the parties (pursuant to Article 22.5).
9.4. Subject always to Article 9.14 below, in the case of emergency at
any time prior to the formation or expedited formation of the
Arbitral Tribunal (under Articles 5 or 9A), any party may apply to the
LCIA Court for the immediate appointment of a temporary sole
arbitrator to conduct emergency proceedings pending the formation
or expedited formation of the Arbitral Tribunal (the “Emergency
Arbitrator”).
9.5. […] The Special Fee shall be subject to the terms of the Schedule
of Costs. Its amount is prescribed in the Schedule, covering the fees
and expenses of the Emergency Arbitrator and the administrative
fees and expenses of the LCIA, with additional charges (if any) of the
LCIA Court. After the appointment of the Emergency Arbitrator, the
amount of the Special Fee payable by the applicant may be
increased by the LCIA Court in accordance with the Schedule. Article
24 shall not apply to any Special Fee paid to the LCIA.
9.6. The LCIA Court shall determine the application as soon as
possible in the circumstances. If the application is granted, an
Emergency Arbitrator shall be appointed by the LCIA Court within
three days of the Registrar’s receipt of the application (or as soon as
possible thereafter). Articles 5.1, 5.7, 5.9, 5.10, 6, 9C, 10 and 16.2 (last
sentence) shall apply to such appointment. The Emergency
Arbitrator shall comply with the requirements of Articles 5.3, 5.4 and
(until the emergency proceedings are finally concluded) Article 5.5.

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[…]
9.8. The Emergency Arbitrator shall decide the claim for emergency
relief as soon as possible, but no later than 14 days following the
Emergency Arbitrator’s appointment. This deadline may only be
extended by the LCIA Court in exceptional circumstances (pursuant
to Article 22.5) or by the written agreement of all parties to the
emergency proceedings. […]
[…]
9.10. The Special Fee paid shall form a part of the Arbitration Costs
under Article 28.2 determined by the LCIA Court (as to the amount of
Arbitration Costs) and decided by the Arbitral Tribunal (as to the
proportions in which the parties shall bear Arbitration Costs). Any
legal or other expenses incurred by any party during the emergency
proceedings shall form a part of the Legal Costs under Article 28.3
decided by the Arbitral Tribunal (as to amount and as to payment
between the parties of Legal Costs).
[…]
9.13 … Wherever relevant, the LCIA Court may abridge under any
such provisions any period of time (pursuant to Article 22.5).
[…]
9.17. The LCIA Court shall determine the application as expeditiously
as possible in the circumstances. If the application is granted, for
the purpose of expediting the appointment of the replacement
arbitrator the LCIA Court may abridge any period of time in the
Arbitration Agreement or any other agreement of the parties
(pursuant to Article 22.5).
Article 10. 10.1. The LCIA Court may revoke any arbitrator’s appointment upon
Revocation and its own initiative, at the written request of all other members of the
Challenges Arbitral Tribunal or upon a written challenge by any party if: (i) that
arbitrator gives written notice to the LCIA Court of his or her intent
to resign as arbitrator, to be copied to all parties and all other
members of the Arbitral Tribunal (if any); (ii) that arbitrator falls
seriously ill, refuses or becomes unable or unfit to act; or (iii)
circumstances exist that give rise to justifiable doubts as to that
arbitrator’s impartiality or independence.
10.2. The LCIA Court may determine that an arbitrator is unfit to act
under Article 10.1 if that arbitrator: (i) acts in deliberate violation of
the Arbitration Agreement; (ii) does not act fairly or impartially as
between the parties; or (iii) does not conduct or participate in the
arbitration with reasonable efficiency, diligence and industry.
[…]
10.4. The LCIA Court shall provide to those other parties and the
challenged arbitrator a reasonable opportunity to comment on the
challenging party’s written statement. The LCIA Court may require at
any time further information and materials from the challenging
party, the challenged arbitrator, other parties and other members of
the Arbitral Tribunal (if any).

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 LCIA
10.5. If all other parties agree in writing to the challenge within 14
days of receipt of the written statement, the LCIA Court shall revoke
that arbitrator’s appointment (without reasons).
10.6. Unless the parties so agree or the challenged arbitrator resigns
in writing within 14 days of receipt of the written statement, the LCIA
Court shall decide the challenge and, if upheld, shall revoke that
arbitrator’s appointment. The LCIA Court’s decision shall be made in
writing, with reasons; and a copy shall be transmitted by the
Registrar to the parties, the challenged arbitrator and other
members of the Arbitral Tribunal (if any). A challenged arbitrator
who resigns in writing prior to the LCIA Court’s decision shall not be
considered as having admitted any part of the written statement.
10.7. The LCIA Court shall determine the amount of fees and
expenses (if any) to be paid for the former arbitrator’s services, as it
may consider appropriate in the circumstances. The LCIA Court may
also determine whether, in what amount and to whom any party
should pay forthwith the costs of the challenge; and the LCIA Court
may also refer all or any part of such costs to the later decision of
the Arbitral Tribunal and/or the LCIA Court under Article 28.

Article 11. 11.1. In the event that the LCIA Court determines that justifiable
Nomination and doubts exist as to any arbitral candidate’s suitability, independence
Replacement or impartiality, or if a nominee declines appointment as arbitrator,
or if an arbitrator is to be replaced for any reason, the LCIA Court
may determine whether or not to follow the original nominating
process for such arbitral appointment.
11.2. The LCIA Court may determine that any opportunity given to a
party to make any re-nomination (under the Arbitration Agreement
or otherwise) shall be waived if not exercised within 14 days (or such
lesser or greater time as the LCIA Court may determine), after which
the LCIA Court shall appoint the replacement arbitrator without
such re-nomination.

Article 12. Majority 12.1. In exceptional circumstances, where an arbitrator without good
Power to Continue cause refuses or persistently fails to participate in the deliberations
Deliberations of an Arbitral Tribunal, the remaining arbitrators jointly may decide
(after their written notice of such refusal or failure to the LCIA Court,
the parties and the absent arbitrator) to continue the arbitration
(including the making of any award) notwithstanding the absence of
that other arbitrator, subject to the written approval of the LCIA
Court.
[…]

12.3. In the event that the remaining arbitrators decide at any time
thereafter not to continue the arbitration without the participation
of the absent arbitrator, the remaining arbitrators shall notify in
writing the parties and the LCIA Court of such decision; and, in that
event, the remaining arbitrators or any party may refer the matter
to the LCIA Court for the revocation of the absent arbitrator’s
appointment and the appointment of a replacement arbitrator
under Articles 10 and 11.
Article 16. Seat(s) of 16.2. In default of any such agreement, the seat of the arbitration
Arbitration and shall be London (England), unless and until the Arbitral Tribunal
Place(s) of Hearing orders, in view of the circumstances and after having given the
parties a reasonable opportunity to make written comments to the
Arbitral Tribunal, that another arbitral seat is more appropriate.
Such default seat shall not be considered as a relevant
circumstance by the LCIA Court in appointing any arbitrators under
Articles 5, 9A, 9B, 9C and 11.
[…]
16.4 The law applicable to the Arbitration Agreement and the
arbitration shall be the law applicable at the seat of the arbitration,
unless and to the extent that the parties have agreed in writing on
the application of other laws or rules of law and such agreement is
not prohibited by the law applicable at the arbitral seat.

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 LCIA
Article 17. Language 17.2. In the event that the Arbitration Agreement is written in more
(s) of Arbitration than one language of equal standing, the LCIA Court may, unless the
Arbitration Agreement provides that the arbitration proceedings
shall be conducted from the outset in more than one language,
determine which of those languages shall be the initial language of
the arbitration.
17.3. A non-participating or defaulting party shall have no cause for
complaint if communications to and from the LCIA Court and
Registrar are conducted in the initial language(s) of the arbitration
or of the arbitral seat.

Article 18. Legal 18.1 Any party may be represented in the arbitration by one or more
Representatives authorised legal representatives appearing by name before the
Arbitral Tribunal.
18.2 Until the Arbitral Tribunal’s formation, the Registrar may
request from any party: (i) written proof of the authority granted by
that party to any legal representative designated in its Request or
Response; and (ii) written confirmation of the names and addresses
of all such party’s legal representatives in the arbitration. After its
formation, at any time, the Arbitral Tribunal may order any party to
provide similar proof or confirmation in any form it considers
appropriate.

18.3 Following the Arbitral Tribunal’s formation, any intended

change or addition by a party to its legal representatives shall be
notified promptly in writing to all other parties, the Arbitral Tribunal
and the Registrar; and any such intended change or addition shall
only take effect in the arbitration subject to the approval of the
Arbitral Tribunal.
18.4 The Arbitral Tribunal may withhold approval of any intended
change or addition to a party’s legal representatives where such
change or addition could compromise the composition of the
Arbitral Tribunal or the finality of any award (on the grounds of
possible conflict or other like impediment). In deciding whether to
grant or withhold such approval, the Arbitral Tribunal shall have
regard to the circumstances, including: the general principle that a
party may be represented by a legal representative chosen by that
party, the stage which the arbitration has reached, the efficiency
resulting from maintaining the composition of the Arbitral Tribunal
(as constituted throughout the arbitration) and any likely wasted
costs or loss of time resulting from such change or addition.
18.5 Each party shall ensure that all its legal representatives
appearing by name before the Arbitral Tribunal have agreed to
comply with the general guidelines contained in the Annex to the
LCIA Rules, as a condition of such representation. In permitting any
legal representative so to appear, a party shall thereby represent
that the legal representative has agreed to such compliance.
18.6 In the event of a complaint by one party against another party’s
legal representative appearing by name before the Arbitral Tribunal
(or of such complaint by the Arbitral Tribunal upon its own
initiative), the Arbitral Tribunal may decide, after consulting the
parties and granting that legal representative a reasonable
opportunity to answer the complaint, whether or not the legal
representative has violated the general guidelines. If such violation
is found by the Arbitral Tribunal, the Arbitral Tribunal may order any
or all of the following sanctions against the legal representative: (i)
a written reprimand; (ii) a written caution as to future conduct in the
arbitration; and (iii) any other measure necessary to fulfil within the
arbitration the general duties required of the Arbitral Tribunal under
Articles 14.4(i) and (ii).

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 LCIA
Article 22. Additional 22.1. (ix) to order, with the approval of the LCIA Court, the
Powers consolidation of the arbitration with one or more other arbitrations
into a single arbitration subject to the LCIA Rules where all the
parties to the arbitrations to be consolidated so agree in writing;
(x) to order, with the approval of the LCIA Court, the consolidation of
the arbitration with one or more other arbitrations subject to the
LCIA Rules commenced under the same arbitration agreement or
any compatible arbitration agreement(s) between the same
disputing parties, provided that no arbitral tribunal has yet been
formed by the LCIA Court for such other arbitration(s) or, if already
formed, that such tribunal(s) is(are) composed of the same
arbitrators; […]
[…]
22.6. Without prejudice to the generality of Articles 22.1(ix) and (x),
the LCIA Court may determine, after giving the parties a reasonable
opportunity to state their views, that two or more arbitrations,
subject to the LCIA Rules and commenced under the same
arbitration agreement between the same disputing parties, shall be
consolidated to form one single arbitration subject to the LCIA
Rules, provided that no arbitral tribunal has yet been formed by the
LCIA Court for any of the arbitrations to be consolidated.

Article 23. 23. The Arbitral Tribunal shall have the power to rule upon its own
Jurisdiction and jurisdiction and authority, including any objection to the initial or
Authority continuing existence, validity, effectiveness or scope of the
Arbitration Agreement.
23.2 For that purpose, an arbitration clause which forms or was
intended to form part of another agreement shall be treated as an
arbitration agreement independent of that other agreement. A
decision by the Arbitral Tribunal that such other agreement is non-
existent, invalid or ineffective shall not entail (of itself) the non-
existence, invalidity or ineffectiveness of the arbitration clause.
23.3 An objection by a Respondent that the Arbitral Tribunal does
not have jurisdiction shall be raised as soon as possible but not later
than the time for its Statement of Defence; and a like objection by
any party responding to a cross-claiming party shall be raised as
soon as possible but not later than the time for its Statement of
Defence to Cross-claim. An objection that the Arbitral Tribunal is
exceeding the scope of its authority shall be raised promptly after
the Arbitral Tribunal has indicated its intention to act upon the
matter alleged to lie beyond its authority. The Arbitral Tribunal may
nevertheless admit an untimely objection as to its jurisdiction or
authority if it considers the delay justified in the circumstances.

23.4 The Arbitral Tribunal may decide the objection to its jurisdiction
or authority in an award as to jurisdiction or authority or later in an
award on the merits, as it considers appropriate in the
circumstances.
23.5 By agreeing to arbitration under the Arbitration Agreement,
after the formation of the Arbitral Tribunal the parties shall be
treated as having agreed not to apply to any state court or other
legal authority for any relief regarding the Arbitral Tribunal’s
jurisdiction or authority, except (i) with the prior agreement in
writing of all parties to the arbitration, or (ii) the prior authorisation
of the Arbitral Tribunal, or (iii) following the latter’s award on the
objection to its jurisdiction or authority.

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 LCIA
Article 24. Deposits 24.1. The LCIA Court may direct the parties, in such proportions and
at such times as it thinks appropriate, to make one or more
payments to the LCIA on account of the Arbitration Costs. Such
payments deposited by the parties may be applied by the LCIA Court
to pay any item of such Arbitration Costs (including the LCIA’s own
fees and expenses) in accordance with the LCIA Rules.
[…]
24.4. In the event that a party fails or refuses to make any payment
on account of the Arbitration Costs as directed by the LCIA Court, the
LCIA Court may direct the other party or parties to effect a substitute
payment to allow the arbitration to proceed (subject to any order or
award on Arbitration Costs).

Article 26. Award(s) 26.2 The Arbitral Tribunal shall make any award in writing and,
unless all parties agree in writing otherwise, shall state the reasons
upon which such award is based. The award shall also state the date
when the award is made and the seat of the arbitration; and it shall
be signed by the Arbitral Tribunal or those of its members assenting
to it.
26.7. The sole or presiding arbitrator shall be responsible for
delivering the award to the LCIA Court, which shall transmit to the
parties the award authenticated by the Registrar as an LCIA award,
provided that all Arbitration Costs have been paid in full to the LCIA
in accordance with Articles 24 and 28. Such transmission may be
made by any electronic means, in addition to paper form (if so
requested by any party). In the event of any disparity between
electronic and paper forms, the paper form shall prevail.
[…]

26.9. In the event of any final settlement of the parties’ dispute, the
Arbitral Tribunal may decide to make an award recording the
settlement if the parties jointly so request in writing (a “Consent
Award”), provided always that such Consent Award shall contain an
express statement on its face that it is an award made at the parties’
joint request and with their consent. A Consent Award need not
contain reasons. If the parties do not jointly request a Consent
Award, on written confirmation by the parties to the LCIA Court that
a final settlement has been reached, the Arbitral Tribunal shall be
discharged and the arbitration proceedings concluded by the LCIA
Court, subject to payment by the parties of any outstanding
Arbitration Costs in accordance with Articles 24 and 28.
Article 28. 28.1. The costs of the arbitration other than the legal or other
Arbitration Costs expenses incurred by the parties themselves (the “Arbitration Costs”)
and Legal Costs shall be determined by the LCIA Court in accordance with the
Schedule of Costs. The parties shall be jointly and severally liable to
the LCIA and the Arbitral Tribunal for such Arbitration Costs.
Article 29. 29.1. The determinations of the LCIA Court with respect to all matters
Determinations and relating to the arbitration shall be conclusive and binding upon the
Decisions by LCIA parties and the Arbitral Tribunal, unless otherwise directed by the
Court LCIA Court. Save for reasoned decisions on arbitral challenges under
Article 10, such determinations are to be treated as administrative in
nature; and the LCIA Court shall not be required to give reasons for
any such determination.
29.2. To the extent permitted by any applicable law, the parties shall
be taken to have waived any right of appeal or review in respect of
any determination and decision of the LCIA Court to any state court
or other legal authority. If such appeal or review takes place due to
mandatory provisions of any applicable law or otherwise, the LCIA
Court may determine whether or not the arbitration should continue,
notwithstanding such appeal or review.

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 LCIA
Article 30. 30.1 The parties undertake as a general principle to keep
Confidentiality confidential all awards in the arbitration, together with all materials
in the arbitration created for the purpose of the arbitration and all
other documents produced by another party in the proceedings not
otherwise in the public domain, save and to the extent that
disclosure may be required of a party by legal duty, to protect or
pursue a legal right, or to enforce or challenge an award in legal
proceedings before a state court or other legal authority.
30.3. The LCIA does not publish any award or any part of an award
without the prior written consent of all parties and the Arbitral
Tribunal.

Article 32. General 32.2. For all matters not expressly provided in the Arbitration
Rules Agreement, the LCIA Court, the LCIA, the Registrar, the Arbitral
Tribunal and each of the parties shall act at all times in good faith,
respecting the spirit of the Arbitration Agreement, and shall make
every reasonable effort to ensure that any award is legally
recognised and enforceable at the arbitral seat.

§1.07 ARBITRATION INSTITUTE OF THE STOCKHOLM CHAMBER OF

COMMERCE
[A] Overview
The SCC was founded in 1917 as a separate entity within the SCC. (196) In the 1970s and
1980s, the SCC was widely recognized as a neutral forum for the resolution of East-West
trade disputes involving parties from the Soviet Union and China. The SCC has since been
recognized as a leading international commercial arbitration institution and offers its
services to entities from over 40 countries. It has also become a popular forum for
investment disputes, particularly where parties would prefer to maintain the
confidentiality of the proceedings in a way that is generally not available under the ICSID
regime. In 2017, the SCC registered 200 new cases. Of these, 96 are international disputes
with parties from 40 countries represented, including eight new investment treaty
arbitrations. (197)
The SCC views itself as having three discrete functions, namely: (1) to administer domestic
and international disputes in accordance with its own institutional rules; (2) to administer
domestic and international disputes in accordance with other rules or procedures agreed
upon by the parties; and (3) to provide information concerning arbitration and mediation
matters. (198)

[B] Governance
The SCC is composed of a Board and a Secretariat. The Board, appointed by the Board of
Directors of the SCC, consists of one chairperson, a maximum of three vice-chairpersons,
P 95 and a maximum of twelve additional members. The Board must include Swedish and non-
P 96 Swedish nationals. (199) Board members are appointed for three years and, in the
absence of exceptional circumstances, only one reappointment in the same capacity is
possible. (200)
The Board makes several key decisions with respect to arbitrations submitted to the SCC,
under the SCC Rules or any other rules or procedures agreed upon by the parties, including
whether the SCC has jurisdiction to hear a dispute. (201) The Board also decides the seat of
arbitration (where required), the number of arbitrators (where required); appoints
arbitrators; and decides on challenges to arbitrators. The Secretariat serves administrative
functions related to the daily operations of the arbitration.
After the tribunal has been impaneled, the tribunal itself has wide discretion over the
conduct of the arbitration proceedings, while the Secretariat continues to oversee the
arbitration and to encourage the tribunal to push the case forward.

[C] Arbitration Rules

The SCC offers Arbitration Rules as well as Expedited Arbitration Rules. (202) The SCC Rules
are sufficiently flexible to accommodate all kinds of claims. The Expedited Rules, as the
name suggests, offer a fast-track procedure typically suitable for smaller claims. The most
recent version of the SCC Arbitration Rules and Rules for Expedited Arbitration came into
effect on January 1, 2017.
The most significant revision to the SCC Rules is the inclusion of a summary procedure.
While common in judicial proceedings, summary procedure is uncommon in most major
arbitration rules. Under Article 39, either party can request the tribunal to rule on a
specific claim of fact or law at which point the other party may submit comments on the
request. This new procedure mirrors jurisdictional objections—providing for efficiency and
due process—but allows the tribunal to address the merits of the dispute without going

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 through every procedural step of an arbitration.
Unlike the prior iterations, the 2017 SCC Rules provide flexibility on joinder and
consolidation of claims. Article 13 provides for the joinder of a third party into an existing
arbitration. Article 14 allows a party to combine claims from different arbitration
agreements into a single arbitration unless the other party objects. Similarly, Article 15
now allows a new arbitration to be combined with an existing one, as long as the disputes
arise from the same transaction or series of transactions.
Additionally, the 2017 update to the Rules changed the default number of arbitrators. If the
parties could not agree, the default size of the tribunal was three members, but under the
new Article 16, it is now up to the SCC Board to decide whether the dispute should be
governed by a sole arbitrator or by a three-member tribunal depending on the complexity
and size of the dispute.
P 96 In response to a growing number of investment disputes, the 2017 SCC Rules added
P 97 Appendix III specifically to address investment treaty disputes. This new Appendix
allows for submissions by third parties to the tribunal and provides parties with the
opportunity to respond to any submission made. Article 2 of the Appendix specifically
provides that an investment dispute will be heard by a tribunal of three arbitrators if the
parties cannot agree unless the SCC Board decides a sole arbitrator would be more
efficient.
The SCC Expedited Rules are specifically designed for smaller, less complex disputes.
While the Expedited Rules are similar to the Arbitration Rules, the Expedited Rules are
always overseen by a sole arbitrator, the award must be made within three months of
initiation of the dispute and does not have to be reasoned, and the submissions are
limited. The 2017 update to the Expedited Rules further cuts the number of submissions.
Under Articles 6 and 9, the request for arbitration and the answer now constitute the
statement of claim and statement of defense as well. Prior to the 2017 Expedited Rules, the
SCC could not officially invite the parties to switch from the Expedited Rules to the
Arbitration Rules, or vice versa; with Article 11 of the Expedited Rules, the SCC may invite
the parties to switch applicable rules depending on the complexity and size of the
dispute.
In addition to the Arbitration Rules and the Expedited Rules, the SCC also has Mediation
Rules, can appoint an emergency arbitrator for interim relief prior to the commencement
of an arbitration, and acts as a forum for arbitrations governed by the UNCITRAL Rules.

[D] Arbitrators
The parties are free to decide whether the arbitral panel is composed of one or three
arbitrators but, if a decision cannot be reached, the Board will decide whether the tribunal
consists of one or three arbitrators. (203) If there is a panel of three arbitrators, each party
can appoint an arbitrator and the SCC Board will appoint the third. (204) If the panel is
composed of one arbitrator and the parties are unable to reach an agreement, the SCC
Board will appoint the arbitrator. (205)
Unlike many of the other arbitral institutions, the SCC does not have formal lists of names
to consult when appointing or recommending arbitrators. (206) Parties can appoint any
individual as long as the individual is impartial and independent; alternatively, parties
can ask the SCC Board to make a recommendation. (207)
When the SCC recommends or appoints arbitrators, the Secretariat proposes several
P 97 candidates to the SCC Board, taking into account the parties’ nationalities and the subject
P 98 matter of the dispute. The SCC Board then meets to discuss the Secretariat’s candidate
proposals. In this meeting, the SCC Board examines several factors including the subject
matter of the dispute, the applicable law, the seat of arbitration, and the language of the
proceedings. (208) The Board’s discussion usually involves a detailed review of the
complexities of each case. If the SCC Board is not satisfied with the Secretariat’s proposals,
it will consider alternative well-qualified candidates. If the parties have different
nationalities, the SCC Board will appoint an arbitrator from a third country. (209)

[E] Case Management

The SCC Secretariat handles the daily case management of arbitrations. Cases are
administered in English, Swedish, Russian, French, or German. The Secretary-General heads
the SCC Secretariat, and the Secretariat has a multilingual staff of eight persons. One
lawyer and one assistant are responsible for the administration of each case, although all
procedural aspects of the case are addressed primarily by the arbitral tribunal after it has
been impaneled.

[F] Award Scrutiny

The SCC Rules do not provide for any formal scrutiny of the draft award, although the
Secretariat may bring to the tribunal’s attention any mistakes that it identifies in the form
of the award.
In Table 1.7 we have set out the SCC rules covering these points.
P 98

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 P 98
P 99 Table 1.7 Powers and Duties of the SCC
SCC
PPP100
102
103
104
105
101
99 Article 1. About the […]. The SCC is composed of a board of directors (the “Board”) and a
PP 100
102
103
104
105
106
101 SCC secretariat (the “Secretariat”) […]
Article 7. 2. If the Registration Fee is not paid upon filing the Request for
Registration Fee Arbitration, the Secretariat shall set a time period within which the
Claimant shall pay the Registration Fee. If the Registration Fee is not
paid within this time period, the Secretariat shall dismiss the
Request for Arbitration.
Article 9. Answer 1. The Secretariat shall send a copy of the Request for Arbitration
and any attached documents to the Respondent. The Secretariat
shall set a time period within which the Respondent shall submit an
Answer to the SCC. The Answer shall include: […].
2. The Secretariat shall send a copy of the Answer to the Claimant.
The Claimant may be given an opportunity to submit comments on
the Answer, having regard to the circumstances of the case.

Article 10. Request 1. The Board may request further details from either party regarding
for Further Details any of their written submissions to the SCC.
Article 11. Decision The Board takes decisions as provided under these Rules, including
by the Board deciding:
(i) whether the SCC manifestly lacks jurisdiction over the dispute
pursuant to Article 12 (i);
(ii) whether to grant a request for joinder pursuant to Article 13;
(iii) whether claims made under multiple contracts shall proceed
in a single arbitration pursuant to Article 14;
(iv) whether to consolidate cases pursuant to Article 15;
(v) on the number of arbitrators pursuant to Article 16;
(vi) on any appointment of arbitrators pursuant to Article 17;
(vii) on any challenge to an arbitrator pursuant to Article 19;
(viii) on the seat of arbitration pursuant to Article 25; and
(ix) on the Advance on Costs pursuant to Article 51.

Article 12. Dismissal The Board shall dismiss a case, in whole or in part, if:
(i) the SCC manifestly lacks jurisdiction over the dispute; or
(ii) the Advance on Costs is not paid pursuant to Article 51.

Article 13. Joinder of 4. The Secretariat shall set a time period within which the additional
Additional Parties party shall submit an Answer to the Request for Joinder. Article 9
shall apply mutatis mutandis to the Answer to the Request for
Joinder.
5. The Board may decide to join one or more additional parties
provided that the SCC does not manifestly lack jurisdiction over the
dispute between the parties, including any additional party
requested to be joined to the arbitration, pursuant to Article 12 (i).
6. In deciding whether to grant the Request for Joinder where claims
are made under more than one arbitration agreement, the Board
shall consult with the parties and shall have regard to Article 14 (3)
(i)-(iv).
7. In all cases where the Board decides to grant the Request for
Joinder any decision as to the Arbitral Tribunal’s jurisdiction over any
party joined to the arbitration shall be made by the Arbitral
Tribunal.
8. Where the Board decides to grant the Request for Joinder and the
additional party does not agree to any arbitrator already appointed,
the Board may release the arbitrators and appoint the entire Arbitral
Tribunal, unless all parties, including the additional party, agree on
a different procedure for the appointment of the Arbitral Tribunal.

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 SCC
Article 14. Multiple 3. In deciding whether the claims shall proceed in a single
Contracts in a Single arbitration, the Board shall consult with the parties and shall have
Arbitration regard to:
(i) whether the arbitration agreements under which the claims are
made are compatible;
(ii) whether the relief sought arises out of the same trans-action or
series of transactions;
(iii) the efficiency and expeditiousness of the proceedings; and
(iv) any other relevant circumstances.
4. In all cases where the Board decides that the claims may proceed
in a single arbitration, any decision as to the Arbitral Tribunal’s
jurisdiction over the claims shall be made by the Arbitral Tribunal.

Article 15. 1. At the request of a party the Board may decide to consolidate a
Consolidation of newly commenced arbitration with a pending arbitration, if:
Arbitrations
(i) the parties agree to consolidate;
(ii) all the claims are made under the same arbitration agreement;
or
(iii) where the claims are made under more than one arbitration
agreement, the relief sought arises out of the same transaction
or series of transactions and the Board considers the
arbitration agreements to be compatible.
2. In deciding whether to consolidate, the Board shall consult with
the parties and the Arbitral Tribunal and shall have regard to:
(i) the stage of the pending arbitration;
(ii) the efficiency and expeditiousness of the proceedings; and
(iii) any other relevant circumstances.
3. Where the Board decides to consolidate, the Board may release
any arbitrator already appointed.

Article 16. Number of 2. Where the parties have not agreed on the number of arbitrators,
Arbitrators the Board shall decide whether the Arbitral Tribunal shall consist of
a sole arbitrator or three arbitrators, having regard to the
complexity of the case, the amount in dispute and any other
relevant circumstances.
Article 17. 2. Where the parties have not agreed on a procedure, or if the
Appointment of Arbitral Tribunal has not been appointed within the time period
Arbitrators agreed by the parties or, where the parties have not agreed on a
time period, within the time period set by the Board, the
appointment shall be made pursuant to paragraphs (3)–(7).
3. Where the Arbitral Tribunal is to consist of a sole arbitrator, the
parties shall be given 10 days to jointly appoint the arbitrator. If the
parties fail to appoint the arbitrator within this time, the Board shall
make the appointment.
4. Where the Arbitral Tribunal is to consist of more than one
arbitrator, each party shall appoint an equal number of arbitrators
and the Board shall appoint the Chairperson. Where a party fails to
appoint arbitrator(s) within the stipulated time period, the Board
shall make the appointment.
5. Where there are multiple Claimants or Respondents and the
Arbitral Tribunal is to consist of more than one arbitrator, the
multiple Claimants, jointly, and the multiple Respondents, jointly,
shall appoint an equal number of arbitrators. If either side fails to
make such joint appointment, the Board may appoint the entire
Arbitral Tribunal.
6. If the parties are of different nationalities, the sole arbitrator or
the Chairperson of the Arbitral Tribunal shall be of a different
nationality than the parties, unless the parties have agreed
otherwise or the Board otherwise deems it appropriate.
7. When appointing arbitrators, the Board shall consider the nature
and circumstances of the dispute, the applicable law, the seat and
language of the arbitration and the nationality of the parties.

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 SCC
Article 19. Challenge 4. The Secretariat shall notify the parties and the arbitrators of the
to Arbitrators challenge and give them an opportunity to submit comments.
5. If the other party agrees to the challenge, the arbitrator shall
resign. In all other cases, the Board shall take the final decision on
the challenge.

Article 20. Release 1. The Board shall release an arbitrator from appointment where:
from Appointment
(i) the Board accepts the resignation of the arbitrator;
(ii) a challenge to the arbitrator under Article 19 is sustained; or
(iii) the arbitrator is otherwise unable or fails to perform the
arbitrator’s functions.
2. Before the Board releases an arbitrator, the Secretariat may give
the parties and the arbitrators an opportunity to submit comments.

Article 21. 1. The Board shall appoint a new arbitrator where an arbitrator has
Replacement of been released from appointment pursuant to Article 20, or where an
Arbitrators arbitrator has died. If the released arbitrator was appointed by a
party, that party shall appoint the new arbitrator, unless the Board
otherwise deems it appropriate.
2. Where the Arbitral Tribunal consists of three or more arbitrators,
the Board may decide that the remaining arbitrators shall proceed
with the arbitration. Before the Board takes a decision, the parties
and the arbitrators shall be given an opportunity to submit
comments. In taking its decision, the Board shall have regard to the
stage of the arbitration and any other relevant circumstances.
Article 22. Referral to When the Arbitral Tribunal has been appointed and the Advance on
the Arbitral Tribunal Costs has been paid, the Secretariat shall refer the case to the
Arbitral Tribunal.
Article 24. 5. A party may request the removal of the administrative secretary
Administrative based on the procedure set out in Article 19, which shall apply
Secretary of the mutatis mutandis to a challenge of an administrative secretary. If
Arbitral Tribunal the Board removes an administrative secretary, the Arbitral Tribunal
may propose the appointment of another administrative secretary in
accordance with this Article. A request for removal shall not prevent
the arbitration from proceeding, unless the Arbitral Tribunal decides
otherwise.
Article 25. Seat of 1. Unless agreed upon by the parties, the Board shall decide the seat
Arbitration of arbitration.
Article 43. Time The final award shall be made no later than six months from the
Limit for Final Award date the case was referred to the Arbitral Tribunal pursuant to
Article 22. The Board may extend this time limit upon a reasoned
request from the Arbitral Tribunal or if otherwise deemed necessary.
Article 48. Additional Within 30 days of receiving an award, a party may, upon notice to
Award the other party, request that the Arbitral Tribunal make an
additional award on claims presented in the arbitration but not
determined in the award. After giving the other party an opportunity
to comment on the request, and if the Arbitral Tribunal considers the
request justified, it shall make the additional award within 60 days
of receiving the request. When deemed necessary, the Board may
extend this 60 day time limit.
Article 49. Costs of 2. Before making the final award, the Arbitral Tribunal shall request
the Arbitration that the Board finally determine the Costs of the Arbitration. The
Board shall finally determine the Costs of the Arbitration in
accordance with the Schedule of Costs (Appendix IV) in force on the
date of commencement of the arbitration pursuant to Article 8.
3. In finally determining the Costs of the Arbitration, the Board shall
have regard to the extent to which the Arbitral Tribunal has acted in
an efficient and expeditious manner, the complexity of the dispute
and any other relevant circumstances.

4. If the arbitration is terminated before the final award is made

pursuant to Article 45, the Board shall finally determine the Costs of
the Arbitration having regard to the stage of the arbitration, the
work performed by the Arbitral Tribunal and any other relevant
circumstances.

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 SCC
Article 51. Advance 1. The Board shall determine an amount to be paid by the parties as
on Costs an Advance on Costs.
2. The Advance on Costs shall correspond to the estimated amount
of the Costs of Arbitration pursuant to Article 49 (1).
3. Each party shall pay half of the Advance on Costs, unless separate
advances are determined. Where counterclaims or set-offs are
submitted, the Board may decide that each party shall pay
advances corresponding to its claims. Where an additional party is
joined to the arbitration pursuant to Article 13, the Board may
determine each party’s share of the Advance on Costs as it deems
appropriate, having regard to the circumstances of the case.
4. At the request of the Arbitral Tribunal, or if otherwise deemed
necessary, the Board may order parties to pay additional advances
during the course of the arbitration.
5. If a party fails to make a required payment, the Secretariat shall
give the other party an opportunity to do so within a specified period
of time. If the payment is not made within that time, the Board shall
dismiss the case in whole or in part. If the other party makes the
required payment, the Arbitral Tribunal may, at the request of that
party, make a separate award for reimbursement of the payment.
6. At any stage during the arbitration or after the Award has been
made, the Board may draw on the Advance on Costs to cover the
Costs of the Arbitration.
7. The Board may decide that part of the Advance on Costs may be
provided in the form of a bank guarantee or other form of security.

Appendix I— The SCC does not itself decide disputes. The function of the SCC is to:
Organisation, Article
2. Function of the (i) administer domestic and international disputes in accordance
SCC with the SCC Rules and other procedures or rules agreed upon
by the parties; and
(ii) provide information concerning arbitration and mediation
matters.

Appendix I— The Board shall be composed of one chairperson, a maximum of

Organisation, Article three vice-chairpersons and a maximum of 12 additional members.
3. The Board The Board shall include both Swedish and non Swedish nationals.
Appendix I— The Board shall be appointed by the Board of Directors of the
Organisation, Article Stockholm Chamber of Commerce (the “Board of Directors”). The
4. Appointment of members of the Board shall be appointed for a period of three years
the Board and, unless exceptional circumstances apply, are only eligible for re-
appointment in their respective capacities for one further three year
period.
Appendix I— The function of the Board is to take the decisions required of the SCC
Organisation, Article in administering disputes under the SCC Rules and any other rules or
6. Function of the procedures agreed upon by the parties. Such decisions include
Board decisions on the jurisdiction of the SCC, determination of advances
on costs, appointment of arbitrators, removal of arbitrators and the
fixing of arbitration costs.
Appendix The function of the Board is to take the decisions required of the SCC
I—Organisation, in administering disputes under the SCC Rules and any other rules or
Article 6. Function of procedures agreed upon by the parties. Such decisions include
the Board decisions on the jurisdiction of the SCC, determination of advances
on costs, appointment of arbitrators, decisions upon challenges to
arbitrators, removal of arbitrators and the fixing of arbitration costs.
Appendix Two members of the Board form a quorum. If a majority is not
I—Organisation, attained, the Chairperson has the casting vote. The Chairperson or a
Article 7. Decision by Vice Chairperson may take decisions on behalf of the Board in
the Board urgent matters. A committee of the Board may be appointed to take
certain decisions on behalf of the Board. The Board may delegate
decisions to the Secretariat, including decisions on advances on
costs, extension of time for rendering an award, dismissal for non-
payment of registration fee, release of arbitrators and fixing of
arbitration costs. Decisions by the Board are final.

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 SCC
Appendix The Secretariat acts under the direction of a Secretary General. The
I—Organisation, Secretariat carries out the functions assigned to it under the SCC
Article 8. The Rules. The Secretariat may also take decisions delegated to it by the
Secretariat Board.
Appendix II— As soon as an application for the appointment of an Emergency
Emergency Arbitrator has been received, the Secretariat shall send the
Arbitrator, Article 3. application to the other party.
Notice
Appendix II— 1. The Board shall seek to appoint an Emergency Arbitrator within 24
Emergency hours of receipt of the application.
Arbitrator, Article 4.
Appointment of the
Emergency
Arbitrator
Appendix II— The seat of the emergency proceedings shall be that which has been
Emergency agreed upon by the parties as the seat of the arbitration. If the seat
Arbitrator, Article 5. of the arbitration has not been agreed by the parties, the Board shall
Seat of the determine the seat of the emergency proceedings.
Emergency
Proceedings
Appendix II— Once an Emergency Arbitrator has been appointed, the Secretariat
Emergency shall promptly refer the application to the Emergency Arbitrator.
Arbitrator, Article 6.
Referral to the
Emergency
Arbitrator
Appendix II— 3. At the request of the Emergency Arbitrator, or if otherwise deemed
Emergency appropriate, the Board may decide to increase or reduce the costs
Arbitrator, Article 10. set out in paragraph (2) (i) and (ii) above, having regard to the
Costs of the nature of the case, the work performed by the Emergency Arbitrator
Emergency and the SCC and any other relevant circumstances.
Proceedings
4. If payment of the costs set out in paragraph (2) (i) and (ii) above is
not made in due time, the Secretariat shall dismiss the application.

Appendix III— 2. Where the parties have not agreed on the number of arbitrators,
Investment Treaty the Arbitral Tribunal shall consist of three arbitrators, unless the
Disputes, Art. 2. Board, having regard to the complexity of the case, the amount in
Number of dispute and any other relevant circumstances, decides that the
Arbitrators dispute is to be decided by a sole arbitrator.
Appendix IV— 1. The Board shall determine the fee of a Chairperson or sole
Schedule of Costs, arbitrator based on the amount in dispute in accordance with the
Arbitration Costs, table below.
Article 2. Fees of the
Arbitral Tribunal 2. Co-arbitrators shall each receive 60 per cent of the fee of the
Chairperson. After consultation with the Arbitral Tribunal, the Board
may decide that a different percentage shall apply.
3. The amount in dispute shall be the aggregate value of all claims,
counterclaims and set-offs. Where the amount in dispute cannot be
ascertained, the Board shall determine the Fees of the Arbitral
Tribunal having regard to all relevant circumstances.
4. In exceptional circumstances, the Board may deviate from the
amounts set out in the table.
Appendix 1. The Administrative Fee shall be determined in accordance with the
IV—Schedule of table below.
Costs, Arbitration
Costs, Article 3. 2. The amount in dispute shall be the aggregate value of all claims,
Administrative Fee counterclaims and set-offs. Where the amount in dispute cannot be
ascertained, the Board shall determine the Administrative Fee
having regard to all relevant circumstances.
3. In exceptional circumstances, the Board may deviate from the
amounts set out in the table.

Appendix In addition to the Fees of the arbitrator(s) and the Administrative

IV—Schedule of Fee, the Board shall fix an amount to cover any reasonable expenses
Costs, Arbitration incurred by the arbitrator(s) and the SCC. The expenses of the
Costs, Article 4. arbitrator(s) may include the fee and expenses of any expert
Expenses appointed by the Arbitral Tribunal pursuant to Article 34 of the
Arbitration Rules.

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 §1.08 SINGAPORE INTERNATIONAL ARBITRATION CENTRE
[A] Overview
Singapore International Arbitration Centre (SIAC), (210) an independent, non-profit
organization founded in 1991, is the youngest arbitration institution among those
considered in this book, and yet it now handles a caseload comparable with institutions
that have existed for many years. SIAC offers its arbitration services to business parties
from all over the world, though due to its location, it handles many matters arising in Asia
or involving an Asian party. SIAC awards have been enforced in many jurisdictions, most of
them in Asia. SIAC promotes its services through additional offices in Seoul and Shanghai
and through representative offices in India. The most prevalent foreign users of SIAC
arbitration are Indian parties. SIAC’s rapid growth trajectory follows the expansion of
global commerce and investment, particularly in Asia in recent decades.

[B] Governance
SIAC is governed by its Board of Directors. The Board tends to corporate governance
matters and oversees SIAC’s operations and business development.

[C] Arbitration Rules

The SIAC Rules seek to provide a state-of-the-art procedural framework for the “efficient,
expert and enforceable resolution of international disputes of all sizes and complexities,
involving parties from diverse legal systems and cultures.” Indeed the SIAC Rules include
all of the major innovations in the design of arbitral regimes, including expedited
procedures, emergency relief, consolidation and joinder, summary decision, and award
scrutiny. In addition to its international commercial arbitration rules, SIAC offers
Investment Arbitration Rules, a unique Arb-Med-Arb Protocol (AMA Protocol) in conjunction
with the Singapore International Mediation Centre (SIMC), a Code of Ethics for an
Arbitrator, and specialized arbitration rules for derivative trading and clearing.
P 106
P 107
[D] Arbitrators
SIAC maintains a panel of more than 400 arbitrators from more than 40 jurisdictions. SIAC
makes appointments on the basis of an arbitrator’s expertise, experience, and track
record.

[E] Case Management

Like the ICC, SIAC maintains a Court of Arbitration. The Court’s main functions include
maintaining a panel of arbitrators, appointing arbitrators in particular cases, and
supervising case administration. With respect to the latter, SIAC’s full-time staff manage
the financial aspects of each arbitration. These duties include collecting the parties’
deposits toward the costs of arbitration, processing the fees and expenses of the tribunal,
and rendering period accounts. SIAC also supervises and monitors the progress of each
case.

[F] Award Scrutiny

Also similar to the ICC, SIAC offers scrutiny of final awards, meant to ensure the
enforceability of awards.
Table 1.8 sets out the powers and duties of SIAC.
P 107
P 108 Table 1.8 Powers and Duties of SIAC
SIAC
PPP108
109
110
112
111 Rule 1. Scope of 1.3. “Practice Notes” mean the guidelines published by the Registrar
PP 109
110
112
113
111 Application and from time to time to supplement, regulate and implement these
Interpretation Rules;
“President” means the President of the Court and includes any Vice
President and the Registrar;
“Registrar” means the Registrar of the Court and includes any
Deputy Registrar;
“Rules” means the Arbitration Rules of the Singapore International
Arbitration Centre (6th Edition, 1 August 2016);
“SIAC” means the Singapore International Arbitration Centre; […]

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 SIAC
Article 3. Notice of 3.3. The date of receipt of the complete Notice of Arbitration by the
Arbitration Registrar shall be deemed to be the date of commencement of the
arbitration. For the avoidance of doubt, the Notice of Arbitration is
deemed to be complete when all the requirements of Rule 3.1 and
Rule 6.1(b) (if applicable) are fulfilled or when the Registrar
determines that there has been substantial compliance with such
requirements. SIAC shall notify the parties of the commencement of
the arbitration.
Article 6. Multiple 6.2. […]. Where the Court rejects the application for consolidation, in
Contracts whole or in part, the Claimant shall be required to make payment of
the requisite filing fee under these Rules in respect of each
arbitration that has not been consolidated.
6.3. Where the Claimant has filed a single Notice of Arbitration
pursuant to Rule 6.1(b) and the Court rejects the application for
consolidation, in whole or in part, it shall file a Notice of Arbitration
in respect of each arbitration that has not been consolidated, and
the Claimant shall be required to make payment of the requisite
filing fee under these Rules in respect of each arbitration that has
not been consolidated.

Article 7. Joinder of 7.4. The Court shall, after considering the views of all parties,
Additional Parties including the additional party to be joined, and having regard to the
circumstances of the case, decide whether to grant, in whole or in
part, any application for joinder under Rule 7.1. The Court’s decision
to grant an application for joinder under this Rule 7.4 is without
prejudice to the Tribunal’s power to subsequently decide any
question as to its jurisdiction arising from such decision. The Court’s
decision to reject an application for joinder under this Rule 7.4, in
whole or in part, is without prejudice to any party’s or non-party’s
right to apply to the Tribunal for joinder pursuant to Rule 7.8.
[…]
7.6. Where an application for joinder is granted under Rule 7.4, the
Court may revoke the appointment of any arbitrators appointed
prior to the decision on joinder. Unless otherwise agreed by all
parties, including the additional party joined, Rule 9 to Rule 12 shall
apply as appropriate, and the respective timelines thereunder shall
run from the date of receipt of the Court’s decision under Rule 7.4.
7.7 The Court’s decision to revoke the appointment of any arbitrator
under Rule 7.6 is without prejudice to the validity of any act done or
order or Award made by the arbitrator before his appointment was
revoked.

Article 8. 8.4. The Court shall, after considering the views of all parties, and
Consolidation having regard to the circumstances of the case, decide whether to
grant, in whole or in part, any application for consolidation under
Rule 8.1. The Court’s decision to grant an application for
consolidation under this Rule 8.4 is without prejudice to the
Tribunal’s power to subsequently decide any question as to its
jurisdiction arising from such decision. The Court’s decision to reject
an application for consolidation under this Rule 8.4, in whole or in
part, is without prejudice to any party’s right to apply to the Tribunal
for consolidation pursuant to Rule 8.7. Any arbitrations that are not
consolidated shall continue as separate arbitrations under these
Rules.

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 SIAC
8.5. Where the Court decides to consolidate two or more arbitrations
under Rule 8.4, the arbitrations shall be consolidated into the
arbitration that is deemed by the Registrar to have commenced first,
unless otherwise agreed by all parties or the Court decides otherwise
having regard to the circumstances of the case.
8.6. Where an application for consolidation is granted under Rule
8.4, the Court may revoke the appointment of any arbitrators
appointed prior to the decision on consolidation. Unless otherwise
agreed by all parties, Rule 9 to Rule 12 shall apply as appropriate,
and the respective timelines thereunder shall run from the date of
receipt of the Court’s decision under Rule 8.4.
[…]
8.10. Where an application for consolidation is granted under Rule
8.9, the Court may revoke the appointment of any arbitrators
appointed prior to the decision on consolidation.
8.11. The Court’s decision to revoke the appointment of any
arbitrator under Rule 8.6 or Rule 8.10 is without prejudice to the
validity of any act done or order or Award made by the arbitrator
before his appointment was revoked.

Article 9. Number 9.3. In all cases, the arbitrators nominated by the parties, or by any
and Appointment of third person including by the arbitrators already appointed, shall be
Arbitrators subject to appointment by the President in his discretion.
9.4. The President shall appoint an arbitrator as soon as practicable.
Any decision by the President to appoint an arbitrator under these
Rules shall be final and not subject to appeal.
9.5. The President may appoint any nominee whose appointment has
already been suggested or proposed by any party.

Article 10. Sole 10.2. If within 21 days after the date of commencement of the
Arbitrator arbitration, or within the period otherwise agreed by the parties or
set by the Registrar, the parties have not reached an agreement on
the nomination of a sole arbitrator, or if at any time either party so
requests, the President shall appoint the sole arbitrator.
Article 11. Three 11.2. If a party fails to make a nomination of an arbitrator within 14
Arbitrators days after receipt of a party’s nomination of an arbitrator, or within
the period otherwise agreed by the parties or set by the Registrar,
the President shall proceed to appoint an arbitrator on its behalf.
11.3. Unless the parties have agreed upon another procedure for
appointing the third arbitrator, or if such agreed procedure does not
result in a nomination within the period agreed by the parties or set
by the Registrar, the President shall appoint the third arbitrator, who
shall be the presiding arbitrator.

Article 12. Multi- 12.1. Where there are more than two parties to the arbitration, and a
party Appointment sole arbitrator is to be appointed, the parties may agree to jointly
of Arbitrator(s) nominate the sole arbitrator. In the absence of such joint
nomination having been made within 28 days of the date of
commencement of the arbitration or within the period otherwise
agreed by the parties or set by the Registrar, the President shall
appoint the sole arbitrator.
12.2. Where there are more than two parties to the arbitration, and
three arbitrators are to be appointed, the Claimant(s) shall jointly
nominate one arbitrator and the Respondent(s) shall jointly
nominate one arbitrator. The third arbitrator, who shall be the
presiding arbitrator, shall be appointed in accordance with Rule 11.3.
In the absence of both such joint nominations having been made
within 28 days of the date of commencement of the arbitration or
within the period otherwise agreed by the parties or set by the
Registrar, the President shall appoint all three arbitrators and shall
designate one of them to be the presiding arbitrator.

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 SIAC
Article 13. 13.2. In appointing an arbitrator under these Rules, the President
Qualifications of shall have due regard to any qualifications required of the arbitrator
Arbitrator(s) by the agreement of the parties and to such considerations that are
relevant to the impartiality or independence of the arbitrator.
13.3. The President shall also consider whether the arbitrator has
sufficient availability to determine the case in a prompt and efficient
manner that is appropriate given the nature of the arbitration.

Article 15. Notice of 15.4. After receipt of a notice of challenge under Rule 15.2, the
Challenge Registrar may order a suspension of the arbitral proceedings until
the challenge is resolved. Unless the Registrar orders the suspension
of the arbitral proceedings pursuant to this Rule 15.4, the challenged
arbitrator shall be entitled to continue to participate in the
arbitration pending the determination of the challenge by the Court
in accordance with Rule 16.
15.5. Where an arbitrator is challenged by a party, the other party
may agree to the challenge, and the Court shall remove the
arbitrator if all parties agree to the challenge. The challenged
arbitrator may also voluntarily withdraw from office. In neither case
does this imply acceptance of the validity of the grounds for the
challenge.

Article 16. Decision 16.1. If, within seven days of receipt of the notice of challenge under
on Challenge Rule 15, the other party does not agree to the challenge and the
arbitrator who is being challenged does not withdraw voluntarily
from office, the Court shall decide the challenge. The Court may
request comments on the challenge from the parties, the challenged
arbitrator and the other members of the Tribunal (or if the Tribunal
has not yet been constituted, any appointed arbitrator), and set a
schedule for such comments to be made.
16.2. If the Court accepts the challenge to an arbitrator, the Court
shall remove the arbitrator, and a substitute arbitrator shall be
appointed in accordance with the procedure applicable to the
nomination and appointment of the arbitrator being replaced. The
time limits applicable to the nomination and appointment of the
substitute arbitrator shall commence from the date of the
Registrar’s notification to the parties of the decision by the Court.
16.3. If the Court rejects the challenge to an arbitrator, the
challenged arbitrator shall continue with the arbitration.
16.4. The Court’s decision on any challenge to an arbitrator under
this Rule 16 shall be reasoned, unless otherwise agreed by the
parties, and shall be issued to the parties by the Registrar. Any such
decision on any challenge by the Court shall be final and not subject
to appeal.
Article 17. 17.3. The President may, at his own initiative and in his discretion,
Replacement of an remove an arbitrator who refuses or fails to act or to perform his
Arbitrator functions in accordance with the Rules or within prescribed time
limits, or in the event of a de jure or de facto impossibility of an
arbitrator to act or perform his functions, or if the arbitrator does
not conduct or participate in the arbitration with due diligence
and/or in a manner that ensures the fair, expeditious, economical
and final resolution of the dispute. The President shall consult the
parties and the members of the Tribunal, including the arbitrator to
be removed (or if the Tribunal has not yet been constituted, any
appointed arbitrator) prior to the removal of an arbitrator under this
Rule.
Article 19. Conduct of 19.7. The President may, at any stage of the proceedings, request the
the Proceedings parties and the Tribunal to convene a meeting to discuss the
procedures that will be most appropriate and efficient for the case.
Such meeting may be conducted in person or by any other means.
Rule 22. Language of 22.2. If a party submits a document written in a language other than
the Arbitration the language(s) of the arbitration, the Tribunal, or if the Tribunal has
not been constituted, the Registrar, may order that party to submit
a translation in a form to be determined by the Tribunal or the
Registrar.

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 SIAC
Article 28. 28.1. If any party objects to the existence or validity of the
Jurisdiction of the arbitration agreement or to the competence of SIAC to administer
Tribunal an arbitration, before the Tribunal is constituted, the Registrar shall
determine if such objection shall be referred to the Court. If the
Registrar so determines, the Court shall decide if it is prima facie
satisfied that the arbitration shall proceed. The arbitration shall be
terminated if the Court is not so satisfied. Any decision by the
Registrar or the Court that the arbitration shall proceed is without
prejudice to the power of the Tribunal to rule on its own jurisdiction.
Rule 32. The Award 32.3. Before making any Award, the Tribunal shall submit such
Award in draft form to the Registrar. Unless the Registrar extends
the period of time or unless otherwise agreed by the parties, the
Tribunal shall submit the draft Award to the Registrar not later than
45 days from the date on which the Tribunal declares the
proceedings closed. The Registrar may, as soon as practicable,
suggest modifications as to the form of the Award and, without
affecting the Tribunal’s liberty to decide the dispute, draw the
Tribunal’s attention to points of substance. No Award shall be made
by the Tribunal until it has been approved by the Registrar as to its
form.
Article 34. Fees and 34.7. In all cases, the costs of the arbitration shall be finally
Deposits determined by the Registrar at the conclusion of the proceedings. If
the claim and/or counterclaim is not quantified, the Registrar shall
finally determine the costs of the arbitration, as set out in Rule 35, in
his discretion. The Registrar shall have regard to all the
circumstances of the case, including the stage of proceedings at
which the arbitration concluded. In the event that the costs of the
arbitration determined are less than the deposits made, there shall
be a refund in such proportions as the parties may agree, or failing
an agreement, in the same proportions as the deposits were made.
34.9. In exceptional circumstances, the Registrar may direct the
parties to pay an additional fee, in addition to that prescribed in the
applicable Schedule of Fees, as part of SIAC’s administration fees.

Article 36. Tribunal’s 36.1. The fees of the Tribunal shall be fixed by the Registrar in
Fees and Expenses accordance with the applicable Schedule of Fees or, if applicable,
with the method agreed by the parties pursuant to Rule 34.1, and the
stage of the proceedings at which the arbitration concluded. In
exceptional circumstances, the Registrar may determine that an
additional fee over that prescribed in the applicable Schedule of
Fees shall be paid.
Article 40. Decisions 40.1. Except as provided in these Rules, the decisions of the
of the President, the President, the Court and the Registrar with respect to all matters
Court and the relating to an arbitration shall be conclusive and binding upon the
Registrar parties and the Tribunal. The President, the Court and the Registrar
shall not be required to provide reasons for such decisions, unless
the Court determines otherwise or as may be provided in these Rules.
The parties agree that the discussions and deliberations of the Court
are confidential.
40.2. Save in respect of Rule 16.1 and Rule 28.1, the parties waive any
right of appeal or review in respect of any decisions of the President,
the Court and the Registrar to any State court or other judicial
authority.

Schedule 1— 1.3. The President shall, if he determines that SIAC should accept the
Emergency application for emergency interim relief, seek to appoint an
Arbitrator Emergency Arbitrator within one day of receipt by the Registrar of
such application and payment of the administration fee and
deposits.

§1.09 UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW (211)

[A] Overview
UNCITRAL was established by the General Assembly of the United Nations in 1966. Its
primary mission is to act as a vehicle by which the United Nations can play an active role
in reducing or removing obstacles to the flow of trade by addressing some of the
disparities in national laws governing international trade. UNCITRAL’s general mandate is
to advance the progressive harmonization and unification of the law of international trade.
UNCITRAL is composed of 60 Member States elected by the General Assembly for terms of

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 six years, with half of the elected Members’ terms expiring every three years. Non-Member
States are invited to participate in the various working groups established by UNCITRAL in
the capacity of observers.
One of UNCITRAL’s early achievements was to establish a set of arbitration rules that can
be adopted for use in ad hoc arbitrations. As such, the UNCITRAL Arbitration Rules are the
result of the deliberative process of a multilateral intergovernmental organization and
reflect the perspectives of different legal traditions.
P 113
P 114
[B] Governance
Unlike the institutional arbitration rules previously discussed, the UNCITRAL Rules were
designed to be used in noninstitutional arbitrations, also referred to as ad hoc arbitration.
Therefore, there is no formal governance under the UNCITRAL Rules. The UNCITRAL Rules
can also be used for arbitrations administered by any institution selected by the parties.
In an ad hoc arbitration governed by the UNCITRAL Rules, the parties may nominate an
appointing authority to appoint the tribunal if the parties themselves are not able to
agree. If no appointing authority is selected by the parties, the UNCITRAL Rules provide
that the Secretary-General of the Permanent Court of Arbitration (PCA) in The Hague will
designate an appointing authority.

[C] Arbitration Rules

In 1976, UNCITRAL’s Arbitration Rules were approved by the General Assembly of the United
Nations. (212) In addition to having the imprimatur of the United Nations, other advantages
of the UNCITRAL Arbitration Rules include the fact that there is a growing body of
jurisprudence interpreting the rules.
Numerous multilateral and bilateral investment protection and promotion treaties, Free
Trade Agreements, and foreign investment laws provide for arbitration under the UNCITRAL
Arbitration Rules. The rules have also been adopted by such treaty-based bodies as the
Iran-United States Claims Tribunal.
The UNCITRAL Rules are widely used, both in ad hoc arbitrations and in arbitrations
administered by many of the well-established arbitral institutions. They serve as the basis
for the rules of a large number of regional arbitral institutions, many of which have
adopted the UNCITRAL Rules with only those modifications necessary to adapt the Rules
for use in institutional arbitrations. Some institutions, such as the LCIA and the SCC, have
adopted supplementary procedures that may be used when the institution is called upon
to administer an arbitration or appoint an arbitral tribunal under the UNCITRAL Rules.
On June 29, 2010, UNCITRAL revised its rules, updating the 1976 version of the UNCITRAL
Rules and making provision for the use of modern communications technologies. Some
regional international arbitral institutions that had adopted the 1976 UNCITRAL Rules have
already amended their rules to bring them into line with the 2010 UNCITRAL Rules and it is
expected that others will soon follow.
Some of the more well-known arbitral institutions that have either endorsed or largely
modeled their arbitration rules on the 1976 UNCITRAL Rules, or the 2010 UNCITRAL Rules,
include:
P 114 – Cairo Regional Centre for International Commercial Arbitration (CRCICA): (213) Founded
P 115 in 1978, CRCICA is an independent, non-profit organization offering services in
conciliation, mediation, technical expertise, and arbitration. In addition to its
headquarters in Cairo, CRCICA also maintains an office in Alexandria, specializing in
maritime arbitration. The current CRCICA Rules are based upon the 2010 UNCITRAL
Rules, with minor modifications. They entered into force on March 1, 2011, and apply
to arbitral proceedings that commenced on or after this date. The CRCICA Rules
include a fee schedule for administrative costs and arbitrator fees based on the
amount in dispute between the parties.
– The Commercial Arbitration and Mediation Centre for the Americas (CAMCA): (214)
Following the passage of the NAFTA, CAMCA was founded in 1996 by the AAA, the
British Columbia International Commercial Arbitration Centre, the Mexico City
National Chamber of Commerce, and the Quebec National and International
Commercial Arbitration Centre and is governed by representatives from each of the
founding institutions. CAMCA cases may be filed in the offices of any of its founding
institutions. While CAMCA is a private organization independent of NAFTA, its Rules,
which draw upon the principles reflected in the 1976 UNCITRAL Rules, are intended to
be “consistent with the objectives of NAFTA.” CAMCA’s Rules include an administrative
fee schedule that is based on the amount in dispute between the parties. Arbitrator
compensation is negotiated between the parties and arbitrators through the case
administrator on the basis of hourly rates.
– Inter-American Commercial Arbitration Commission (IACAC): (215) The IACAC was
established in 1934 by a resolution of the Seventh Annual International Conference of
American States in Montevideo, Uruguay. It is based in Washington, D.C. and is
sponsored by the Organization of American States (OAS). The IACAC is composed of
one Delegate and one Alternative Delegate from each of its National Sections. The

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 National Sections are composed of members of the business and legal communities
of their respective countries. The IACAC administers dispute resolution services
throughout the western hemisphere through its National Sections. Each National
Section maintains a panel of respected arbitrators. IACAC Arbitrations are conducted
substantively under IACAC Rules of Procedure (amended effective April 1, 2002), which
are modeled on the 1976 UNCITRAL Rules. The Panama Convention provides for
arbitration under the IACAC Rules, unless the parties have expressly agreed to use
some other rules. (216)
P 115
P 116
– Asian International Arbitration Centre (AIAC; previously known as the Kuala Lumpur
Regional Centre for Arbitration): (217) The AIAC was established in 1978 under the
auspices of the Asian-African Legal Consultative Committee (an intergovernmental
organization) with the assistance of the Government of Malaysia. The Centre is non-
profit and serves the Asian and Pacific Regions. It was established with the objective
of providing a system for the settlement of disputes for parties engaged in trade and
commerce with and within the region. It also administers international arbitrations
and renders assistance in connection with the enforcement of awards. Besides
arbitration, it provides other options for the settlement of disputes such as
mediation/conciliation under the Conciliation Rules of the Centre. The AIAC Rules are
based on the 2010 UNCITRAL Arbitration Rules with minor modifications.
In December 2013, the UNCITRAL Rules were amended to reflect the adoption of the
UNCITRAL Rules on Transparency. These were intended to address criticisms of investment
arbitration by bringing transparency to arbitrations that are in the public interest and
involve public funds. (218) The Rules on Transparency went into effect on April 1, 2014, and
are, by default, applicable to UNCITRAL arbitrations brought under treaties ratified after
that date. Parties in UNCITRAL disputes stemming from treaties prior to the effective date
may “opt in” to the Rules on Transparency, as can parties in ad hoc arbitrations in other
institutions. (219) These Rules of Transparency provide for prompt and mandatory
disclosure that an investment arbitration has been initiated, including the facts of who the
parties are, the industry at issue, and the relevant treaty. They also require mandatory
disclosure of documents submitted to and published by the tribunal, disclosure of
documents submitted by third parties, and mandate open hearings. The Rules on
Transparency do provide exceptions for publication of confidential or protected
information, which follow the Respondent State’s law but is overseen by the tribunal. (220)

[D] Arbitrators
P 116 Under the UNCITRAL regime, it is for the parties to agree on the selection of arbitrators.
P 117 Absent party agreement on the number of arbitrators, the arbitral tribunal is generally
composed of three arbitrators. (221) If the parties agree that a sole arbitrator is to be
appointed but are unable to reach an agreement on the sole arbitrator within 30 days, he
or she will be appointed by the appointing authority. (222) Where the appointing authority
is selected to appoint the sole arbitrator, the appointing authority will usually select the
arbitrator based upon the parties’ preferences ranked on a list of at least three
candidates. (223) If three arbitrators are to serve on the tribunal, each party appoints an
arbitrator, and those two-party appointed arbitrators appoint a third and presiding
arbitrator. (224) If the parties cannot agree on the appointment of arbitrators, either party
may make a request to the Secretary-General of the PCA to designate an appointing
authority to do so. (225) There is no restriction on the nationality of arbitrators appointed
under the UNCITRAL Rules.

[E] Case Management

UNCITRAL ad hoc tribunals have very broad discretion in determining all matters relating
to the administration of the arbitration, subject only to any agreement between the
parties. Since there is, by definition, no administering authority in such an arbitration, an
UNCITRAL arbitral tribunal itself undertakes administrative tasks relating to the
management of the arbitration that would otherwise fall to the administering authority.
However, parties may select an administering institution (such as the PCA, the LCIA, or the
SCC) for UNCITRAL arbitration proceedings, in which case the case management system of
that institution will be used.

[F] Award Scrutiny

Because they were designed principally for use in ad hoc arbitrations, the UNCITRAL Rules
make no provision for any outside authority to scrutinize the tribunal’s award.
P 117 We have reproduced in Table 1.9 the UNCITRAL rules relating to the powers and duties of
P 118 the PCA.
P 118
P 119 Table 1.9 Powers and Duties of the PCA in UNCITRAL Arbitration

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 UNCITRAL Arbitration Rules (with new article 1, paragraph 4, as adopted in 2013)
Rule 6. 6.2. If all parties have not agreed … any party may request the Secretary-
Designating and General of the PCA to designate the appointing authority.
Appointing
Authorities […]
6.4 … if the appointing authority refuses to act, or if it fails to appoint an
arbitrator within 30 days after it receives a party’s request to do so … any
party may request the Secretary-General of the PCA to designate a
substituting appointing authority.
6.5. In exercising their function under these Rules, the appointing
authority and the Secretary-General of the PCA may require from any
party and the arbitrators the information they deem necessary and they
shall give the parties and where appropriate, the arbitrators, an
opportunity to present their views in any manner they consider
appropriate. All such communications to and from the appointing
authority and the Secretary-General of the PCA shall also be provided by
the sender to all other parties.

Article 7. 1. If the parties have not previously agreed on the number of arbitrators,
Number of and if within 30 days after the receipt by the respondent of the notice of
Arbitrators arbitration the parties have not agreed that there shall be only one
arbitrator, three arbitrators shall be appointed.
2. Notwithstanding paragraph 1, if no other parties have responded to a
party’s proposal to appoint a sole arbitrator within the time limit
provided for in paragraph 1 and the party or parties concerned have
failed to appoint a second arbitrator in accordance with article 9 or 10,
the appointing authority may, at the request of a party, appoint a sole
arbitrator pursuant to the procedure provided for in article 8, paragraph
2, if it determines that, in view of the circumstances of the case, this is
more appropriate.

Article 8. 1. If the parties have agreed that a sole arbitrator is to be appointed and
Appointment of if within 30 days after receipt by all other parties of a proposal for the
Arbitrators appointment of a sole arbitrator the parties have not reached agreement
thereon, a sole arbitrator shall, at the request of a party, be appointed by
the appointing authority.
2. The appointing authority shall appoint the sole arbitrator as promptly
as possible. In making the appointment, the appointing authority shall
use the following list-procedure, unless the parties agree that the list-
procedure should not be used or unless the appointing authority
determines in its discretion that the use of the list-procedure is not
appropriate for the case:
(a) The appointing authority shall communicate to each of the parties
an identical list containing at least three names;
(b) Within 15 days after the receipt of this list, each party may return
the list to the appointing authority after having deleted the name
or names to which it objects and numbered the remaining names
on the list in the order of its preference;

(c) After the expiration of the above period of time the appointing
authority shall appoint the sole arbitrator from among the names
approved on the lists returned to it and in accordance with the
order of preference indicated by the parties;(d) If for any reason the
appointment cannot be made according to this procedure, the
appointing authority may exercise its discretion in appointing the
sole arbitrator.
Article 9. 1. If three arbitrators are to be appointed, each party shall appoint one
Appointment of arbitrator. The two arbitrators thus appointed shall choose the third
Arbitrators arbitrator who will act as the presiding arbitrator of the arbitral tribunal.
2. If within 30 days after the receipt of a party’s notification of the
appointment of an arbitrator the other party has not notified the first
party of the arbitrator it has appointed, the first party may request the
appointing authority to appoint the second arbitrator.
3. If within 30 days after the appointment of the second arbitrator the
two arbitrators have not agreed on the choice of the presiding arbitrator,
the presiding arbitrator shall be appointed by the appointing authority in
the same way as a sole arbitrator would be appointed under article 8.

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 FURTHER READING
Davis Caron & Lee Caplan, The UNCITRAL Arbitration Rules: A Commentary (2d ed., Oxford
2013).
Vincent Connor & Mohammed Talib, Joinder, Intervention and Consolidation under the HKIAC
Administered Arbitration Rules 2013, 4 Asian Dis. Rev. 190-195 (2014).
William Lawrence Craig, William W. Park & Jan Paulsson, International Chamber of
Commerce Arbitration (4th ed., Oceana Publications 2016).
Clyde Croft, Christopher Kee & Jeff Waincymer, A Guide to the UNCITRAL Arbitration Rules
(Cambridge 2013).
Yves Derains & Eric A. Schwarz, Guide to the ICC Rules of Arbitration (2d ed., Kluwer Law
International 2005).
Jason Fry, Simon Greenberg & Francesca Mazza, The Secretariat’s Guide to ICC Arbitration
(International Chamber of Commerce 2012).
Jacob Grierson & Annet Van Hooft, Arbitrating under the 2012 ICC Rules: An Introductory
User’s Guide (Kluwer Law International 2012).
Martin Gusy, James Hosking & Frank Schwarz, A Guide to ICDR International Arbitration Rules
(Oxford 2011).
Mark Mangan, Lucy Reed & John Choong, A Guide to the SIAC Arbitration Rules (Oxford
University Press 2014).
Michael Moser & Chiann Bao, A Guide to the HKIAC Arbitration Rules (Oxford University Press
2017).
P 119
P 120
Lucy Reed et al., A Guide to the ICC Rules of Arbitration (2d ed., Kluwer Law International
2005).
Lucy Reed et al., Guide to ICSID Arbitration (2d ed., Kluwer Law International 2010).
Christoph Schreuer, The ICSID Convention: A Commentary (2d ed., Cambridge 2009).
William Slate et al., ICDR Handbook on International Arbitration Practice (2d ed.,
International Centre for Dispute Resolution 2017).
Jingzhou Tao, Arbitration Law and Practice in China (3d ed., Wolters Kluwer 2012).
Peter Turner & Reza Mohtashami, A Guide to the LCIA Arbitration Rules (Oxford 2009).
Shai Wade et al., A Commentary on the LCIA Arbitration Rules 2014 (Sweet & Maxwell 2014).
Thomas Webster, Handbook of UNCITRAL Arbitration: Commentary, Precedents and Models
for UNCITRAL-based Arbitration Rules (2d ed., Sweet & Maxwell 2014).
P 120

References
1) The HKIAC, LCIA, and SIAC Rules expressly provide that the decisions of the
administering institution are final and, to the extent permitted by any applicable
law, not subject to appeal. HKIAC Rules, Art. 2.2; LCIA Rules, Art. 29.2; SIAC Rules, Rule
40.2.
2) See generally American Arbitration Association, http://www.adr.org (accessed Feb. 1,
2018) (providing up-to-date information regarding nearly all aspects of the AAA and
ICDR).
3) ICDR, 2017 Annual Report, 20 (May 22, 2018).
4) ICDR Rules, Art. 1.1 states: “Where parties have agreed to arbitrate disputes under
these International Arbitration Rules (‘Rules’) or have provided for arbitration of an
international dispute by the International Centre for Dispute Resolution (ICDR) or the
American Arbitration Association (AAA) without designating particular rules, the
arbitration shall take place in accordance with these Rules as in effect at the date of
commencement of the arbitration, subject to modifications that the parties may
adopt in writing.” (emphasis added); see also ICDR Rules 2009, Art. 1.1.
5) ICDR Rules 2014, Art. 1.4. The International Expedited Procedures presumptively
apply in any case in which no disclosed claim or counterclaim exceeds USD 250,000
(exclusive of interest and costs of the arbitration) unless the parties agree or the ICDR
determines otherwise. They provide for resolution of the dispute by a sole arbitrator,
who must issue a procedural order within 14 days of appointment, and establish strict
deadlines for key aspects of the arbitral process, including written submissions by
the parties and issuance of the award.
6) Id., at Art. 5.
7) Id. The Rules also invite the parties to express “any interest in mediating the dispute”
in the Notice of Arbitration or Answer. ICDR Rules, Arts. 2.3(g) and 3.4.

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 8) Id., at Arts. 7, 8.
9) Id., at Art. 21.10.
10) ICDR Rules, Art. 19(4). The LCIA Rules similarly decline to grant such a power to the
institution. See LCIA Rules, Art. 23; Rulebook, Section 3.3.
11) Id., at Art. 13.2. The 2009 ICDR Rules merely required disclosure of “any circumstance
likely to give rise to justifiable doubts as to the arbitrator’s impartiality or
independence.” ICDR Rules 2009, Art. 7.1.
12) ICDR Rules 2014, Art. 14.4.
13) Id., at Art. 16. The ICDR has not, as of the time of this writing, issued any guidelines
governing the conduct of party representatives.
14) ICDR Rules 2014, Arts. 12.1, 12.2.
15) See generally China International Economic and Trade Arbitration Commission,
www.cietac.org (accessed Feb. 1, 2018) (providing up-to-date information regarding
nearly all aspects of CIETAC).
16) See CIETAC Rules, Art. 2(3) and Appx. I.
17) See CIETAC, Offices, www.cietac.org/index.php?m=Page&a=index&id=247&l=en
(accessed Feb. 1, 2018).
18) CIETAC, About Us: Introduction, www.cietac.org/index.php?
m=Page&a=index&id=34&l=en(accessed Feb. 1, 2018).
19) CIETAC, Statistical Data, http://www.cietac.org/index.php?m=Page&a=index&id=24
(accessed July 16, 2018).
20) CIETAC Rules, Arts. 27-28, 33.
21) Id., at Art. 32.
22) Id., at Art. 2.1.
23) Arbitration Law of the People’s Republic of China (effective Sept. 1, 1995).
24) Id., at Art. 84.
25) The CIETAC Rules were substantially updated in 2012, including the following key
changes: (i) granting tribunals broader discretion in the absence of an agreement by
the parties to select the place of arbitration, the language of the arbitration, and to
decide upon rules for the exchange of documents; (ii) allowing for the consolidation
of arbitration cases involving the same parties, subject to their consent; (iii) new
provisions for appointing tribunals in the case of multiparty arbitrations; (iv)
permitting tribunals seated abroad to grant interim measures or injunctions by way
of a procedural order or an interlocutory award, and emergency relief; and (v)
allowing CIETAC to delegate to tribunals the ability to decide upon challenges to their
own jurisdiction.
26) CIETAC Rules, Art. 9.
27) Id.
28) Id., at Arts. 47.1, 47.7.
29) Id., at Art. 47.8.
30) CIETAC Rules, Art. 7(2).
31) ICC Rules, Art. 18(1); SCC Rules, Art. 25(1).
32) CIETAC Rules, Arts. 6 and 18(3).
33) See section §3.03 of this book (Jurisdictional Objections).
34) Id.
35) CIETAC Rules, Art. 81(1). Only ICSID approximates this rule, indicating that, in the
absence of party agreement on language, they must present their case in one of
ICSID’s three official languages (English, French, or Spanish). ICSID Rules, Rule 22(1).
36) Li Hu, Deputy Secretary-General of CIETAC, Presentation at Chartered Institute of
Arbitrators (Sept. 28, 2011).
37) CIETAC Rules 2005, Arts. 17, 18.
38) See CIETAC Rules 2012, Art. 21.2.
39) CIETAC Rules, Art. 23.2, Appx. III.
40) CIETAC Financial Disputes Arbitration Rules (revised and adopted by the China
Council for the Promotion of International Trade/China Chamber of International
Commerce on Nov. 4, 2014, effective as of Jan. 1, 2015).
41) CIETAC Construction Project Disputes Review Rules (revised and adopted by the China
Council for the Promotion of International Trade/China Chamber of International
Commerce on Nov. 4, 2014, effective as of Jan. 1, 2015).
42) CIETAC Online Arbitration Rules (revised and adopted by the China Council for the
Promotion of International Trade/China Chamber of International Commerce on Nov.
4, 2014, effective as of Jan. 1, 2015).
43) CIETAC Rules, Arts. 25.2, 28.
44) CIETAC Rules 2005, Art. 21.2.
45) CIETAC, About Us: Introduction, http://www.cietac.org/index.php?
m=Page&a=index&id=34&l=en (accessed Jan. 28, 2019).
46) CIETAC Rules, Art. 26.
47) Presentation at Chartered Institute of Arbitrators, supran. 36.
48) CIETAC Rules, Art. 2(6).
49) CIETAC Rules, Art. 51.
50) Id., at Art. 49.4.
51) See generally HKIAC, www.hkiac.org (accessed Aug. 7, 2018) (providing up-to-date
information regarding nearly all aspects of HKIAC).
52) HKIAC, 2017 Statistics, http://www.hkiac.org/about-us/statistics (accessed Aug. 7,
2018).

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 53) The BRI was launched by the Chinese Government in 2013 as an outbound investment
strategy to stimulate development along the trade corridors across Asia, the Middle
East, Africa, and Europe. The Chinese Government has established the Silk Road Fund
and the Asian Infrastructure Development Bank to support the BRI. See generally
HKIAC, Overview of the Belt and Road Initiative, http://www.hkiac.org/Belt-and-
Road/overview-belt-and-road-initiative/ (accessed Aug. 7, 2018).
54) HKIAC, Why HKIAC for Belt and Road Disputes, http://www.hkiac.org/Belt-and-
Road/why-hkiac-belt-and-road-disputes/ (accessed Aug. 7, 2018).
55) Id.
56) HKIAC, Council Members and Committees, http://www.hkiac.org/about-us/council-
members-and-committees/ (accessed Aug. 7, 2018).
57) HKIAC, Appointment Committee, http://www.hkiac.org/about-us/council-members-
and-committees/appointments-committee (accessed Aug. 7, 2018).
58) HKIAC, Rules & Practice Notes, http://www.hkiac.org/arbitration/rules-practice-notes
(accessed Aug. 7, 2018).
59) See generally HKIAC, 2005 HKIAC Procedures for the Administration of International
Arbitration, http://www.hkiac.org/arbitration/rules-practice-notes/2005-procedures
(accessed Aug. 7, 2018).
60) HKIAC, 2018 Administered Arbitration Rules, http://www.hkiac.org/arbitration/rules-
practice-notes/administered-arbitration-rules (accessed Aug. 7, 2018).
61) Id.
62) HKIAC Rules, Art. 1.4.
63) Id.
64) HKIAC Rules, Arts. 27, 28, 29. Compare HKIAC Rules 2008, Art. 14.6. These complex
proceedings articles are the most in-depth compared to the other rules considered in
this book. For further discussion, see section §10.03 on “Consolidation of Claims and
Joinder of Parties.”
65) HKIAC Rules, Schedule 4.
66) HKIAC, supran. 51.
67) HKIAC Rules, Art. 42. See generally HKIAC, Short Form Arbitration Rules (effective Aug.
1, 1992); HKIAC, “Documents Only” Procedure (effective Jan. 1, 2000); HKIAC, Small
Claims Procedure (effective July 4, 2003).
68) HKIAC, Criteria and Applicable Procedure,
http://www.hkiac.org/arbitration/arbitrators/criteria-application (accessed Aug. 8,
2018).
69) HKIAC Rules, Art. 9.1.
70) HKIAC, Criteria and Applicable Procedure,
http://www.hkiac.org/arbitration/arbitrators/criteria-application (accessed Aug. 8,
2018).
71) Id.
72) HKIAC, supran. 51.
73) HKIAC, Secretariat, http://www.hkiac.org/about-us/secretariat (accessed Aug. 8, 2018).
74) HKIAC, The Steps in an HKIAC Administered Arbitration,
http://www.hkiac.org/arbitration/process (accessed Aug. 8, 2018).
75) Michael Moser & Chiann Bao, A Guide to the HKIAC Arbitration Rules, ¶¶ 3.23-3.25
(Oxford University Press 2017).
76) Id.
77) HKIAC Rules, Art. 13.4; see generally HKIAC, Secretariat, http://www.hkiac.org/about-
us/secretariat (accessed Aug. 8, 2018).
78) Moser & Bao, supran. 75, at ¶¶ 11.49-11.50.
79) See Ch. 8 (Costs and Fees) for detailed discussion of HKIAC costs.
80) See generally ICC, www.iccwbo.org (accessed Feb. 1, 2018) (providing up-to-date
information regarding nearly all aspects of the ICC).
81) ICC, Our Mission, https://iccwbo.org/about-us/who-we-are/our-mission/ (accessed
July 11, 2018).
82) ICC, ICC Commission Report: States, State Entities and ICC Arbitration 4-6 (revised June
2017).
83) ICC, News: ICC announces 2017 figures confirming global reach and leading position for
complex, high-value disputes (Mar. 7, 2018), https://iccwbo.org/media-wall/news-
speeches/icc-announces-2017-figures-confirming-global-reach-leadi... (accessed July
16, 2018).
84) For detailed information on the governance of the ICC, see ICC, Governance,
http://www.iccwbo.org/about-icc/governance/ (accessed Feb. 1, 2018).
85) See generally ICC Rules, Appx. I, Art. 3.
86) Id., at Appx. I, Art. 3(5). A list of members of the ICC Court is available on the ICC’s
website, ICC, List of Current Court Members, http://www.iccwbo.org/About-
ICC/Organization/Dispute-Resolution-Services/ICC-International-Court-of-...
(accessed Feb. 1, 2018).
87) ICC Rules 1998, Art. 1; ICC Rules 2012, Art. 1.2.
88) See ICC, Functions of the ICC International Court of Arbitration,
http://www.iccwbo.org/About-ICC/Organization/Dispute-Resolution-Services/ICC-
International-Court-of-... (accessed Feb. 1, 2018).
89) ICC Rules 2017, Art. 1(2).
90) Id., at Appx. I, Art. 1(1)-(3).

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 91) Id.
92) Id., at Appx. I, Art. 5.
93) Id., at Appx. II, Art. 4.2.
94) Id., at Appx. I, Art. 4.
95) Id.
96) Id., at Appx. I, Art. 7.
97) Id., at Appx. I, Art. 6.
98) Id., at Appx. II, Art. 1(1)-(6). In addition, the President and the Secretary-General may
give approval for academic researchers to access a limited amount of ICC Court
Materials. Id., at Appx. II, Art. 1(5).
99) Id., at Appx. II, Art. 1(7)-(8).
100) Id., at Appx. II, Art. 3.
101) Id., Appx. II, Art. 2(1)-(2). If any individual who is an officer of the ICC Court is involved
with an arbitration, the Secretary-General of the Court must be informed and the
individual must be screened from any ICC Court proceedings dealing with the matter.
Id., at Appx. II, Art. 2(3)-(4).
102) Id., at Appx. II, Art. 3.
103) Note that where relevant, therefore, reference will be made to both sets of rules in
this Section.
104) ICC Rules 2012, Arts. 7-10.
105) Id., at Art. 13(4)(a).
106) Id., at Art. 29.
107) Id., at Art. 11.
108) Id., at Art. 22(3).
109) ICC Rules 2017, Art. 30.2; Id., at Appx. VI, Art. 1.2.
110) ICC Rules 2017, Appx. VI, Art. 3.
111) ICC, Rules for a Pre-arbitral Referee Procedure, http://www.iccwbo.org/Products-and-
Services/Arbitration-and-ADR/Pre-arbitral-referee/Rules-for-a-Pre... (Prearbitral
Referee Rules) (accessed Feb. 1, 2018). The ICC also offers a Documentary Credit
Dispute Resolution Expertise (DOCDEX) offering international traders and bankers a
simple and easy way to resolve documentary credit disputes. See ICC, Introduction to
ICC DOCDEX, http://www.iccwbo.org/products-and-services/arbitration-and-
adr/docdex/ (accessed Feb. 1, 2018).
112) Id., at Arts. 3.1, 3.2.2(d), 4.5.
113) Id., at Art. 2.1.
114) Id., at Art. 6.3.
115) Id., at Art. 5.3.
116) ICC Mediation Rules 2017.
117) ICC Expert Rules 2015.
118) ICC, Mediation and ADR Statistics, http://www.iccwbo.org/Products-and-
Services/Arbitration-and-ADR/Mediation/Introduction/Mediation-and... (accessed
Feb. 1, 2018).
119) ICC Expert Rules 2015.
120) Id.
121) Id.
122) ICC Rules 2017, Art. 12(1)-(2).
123) Id., at Art. 12(3).
124) Id., at Art. 12(4)-(5).
125) ICC, Global Network: National committees, https://iccwbo.org/about-us/global-
network/regional-offices/ (ICC National Committees) (accessed Feb. 1, 2018).
126) Id.
127) The ICC Secretariat established the New York office to provide parties, counsel, and
arbitrators in disputes involving North American parties, which made up nearly 10%
of the cases filed with the ICC Court in 2012, more convenient access to the Court’s
services. SICANA is the U.S. corporate entity responsible for administering cases
under the ICC Rules and for promoting ICC dispute resolution services in North
America. See ICC, News: International Court of Arbitration establishes presence in New
York, https://iccwbo.org/media-wall/news-speeches/international-court-of-
arbitration-establishes-presence-... (accessed Feb. 1, 2018).
128) See ICC, Secretariat of the Court, http://www.iccwbo.org/About-
ICC/Organization/Dispute-Resolution-Services/ICC-International-Court-of-...
(accessed Feb. 1, 2018).
129) Of the institutions under consideration, CIETAC (Art. 51) and SIAC (Rule 32.3) also offer
award scrutiny.
130) ICC Rules, Art. 34.
131) Id., at Art. 35(1).
132) See generally International Centre for Settlement of Investment Disputes,
https://icsid.worldbank.org/en/ (accessed Feb. 1, 2018) (providing up-to-date
information regarding nearly all aspects of ICSID).
133) The PCA also offers Optional Rules for Arbitrating Disputes Between Two Parties of
Which One Is a State. Unlike the ICSID regime, the PCA Rules are not always
administered by an arbitration body but can be used in ad hoc arbitration
proceedings. Like the PCA Rules, the SCC Rules and UNCITRAL Rules are commonly
used in investor-state disputes.

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 134) ICSID Convention, Report of the Executive Directors on the Convention on the
Settlement of Investment Disputes Between States and Nationals of Other States (ICSID
Convention), ¶¶ 9, 12,
http://icsidfiles.worldbank.org/icsid/ICSID/StaticFiles/basicdoc/partB-
section03.htm (accessed Feb. 1, 2018).
135) ICSID, List of Contracting States and Other Signatories to the Convention (as of April 12
2019),
https://icsid.worldbank.org/en/Documents/icsiddocs/List%20of%20Contracting%20S
tates%20and%20Other%20... (accessed July 8, 2019).
136) These figures include cases brought under the ICSID Convention as well as under the
Additional Facility Rules. The distinction is explained in the subsection of this
Chapter entitled “Arbitration Rules.” ICSID, The ICSID Caseload—Statistics (Issue 2018-
1) 7, https://icsid.worldbank.org/en/Documents/
resources/ICSID%20Web%20Stats%202018-1 (English).pdf (accessed July 16, 2018).
137) Id., at 11.
138) Id., at 19.
139) Id., at 9.
140) Id.
141) Id.
142) ICSID Convention, Arts. 6, 10.
143) Id., at Art. 11.
144) ICSID Convention, Art. 25(1).
145) Id. (“When the parties have given their consent, no party may withdraw its consent
unilaterally.”).
146) Of the cases registered with ICSID thus far, 60.6% have invoked a bilateral investment
treaty as the basis of consent, 16% have invoked an investment contract between the
investor and the state party, and 9.2% have invoked the investment law of the host
state. The remaining cases have all involved a regional or multilateral treaty or trade
agreement, like the ECT or NAFTA. Cases invoking the ECT as the basis for consent
comprise 9.3% of all cases registered with ICSID on a historical basis. In 2017, 69% of
the cases, the new registered, invoked a bilateral investment treaty while 5% of the
new cases were from either Chile-Colombia Free Trade Agreement, the Agreement on
Promotion, Protection and Guarantee of Investments among Member States of the
Organisation of the Islamic Conference, or the Dominican Republic-United States-
Central America Free Trade Agreement. See The ICSID Caseload—Statistics (Issue
2018-1) 25.
147) NAFTA, Art. 1122.2(a) (Dec. 17, 1992).
148) CAFTA-DR, Arts. 10.16(3)(a)-(b) (Aug. 5, 2004).
149) ECT, Art. 26.4(a) (Apr. 16, 1998).
150) ICSID (Additional Facility) Rules, Art. 2(a)-(b).
151) Id., at Art. 4(1).
152) See Kinnear Sheds Light on ICSID Rules Amendment, Global Arb. Rev. (Apr. 6, 2018),
https://globalarbitrationreview.com/article/1167749/kinnear-sheds-light-on-icsid-
rules-amendment?utm... (accessed Apr. 11, 2018).
153) ICSID Rules and Regulations Amendment Process,
https://icsid.worldbank.org/en/amendments (accessed Jan. 17, 2019).
154) Gonzalo Flores, ICSID Deputy Secretary-General, Overview of Proposed Amendments to
the ICSID Rules, Presentation at Dechert LLP (Dec. 3, 2018).
155) ICSID Convention, Art. 13.
156) Id., at Art. 13(1). The two ICSID panels are the Panel of Arbitrators and the Panel of
Conciliators.
157) Id., at Art. 13(2).
158) Id., at Art. 13(1).
159) Id., at Art. 14(1).
160) ICSID Convention, Art. 58; see also section §4.05 of this book (Arbitrator Challenge).
161) See section §4.06 of this book (Replacement of an Arbitrator).
162) See generally London Court of International Arbitration, http://www.lcia.org (accessed
Feb. 1, 2018) (providing up-to-date information regarding nearly all aspects of the
LCIA).
163) (1893) IX LQR 86; See LCIA, History,http://www.lcia.org/LCIA/history.aspx (accessed
Feb. 1, 2018).
164) Id.
165) LCIA-MIAC, Mauritius: The establishment of LCIA-MIAC, http://www.lcia-
miac.org/news/mauritius-the-establishment-of-lcia-miac.aspx (accessed Feb. 1,
2018).
166) LCIA, Facts and Figures: 2017 Casework Report 3 (2017).
167) Id.
168) Id.
169) LCIA, Organisation, http://www.lcia.org/LCIA/Organisation.aspx (accessed Feb. 1,
2018).
170) LCIA, Constitution of the LCIA Court, http://www.lcia.org/LCIA/constitution-of-the-lcia-
court.aspx (accessed Feb. 1, 2018).
171) LCIA Rules, Art. 3.
172) Id.

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 173) LCIA, Statement of Director General, http://www.lcia-india.org/ (accessed June 18,
2018).
174) See LCIA Rules, Art. 23. The ICDR Rules similarly decline to grant such a power to the
institution. ICDR Rules, Art. 19(4).
175) LCIA Rules, Art. 22.1(viii).
176) Id., Arts. 22.1(ix)-(x) and 22.6. Only the SIAC Rules follow this approach (see SIAC Rules
8(1) and 8(7)). Most other regimes empower the institution to decide a request for
consolidation. See section §10.03 of this book (Consolidation of Claims and Joinder of
Parties).
177) LCIA Rules, Art. 17.2.
178) LCIA Rules 2014, Art. 30.1. The 1998 Rules allowed the parties to make an agreement to
the contrary but had limited circumstances where confidential materials must be
revealed, for example if there is a legal duty to provide such information.
179) Id., at Arts. 30.2, 30.3.
180) See section §2.04 of this book (Optional Provisions) (concerning confidentiality terms
within a parties’ arbitration agreement).
181) LCIA Rules 2014, Art. 16.4.
182) Id., at Art. 5.4. The 1998 LCIA Rules merely required “a declaration to the effect that
there are no circumstances … likely to give rise to justified doubts as to his
impartiality or independence … .” See LCIA Rules 1998, Art. 5.3.
183) LCIA Rules 2014, Art. 10.1.
184) The 1998 LCIA Rules provide very little regulation in this area and go so far as to
provide that parties can be represented by any person of their choosing despite legal
expertise. See LCIA Rules 1998, Art. 18.1.
185) LCIA Rules 2014, Art. 18.1.
186) Id., at Arts. 18.3, 18.4.
187) Id., at Art. 18.5.
188) Id., at Art. 18.6.
189) LCIA Rules 2014, Art. 5.7 (“No party or third person may appoint any arbitrator under
the Arbitration Agreement: the LCIA Court alone is empowered to appoint arbitrators
(albeit taking into account any written agreement or joint nomination by the
parties).”).
190) Id., at Art. 7.1. (A “nominee [proposed by the parties] may only be appointed by the
LCIA Court as arbitrator subject to that nominee’s compliance with Articles 5.3 to 5.5
[governing impartiality, independence, and ability to devote sufficient time to the
arbitration]; and the LCIA Court shall refuse to appoint any nominee if it determines
that the nominee is not so compliant or is otherwise unsuitable.”).
191) Id., at Art. 5.8.
192) Id., at Art. 6.
193) Statement of Director General, supran. 173, at 17 (“The nationalities … included
Australian; Austrian; Brazilian; Belgian; Canadian; Chinese; Cypriot; Danish; Dutch;
French; German; Greek; Hungarian; Iranian; Irish; Italian; Latvian; Lebanese; New
Zealand; Nigerian; Russian; Singaporean; South African; Spanish; Swedish; Swiss;
Tunisian; Ukrainian; and US.”).
194) LCIA, LCIA Arbitration,
http://www.lcia.org/Dispute_Resolution_Services/LCIA_Arbitration.aspx (accessed
Feb. 1, 2018).
195) LCIA Rules 2014, Art. 26.2.
196) See generally Arbitration Institute of the Stockholm Chamber of Commerce,
http://www.sccinstitute.com (accessed June 18, 2018) (providing up-to-date
information regarding nearly all aspects of the SCC).
197) SCC, News: SCC Releases Statistics for 2017 (Mar. 27, 2018),
http://www.sccinstitute.com/about-the-scc/news/2018/scc-releases-statistics-for-
2017/ (accessed July 16, 2018).
198) SCC Rules, Appx. I, Art. 2.
199) SCC Rules 2017, Appx. I, Art. 3.
200) Id., at Appx. I, Art. 4.
201) Id., at Appx. I, Art. 6.
202) The SCC also offers specialized Insurance Arbitration Rules. Unless otherwise
specified, the rest of this section refers to the Arbitration Rules.
203) SCC Rules 2017, Art. 16. In the 2017 Rules, there is no default number of arbitrators.
When the parties have not agreed on a number, the Board decides whether the
tribunal shall consist of one or three arbitrators, taking into consideration the
complexity of the case, the amount in dispute, and other circumstances.
204) Id., at Art. 17(4).
205) Id., at Art. 17(3).
206) SCC, Step-by-Step Guide to Arbitration, http://sccinstitute.com/dispute-
resolution/arbitration/step-by-step-guide-to-arbitration/ (accessed Feb. 1, 2018).
207) Id.
208) Id.; SCC Rules 2017, Art. 17(7).
209) SCC Rules 2017, Art. 17(6).
210) See generally, SIAC International Arbitration Centre, http://siac.org.sg/ (accessed Aug.
12, 2018).

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 211) See generally UNCITRAL, http://www.uncitral.org/uncitral/en/index.html (accessed
Feb. 1, 2018) (providing up-to-date information regarding nearly all aspects of
UNCITRAL).
212) G.A. Res. 31/98, U.N. Doc. A/RES/31/98, at 182 (Dec. 15, 1976).
213) See generally CRCICA, http://www.crcica.org.eg. (accessed Feb. 1, 2018) (providing up-
to-date information regarding nearly all aspects of the CRCICA).
214) See generally CAMCA,http://www.intracen.org/Commercial-Arbitration-and-
Mediation-Centre-for-the-Americas-CAMCA/ (accessed Feb. 1, 2018); Michael F.
Hoellering, Commercial Arbitration and Mediation Centre for the Americas, 13 J. Int’l
Arb. 117 (1996).
215) See generally Spanish: Sistema de Información sobre Comercio Exterior (SICE),
Commercial Arbitration and Other Alternative Dispute Resolution Methods,
http://www.sice.oas.org/dispute/comarb/iacac/iacac1e.asp (accessed Feb. 1, 2018).
216) Panama Convention, 9 U.S.C. §§1 et seq., Ch. 3.
217) See generally The Kuala Lumpur Regional Centre for Arbitration,https://klrca.org/
(accessed Feb. 1, 2018).
218) See G.A. Res. 68/109, U.N. Doc. A/RES/68/109 (Dec. 16, 2013). This Resolution amended
Art. 1(4) to state that “For investor-State arbitration initiated pursuant to a treaty
providing for the protection of investments or investors, these Rules include the
UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration (‘Rules on
Transparency’), subject to Art. 1 of the Rules on Transparency.”
219) See Center for International Environmental Law (CIEL), International Institute for
Sustainable Development (IISD), and Vale Columbia Center, New UNCITRAL Arbitration
Rules on Transparency: Application, Content, and Next Steps (August 2013),
http://www.ciel.org/wp-
content/uploads/2015/06/UNCITRAL_Transparency_Aug2013.pdf (accessed June 18,
2018).
220) While Art. 7 of the Rules on Transparency govern exceptions to transparency, the
tribunal has the power to resist efforts to use improper tactics to shield information
from disclosure under Art. 1(8).
221) UNCITRAL Rules 2010, Art. 7(1). The 2010 revision to the UNCITRAL Rules vests the
appointing authority with the discretion to appoint a sole arbitrator “if it determines
that, in view of the circumstances of the case, this is more appropriate.” UNCITRAL
Rules 2010, Art. 7(2).
222) UNCITRAL Rules 2010, Art. 8(1). Under the 1976 version of the UNCITRAL Rules, when
the parties agree that the dispute is to be decided by a sole arbitrator, they propose
to each other the names of one or more arbitrators, or the names of one or more
appointing authorities to appoint a sole arbitrator. UNCITRAL Rules 1976, Art. 6(1).
Under both versions of the UNCITRAL Rules, if the parties are unable to agree on an
appointing authority, any party may request the Secretary-General of the PCA in The
Hague to designate the appointing authority. UNCITRAL Rules 1976, Art. 6(1); UNCITRAL
Rules 2010, Art. 6(2).
223) UNCITRAL Rules 2010, Art. 8(2).
224) Id., at Art. 9.
225) Id., at Art. 6(2).

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Document information
Chapter 2: Agreements to Arbitrate
Publication The parties’ agreement to arbitrate not only reflects but also gives effect to the cardinal
characteristic of arbitration: party autonomy. (1) Of course, the freedom that parties enjoy
The International Arbitration to draft a bespoke arbitration agreement comes with an important responsibility: to craft
Rulebook: A Guide to Arbitral it properly. A well-drafted arbitration agreement tends to ensure that any contract
Regimes disputes will be resolved efficiently and effectively. However, a poorly drafted agreement
will, at best, mire the parties in further disputes about the arbitration procedure, with an
associated increase in costs and delays. At worst, a so-called pathological arbitration
Organization clause may be found by a court to be so deficient as to be unenforceable. In this chapter
we review (i) key preliminary considerations for drafting an arbitration agreement; (ii) the
International Centre for essential elements of an enforceable arbitration agreement, without which the parties’
Dispute Resolution dispute may have to be resolved by a competent court; (iii) certain critical provisions on
fundamental matters which, if not specified in the arbitration agreement, will be decided
by the arbitral tribunal or institution; and (iv) several optional provisions which the parties
Organization may wish to include in their arbitration agreement to supplement, or deviate from, the
applicable arbitration regime.
China International P 121
Economic and Trade P 122
Arbitration Commission
§2.01 PRELIMINARY CONSIDERATIONS
Party agreement is the cornerstone of arbitration. In commercial arbitration, the parties’
Organization consent to arbitrate is usually evidenced in and by a written arbitration agreement,
Hong Kong International whether in a specific clause in the parties’ contract containing their agreement to resolve
Arbitration Centre all future disputes by arbitration (i.e., an arbitration clause) or in a separate contract
between the parties after their dispute has arisen submitting an existing dispute to
arbitration (i.e., a submission agreement, clause compromissoire). Of course, investor-state
arbitration can also be based on an agreement between a State or a State-owned
Organization enterprise and an investor to submit their disputes to arbitration. In either case, in the
International Court of absence of a valid and enforceable arbitration clause or submission agreement, the
Arbitration of the parties’ disputes would have to be resolved by litigation in the courts of competent
International Chamber of jurisdiction. (2) The importance of drafting an effective and enforceable arbitration clause,
Commerce therefore, is not be underestimated.
While oral agreements to arbitrate may be enforceable in some jurisdictions, this is not
common. (3) Further, it should be noted that the New York Convention applies only to
Organization written arbitration agreements. An arbitration agreement must be in writing if it is to be
International Centre for afforded recognition under Article II(1) of the New York Convention. (4) The 1985 version of
Settlement of Investment the UNCITRAL Model Law on International Commercial Arbitration also requires that an
Disputes arbitration agreement be in writing. (5) In its 2006 amendment to the Model Law, UNCITRAL
revised the writing requirement by adopting two options. Under the first option, which
retains the requirement that an arbitration agreement be in writing, “[a]n arbitration
agreement is in writing if its content is recorded in any form, whether or not the arbitration
Organization agreement or contract has been concluded orally, by conduct, or by other means.” (6)
London Court of Under the second option, the writing requirement is dispensed with altogether (Option II).
International Arbitration (7) Nevertheless, the majority of States that have adopted the UNCITRAL Model Law have
adopted the 1985 version. (8) Thus, the requirement for a writing is widely reflected in
P 122 national legislation dealing with arbitration, including, for example, section 5(1) of the
Organization P 123 English Arbitration Act 1996 (providing that Part 1 of the Act will “apply only where the
arbitration agreement is in writing”); English Arbitration Act 1996, 1996 c. 23, § 5(1) (June 17,
Arbitration Institute of the 1996); Swiss Federal Private International Law Act (PILA), Article 178(1) (December 18, 1987,
Stockholm Chamber of as amended until July 1, 2014); US Federal Arbitration Act, 9 U.S.C. § 2. Under Article 1442 of
Commerce the French Arbitration Act, which entered into force on May 1, 2011, a domestic arbitration
agreement must be in writing (A peine de nullité, la convention d’arbitrage est ecrité.). (9)
However, this requirement is not included in the section of the Act dealing with
international arbitration. (10)
Organization
Singapore International [A] Arbitration Clause or Submission Agreement
Arbitration Centre A threshold question that often arises is whether to include an arbitration clause in the
parties’ agreement or wait until a dispute has arisen and then negotiate an appropriate
submission agreement. Generally, the former is preferable. Once a dispute has arisen and
Organization litigation strategies have developed, it may be impossible for the parties to agree on the
United Nations Commission procedures through which to resolve their dispute, although they would not be precluded
on International Trade Law from doing so if they considered this to be in their mutual best interests. A predispute
clause provides certainty regarding how problems will be resolved and can expedite the
dispute resolution process. Accordingly, the arbitration of most disputes takes place as a
result of the inclusion of an arbitration clause in the parties’ underlying commercial
Bibliographic reference contract. (11)
'Chapter 2: Agreements to
Arbitrate', in Arif Hyder Ali , [B] Due Diligence under Potentially Applicable Laws
Jane Wessel , et al., The Contract negotiators and their advisors should investigate whether there are any

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International Arbitration mandatory or formal requirements that might affect the parties’ agreement to arbitrate
Rulebook: A Guide to Arbitral future disputes under the legal regimes potentially applicable to the arbitration. In
Regimes, (© Kluwer Law international arbitration, these may include: (i) the national laws of the respective home
International; Kluwer Law jurisdictions of the parties; (ii) the arbitration law of the legal seat of the arbitration; and
International 2019) pp. 121 - (iii) the law of each jurisdiction where enforcement of the arbitral award may be sought.
198
While it is not possible to identify all of the relevant areas that should be considered,
typical areas of inquiry include the following: (i) whether each party to the agreement has
the formal capacity or authority to agree to arbitration. For the most part, this is not an
P 123 issue where private parties are concerned; however, questions can arise regarding the
P 124 capacity of sovereign state parties or state-controlled entities to agree to arbitration;
(ii) whether there are any relevant limitations on the types of disputes that can be
submitted to arbitration as a result of applicable mandatory laws; (iii) whether an
agreement may validly be made to arbitrate future disputes; (iv) whether an arbitration
clause may be incorporated by reference from another agreement; (v) whether there are
any required formalities regarding the form or content of the agreement to arbitrate.

[C] Institutional Versus Ad Hoc Arbitration

An arbitration conducted pursuant to a set of procedural rules offered by an institutional
dispute resolution service provider and administered by the institution whose rules were
incorporated by reference into the parties’ agreement is referred to as “institutional
arbitration.”
Arbitrations conducted without the administrative supervision of an arbitral body are
commonly referred to as ad hoc arbitrations. Such arbitrations may be conducted
according to procedures developed and agreed by the parties themselves on the basis of
their perception of their specific circumstances; alternatively, they can proceed pursuant
to a set of formal rules designed specifically for “nonadministered” arbitrations, such as
those promulgated by UNCITRAL.
Although institutional arbitration entails administrative costs attributable to the fees
charged by the institution, typically parties receive considerable benefits in return. These
benefits include: (i) an administrative and supervisory infrastructure, which can provide
assistance with serving the request for arbitration and other submissions; (ii) transparent
and predictable arbitrator fee schedules; (iii) lists of approved and qualified arbitrators;
(iv) the appointment and removal of arbitrators; (v) the resolution of arbitrator conflicts of
interest; (vi) a trained staff focused on the efficient administration of the arbitration; (vii)
assistance in organizing hearings; (viii) an independent framework for resolving
contentious issues that might arise before the constitution of the arbitral tribunal; (ix) the
review of arbitral awards for form and consistency; and (x) the availability of a tried and
tested set of procedural rules that provide a known and predictable structure. By
incorporating an institution’s procedural rules into their dispute resolution agreement,
parties can obviate the need to spell out a myriad of procedural matters in their contract.
In addition, the role of the designated arbitral institution in dealing with the costs and fees
associated with the arbitration—including administration of the payments to be made to
the arbitrators—significantly limits the scope for any impropriety and helps to preserve
the perception of neutrality of the arbitral tribunal.
Parties who choose ad hoc arbitration typically do so for one of the following reasons: (i)
they wish to resolve their disputes according to rules that are specifically tailored to suit
their business relationship; (ii) they assume it will be less costly than institutional
arbitration, as there will be no need to pay any administrative fees; or (iii) they are unable
to agree on an institutional mechanism. Because ad hoc arbitration is conducted without
P 124 the administrative supervision of an institutional dispute resolution service provider, the
P 125 involvement of national courts in the arbitral process—either those of the place of
arbitration or those of the parties’ respective jurisdictions—can be more direct and
extensive. Thus, for example, if the parties are unable to agree on a procedure for the
appointment of an arbitral tribunal, or on the identity of a sole arbitrator, or the tribunal’s
presiding member, recourse is required to a court of competent jurisdiction to address the
parties’ default, or to an appointing authority if the parties have agreed on one. Where the
default appointment is made by the court, this will be with reference to the national
arbitration law (12) at the seat of the arbitration. More often than not, the resulting
appointment is not of the same quality as would have been the case if it had been made
by a qualified arbitral institution or as a result of party agreement. The additional expense
and delay of having invoked the assistance of the court is seldom justified.

§2.02 ESSENTIAL ELEMENTS

Although the number of issues that can be included in and regulated through an
arbitration clause is many, there are two fundamental elements that simply must be
included. These are, first, a precise definition of the scope of disputes that may be
submitted to arbitration and, second, a clear indication of the applicable arbitration
rules. Absent these elements, a court may decline to refer the parties’ dispute to
arbitration. All of the arbitral regimes under consideration provide a model arbitration
clause containing suggested language to satisfy these two essential elements. However, the
parties may wish to modify the suggested language as discussed below.

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 [A] Scope of the Arbitration Clause
MODEL LANGUAGE—SCOPE
Broad Form/No Exclusions: Any and all disputes, claims, controversies or differences
arising out of, or relating to or in connection with, this Agreement (including its formation,
existence, validity, performance, termination, interpretation or breach), or the subject
matter of this Agreement, shall be finally resolved by binding arbitration …
Exclusion of Defined Claims: … except for Excluded Claims. Excluded Claims shall include
only those listed below, and shall not be resolved by arbitration pursuant to the terms of
this clause. Any disagreement between the Parties regarding whether a dispute, claim,
controversy or disagreement is an Excluded Claim shall be decided by the Arbitral Tribunal.
P 125
P 126
The model arbitration clauses of the arbitral regimes under consideration use various
terms to define the scope of application of the parties’ arbitration agreement. The CIETAC,
ICSID, LCIA, SCC, and SIAC model clauses simply refer to “any dispute.” The ICC Model
Clause similarly refers to “all disputes.” The SCC and UNCITRAL Rules add to “any dispute”
any “controversy or claim.” The HKIAC Rules further add to these terms any “difference.”
Uniquely, the ICDR Model Clause dispenses with the term “any dispute” in favor of only
“any controversy or claim.” It may be said that the use of the term “claim” in addition to
terms like “controversy” or “difference,” or the use of the sole, broad term “dispute,”
clarifies that the parties may submit not only a formal legal claim to arbitration but also
other disagreements which may disrupt the course of their business dealings or
investment.
The foregoing terms are always qualified by additional terms defining a requisite nexus
between the dispute (or controversy, claim or difference) and the parties’ contract. All of
the model clauses under consideration employ the term “arising” out of (or from) the
contract. The ICDR, HKIAC, ICSID, and UNCITRAL model clauses additionally cover disputes
“relating to” the contract, while the CIETAC, ICC, LCIA, SCC, and SIAC model clauses instead
use the term “in connection with.” These terms might generally be considered
interchangeable, since “relate” is commonly defined in terms of a logical or causal
connection, while “connection” is commonly defined as a logical or causal relation. (13)
However, different interpretations may be possible with reference to a particular
arbitration agreement and dispute. In either case, the use of such terms in addition to
“arising out of” tends to broaden the scope of disputes that may be submitted to
arbitration—and thereby militates against submitting any particular dispute to the courts.
Also, the HKIAC, LCIA, and SIAC model clauses variously specify that the connection or
relationship between the dispute and the contract includes (but, ergo, is not limited to)
disputes about the existence, validity, interpretation, performance, breach, or termination
of the contract. Similarly, the ICDR, SCC, and UNCITRAL model clauses indicate that the
arbitration agreement applies to disputes related or connected to the contract or disputes
specifically concerning breach (or termination or invalidity) of the contract itself.
Therefore, these model clauses suggest that a broader scope of disputes may be submitted
to arbitration, in addition to pure contract claims, so long as those disputes are related or
connected to the contract. On this point, the HKIAC Rules expressly clarify that any dispute
regarding “noncontractual obligations” arising out of or relating to the contract shall be
settled by arbitration. Once again, these model clauses employ language tending to
broaden their reach and to preclude a court from exercising jurisdiction over a particular
dispute. Note, however, that an arbitration agreement of the breadth of the HKIAC model
clause could encounter limitations based on the lex loci arbitri concerning the
nonarbitrability of certain disputes. (14)
P 126
P 127
In light of the foregoing analysis, parties seeking to draft a broad arbitration agreement
may wish to use the model clause of their selected institution. On the other hand, parties
seeking to narrow the scope of their arbitration agreement could do so theoretically by
modifying the language to the effect that only legal “claims” (not “all disputes”) concerning
the breach of the contract (not “relating to the contract, including breach”) shall be
submitted to arbitration. However, such efforts to shrink the scope of the arbitration
agreement leaves a range of potential disputes concerning the same transaction or
investment that will have to be submitted to the courts. Consequently, any complex
dispute that overlaps that which is to be arbitrated and that which is to be adjudicated
will generate parallel proceedings, additional costs and delays, and possibly inconsistent
outcomes. And, even a simple dispute that straddles the line between the two will likely
mire the parties in jurisdictional arguments and postpone any resolution. (15) The better
practice is to use a broad arbitration clause so that all related disputes can be arbitrated
(an all or nothing approach). In case the parties wish to exclude specific types of disputes
(e.g., applications for interim injunctive relief, or disputes concerning ownership and
validity of intellectual property rights), such “carveouts” should be defined precisely as
“excluded claims.”
Model clauses dealing with the scope of arbitration agreements are set out in Table 2.1.
P 127

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 P 127
P 128 Table 2.1 Scope of Arbitration Agreement: Model Clauses
AAA-ICDR
Future Disputes Any controversy or claim arising out of or relating to this contract,
or the breach thereof, shall be determined by arbitration […]. […]
CIETAC
Future Disputes 1. Any dispute arising from or in connection with this Contract shall
be submitted […] for arbitration […]. […]
HKIAC
Future Disputes Any dispute, controversy, difference or claim arising out of or
relating to this contract, including the existence, validity,
interpretation, performance, breach or termination thereof or any
dispute regarding non-contractual obligations arising out of or
relating to it shall be referred to and finally resolved by arbitration
[…]. […]
ICC
Future Disputes All disputes arising out of or in connection with the present contract
shall be finally settled […] by […] arbitrators […]. […]
ICSID
Future Disputes The [Government]/[name of constituent subdivision or agency] of
name of Contracting State (hereinafter the “Host State”) and name
of investor (hereinafter the “Investor”) hereby consent to submit
[…] any dispute arising out of or relating to this agreement for
settlement by [conciliation]/[arbitration]/[conciliation followed, if
the dispute remains unresolved within the time limit of the
communication of the report of the Conciliation Commission to the
parties, by arbitration] pursuant to the Convention on the
Settlement of Investment Disputes between States and Nationals
of Other States (hereinafter the “Convention”).
LCIA
Future Disputes Any dispute arising out of or in connection with this contract,
including any question regarding its existence, validity or
termination, shall be referred to and finally resolved by arbitration
[…]. […]
SCC
Future Disputes Any dispute, controversy or claim arising out of or in connection with
this contract, or the breach, termination or invalidity thereof, shall
be finally settled by arbitration […]. […]
SIAC
Future Disputes Any dispute arising out of or in connection with this contract,
including any question regarding its existence, validity or
termination, shall be referred to and finally resolved by arbitration
[…]. […]
UNCITRAL
Future Disputes Any dispute, controversy or claim arising out of or relating to this
contract, or the breach, termination or invalidity thereof, shall be
settled by arbitration […]. […]

[B] Applicable Arbitration Rules

MODEL LANGUAGE—ARBITRAL RULES
… in accordance with [specify official name of arbitral institution and desired rules as
described by the institution] (the “Rules”) … in effect as of the effective date of this
Agreement [or] in effect as of the date of the commencement of arbitration.
The arbitration clause must clearly indicate the applicable arbitration rules. The rules
P 128 should be identified by their full title, rather than an acronym or other short form that
P 129 third parties might not recognize or that might give rise to ambiguity. An unintelligible
or inaccurate indication of the rules or institution may cause the tribunal to decline
jurisdiction or a court to find that the arbitration agreement is unenforceable. The safest
way to ensure proper identification of the arbitration rules in the arbitration clause is to
consult the rules of the institution selected.
Next, it is important to clarify in the arbitration clause which version of the arbitral regime
will apply to the parties’ dispute: the rules in force at the time of the parties’ agreement,
or the rules in force when arbitration is commenced. All of the regimes under consideration
have undergone periodic revisions; for example, the current version of the SIAC Rules is the

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 sixth edition since the institution was founded in 1991. The latest revisions of the arbitral
regimes under consideration in this book are as follows: AAA-ICDR (2014), CIETAC (2014),
HKIAC (2018), ICC (2017), ICSID (2006), LCIA (2014), SCC (2017), SIAC (2016), and UNCITRAL
(2010). In this book, all references to these arbitral regimes are to these most recent
versions unless otherwise indicated. And yet still further revisions to these regimes can be
expected. At the time of this writing, ICSID is undertaking a process of modernizing its
arbitration rules.
Fortunately, most of the major arbitral regimes contain provisions that clarify which
version of the rules will govern the parties’ dispute if this is not specified in the arbitration
agreement (Table 2.2). Unless the parties have agreed otherwise, under the HKIAC, ICC,
ICDR, LCIA, SCC, and SIAC Rules, the rules applicable to a given dispute are those in force
on the date of commencement of the arbitration, rather than those in effect at the time the
parties entered into the agreement to arbitrate. (16) This introduces a degree of
uncertainty, as any eventual dispute may be governed by a new version of the rules.
Although any new version will usually be designed to enhance efficiency, fairness, and best
practices in global arbitration law and practice, parties are always free to include
language in their arbitration clause indicating that the rules “in effect on the date of this
agreement” will apply to any future arbitration rather than any subsequent version. (17)
The UNCITRAL Rules take a slightly different approach. The 2010 version of the rules states
that, unless the parties have specified otherwise, they are presumed to have referred in
their agreement to the rules in effect on the date of commencement of arbitration—but
only if the agreement is one that was concluded after August 15, 2010. (18) Thus, if the
agreement was concluded before this date, the 1976 version of the rules would govern,
absent party agreement to the contrary. Moreover, the previously mentioned presumption
“does not apply where the arbitration agreement has been concluded by accepting after 15
August 2010 an offer made before that date.” (19) This nuance addresses the not-uncommon
situation in which an applicable treaty containing a state’s offer to arbitrate disputes
entered into force before August 15, 2010, but where consent to arbitrate was not perfected
P 129 until after that date by way of an investor’s acceptance of the offer to arbitrate (e.g., in a
P 130 notice of arbitration). In such a case, the 1976 UNCITRAL Rules would govern the
arbitration although nothing would prevent the parties from subsequently agreeing to the
application of the 2010 rules.
Under the ICSID Rules, the applicable rules are those “in effect on the date on which the
parties consented to arbitration.” (20) Under Article 44 of the ICSID Convention, this will
usually be the date on which one of the parties (typically the investor) submits its request
for arbitration to the ICSID Secretariat, thereby signifying its acceptance of the State
party’s standing offer to arbitrate. Such a standing offer may be contained in an instrument
of consent, such as an applicable investment protection and promotion treaty, or an
investment law. The date of consent, however, will normally be different where an
investment agreement is concerned, as the date of the effectiveness of the agreement, and
hence of the agreement to arbitrate, will precede the date on which a dispute is submitted
to arbitration. (21)
Only the CIETAC Rules do not address which version of the rules applies. CIETAC’s model
arbitration clause indicates that the version of the rules in force on the date of the
application for arbitration is the version that will apply. (22) If the parties do not choose to
use the CIETAC model clause, it will be important to clarify this point in the arbitration
agreement. The model language suggested at the beginning of this section may be used for
an arbitration clause electing CIETAC Rules or for other rules in instances where the parties
wish to deviate from the default provisions concerning the version of the rules that will
apply to their dispute.
P 130
P 131 Table 2.2 Applicable Version of Rules
AAA-ICDR
P 132
131 Article 1. Scope of 1. Where parties have agreed to arbitrate disputes under these
P 133
132 These Rules International Arbitration Rules (“Rules”), or have provided for
arbitration of an international dispute by the International Centre
for Dispute Resolution (ICDR) or the American Arbitration Association
(AAA) without designating particular rules, the arbitration shall take
place in accordance with these Rules as in effect at the date of
commencement of the arbitration, subject to modifications that the
parties may adopt in writing. The ICDR is the Administrator of these
Rules.
CIETAC

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 Article 4. Scope of 1. These Rules uniformly apply to CIETAC and its sub-
Application commissions/arbitration centers.
2. Where the parties have agreed to refer their dispute to CIETAC for
arbitration, they shall be deemed to have agreed to arbitration in
accordance with these Rules.
3. Where the parties agree to refer their dispute to CIETAC for
arbitration but have agreed on a modification of these Rules or have
agreed on the application of other arbitration rules, the parties’
agreement shall prevail unless such agreement is inoperative or in
conflict with a mandatory provision of the law applicable to the
arbitral proceedings. Where the parties have agreed on the
application of other arbitration rules, CIETAC shall perform the
relevant administrative duties.
4. Where the parties agree to refer their dispute to arbitration under
these Rules without providing the name of the arbitration institution,
they shall be deemed to have agreed to refer the dispute to
arbitration by CIETAC.
5. Where the parties agree to refer their dispute to arbitration under
CIETAC’s customized arbitration rules for a specific trade or
profession, the parties’ agreement shall prevail. However, if the
dispute falls outside the scope of the specific rules, these Rules shall
apply.

HKIAC
Article 1. Scope of 1.1 These Rules shall govern arbitrations where an arbitration
Application agreement (whether entered into before or after a dispute has
arisen) either: (a) provides for these Rules to apply; or (b) subject to
Articles 1.2 and 1.3 below, provides for arbitration “administered by
HKIAC” or words to similar effect.
1.2 Nothing in these Rules shall prevent parties to a dispute or
arbitration agreement from naming HKIAC as appointing authority,
or from requesting certain administrative services from HKIAC,
without subjecting the arbitration to the provisions contained in
these Rules. For the avoidance of doubt, these Rules shall not
govern arbitrations where an arbitration agreement provides for
arbitration under other rules, including other rules adopted by
HKIAC from time to time.
1.3 Subject to Article 1.4, these Rules shall come into force on 1
November 2013 and, unless the parties have agreed otherwise, shall
apply to all arbitrations falling within Article 1.1 in which the Notice
of Arbitration is submitted on or after that date.
1.4 The provisions contained in Articles 23.1, 28, 29 and Schedule 4
shall not apply if the arbitration agreement was concluded before
the date on which these Rules came into force, unless otherwise
agreed by the parties.
ICC
Article 6. Effect of 1. Where the parties have agreed to submit to arbitration under the
the Arbitration Rules, they shall be deemed to have submitted ipso facto to the
Agreement Rules in effect on the date of commencement of the arbitration,
unless they have agreed to submit to the Rules in effect on the date
of their arbitration agreement.
ICSID
ICSID Convention, Any arbitration proceeding shall be conducted in accordance with
Article 44. Powers the provisions of this Section and, except as the parties otherwise
and Functions of the agree, in accordance with the Arbitration Rules in effect on the date
Tribunal on which the parties consented to arbitration. If any question of
procedure arises which is not covered by this Section or the
Arbitration Rules or any rules agreed by the parties, the Tribunal
shall decide the question.
LCIA

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 Preamble Where any agreement, submission or reference howsoever made or
evidenced in writing (whether signed or not) provides in whatsoever
manner for arbitration under the rules of or by the LCIA, the London
Court of International Arbitration, the London Court of Arbitration or
the London Court, the parties thereto shall be taken to have agreed
in writing that any arbitration between them shall be conducted in
accordance with the LCIA Rules or such amended rules as the LCIA
may have adopted hereafter to take effect before the
commencement of the arbitration and that such LCIA Rules form
part of their agreement (collectively, the “Arbitration Agreement”).
These LCIA Rules comprise this Preamble, the Articles and the Index,
together with the Annex to the LCIA Rules and the Schedule of Costs
as both from time to time may be separately amended by the LCIA
(the “LCIA Rules”).
SCC
Preamble Under any arbitration agreement referring to the Arbitration Rules of
the Arbitration Institute of the Stockholm Chamber of Commerce
(the “Arbitration Rules”) the parties shall be deemed to have agreed
that the following rules, or such amended rules, in force on the date
of the commencement of the arbitration, or the filing of an
application for the appointment of an Emergency Arbitrator, shall be
applied unless otherwise agreed by the parties.
SIAC
Rule 1. Scope of 1.1 Where the parties have agreed to refer their disputes to SIAC for
Application and arbitration or to arbitration in accordance with the SIAC Rules, the
Interpretation parties shall be deemed to have agreed that the arbitration shall be
conducted pursuant to and administered by SIAC in accordance with
these Rules.
1.2 These Rules shall come into force on 1 August 2016 and, unless
otherwise agreed by the parties, shall apply to any arbitration which
is commenced on or after that date.
UNCITRAL
Article 1. Scope of 1. Where parties have agreed that disputes between them in respect
Application of a defined legal relationship, whether contractual or not, shall be
referred to arbitration under the UNCITRAL Arbitration Rules, then
such disputes shall be settled in accordance with these Rules subject
to such modification as the parties may agree.
2. The parties to an arbitration agreement concluded after 15 August
2010 shall be presumed to have referred to the Rules in effect on the
date of commencement of the arbitration, unless the parties have
agreed to apply a particular version of the Rules. That presumption
does not apply where the arbitration agreement has been concluded
by accepting after 15 August 2010 an offer made before that date.

§2.03 HIGHLY RECOMMENDED PROVISIONS

Albeit not required for an arbitration agreement to be considered valid and enforceable,
parties should identify in their arbitration agreement the place of arbitration; the number,
method of appointment, and nationality of the arbitrators; the language of the arbitration;
and the applicable law. The arbitral regimes reviewed in this book provide default rules to
make these determinations in the absence of party agreement. However, in our
experience, these issues are so critical to the conduct and outcome of the proceedings
that the parties must not leave them to be decided at a later date or by a third party. The
model arbitration clauses of the regimes under consideration variously suggest or
recommend that the parties make indications on these issues in their arbitration
agreements. We address each of these provisions further below in Table 2.3.
P 133
P 134 Table 2.3 Model Arbitration Clauses
AAA-ICDR
P 136
134
135
P 136
135
137

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 Future Disputes Any controversy or claim arising out of or relating to this contract,
or the breach thereof, shall be determined by arbitration
administered by the International Centre for Dispute Resolution in
accordance with its International Arbitration Rules.
The parties should consider adding:
(a) The number of arbitrators shall be (one or three);
(b) The place of arbitration shall be [city, (province or state),
country]; and
(c) The language(s) of the arbitration shall be _____.

CIETAC
Future Disputes 1. Any dispute arising from or in connection with this Contract shall
be submitted to China International Economic and Trade Arbitration
Commission (CIETAC) for arbitration which shall be conducted in
accordance with the CIETAC’s arbitration rules in effect at the time of
applying for arbitration. The arbitral award is final and binding upon
both parties.
2. Any dispute arising from or in connection with this Contract shall
be submitted to China International Economic and Trade Arbitration
Commission (CIETAC) Sub-Commission (Arbitration Center) for
arbitration which shall be conducted in accordance with the
CIETAC’s arbitration rules in effect at the time of applying for
arbitration. The arbitral award is final and binding upon both
parties.

HKIAC
Future Disputes Any dispute, controversy, difference or claim arising out of or
relating to this contract, including the existence, validity,
interpretation, performance, breach or termination thereof or any
dispute regarding non-contractual obligations arising out of or
relating to it shall be referred to and finally resolved by arbitration
administered by the Hong Kong International Arbitration Centre
(HKIAC) under the HKIAC Administered Rules in force when the Notice
of Arbitration is submitted.
The law of this arbitration shall be … (Hong Kong law).
The seat of arbitration shall be … (Hong Kong).
The number of arbitrators shall be … (one or three). The arbitration
proceedings shall be conducted in … (insert language).

Existing Disputes We, the undersigned, agree to refer to arbitration administered by

the Hong Kong International Arbitration Centre (HKIAC) under the
HKIAC Administered Arbitration Rules any dispute, controversy,
difference or claim (including any dispute regarding non-contractual
obligations) arising out of or relating to:
(Brief description of contract under which disputes, controversies,
differences, or claims have arisen or may arise.)
The law of this arbitration agreement shall be … (Hong Kong law).
The seat of arbitration shall be … (Hong Kong).
The number of arbitrators shall be … (one or three).
The arbitration proceedings shall be conducted in … (insert
language).

ICC

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 Future Disputes All disputes arising out of or in connection with the present contract
shall be finally settled under the Rules of Arbitration of the
International Chamber of Commerce by one or more arbitrators
appointed in accordance with the said Rules.
If the parties wish to exclude any recourse to the Emergency
Arbitrator Provisions, they must expressly opt out by adding the
following wording to the clause above:
The Emergency Arbitrator Provisions shall not apply.
If the parties wish to exclude the application of the Expedited
Procedure Provisions, they must expressly opt out by adding the
following wording to the clause above:
The Expedited Procedure Provisions shall not apply.
The parties may also wish to stipulate in the arbitration clause:
– the law governing the contract;
– the number of arbitrators;
– the place of arbitration;
– and/or the language of the arbitration.

ICSID
Future Disputes The [Government]/[name of constituent subdivision or agency] of
name of Contracting State (hereinafter the “Host State”) and name
of investor (hereinafter the “Investor”) hereby consent to submit to
the International Centre for Settlement of Investment Disputes
(hereinafter the “Centre”) any dispute arising out of or relating to
this agreement for settlement by
[conciliation]/[arbitration]/[conciliation followed, if the dispute
remains unresolved within time limit of the communication of the
report of the Conciliation Commission to the parties, by arbitration]
pursuant to the Convention on the Settlement of Investment
Disputes between States and Nationals of Other States (hereinafter
the “Convention”).
Existing Disputes The [Government]/[name of constituent subdivision or agency] of
name of Contracting State (hereinafter the “Host State”) and name
of investor (hereinafter the “Investor”) hereby consent to submit to
the International Centre for Settlement of Investment Disputes
(hereinafter the “Centre”) for settlement by
[conciliation]/[arbitration]/[conciliation followed, if the dispute
remains unresolved within time limit of the communication of the
report of the Conciliation Commission to the parties, by arbitration]
pursuant to the Convention on the Settlement of Investment
Disputes between States and Nationals of Other States, the following
dispute arising out of the investment described below: …
LCIA
Future Disputes Any dispute arising out of or in connection with this contract,
including any question regarding its existence, validity or
termination, shall be referred to and finally resolved by arbitration
under the Rules of the LCIA, which Rules are deemed to be
incorporated by reference into this clause.
The number of arbitrators shall be [one/three].
The seat, or legal place, of arbitration shall be [City and/or Country].
The language to be used in the arbitral proceedings shall be [ ].
The governing law of the contract shall be the substantive law of [ ].

Existing Disputes A dispute having arisen between the parties concerning [], the parties
hereby agree that the dispute shall be referred to and finally
resolved by arbitration under the LCIA Rules.
The number of arbitrators shall be [one/three].
The seat, or legal place, of arbitration shall be [City and/or Country].
The language to be used in the arbitral proceedings shall be [].
The governing law of the contract [is/shall be] the substantive law of
[].

SCC

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 Future Disputes Any dispute, controversy or claim arising out of or in connection with
this contract, or the breach, termination or invalidity thereof, shall
be finally settled by arbitration in accordance with the Arbitration
Rules of the Arbitration Institute of the Stockholm Chamber of
Commerce.
Recommended additions:
The arbitral tribunal shall be composed of three arbitrators / [a sole
arbitrator].
The seat of arbitration shall be […].
The language to be used in the arbitral proceedings shall be […].
This contract shall be governed by the substantive law of […].

SIAC
Future Disputes In drawing up international contracts, we recommend that parties
include the following arbitration clause:
Any dispute arising out of or in connection with this contract,
including any question regarding its existence, validity or
termination, shall be referred to and finally resolved by arbitration
administered by the Singapore International Arbitration Centre
(“SIAC”) in accordance with the Arbitration Rules of the Singapore
International Arbitration Centre (“SIAC Rules”) for the time being in
force, which rules are deemed to be incorporated by reference in this
clause. The seat of the arbitration shall be [Singapore].* The Tribunal
shall consist of _________________** arbitrator(s). The language of
the arbitration shall be ________________.

Parties should also include an applicable law clause. The following

is recommended:
This contract is governed by the laws of _________________.***
______________________________________________
* Parties should specify the seat of arbitration of their choice. If the
parties wish to select an alternative seat to Singapore, please
replace “[Singapore]” with the city and country of choice (e.g., “[City,
Country]”).
** State an odd number. Either state one, or state three.
*** State the country or jurisdiction.

Future Disputes Any dispute, controversy or claim arising out of or relating to this
contract, or the breach, termination or invalidity thereof, shall be
settled by arbitration in accordance with the UNCITRAL Arbitration
Rules.
Note: Parties should consider adding:
(a) The appointing authority shall be … [name of institution or
person];
(b) The number of arbitrators shall be … [one or three];
(c) The place of arbitration shall be … [town and country];
(d) The language to be used in the arbitral proceedings shall be
[…].

[A] Place of the Arbitration

MODEL LANGUAGE—PLACE OF ARBITRATION
The place of arbitration shall be [specify city and official name of country].
The place of arbitration is often one of the most hotly negotiated elements of an
international arbitration clause. The so-called situs or seat of arbitration has important
legal, strategic, and practical implications for the dispute. The legal implications of the
parties’ choice of seat are far-reaching, first, because the arbitration proceedings typically
will be governed by the national arbitration law of the seat, known as the lex loci arbitri.
The national arbitration law usually prescribes the basic powers of the tribunal, indicates
P 137 minimum standards for the conduct of the arbitration, and provides for judicial recourse in
P 138 case of irregularities. (23) Consequently, the rules of the arbitration must operate within
the bounds established by the lex loci arbitri. For example, the ICDR and UNCITRAL Rules
expressly acknowledge that where the arbitration rules are in conflict with a mandatory
provision of the law applicable to the arbitration, the latter shall prevail. (24) The LCIA

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 Rules also recognize “the law applicable to the proceedings.” (25) The LCIA Rules are
unique in expressly providing that the lex loci arbitri applies not only to the arbitration but
also to the arbitration agreement. They also uniquely allow the parties to agree on a law
applicable to the arbitration other than the law of the seat, so long as the law of the seat
permits such a choice. (26) The CIETAC, HKIAC, ICC, ICSID, SCC, and SIAC Rules are silent as
to their relationship with the lex loci arbitri, reflecting the established convention that the
arbitration rules will apply unless in conflict with the law of the place of arbitration. (27)
Since States are free to modify the UNCITRAL Model Law in drafting their own legislation,
important variations can occur in the law of the seat of arbitration among the various
Model Law countries. Some of these variations may include the following:
– The lex loci arbitri may not permit parties to contract out of various fundamental
questions concerning judicial supervision of the arbitral process. (28)
– The law of the arbitral seat may specify mandatory rules that must be applied by an
arbitral tribunal regarding statutes of limitation, choice-of-law rules, or other
procedural issues. (29)
– In certain jurisdictions, the local public policies and mandatory laws of the arbitral
seat will determine whether certain issues or claims may be submitted to arbitration
(i.e., the “arbitrability” of those issues).
– Mandatory rules at the arbitral seat can determine whether parties may be
represented by counsel not qualified to practice law in that jurisdiction. Until January
1, 2019, the State of California, for example, only permitted California-qualified
lawyers to appear as counsel in arbitrations seated in California. (30)
Also, absent party agreement on issues concerning arbitrators, governing law, or rules of
P 138 evidence, a tribunal may look to the law of the place of arbitration to supply rules of
P 139 decision. Therefore, parties will do well to check these and other features of the law of
any potential seat of arbitration before specifying that seat in their arbitration clause.
Second, the courts of the seat of arbitration will have jurisdiction to supervise the
arbitration according to the lex loci arbitri. While the courts in many jurisdictions (e.g.,
England, France, Switzerland, the U.S.) will normally enforce agreements to arbitrate,
decide in favor of the arbitrability of claims, (31) and otherwise refrain from interfering in
the arbitral process, this type of “proarbitration” attitude is not universal. Local court
interference in international arbitrations sited within the court’s jurisdiction can take
many forms, including declining to enforce arbitration agreements, making appointments
of unqualified arbitrators, enjoining arbitral proceedings, and overturning arbitral awards.
(32)
Third, in enforcement or set-aside proceedings, a court will deem the arbitral award to
have been made at the seat of arbitration. An arbitral award that is rendered outside of
the jurisdiction in which that award is to be enforced may be subject to different
procedural requirements for enforcement purposes than an award that was rendered in
the enforcement jurisdiction. (33) As discussed in Chapter 9 (The Award: Form, Effect, and
Enforceability), a party seeking to set aside an award will typically do so before the courts
of the seat, because a successful petition will usually cause the award to be unenforceable
in all other Member States of the New York Convention and/or other applicable treaty. (34)
Because there are varying standards under national law for the review of arbitral awards,
the choice of arbitral seat can, therefore, have significant consequences for the award.
In addition to the foregoing legal considerations, practical considerations may bear on the
selection of the seat. First, parties may perceive a certain “home court” advantage if the
arbitration can be seated in their principal place of business or domicile. Second, party-
appointed arbitrators and appointing authorities may opt to choose an arbitrator from
among local arbitration specialists at the seat of the arbitration. On the one hand, such a
person would tend to have knowledge of the lex loci arbitri; on the other, that person may
P 139 approach the arbitration based on the judicial style of that jurisdiction (which may not be
P 140 preferred by the parties). Third, where the arbitration takes place can have a material
effect on the costs of arbitration. These include travel and visas and room and board.
While major arbitration centers like New York or Geneva may be more costly, they typically
have state-of-the-art arbitration facilities, qualified interpreters and stenographers,
reliable telecommunications, etc. on location, which may offset other costs.
It is possible to obtain the legal benefits of a particular seat of arbitration and the
practical benefits of a different location for meetings and hearings. Most of the rules
contain very similar provisions regarding the ability of the tribunal to hold conferences
and meetings and to conduct hearings at any location it deems appropriate (not just at the
arbitral seat). (35) Such provisions reflect the practical reality that, for reasons mostly
related to geographic convenience, the legal seat need not necessarily coincide with the
physical location of the proceedings. (36) Of those rules, some require the tribunal to
consult with the parties before scheduling a hearing and/or otherwise ordering that a
procedural act occur at a location other than the seat, presumably to protect the parties
from possible abuses. (37) Some rules provide the parties with the option to limit, by
agreement, the tribunal’s ability to hold hearings and/or meetings in places other than the
seat of the arbitration. (38) As to the tribunal’s deliberations, however, the ICC, LCIA, SCC,
and UNCITRAL Rules make clear that there is no need to consult with the parties and that
the parties may not suppress the tribunal’s freedom to hold deliberations wherever it

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 deems appropriate. (39) The ICDR Rules empower the tribunal to “meet at any place it
deems appropriate for any purpose, including to conduct hearings, hold conferences, hear
witnesses, inspect property or documents, or deliberate”; the tribunal need not consult
with the parties and is not limited by any prior agreement of the parties. (40)
Taking the foregoing considerations together, the following guidelines may assist parties to
P 140 make an informed choice of the arbitral seat in the context of contractual negotiations or
P 141 to evaluate any such recommendations that may be offered by a counterparty.
Guidelines for Selecting Arbitral Seat
– New York Convention Jurisdictions. Select only those jurisdictions that have acceded
to the New York Convention, as this increases the likelihood that the arbitration
agreement and/or arbitration award will be enforced. In order for an arbitration
award to be subject to the New York Convention’s enforcement regime, it must have
been made in a State that is a party to the Convention. In certain circumstances, if
the State is not a party to the New York Convention, an inquiry should be made to
determine whether the State is a party to other multilateral agreements, such as the
Inter-American Convention on International Commercial Arbitration (Panama
Convention), which might facilitate the enforcement of an arbitral award. If there are
no applicable bilateral or multilateral treaties, it is unwise to choose that forum as
the seat of the arbitration.
– Well-developed National Arbitration Laws. Select jurisdictions that have a national
arbitration law that is well-developed and predictable, but that is not overly
intrusive and is still supportive of the arbitral process. Several such jurisdictions are
identified in the table below. In addition, with one very important caveat, there are
other jurisdictions that have adopted (in full or in modified form) the United Nations
Commission on International Trade Law’s Model Law on International Arbitration
(UNCITRAL Model Law), which may also be considered as falling within this category.
However, even if a jurisdiction has adopted or based its arbitration law on the
UNCITRAL Model Law, ultimately it is local judges and courts that must give effect to
the law’s provisions. Their ability to do so will depend on a variety of factors,
including the degree of development of the State and of its court system; the
independence of the courts from political influence; the extent of familiarity of
national judges with arbitral processes, both domestic and international; and
national public policy considerations.
– Doctrine of Separability. Select a jurisdiction where the national arbitration law and
courts recognize the doctrine of the separability of the arbitration agreement and are
otherwise inclined to enforce arbitration agreements. The separability doctrine
provides for the continuing validity of an arbitration clause, even if the underlying
contract in which the clause is embedded is somehow found to be invalid or
unenforceable. In practice, because of the separability doctrine, a challenge to the
parties’ underlying contract (e.g., on the grounds that the contract was fraudulently
induced, void for lack of consideration or superseded) will not affect their arbitration
agreement, which is considered to be a separate contract with separate legal effect.
Accordingly, a tribunal’s award on the merits will be valid even if it finds that the
parties’ substantive agreement is void. Exceptions to the application of the
separability doctrine are limited, for example, where the parties have expressly
excluded its application or where the basis for challenging jurisdiction is fraud
tainting the arbitration agreement itself. All of the major arbitral institution rules
recognize the separability doctrine. (41)
P 141
P 142
– Arbitrability. Avoid jurisdictions where it is unclear whether particular claims or
categories of claims are arbitrable or not.
– Choice of Arbitrator. Avoid jurisdictions that seek to regulate who a party may
appoint as arbitrator, or who may serve as sole arbitrator or as the presiding member
of a three-member tribunal. (42)
– Inexperienced Courts. Avoid jurisdictions where the courts are inclined to take an
active role in supervising arbitrations within their jurisdiction, or lack experience in
the interpretation and application of the national arbitration law.
– Award Review. Avoid jurisdictions where there is a predilection on the part of the
courts to review the substance of arbitral awards.
– Choice of Counsel. Avoid jurisdictions that restrict the role of non-locally qualified
counsel in representing a party to an arbitration.
Some of the more popular arbitral venues selected by parties because of (1) their friendly
attitude toward arbitration and (2) the availability of developed facilities for arbitral
proceedings (e.g., developed air, ground and rail transportation system; ease of access;
business hotels; political stability; court reporters; interpreters) are identified in the table
below.
Jurisdiction Arbitral Law

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 Jurisdiction Arbitral Law
New York, New York, USA Federal Arbitration Act, 9 USC sec. 1 et seq;
New York Arbitration Law, Art. 75, Civil Law
and Practice Rules
Miami, Florida, USA Federal Arbitration Act, 9 USC sec. 1 et seq;
Chapter 682, Florida Statutes
Paris, France Décret No 2011-48, 13 Jan. 2011
London, England Arbitration Act 1996
Geneva or Zurich, Switzerland Federal Private International Law Act (18
Dec. 1987 as amended up to 1 July 2014),
Chapter 12
Dubai International Financial Center DIFC Law No. 1 of 2008
Hong Kong Chapter 609, Arbitration Ordinance
Singapore International Arbitration Act (amended
most recently in 2012)
As mentioned above, the national arbitration legislation of an increasing number of States
is based on the UNCITRAL Model Law. The principal objective of the UNCITRAL Model Law is
to make international arbitration agreements and awards more readily, predictably, and
uniformly enforceable and to minimize the potential for judicial interference in
P 142 international arbitration proceedings. The main features of the UNCITRAL Model Law are
P 143 summarized below:
SALIENT FEATURES OF THE UNCITRAL MODEL LAW
– An arbitration is “international” under the Model Law if “the parties to an arbitration
agreement have, at the time of the conclusion of that agreement, their places of
business in different States” (Article 1(3)), or if the place of arbitration, the place of
contract performance, or the place of the subject-matter of the dispute is situated in
a State other than where the parties have their place of business, or if the parties
have expressly agreed that the subject-matter of the arbitration agreement relates to
more than one country.
– No clear definition is provided regarding the term “commercial.” A note to Article 1
calls for “a wide interpretation so as to cover matters arising from all relationships of
a commercial nature, whether contractual or not.” The footnote to Article 1 then
provides an illustrative list of relationships that are to be considered commercial.
– Court involvement is envisaged in the following instances: Appointment, challenge
and termination of the mandate of an arbitrator (Articles 11, 13 and 14), jurisdiction of
the arbitral tribunal (Article 16), setting aside of the arbitral award (Article 34), taking
evidence (Article 27), recognition of the arbitration agreement, including its
compatibility with court-ordered interim measures of protection (Articles 8 and 9),
and recognition and enforcement of arbitral awards (Articles 35 and 36). Beyond the
foregoing, “[i]n matters governed by this Law, no court shall intervene except where
so provided in this Law.” (Article 5).
– Chapter II of the Model Law (comprising Articles 7-9) deals with the arbitration
agreement, including its recognition by courts. The provisions of the 1985 version of
the Model Law follow closely Article II of the New York Convention, with a number of
useful clarifications added. Article 7(1) recognizes the validity and effect of a
commitment by the parties to submit to arbitration an existing dispute
(“compromis”) or a future dispute (“clause compromissoire”). While oral arbitration
agreements are found in practice and are recognized by some national laws, Article
7(2) of the 1985 version follows the New York Convention in requiring written form. It
widens and clarifies the definition of written form of Article II(2) of that Convention by
adding “telex or other means of telecommunication which provide a record of the
agreement,” by covering the situation of “an exchange of statements of claim and
defence in which the existence of an agreement is alleged by one party and not
denied by another,” and by providing that “the reference in a contract to a
document” (e.g., general conditions) “containing an arbitration clause constitutes an
arbitration agreement provided that the contract is in writing and the reference is
such as to make that clause part of the contract.” Article 7 of the 2006 revised version
offers two options, which reflect two different approaches on the question of
definition and form of arbitration agreement. The first option is similar in structure to
the 1985 version and, like the 1985 version and the New York Convention, requires that
the arbitration agreement be in written form. However, it allows for the arbitration
agreement to be entered into in any form (e.g. including orally) as long as the content
of the agreement is recorded “in any form”; it regards a record of the contents as
equivalent to a traditional writing. The second option takes a completely different
approach and dispenses with the writing requirement altogether.
P 143 – Articles 8 and 9 deal with two important aspects of the complex issue of the
P 144 relationship between the arbitration agreement and resort to courts. Modeled on
Article II(3) of the 1958 New York Convention, Article 8(1) of the Model Law obliges any

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 court to refer the parties to arbitration, regardless of the place of arbitration, if
seized with a claim on the same subject-matter unless it finds that the arbitration
agreement is null and void, inoperative or incapable of being performed. Article 9
expresses the principle that a request for interim measures of protection from a court
will not be considered incompatible with an arbitration agreement, regardless of the
place of arbitration. Wherever a request for interim relief is made, it may not be
relied upon, under the Model Law, as an objection against the existence or effect of
an arbitration agreement.
– Chapter III (Articles 10-15) contains a number of detailed provisions on the
appointment, challenge, termination of mandate and replacement of an arbitrator.
The Model Law recognizes the freedom of the parties to determine, by reference to
an existing set of arbitration rules or by an ad hoc agreement, the procedures to be
followed, subject to fundamental requirements of fairness and justice. Articles 11, 13
and 14 provide for assistance by courts or other authorities in the event the parties
are unable to proceed by agreement.
– Article 16(1) adopts the principles of “Kompetenz-Kompetenz” and of separability of
the arbitration clause. The arbitral tribunal may rule on its own jurisdiction, including
any objections with respect to the existence or validity of the arbitration agreement.
For that purpose, an arbitration clause shall be treated as an agreement
independent of the other terms of the contract, and a decision by the arbitral
tribunal that the contract is null and void shall not entail ipso jure the invalidity of
the arbitration clause.
– The Model Law empowers the arbitral tribunal, unless otherwise agreed by the
parties, to order any party to take an interim measure of protection in respect of the
subject-matter of the dispute, if so requested by another party (Article 17). The 2006
revision to the Model Law establishes a comprehensive framework governing interim
measures. It specifies appropriate circumstances for granting interim measures
(Article 17A), empowers the tribunal to issue preliminary orders “directing a party not
to frustrate the purpose of the interim measure requested” (Articles 17B and 17C), sets
forth the conditions for suspension and modification of orders granting interim relief
(Article 17D), establishes a regime for recognition and enforcement of interim
measures (Articles 17H and 17I), and delineates the grounds upon which a domestic
court can set aside orders granting interim measures.
– Chapter V (Articles 18-27) provides the legal framework for a fair and effective arbitral
procedure. Article 18 embodies the basic principle that the parties shall be treated
with equality and each party shall be given a full opportunity to present its case.
– Article 19 guarantees the parties’ freedom to agree on the procedure to be followed
by the arbitral tribunal in conducting the proceedings, subject to a few mandatory
provisions on procedure, and empowers the arbitral tribunal, failing agreement by
the parties, to conduct the arbitration in such a manner as it considers appropriate.
The power conferred upon the arbitral tribunal includes the power to determine the
admissibility, relevance, materiality and weight of any evidence.
– Article 20 addresses the place of arbitration and Article 22 the language of the
proceedings.
P 144
P 145
– Article 24(1) provides that, unless the parties have validly agreed that no oral
hearings for the presentation of evidence or for oral argument be held, the arbitral
tribunal shall hold such hearings at an appropriate stage of the proceedings, if so
requested by a party. Article 24(3) provides that all statements, documents and other
information supplied to the arbitral tribunal by one party shall be communicated to
the other party, and that any expert report or evidentiary document on which the
arbitral tribunal may rely in making its decision shall be communicated to the
parties. In order to enable the parties to be present at any hearing and at any
meeting of the arbitral tribunal for inspection purposes, they shall be given sufficient
notice in advance (Article 24(2)).
– Another fundamental right of a party of being heard and being able to present his
case relates to evidence by an expert appointed by the arbitral tribunal. Article 26(2)
obliges the expert, after having delivered his written or oral report, to participate in
a hearing where the parties may put questions to him and present expert witnesses in
order to testify on the points at issue, if such a hearing is requested by a party or
deemed necessary by the arbitral tribunal.
– Under the Model Law, the arbitral proceedings may be continued in the absence of a
party only if due notice was given. This applies, in particular, to the failure of a party
to appear at a hearing or to produce documentary evidence without showing
sufficient cause for such failure (Article 25I). The arbitral tribunal may also continue
the proceedings where the respondent fails to communicate its statement of
defence, while there is no need for continuing the proceedings if the claimant fails to
submit his statement of claim (Articles 25(a), (b)).
– Article 28 deals with the substantive law aspects of arbitration. Under paragraph (1),
the arbitral tribunal decides the dispute in accordance with such “rules of law” as
may be agreed by the parties. However, when the parties have not designated the
applicable law, the arbitral tribunal shall apply the national law that it considers

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 applicable as determined by relevant conflict-of-laws rules. According to Article
28(3), the parties may authorize the arbitral tribunal to decide the dispute ex aequo
et bono or as amiables compositeurs. Paragraph (4) makes clear that in all cases, i.e.
including an arbitration ex aequo et bono, the arbitral tribunal must decide in
accordance with the terms of the contract and shall take into account the usages of
the trade applicable to the transaction.
– In its rules on the making of the award (Articles 29-31), the Model Law pays special
attention to the rather common case that the arbitral tribunal consists of a plurality
of arbitrators (in particular, three). It provides that, in such case, any award and other
decision shall be made by a majority of the arbitrators, except on questions of
procedure, which may be left to a presiding arbitrator. The majority principle applies
also to the signing of the award, provided that the reason for any omitted signature is
stated.
– Article 31(3) provides that the award shall state the place of arbitration and that it
shall be deemed to have been made at that place. As to this presumption, it may be
noted that the final making of the award constitutes a legal act, which in practice is
not necessarily one factual act but may be done in deliberations at various places,
by telephone conversation or correspondence; above all, the award need not be
signed by the arbitrators at the same place.
P 145
P 146
– The arbitral award must be in writing and state its date. It must also state the reasons
on which it is based, unless the parties have agreed otherwise or the award is an
award on agreed terms, i.e. an award which records the terms of an amicable
settlement by the parties. It may be added that the Model Law neither requires nor
prohibits “dissenting opinions.”
– Setting Aside of Arbitral Award: An application for setting aside under Article 34 must
be made within three months of receipt of the award. The Model Law contains an
exclusive list of limited grounds on which an award may be set aside. This list, which
mirrors Article 36(1), derives from the grounds listed in Article V of the 1958 New York
Convention: lack of capacity of parties to conclude arbitration agreement or lack of
valid arbitration agreement; lack of notice of appointment of an arbitrator or of the
arbitral proceedings or inability of a party to present his case; award deals with
matters not covered by submission to arbitration; composition of arbitral tribunal or
conduct of arbitral proceedings contrary to effective agreement of parties or, failing
agreement, to the Model Law; non-arbitrability of subject-matter of dispute and
violation of public policy, which would include serious departures from fundamental
notions of procedural justice. Although the grounds for setting aside are almost
identical to those for refusing recognition or enforcement, two practical differences
should be noted. Firstly, the grounds relating to public policy, including non-
arbitrability, may be different in substance, depending on the State in question (i.e.,
State of setting aside or State of enforcement). Secondly, and more importantly, the
grounds for refusal of recognition or enforcement are valid and effective only in the
State (or States) where the winning party seeks recognition and enforcement, while
the grounds for setting aside have a different impact: The setting aside of an award at
the place of origin may bar enforcement of that award elsewhere by virtue of Article
V(1)(e) of the 1958 New York Convention and Article 36(1)(a)(v) of the Model Law. The
grounds on which recognition or enforcement may be refused under the Model Law
are identical to those listed in Article V of the New York Convention, but under the
Model Law, they are relevant not merely to foreign awards but to all awards rendered
in international commercial arbitration.
– Recognition and Enforcement of Arbitral Awards. The eighth and final chapter of the
Model Law deals with recognition and enforcement of awards. Its provisions reflect
the significant policy decision that the same rules should apply to arbitral awards
whether made in the country of enforcement or abroad, and that those rules should
follow closely the 1958 New York Convention. Under Article 35(1), any arbitral award,
irrespective of the country in which it was made, shall be recognized as binding and
enforceable, subject to the provisions of Article 35(2) and of Article 36 (which sets
forth the grounds on which recognition or enforcement may be refused). Based on the
above consideration of the limited importance of the place of arbitration in
international cases and the desire of overcoming territorial restrictions, reciprocity is
not included as a condition for recognition and enforcement.
P 146 The countries that have adopted the UNCITRAL Model Law, either in full or in modified
P 147 form, as of the date of this work, are identified in the table below.
UNCITRAL MODEL LAW JURISDICTIONS

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 Jurisdictions That Armenia, Australia (Australian Capital Territory, New South Wales,
Have Adopted the Northern Territory, Queensland, South Australia, Tasmania, Victoria,
UNCITRAL Model Law Western Australia), Austria, Azerbaijan, Bahrain, Bangladesh,
with or Without Belarus, Belgium, Brunei, Bulgaria, Cambodia, Canada (Alberta,
Modification British Colombia, Manitoba, New Brunswick, Newfoundland and
Labrador, Northwest Territories, Nova Scotia, Nunavut, Ontario,
Prince Edward Island, Quebec, Saskatchewan, Yukon), Chile, China
(Hong Kong SAR and Macao SAR), Costa Rica, Croatia, Cyprus,
Denmark, Dominican Republic, Egypt, Estonia, Fiji, Georgia,
Germany, Greece, Guatemala, Honduras, Hungary, India, Iran,
Ireland, Jamaica, Japan, Jordan, Kenya, Lithuania, Macedonia,
Madagascar, Malaysia, Malta, Mauritius, Mexico, Mongolia,
Montenegro, Myanmar, New Zealand, Nicaragua, Nigeria, Norway,
Oman, Paraguay, Peru, Philippines, Poland, Qatar, Republic of Korea,
Russian Federation, Rwanda, Serbia, Singapore, Slovakia, Slovenia,
South Africa, Spain, Sri Lanka, Thailand, Tunisia, Turkey,
Turkmenistan, Uganda, Ukraine, United Kingdom of Great Britain
and Northern Ireland (Bermuda, British Virgin Islands, Scotland),
U.S.A. (California, Connecticut, Florida, Georgia, Illinois, Louisiana,
Oregon, Texas), Venezuela, Zambia, Zimbabwe (43)
Since the seat of arbitration is so important, all of the rules under consideration allow the
parties to agree on the seat of the arbitration. However, if no such agreement is made, the
ICC Rules and SCC Rules provide that the seat of the arbitration will be fixed by the
arbitral institution. (44) The ICDR Rules also follow this model, but with a very important
difference in that the Administrator may initially determine the place of arbitration,
subject to the tribunal’s final determination. (45) Under the LCIA regime, the default seat is
London, unless the arbitral tribunal decides that another place would be more
appropriate in view of the circumstances and after having given the parties a reasonable
opportunity to make written submissions on this point. (46) The HKIAC Rules are similar to
the LCIA Rules—the default seat is Hong Kong unless the tribunal determines another seat
would be more appropriate given the circumstances of the case. (47) The SIAC Rules do not
indicate a default seat and only provide that the seat will be determined by the tribunal.
(48) Under the ICSID Rules, which are based on a multilateral treaty, the default place of
P 147 arbitration is Washington, D.C. (49) Under the CIETAC Rules, the default place of arbitration
P 148 is Beijing or the domicile of the CIETAC subcommission/center administering the case,
unless CIETAC considers that another place would be more appropriate. (50)
None of the rules indicate precisely how the arbitral institution or the arbitrators are to
determine the seat of the arbitration. Most of the rules only require that the determination
of the seat of the arbitration be made with regard to the circumstances of the case, and in
the case of the LCIA Rules, the contentions of the parties. (51) In practice, arbitral
institutions and tribunals take into account several factors, such as, the nationality of the
parties and of the arbitrators, the parties’ choice of substantive law, the locus of the
dispute or key locations within the contract, the geographic location of the witnesses, the
geographic location of the parties, the adequacy of local services and infrastructure
required for meetings and hearings, and the extent to which a particular place may be said
to be proarbitration based on its legislative framework for, and judicial treatment of,
international arbitration. (52)
Table 2.4 below reproduces the relevant provisions of the arbitration rules offered by the
arbitral institutions discussed in this book, which relate to the place of arbitration absent
party agreement. We have also included the provisions of the rules concerning the lex loci
arbitri, as well as those addressing where hearings may be held.
P 148
P 149 Table 2.4 Seat of Arbitration
AAA-ICDR
PP 150
149
151 Article 1. Scope of 2. These Rules govern the arbitration, except that, where any such
PP 150
152
151 These Rules rule is in conflict with any provision of the law applicable to the
arbitration from which the parties cannot derogate, that provision
shall prevail.
Article 17. Place of 1. If the parties do not agree on the place of arbitration by a date
Arbitration established by the Administrator, the Administrator may initially
determine the place of arbitration, subject to the power of the
arbitral tribunal to determine finally the place of arbitration within
45 days after its constitution.
2. The tribunal may meet at any place it deems appropriate for any
purpose, including to conduct hearings, hold conferences, hear
witnesses, inspect property or documents, or deliberate, and, if done
elsewhere than the place of arbitration, the arbitration shall be
deemed conducted at the place of arbitration and any award shall
be deemed made at the place of arbitration.
CIETAC

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 Article 2. The 6. The parties may agree to submit their disputes to CIETAC or a sub-
Structure and Duties commission/arbitration center of CIETAC for arbitration. Where the
parties have agreed to arbitration by CIETAC, the Arbitration Court
shall accept the arbitration application and administer the case.
Where the parties have agreed to arbitration by a sub-
commission/arbitration center, the arbitration court of the sub-
commission/arbitration center agreed upon by the parties shall
accept the arbitration application and administer the case. Where
the sub-commission/arbitration center agreed upon by the parties
does not exist or its authorization has been terminated, or where the
agreement is ambiguous, the Arbitration Court shall accept the
arbitration application and administer the case. In the event of any
dispute, a decision shall be made by CIETAC.
Article 7. Place of 1. Where the parties have agreed on the place of arbitration, the
Arbitration parties’ agreement shall prevail.
2. Where the parties have not agreed on the place of arbitration or
their agreement is ambiguous, the place of arbitration shall be the
domicile of CIETAC or its sub-commission/arbitration center
administering the case. CIETAC may also determine the place of
arbitration to be another location having regard to the
circumstances of the case.
3. The arbitral award shall be deemed as having been made at the
place of arbitration.

Article 36. Place of 1. Where the parties have agreed on the place of an oral hearing, the
Oral Hearing case shall be heard at that agreed place except in the circumstances
stipulated in Paragraph 3 of Article 82 of these Rules.
2. Unless otherwise agreed by the parties, the place of oral hearings
shall be in Beijing for a case administered by the Arbitration Court or
at the domicile of the sub-commission/arbitration center
administering the case, or if the arbitral tribunal considers it
necessary and with the approval of the President of the Arbitration
Court, at another location.

Article 82. 3. Where the parties have agreed to hold an oral hearing at a place
Arbitration Fees and other than the domicile of CIETAC or its relevant sub-
Costs commission/arbitration center, they shall advance a deposit for the
actual costs such as travel and accommodation expenses incurred
thereby. In the event that the parties fail to do so within the time
period specified by CIETAC, the oral hearing shall be held at the
domicile of CIETAC or its relevant sub-commission/arbitration
center.
HKIAC
Article 2. 2.14. References in the Rules to the “seat” of arbitration shall mean
Interpretation of the place of arbitration as referred to in Article 20.1 of the UNCITRAL
Rules Model Law on International Commercial Arbitration.
Article 14. Seat and 14.1. The parties may agree on the seat of arbitration. Where there is
Venue of the no agreement as to the seat, the seat of arbitration shall be Hong
Arbitration Kong, unless the arbitral tribunal determines, having regard to the
circumstances of the case, that another seat is more appropriate.
14.2. Unless the parties have agreed otherwise, the arbitral tribunal
may meet at any location outside of the seat of arbitration which it
considers appropriate for consultation among its members, hearing
witnesses, experts or the parties, or the inspection of goods, other
property or documents. The arbitration shall nonetheless be treated
for all purposes as an arbitration conducted at the seat.

ICC
Article 18. Place of 1. The place of the arbitration shall be fixed by the Court, unless
the Arbitration agreed upon by the parties.
2. The arbitral tribunal may, after consultation with the parties,
conduct hearings and meetings at any location it considers
appropriate, unless otherwise agreed by the parties.
3. The arbitral tribunal may deliberate at any location it considers
appropriate.

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 Article 19. Rules The proceedings before the arbitral tribunal shall be governed by the
Governing the Rules and, where the Rules are silent, by any rules which the parties
Proceedings or, failing them, the arbitral tribunal may settle on, whether or not
reference is thereby made to the rules of procedure of a national law
to be applied to the arbitration.
Appendix II. Internal When the Court scrutinizes draft awards in accordance with Article
Rules of the 34 of the Rules, it considers, to the extent practicable, the
International Court requirements of mandatory law at the place of the arbitration.
of Arbitration, Article
6. Scrutiny of
Arbitral Awards
ICSID
ICSID Convention, The seat of the Centre shall be at the principal office of the
Article 2. International Bank for Reconstruction and Development (hereinafter
called the Bank). The seat may be moved to another place by
decision of the Administrative Council adopted by a majority of two-
thirds of its members.
ICSID Convention, Conciliation and arbitration proceedings shall be held at the seat of
Article 62. Place of the Center except as hereinafter provided.
Proceedings
ICSID Convention, Conciliation and arbitration proceedings may be held, if the parties
Article 63. Place of so agree,
Proceedings
(a) at the seat of the Permanent Court of Arbitration or of any other
appropriate institution, whether private or public, with which the
Center may make arrangements for that purpose; or
(b) at any other place approved by the Commission or Tribunal after
consultation with the Secretary-General.

Arbitration Rules, 3. The Tribunal shall meet at the seat of the Center or at such other
Rule 13. Sessions of place as may have been agreed by the parties in accordance with
the Tribunal Article 63 of the Convention. If the parties agree that the proceeding
shall be held at a place other than the Center or an institution with
which the Center has made the necessary arrangements, they shall
consult with the Secretary-General and request the approval of the
Tribunal. Failing such approval, the Tribunal shall meet at the seat
of the Center.
Administrative and 1. The Secretary-General shall make arrangements for the holding of
Financial conciliation and arbitration proceedings at the seat of the Center or
Regulations, shall, at the request of the parties and as provided in Article 63 of
Regulation 26. Place the Convention, make or supervise arrangements if proceedings are
of Proceedings held elsewhere.
2. The Secretary-General shall assist a Commission or Tribunal, at its
request, in visiting any place connected with a dispute or in
conducting inquiries there.

LCIA

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 Article 16. Seat(s) of 16.1. The parties may agree in writing the seat (or legal place) of
Arbitration and their arbitration at any time before the formation of the Arbitral
Place(s) of Hearings Tribunal and, after such formation, with the prior written consent of
the Arbitral Tribunal.
16.2. In default of any such agreement, the seat of the arbitration
shall be London (England), unless and until the Arbitral Tribunal
orders, in view of the circumstances and after having given the
parties a reasonable opportunity to make written comments to the
Arbitral Tribunal, that another arbitral seat is more appropriate.
Such default seat shall not be considered as a relevant
circumstance by the LCIA Court in appointing any arbitrators under
Articles 5, 9A, 9B, 9C and 11.
16.3. The Arbitral Tribunal may hold any hearing at any convenient
geographical place in consultation with the parties and hold its
deliberations at any geographical place of its own choice; and if
such place(s) should be elsewhere than the seat of the arbitration,
the arbitration shall nonetheless be treated for all purposes as an
arbitration conducted at the arbitral seat and any order or award as
having been made at that seat.
16.4. The law applicable to the Arbitration Agreement and the
arbitration shall be the law applicable at the seat of the arbitration,
unless and to the extent that the parties have agreed in writing on
the application of other laws or rules of law and such agreement is
not prohibited by the law applicable at the arbitral seat.

SCC
Article 11. Decisions The Board takes decisions under these Rules, including deciding:
by the Board
[…]
(viii) on the seat of arbitration pursuant to Article 25

Article 25. Seat of 1. Unless agreed upon by the parties, the Board shall decide the seat
Arbitration of arbitration.
2. The Arbitral Tribunal may, after consulting the parties, conduct
hearings at any place it considers appropriate. The Arbitral Tribunal
may meet and deliberate at any place it considers appropriate. The
arbitration shall be deemed to have taken place at the seat of
arbitration regardless of any hearing, meeting, or deliberation held
elsewhere.
3. The award shall be deemed to have been made at the seat of
arbitration.

SIAC
Rule 21. Seat of 21.1. The parties may agree on the seat of the arbitration. Failing
Arbitration such an agreement, the seat of the arbitration shall be determined
by the Tribunal, having regard to all the circumstances of the case.
21.2. The Tribunal may hold hearings and meetings by any means it
considers expedient or appropriate and at any location it considers
convenient or appropriate.

UNCITRAL
Article 1. Scope of 3. These Rules shall govern the arbitration except that where any of
Application these Rules is in conflict with a provision of the law applicable to the
arbitration from which the parties cannot derogate, that provision
shall prevail.
Article 18. Place of 1. If the parties have not previously agreed on the place of
Arbitration arbitration, the place of arbitration shall be determined by the
arbitral tribunal having regard to the circumstances of the case. The
award shall be deemed to have been made at the place of
arbitration.
2. The arbitral tribunal may meet at any location it considers
appropriate for deliberations. Unless otherwise agreed by the
parties, the arbitral tribunal may also meet at any location it
considers appropriate for any other purpose, including hearings.

[B] Number of Arbitrators

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 MODEL LANGUAGE—NUMBER OF ARBITRATORS
The Arbitral Tribunal shall consist of [a sole arbitrator] or [three arbitrators].
In the absence of party agreement on the number of arbitrators, the ICDR, HKIAC, ICC, LCIA,
SCC, and SIAC Rules provide that the institution will determine whether the tribunal shall
P 152 consist of one or three arbitrators, depending on its assessment of the size, complexity,
P 153 amount in dispute, or other circumstances of the case. (53) Under the CIETAC Rules, ICSID
Convention, and UNCITRAL Rules, the default tribunal comprises three arbitrators. (54)
However, under the UNCITRAL Rules, if a party proposes a sole arbitrator and the other
party does not respond to the proposal and does not appoint a second arbitrator, the
tribunal may consist of a sole arbitrator. (55) The rules concerning the number of
arbitrators are presented and discussed in full in section §4.04 (Appointment of
Arbitrators). Also, some arbitral regimes (HKIAC, ICC, ICDR, SCC, and SIAC) provide for the
application of expedited procedures to disputes that fall below specified monetary
thresholds (unless otherwise indicated by the parties), including the appointment of a sole
arbitrator. These monetary thresholds are presented and discussed in full in section §10.01
(Expedited Procedures).
Parties who want to be certain that their dispute will be heard by a sole arbitrator, or by a
multimember tribunal, must include such a provision in their arbitration agreement. The
common practice is for parties to agree on either one or three arbitrators, although parties
have been known to designate two or five (where this is permitted under the arbitration
laws of the seat and by the institutional rules that have been selected); the former number
risks deadlock and the latter unnecessary delay and expense. (56) Thus it is best for the
parties to indicate either a sole arbitrator or a three-member tribunal.
The advantages of a sole arbitrator include easier planning and logistics (as fewer
schedules need to be taken into account), lower arbitrator fees and costs, and frequently a
quicker path to a final decision than with a three-member arbitral tribunal. However, while
a three-member tribunal may take longer to issue an award and the arbitrator fees
involved can be as much as three times higher, the risk of an erroneous award is
considerably lower. In addition, the three members of the tribunal can bring diverse
perspectives, skills, and expertise to ensure that the whole tribunal truly understands the
parties’ cases, notwithstanding the various languages, legal traditions, and technical
concepts inherent in every international arbitration.
Likewise, the parties may wish to make provision for one arbitrator for amounts in
controversy falling below a certain threshold and three arbitrators above that threshold.
Parties who choose the HKIAC, ICC, ICDR, SCC, or SIAC Rules, which include default
provisions to this effect, may nevertheless wish to indicate a different monetary threshold.
Alternatively, the parties could defer their agreement on the number of arbitrators until
after a dispute has arisen. This would allow them to take into account the nature and
complexity of the actual dispute when deciding how many arbitrators should constitute
the tribunal. However, while such flexibility can be advantageous, it is often offset by the
delay and additional expense that may result from having to make an application to the
relevant arbitral institution, or, if none is chosen, to a court, to make the determination.
P 153
P 154
[C] Method of Appointment
MODEL LANGUAGE—METHOD OF APPOINTMENT
The Arbitral Tribunal shall consist of [a sole arbitrator] or [three arbitrators].
All of the appointment mechanisms offered by the major arbitral regimes are reasonably
effective and efficient in ensuring the prompt appointment of a sole arbitrator or a three-
member arbitral tribunal. For a sole arbitrator, most regimes permit the parties to agree
on whom to select within a fixed period of time. Absent agreement by the parties, the
institution or appointing authority will make the appointment. However, the ICDR, CIETAC,
and UNCITRAL Rules provide for the institution or appointing authority to attempt to
facilitate party agreement through the use of a list method of arbitrator selection. For a
three-member tribunal, the regimes generally provide for each party to select an
arbitrator, and for the institution or appointing authority to make the selection on behalf
of a party who fails to do so. Thereafter, the regimes variously provide for the two
arbitrators, the parties or the institution to select the third, presiding arbitrator. Where
there are more than two parties from the outset of the arbitration, the regimes generally
provide for each “side” jointly to select an arbitrator, and for the institution or appointing
authority to make the selection on behalf of a side that fails to do so. Where additional
parties join an arbitration after it has commenced, the regimes generally provide that any
arbitrator appointments will be revoked and the institution or appointing authority will
appoint the tribunal. A full presentation and discussion of the rules concerning the method
of appointing the arbitral tribunal is presented in section §4.04 (Appointment of
Arbitrators).
If the parties do not select an arbitral regime, or chose one but wish to deviate from its
default provisions for appointing the tribunal, they may include their own method of

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 appointment in their arbitration agreement. If the parties do not indicate clearly in their
arbitration agreement the method of appointing the tribunal, whether by bespoke
provisions or by reference to an arbitral regime, then the competent courts may be called
upon to determine the method. (57) This can lead to judicial proceedings in multiple
jurisdictions, inconsistent outcomes, and, after considerable delay, expense, and
frustration, the appointment of an arbitral tribunal that does not include all of the
attributes that would have been chosen had the parties come to a prior agreement.
P 154
P 155
[D] Nationality of Arbitrators
MODEL LANGUAGE—ARBITRATOR NATIONALITY
[The sole arbitrator [shall not] [may] share the nationality or citizenship of any of the
Parties] or [The presiding arbitrator [shall not] [may] share the nationality or citizenship of
any of the Parties.]
The risk that an arbitrator will not be able to remain impartial based on shared nationality
with one of the parties can be eliminated in the parties’ arbitration agreement, if not also
in the law of the seat and the applicable arbitration rules. Typical contract language on
this point precludes the appointment of a sole or presiding arbitrator who shares the same
nationality as any of the parties. Less common is language requiring that none of the
arbitrators shares the same nationality as any of the parties.
Under almost all of the regimes, the parties are free to agree on an arbitrator of any
nationality, whether or not he or she is of the same nationality as any of the parties. Most
of the arbitral regimes under consideration, however, provide for strict nationality
requirements in the event of default appointments by the institution.
The LCIA Rules come the closest to an absolute prohibition on a sole or presiding arbitrator
sharing the nationality of one of the parties. They provide that where the parties are of
different nationalities, neither a sole arbitrator nor the tribunal chairman can share the
nationality of any of the parties, absent agreement in writing by all parties who are not of
the same nationality. For example, in a multiparty arbitration involving an American
claimant and two Pakistani respondents, absent agreement by both Pakistani respondents
that the presiding or sole arbitrator may have American nationality, under the LCIA Rules
the appointment of a national of a third country is mandatory. Thus, the LCIA Rules are
unique in that they remove all uncertainty that may occur where an arbitral institution is
vested with discretion in making a default appointment.
The LCIA Rules further clarify that the nationality of a party includes “that of controlling
shareholders or interests,” but say nothing about what law will apply in respect of
determining the scope or application of this restriction. In addition, they provide that a
person with citizenship in two or more states will be treated as a national of each State.
Under the LCIA Rules, citizens of the European Union are treated as nationals of its
different Member States, which is a stipulation unique to the LCIA. The LCIA Rules further
provide that “a citizen of a State’s overseas territory shall be treated as a national of that
territory and not of that State; and a legal person incorporated in a State’s overseas
territory shall be treated as such and not (by such fact alone) as a national of or a legal
person incorporated in that State.” (58)
P 155
P 156
The HKIAC Rules prohibit the appointment of a sole or presiding arbitrator with the same
nationality as any party. (59) This prohibition is waived either if the parties have otherwise
agreed in writing, or in appropriate circumstances provided none of the parties object
within a time limit set by HKIAC. (60) An example of “appropriate circumstances” might be
if the pool of arbitrators is too narrow and needs to be widened by waiving the nationality
requirement. (61) It should be noted that the nationality requirement does not apply to
party-appointed arbitrators.
The ICC Rules also prohibit the appointment of a presiding arbitrator or sole arbitrator
having the same nationality as any of the parties, but this provision “has been interpreted
as being applicable only when the Court is appointing arbitrators. It does not apply, for
example, to sole arbitrators or presidents nominated jointly by the parties or to a tribunal
president nominated jointly by the co-arbitrators.” (62) Even in the context of default
appointments by the ICC Court, however, the ICC Rules allow for the possibility that a sole
or presiding arbitrator share the nationality of one or more of the parties “in suitable
circumstances,” unless the parties object within the time limit fixed by the ICC Court. (63)
Under the 1998 ICC Rules, where the default is by one party rather than both, the ICC Court
will attempt to make the appointment based on the proposal of the ICC National
Committee of the country of which the defaulting party is a national. (64) Typically,
therefore, the default appointee will share the defaulting party’s nationality, except if the
Court does not find the National Committee’s proposal acceptable, or there is no National
Committee, or the National Committee fails to act within the time limits imposed by the
Court. In these circumstances, the ICC Court “shall be at liberty to choose any person whom
it regards as suitable.” (65) The Court will, however, be guided by the nationality
restrictions and conditions set out in the ICC Rules. This provision has been revised so that

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 the ICC Court is no longer required to seek the input of the National Committee of the
country of the party that failed to make an appointment. Rather, the ICC Court is free to
determine which National Committee (or, in the 2017 and 2012 Rules, “Group”) would be
most appropriate. (66)
P 156
P 157
The SCC Rules prohibit the appointment of a presiding arbitrator or a sole arbitrator of the
same nationality as one of the parties unless the parties agree to such an appointment or
unless the SCC Board otherwise deems it appropriate. (67) The SCC Rules thus
presumptively require that a sole or presiding arbitrator be of a different nationality than
either of the parties. They are, however, less categorical than the LCIA or ICC Rules in that
they vest discretion in the SCC Board to disregard this presumption even if the parties
have not so agreed.
The ICSID Rules contain the most detailed nationality-based restrictions of all of the
arbitral regimes, which is not unexpected given the focus of this arbitral regime on the
resolution of investment disputes between nationals of one Contracting Party of the ICSID
Convention and another Contracting Party. Indeed, the issue of a party’s nationality is
central to the jurisdiction of ICSID and has been the subject of considerable jurisprudence
and commentary. (68)
Unless the parties have agreed otherwise, Article 39 of the ICSID Convention requires that a
majority of the arbitrators not share the nationality of either of the parties to the dispute;
that is, two of the arbitrators in the case of a three-member tribunal and three in the case
of a five-member tribunal. However, Article 38 of the ICSID Convention provides that, where
a default appointment is to be made by ICSID, no default appointee can be of the same
nationality as either of the parties to the dispute. Where the consent to arbitration is
based on a treaty, that instrument may also contain rules regarding the appointment of
the tribunal, as well as nationality requirements applicable to the arbitrators. (69)
P 157
P 158
Neither the ICDR Rules nor the UNCITRAL Rules exclude the possibility that a sole or
presiding arbitrator or other default appointee may share the nationality of one or more of
the parties. The ICDR Rules provide that “[a]t the request of any party or on its own
initiative, the Administrator may appoint nationals of a country other than that of any of
the parties.” Under the ICDR system, therefore, absent a specific request from a party,
there is a risk that a sole or presiding arbitrator could share the nationality of one of the
parties. Arguably, this risk is also present even where a party requests a national of a third
country.
The UNCITRAL Rules provide that in making a default appointment, the appointing
authority “shall take into account the advisability of appointing an arbitrator of a
nationality other than the nationalities of the parties.” There is no express prohibition,
therefore, under the UNCITRAL system that a presiding or sole arbitrator could share the
nationality of one of the parties.
The only rules under consideration here which make no reference to the nationality of the
arbitrators are the SIAC Rules. The 2005 CIETAC Rules also omitted reference to arbitrator
nationality, consistent with that institution’s inclination to appoint Chinese tribunals
without regard to the nationality of the parties. However, the 2012 and 2015 CIETAC Rules
both include the nationality of the parties as one of the factors to be taken into account by
the institution in making arbitrator appointments. (70)
The relevant rules are set out in Table 2.5.
P 158
P 159 Table 2.5 Arbitrator Nationality
AAA-ICDR
P 160
159 Article 12. 4. In making appointments, the Administrator shall, after inviting
PP 160
161 Appointment of consultation with the parties, endeavor to appoint suitable
Arbitrators arbitrators, taking into account their availability to serve. At the
request of any party or on its own initiative, the Administrator may
appoint nationals of a country other than that of any of the parties.
CIETAC
Article 30. When appointing arbitrators pursuant to these Rules, the Chairman
Considerations in of CIETAC shall take into consideration the law applicable to the
Appointing dispute, the place of arbitration, the language of arbitration, the
Arbitrators nationalities of the parties, and any other factor(s) the Chairman
considers relevant.
HKIAC

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 Article 11. 11.2. Subject to Article 11.3, as a general rule, where the parties to an
Qualifications and arbitration under these Rules are of different nationalities, a sole
Challenges of the arbitrator or the presiding arbitrator of an arbitral tribunal shall not
Arbitral Tribunal have the same nationality as any party unless specifically agreed
otherwise by all parties in writing.
11.3. Notwithstanding the general rule in Article 11.2, in appropriate
circumstances and provided that none of the parties objects within a
time limit set by HKIAC, the sole arbitrator of the arbitral tribunal
may be of the same nationality as any of the parties.

Article 13. 1. In confirming or appointing arbitrators, the Court shall consider

Appointment and the prospective arbitrator’s nationality, residence and other
Confirmation of the relationships with the countries of which the parties or the other
Arbitrators arbitrators are nationals and the prospective arbitrator’s availability
and ability to conduct the arbitration in accordance with the Rules.
The same shall apply where the Secretary General confirms
arbitrators pursuant to Article 13(2).
[…]
5. The sole arbitrator or the president of the arbitral tribunal shall be
of a nationality other than those of the parties. However, in suitable
circumstances and provided that none of the parties objects within
the time limit fixed by the Court, the sole arbitrator or the president
of the arbitral tribunal may be chosen from a country of which any
of the parties is a national.

ICSID
ICSID Convention, 1. Each Contracting State may designate to each Panel four persons
Article 13. The who may but need not be its nationals.
Panels
2. The Chairman may designate ten persons to each Panel. The
persons so designated to a Panel shall each have a different
nationality.

ICSID Convention, If the Tribunal shall not have been constituted within 90 days after
Article 38. notice of registration of the request has been dispatched by the
Constitution of the Secretary-General in accordance with paragraph (3) of Article 36, or
Tribunal such other period as the parties may agree, the Chairman shall, at
the request of either party and after consulting both parties as far as
possible, appoint the arbitrator or arbitrators not yet appointed.
Arbitrators appointed by the Chairman pursuant to this Article shall
not be nationals of the Contracting State party to the dispute or of
the Contracting State whose national is a party to the dispute.
ICSID Convention, The majority of the arbitrators shall be nationals of States other
Article 39. than the Contracting State party to the dispute and the Contracting
Constitution of the State whose national is a party to the dispute; provided, however,
Tribunal that the foregoing provisions of this Article shall not apply if the sole
arbitrator or each individual member of the Tribunal has been
appointed by agreement of the parties.
Arbitration Rules, 3. The majority of the arbitrators shall be nationals of States other
Rule 1. General than the State party to the dispute and of the State whose national
Obligations is a party to the dispute, unless the sole arbitrator or each individual
member of the Tribunal is appointed by agreement of the parties.
Where the Tribunal is to consist of three members, a national of
either of these States may not be appointed as an arbitrator by a
party without the agreement of the other party to the dispute. Where
the Tribunal is to consist of five or more members, nationals of
either of these States may not be appointed as arbitrators by a party
if appointment by the other party of the same number of arbitrators
of either of these nationalities would result in a majority of
arbitrators of these nationalities.

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 Arbitration Rules, 1. If the Tribunal is to be constituted in accordance with Article 37(2)
Rule 3. Appointment (b) of the Convention:
of Arbitrators to a
Tribunal Constituted (a) either party shall in a communication to the other party: (i)
in Accordance with name two persons, identifying one of them, who shall not have
Convention Article the same nationality as nor be a national of either party, as
37(2)(b) the arbitrator appointed by it, and the other as the arbitrator
proposed to be the President of the Tribunal; and (ii) invite the
other party to concur in the appointment of the arbitrator
proposed to be the President of the Tribunal and to appoint
another arbitrator;
(b) promptly upon receipt of this communication the other party
shall, in its reply:
(i) name a person as the arbitrator appointed by it, who
shall not have the same nationality as nor be a national
of either party; and (ii) concur in the appointment of the
arbitrator proposed to be the President of the Tribunal or
name another person as the arbitrator proposed to be
President;
(c) promptly upon receipt of the reply containing such a proposal,
the initiating party shall notify the other party whether it
concurs in the appointment of the arbitrator proposed by that
party to be the President of the Tribunal.

LCIA
Article 5. Formation 5.9. The LCIA Court shall appoint arbitrators with due regard for any
of Arbitral Tribunal particular method or criteria of selection agreed in writing by the
parties. The LCIA Court shall also take into account the
transaction(s) at issue, the nature and circumstances of the dispute,
its monetary amount or value, the location and languages of the
parties, the number of parties and all other factors which it may
consider relevant in the circumstances.
Article 6. Nationality 6.1. Where the parties are of different nationalities, a sole arbitrator
of Arbitrators or the presiding arbitrator shall not have the same nationality as
any party unless the parties who are not of the same nationality as
the arbitral candidate all agree in writing otherwise.
6.2. The nationality of a party shall be understood to include those
of its controlling shareholders or interests.
6.3. A person who is a citizen of two or more States shall be treated
as a national of each State; citizens of the European Union shall be
treated as nationals of its different Member States and shall not be
treated as having the same nationality; a citizen of a State’s
overseas territory shall be treated as a national of that territory and
not of that State; and a legal person incorporated in a State’s
overseas territory shall be treated as such and not (by such fact
alone) as a national of or a legal person incorporated in that State.

SCC
Article 17. 6. If the parties are of different nationalities, the sole arbitrator or
Appointment of the Chairperson of the Arbitral Tribunal shall be of a different
Arbitrators nationality than the parties, unless the parties have agreed
otherwise or the Board otherwise deems it appropriate.
7. When appointing arbitrators, the Board shall consider the nature
and circumstances of the dispute, the applicable law, the seat and
language of the arbitration and the nationality of the parties.

SIAC
Rule 13. 13.2. In appointing an arbitrator under these Rules, the President
Qualifications of shall have due regard to any qualifications required of the arbitrator
Arbitrators by the agreement of the parties and to such considerations that are
relevant to the impartiality or independence of the arbitrator.
UNCITRAL
Article 6. 7. The appointing authority shall have regard to such considerations
Appointment of as are likely to secure the appointment of an independent and
Arbitrators impartial arbitrator and shall take into account the advisability of
appointing an arbitrator of a nationality other than the nationalities
of the parties.
P 161
P 162

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 [E] Language of the Arbitration
MODEL LANGUAGE—LANGUAGE OF ARBITRATION
The official language of the arbitration shall be [specify].
For parties requiring greater specificity: Documentary evidence submitted by a Party that
is not in the official language of the arbitration shall be accompanied by a translation into
the official language of the arbitration. Such translations [shall] [need not] be certified. Any
disputes regarding the accuracy of a translation shall be decided by the Arbitral Tribunal. A
fact or expert witness shall testify in the language used in his or her written testimony. A
simultaneous written transcript shall be maintained of all proceedings before the Arbitral
Tribunal in the official language of the arbitration and in the language in which a witness
testifies.

In an international contractual relationship, the parties should always specify the language
to be used in any arbitral proceedings. This may eliminate the need to use interpreters
and translators where all parties concerned share a common language. More importantly,
the language chosen affects who can be considered to serve as an arbitrator. When
choosing the language of the arbitration, the parties should consider the applicable law of
the contract, the place of arbitration, the language of the contract, and the language of the
other principal documents, among other factors. It is not advisable to agree on more than
one official language of the arbitration, which can result in unnecessary inefficiencies and
costs. In case the parties fail to specify a language for the arbitration, all of the major
arbitration rules indicate the means for selecting a language. In the absence of party
agreement, the language of the arbitration will be determined with reference to the
“language(s) of the documents containing the arbitration agreement” (ICDR), in the arbitral
tribunal’s judgment (HKIAC and SIAC); the “language of the contract” (ICC); or the “language
or prevailing language of the Arbitration Agreement” (LCIA); and of course other relevant
circumstances such as the nationalities of the parties and witnesses, the preferred
language(s) in which witnesses may testify, the place of arbitration, and the nationalities of
the arbitrators.
Under the CIETAC Rules, in the absence of party agreement, the language of the arbitral
proceedings will be Chinese unless CIETAC determines otherwise based on the
circumstances of the case. It is unclear whether CIETAC will accept party submissions in
this regard, although normally such a best practice would be expected.
P 162 The ICSID Rules also specify default languages, these being the official languages of the
P 163 World Bank—English, French, and Spanish. (71) In any event, absent specific agreement
between the parties, each party to the dispute may choose to present its case in one of
these official languages. If the parties agree on a language that is other than one of ICSID’s
official languages, they must first obtain the ICSID Secretary-General’s approval, which is
normally granted.
Lastly, most of the rules (ICDR, CIETAC, HKIAC, ICC, ICSID, LCIA, SCC, SIAC, and UNCITRAL)
contemplate the possibility of the arbitration proceedings being conducted in more than
one language. As such, the rules reflect the practical reality that parties will often make
submissions in one language, but produce documents, submit witness statements, and
have witnesses testify in a different language. The extent to which translations into the
language of arbitration will be provided will depend to a large extent on what the parties
agree or the tribunal directs. (72) To that end, with the exception of the ICC Rules, all of the
referenced rules include a specific provision authorizing the tribunal to order the parties
to provide translations of documents produced in a language other than that of the
arbitration. (73) In practice, ICC tribunals will make an order in appropriate circumstances
that translations should be provided.
The relevant rules are collected in Table 2.6.
P 163
P 164 Table 2.6 Language of the Arbitration
AAA-ICDR
P 165
164 Article 18. Language If the parties have not agreed otherwise, the language(s) of the
P 166
165 of Arbitration arbitration shall be the language(s) of the documents containing the
arbitration agreement, subject to the power of the arbitral tribunal
to determine otherwise. The tribunal may order that any documents
delivered in another language shall be accompanied by a
translation into the language(s) of the arbitration.
CIETAC

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 Article 81. Language 1. Where the parties have agreed on the language of arbitration,
their agreement shall prevail. In the absence of such agreement, the
language of arbitration to be used in the proceedings shall be
Chinese. CIETAC may also designate another language as the
language of arbitration having regard to the circumstances of the
case.
2. If a party or its representative(s) or witness(es) requires
interpretation at an oral hearing, an interpreter may be provided
either by the Arbitration Court or by the party.
3. The arbitral tribunal or the Arbitration Court may, if it considers it
necessary, require the parties to submit a corresponding translation
of their documents and evidence into Chinese or other languages.

Article 82. 4. Where the parties have agreed to use two or more than two
Arbitration Fees and languages as the languages of arbitration, or where the parties have
Costs agreed on a three-arbitrator tribunal in a case where the Summary
Procedure shall apply in accordance with Article 56 of these Rules,
CIETAC may charge the parties for any additional and reasonable
costs.
HKIAC
Article 15. Language 15.1. Subject to agreement by the parties, the arbitral tribunal shall,
promptly after its appointment, determine the language or
languages of the arbitration. This determination shall apply to the
Statement of Claim, the Statement of Defence, any further written
statements, any award, and, if oral hearings take place, to the
language or languages to be used in such hearings.
15.2. The arbitral tribunal may order that any documents annexed to
the statement of claim or statement of defence, and any
supplementary documents or exhibits submitted in the course of the
proceedings, delivered in their original language, shall be
accompanied by a translation into the language or languages
agreed upon by the parties or determined by the arbitral tribunal.
15.3. The arbitral tribunal may order that any supporting materials
submitted in their original language shall be accompanied by a
translation, in whole or in part, into the language of the arbitration
as agreed by the parties or determined by the tribunal.

ICC
Article 20. Language In the absence of an agreement by the parties, the arbitral tribunal
of the Arbitration shall determine the language or languages of the arbitration, due
regard being given to all relevant circumstances, including the
language of the contract.
ICSID
Arbitration Rules, 1. As early as possible after the constitution of a Tribunal, its
Rule 20. Preliminary President shall endeavor to ascertain the views of the parties
Procedural regarding questions of procedure. For this purpose he may request
Consultation the parties to meet him. He shall, in particular, seek their views on
the following matters:
[…]
(b) the language or languages to be used in the proceeding […].

Arbitration Rules, (1) The parties may agree on the use of one or two languages to be
Rule 22. Procedural used in the proceeding, provided, that, if they agree on any language
Languages that is not an official language of the Center, the Tribunal, after
consultation with the Secretary-General, gives its approval. If the
parties do not agree on any such procedural language, each of them
may select one of the official languages (i.e., English, French and
Spanish) for this purpose.
(2) If two procedural languages are selected by the parties, any
instruments may be filed in either language. Either language may be
used at the hearings, subject, if the Tribunal so requires, to
translation and interpretation. The orders and the award of the
Tribunal shall be rendered and the record kept in both procedural
languages, both versions being equally authentic.

LCIA

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 Article 17. 17.1. The initial language of the arbitration (until the formation of
Language(s) of the Arbitral Tribunal) shall be the language or prevailing language
Arbitration of the Arbitration Agreement, unless the parties have agreed in
writing otherwise.
17.2. In the event that the Arbitration Agreement is written in more
than one language of equal standing, the LCIA Court may, unless the
Arbitration Agreement provides that the arbitration proceedings
shall be conducted from the outset in more than one language,
determine which of those languages shall be the initial language of
the arbitration.
17.3. A non-participating or defaulting party shall have no cause for
complaint if communications to and from the LCIA Court and
Registrar are conducted in the initial language(s) of the arbitration
or of the arbitral seat.
17.4. Following the formation of the Arbitral Tribunal, unless the
parties have agreed upon the language or languages of the
arbitration, the Arbitral Tribunal shall decide upon the language(s)
of the arbitration after giving the parties a reasonable opportunity
to make written comments and taking into account the initial
language(s) of the arbitration and any other matter it may consider
appropriate in the circumstances.
17.5. If any document is expressed in a language other than the
language(s) of the arbitration and no translation of such document
is submitted by the party relying upon the document, the Arbitral
Tribunal may order or (if the Arbitral Tribunal has not been formed)
the Registrar may request that party to submit a translation of all or
any part of that document in any language(s) of the arbitration or of
the arbitral seat.

SCC
Article 26. Language 1. Unless agreed upon by the parties, the Arbitral Tribunal shall
determine the language(s) of the arbitration. In so determining, the
Arbitral Tribunal shall have due regard to all relevant circumstances
and shall give the parties an opportunity to submit comments.
2. The Arbitral Tribunal may request that any documents submitted
in languages other than those of the arbitration be accompanied by
a translation into the language(s) of the arbitration.

SIAC
Rule 22. Language of 22.1. Unless otherwise agreed by the parties, the Tribunal shall
the Arbitration determine the language to be used in the arbitration.
22.2. If a party submits a document written in a language other than
the language(s) of the arbitration, the Tribunal, or if the Tribunal has
not been constituted, the Registrar, may order that party to submit
a translation in a form to be determined by the Tribunal or the
Registrar.

UNCITRAL
Article 19. Language 1. Subject to an agreement by the parties, the arbitral tribunal shall,
promptly after its appointment, determine the language or
languages to be used in the proceedings. This determination shall
apply to the statement of claim, the statement of defence, and any
further written statements and, if oral hearings take place, to the
language or languages to be used in such hearings.
2. The arbitral tribunal may order that any documents annexed to
the statement of claim or statement of defence, and any
supplementary documents or exhibits submitted in the course of the
proceedings, delivered in their original language, shall be
accompanied by a translation into the language or languages
agreed upon by the parties or determined by the arbitral tribunal.

[F] Governing Law

MODEL LANGUAGE—GOVERNING LAW
This Agreement (including the Parties’ agreement to arbitrate as set out in [identify
arbitration clause]) shall be construed in accordance with and governed by the substantive
law of [specify jurisdiction], without reference to the conflicts of law or choice of law rules
thereof.
P 166

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 P 166
P 167
Typically, parties specify the substantive law applicable to the parties’ contractual and
other relationships in a choice-of-law or governing law clause. (74) Whether included under
a separate heading or as part of the dispute resolution clause, a governing law clause
provides enhanced predictability regarding the interpretation and enforcement of the
parties’ contractual obligations and, as such, should be prioritized in contract
negotiations. Key points to keep in mind for the negotiation and drafting of a governing law
clause are the following:
– It is important to ensure that the scope of the governing law clause reflects that of
the dispute resolution clause. Thus, if the dispute resolution clause is drafted to
include both contractual and noncontractual claims (e.g., those sounding in tort or
delict), the choice-of-law clause should also be drafted to include such claims.
Similarly, if the dispute resolution clause is drafted to include questions of contract
interpretation and construction, enforceability, validity, performance, questions of
tort and other noncontractual rights, and statutory claims, these questions should
also be encompassed by the choice-of-law clause.
– It should be clear that it is the substantive laws of the chosen jurisdiction and not the
conflict of laws rules of that jurisdiction that will apply.
– Any effort to include “procedural” matters within the scope of the choice-of-law
clause can result in confusion and ambiguity, as such rules may conflict with the laws
of the seat of the arbitration or the institutional rules that the parties may have
selected to govern the arbitration. A choice-of-law clause normally will not be
considered as extending to such matters as pleading requirements, discovery, joinder
of parties, and consolidation of proceedings. It is questionable whether such matters
as statutes of limitations or prescription periods, burdens of proof, rights to legal
expenses, and interest will be considered substantive or procedural. The practicality
of requiring an international arbitral tribunal to apply procedural rules of a
particular jurisdiction is also questionable. (75)
P 167
P 168
– It is important to check whether the proposed governing law conflicts with any
applicable principles of public policy or mandatory rules contained within the
national law of the parties or of the jurisdictions where the award may need to be
enforced; public policy and mandatory principles at the place of arbitration may
also be relevant. Generally speaking, public policy principles or mandatory rules of
national law cannot be overridden by any conflicting or contrary principles in the
substantive law chosen by the parties. (76)
– There should be no ambiguity as to whether the governing law agreed by the parties
to govern their substantive rights and obligations also applies to the interpretation,
scope, and effect of the arbitration clause. Thus, for example, if disputes arise as to
the effect of the arbitration clause, there should be no debate as to whether the
scope and effect of the clause is to be determined with reference to the substantive
law of the contract, or the law of the place of arbitration. Ultimately, both may lead
to the same result. However, considerable time, effort, and expense will be wasted by
the parties in addressing an issue that could have been avoided with more
conscientious contractual negotiations and drafting.
All of the arbitral rules under consideration recognize the principle of party autonomy with
respect to parties’ ability to choose the law applicable to the merits of the dispute,
subject to limitations imposed by mandatory law at the place of arbitration and, in some
instances, the requirement that the tribunal also apply trade usages, custom, principles of
international law, or international practice. This latter requirement can have significant
implications, as we discuss below.
In addition, under most rules, absent the parties’ agreement, the arbitral tribunal is
empowered to apply the law that it deems to be appropriate. As a general matter, the
rules listed above do not provide specific criteria to assist the arbitrators in making their
determination. Instead, the language chosen by the drafters of these rules provides the
arbitrators with wide discretion (by stating that the tribunal shall apply the laws which “it
determines to be appropriate,” or “as the Arbitral Tribunal may determine to be
applicable,” among other formulations). In addition, under most rules, the arbitrators are
free to choose the applicable law directly (the so-called voie directe) without reference to
any local choice-of-law rules.
The ICDR, LCIA, SCC, and SIAC Rules provide that the tribunal is to apply the “substantive
law(s) or rules of law” designated by the parties, or failing such a designation, the
substantive law(s) or rules of law determined by the tribunal to be appropriate. (77) The
distinction made in the rules between substantive law and rules of law demonstrates the
fact that, while parties typically designate the substantive law of a particular jurisdiction
to govern their dispute, they may also simply specify general, nonjurisdiction-specific
P 168 “rules of law” (e.g., “UNIDROIT Principles,” “principles of international law,” or “general
P 169 rules of commercial law”). In recognition of this fact, these rules vest arbitral tribunals
with the discretion to make a similar choice by specifically conferring upon the tribunal
the authority to designate rules of law, rather than any specific national law, to govern
resolution of the dispute. (78) The 2010 UNCITRAL Rules take a slightly different approach

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 in that they allow parties the flexibility to designate “rules of law” as applicable to the
substance of their dispute but, failing such a designation, require the tribunal to apply “the
law which it determines to be most appropriate.” (79)
The HKIAC Rules, too, differ slightly in their approach to applicable law. Like the UNCITRAL
Rules, in the absence of specification by the parties, the tribunal will apply “the rules of
law which it determines to be appropriate.” (80) If the parties have specified applicable
law, the tribunal is to apply the rules of law agreed upon by the parties but these laws
“shall be construed, unless otherwise expressed, as directly referring to the substantive
law of that jurisdiction and not to its conflict of laws rules.” (81) This reference to conflicts
of law rules was first added in the 2013 update and is rare among the rules considered in
this book. (82) Only the SCC rules mirror HKIAC in excluding the conflicts of laws rules of the
applicable law while the ICSID Convention takes the opposite approach and includes the
conflicts of laws rules in its considerations. (83)
Where the dispute is in connection with or arises out of a contract, the ICDR, HKIAC, SIAC,
and UNCITRAL Rules also instruct the tribunal to decide the dispute in accord with the
terms of the contract and to take into account relevant trade usages. (84) The ICC Rules, by
contrast, provide that the tribunal need only “take account of the provisions of the
contract … and of any relevant trade usages.” (85) To what extent this difference is of any
material and practical effect will depend on the attitude of the arbitrators and the views
put before them by the parties.
The CIETAC Rules contain similar standards in different terms. The CIETAC Rules require the
tribunal to make its award “based on the facts of the case and the terms of the contract”
P 169 and “in accordance with the law.” (86) The CIETAC Rules, however, go on to instruct the
P 170 tribunal to make its decision “with reference to international practices.” (87) In addition,
the 2015 CIETAC Rules require every CIETAC award to be “fair and reasonable.” (88)
The ICSID regime uniquely requires the tribunal also to decide the parties’ dispute in
accordance with international law. (89) The LCIA and SCC Rules make no mention of either
the terms of the contract or trade usages, but rather simply instruct that the tribunal
should decide the parties’ dispute in accordance with the law(s) or rules of law chosen by
the parties or, absent such a choice, those selected by the tribunal. (90)
Rules relevant to governing law are reproduced in Table 2.7.
P 170
P 171 Table 2.7 Governing Law
AAA-ICDR
P 171 Article 31. Applicable 1. The arbitral tribunal shall apply the substantive law(s) or rules of
P 172 Laws and Remedies law agreed by the parties as applicable to the dispute. Failing such
an agreement by the parties, the tribunal shall apply such law(s) or
rules of law as it determines to be appropriate.
2. In arbitrations involving the application of contracts, the tribunal
shall decide in accordance with the terms of the contract and shall
take into account usages of the trade applicable to the contract.
3. The tribunal shall not decide as amiable compositeur or ex aequo
et bono unless the parties have expressly authorized it to do so.

CIETAC
Article 49. Making of 1. The arbitral tribunal shall independently and impartially render a
Award fair and reasonable arbitral award based on the facts of the case
and the terms of the contract, in accordance with the law, and with
reference to international practices.
2. Where the parties have agreed on the law applicable to the merits
of their dispute, the parties’ agreement shall prevail. In the absence
of such an agreement or where such agreement is in conflict with a
mandatory provision of the law, the arbitral tribunal shall determine
the law applicable to the merits of the dispute.

HKIAC

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 Article 36. 35.1. The arbitral tribunal shall decide the substance of the dispute
Applicable Law, in accordance with the rules of law agreed upon by the parties. Any
Amiable designation of law or legal system of a given jurisdiction shall be
Compositeur construed, unless otherwise expressed, as directly referring to the
substantive law of that jurisdiction and not to its conflict of laws
rules. Failing such designation by the parties, the arbitral tribunal
shall apply the rules of law which it determines to be appropriate.
35.2. The arbitral tribunal shall decide as amiable compositeur or ex
aequo et bono only if the parties have expressly authorized the
arbitral tribunal to do so.
35.3. In all cases, the arbitral tribunal shall decide in accordance
with the terms of the contract(s) and may take into account the
usage of trade applicable to the transaction(s).

ICC
Article 21. Applicable 1. The parties shall be free to agree upon the rules of law to be
Rules of Law applied by the arbitral tribunal to the merits of the dispute. In the
absence of any such agreement, the arbitral tribunal shall apply the
rules of law which it determines to be appropriate.
2. The arbitral tribunal shall take account of the provisions of the
contract, if any, between the parties and of any relevant trade
usages.
3. The tribunal shall assume the powers of an amiable compositeur
or decide ex aequo et bono only if the parties have agreed to give it
such powers.

ICSID
ICSID Convention, 1. The Tribunal shall decide a dispute in accordance with such rules
Article 42. Powers of law as may be agreed by the parties. In the absence of such
and Functions of the agreement, the Tribunal shall apply the law of the Contracting State
Tribunal party to the dispute (including its rules on the conflict of laws) and
such rules of international law as may be applicable.
2. The Tribunal may not bring in a finding of non liquet on the
ground of silence or obscurity of the law.
3. The provisions of paragraphs (1) and (2) shall not prejudice the
power of the Tribunal to decide a dispute ex aequo et bono if the
parties so agree.

LCIA
Article 14. Conduct of 14.5 The Arbitral Tribunal shall have the widest discretion to
Proceedings discharge these general duties, subject to such mandatory law(s) or
rules of law as the Arbitral Tribunal may decide to be applicable;
and at all times the parties shall do everything necessary in good
faith for the fair, efficient and expeditious conduct of the arbitration,
including the Arbitral Tribunal’s discharge of its general duties.
Article 22. Additional 22.3. The Arbitral Tribunal shall decide the parties’ dispute in
Powers accordance with the law(s) or rules of law chosen by the parties as
applicable to the merits of their dispute. If and to the extent that the
Arbitral Tribunal decides that the parties have made no such choice,
the Arbitral Tribunal shall apply the law(s) or rules of law which it
considers appropriate.
22.4. The Arbitral Tribunal shall only apply to the merits of the
dispute principles deriving from “ex aequo et bono,” “amiable
composition” or “honourable engagement” where the parties have so
agreed in writing.

SCC

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 Article 27. Applicable 1. The Arbitral Tribunal shall decide the merits of the dispute on the
Law basis of the law(s) or rules of law agreed upon by the parties. In the
absence of such agreement, the Arbitral Tribunal shall apply the law
or rules of law which it considers to be most appropriate.
2. Any designation by the parties of the law of a given state shall be
deemed to refer to the substantive law of that state, not to its
conflict of laws rules.
3. The Arbitral Tribunal shall decide the dispute ex aequo et bono or
as amiable compositeur only if the parties have expressly authorised
it to do so.

SIAC
Rule 31. Applicable 31.1. The Tribunal shall apply the law or rules of law designated by
Law, Amiable the parties as applicable to the substance of the dispute. Failing
Compositeur and Ex such designation by the parties, the Tribunal shall apply the law or
Aequo et Bono rules of law which it determines to be appropriate.
31.2. The Tribunal shall decide as amiable compositeur or ex aequo
et bono only if the parties have expressly authorised it to do so.
31.3. In all cases, the Tribunal shall decide in accordance with the
terms of the contract, if any, and shall take into account any
applicable usage of trade.

UNCITRAL
Article 35 Applicable 1. The arbitral tribunal shall apply the rules of law designated by the
Law, Amiable parties as applicable to the substance of the dispute. Failing such
Compositeur designation by the parties, the arbitral tribunal shall apply the law
which it determines to be appropriate.
2. The arbitral tribunal shall decide as amiable compositeur or ex
aequo et bono only if the parties have expressly authorized the
arbitral tribunal to do so.
3. In all cases, the arbitral tribunal shall decide in accordance with
the terms of the contract, if any, and shall take into account any
usage of trade applicable to the transaction.
P 172
P 173

§2.04 OPTIONAL PROVISIONS

There are a number of optional provisions that the parties may wish to include in their
arbitration agreement. Many of these issues are addressed by the arbitral regimes under
consideration and discussed in detail in other chapters of this book. To the extent that the
parties may prefer a different rule on a particular point or wish to otherwise customize
their own procedures in certain areas, this chapter identifies the options. The parties’
elections as to any optional provisions will vary depending on the circumstances of the
underlying transaction and their commercial relationship, as well as their own preferences
and experiences. We advise, in any event, that parties should take care not to overregulate
procedural issues in their arbitration clause, or they risk losing the flexibility that is one of
the key advantages of arbitration. The parties may have a chance to make further
specifications regarding some of these issues at the initial procedural conference,
discussed in Chapter 5 (Initial Procedural Conference).

[A] Arbitrator Qualifications

In some cases, the parties may wish to specify in the arbitration clause the qualifications
and characteristics required of the arbitrators. The appointment of an arbitrator with
technical expertise in the matter at hand can reduce the need for, and cost of, an expert
opinion. The parties may also find they need to spend less time and resources educating
the arbitrator on the underlying industry or certain technical aspects of the facts of the
case. However, parties should weigh these advantages against those associated with an
arbitrator who is a dispute resolution specialist. Such an arbitrator will likely be better
able to keep the proceedings on track and produce an enforceable award. In addition,
technical requirements for the arbitrator set forth in the arbitration agreement may not be
relevant, or at least not necessary, for resolving the particular dispute that actually arises.
Lastly, experience has shown that notwithstanding the parties’ ability to agree on the
requisite qualifications or characteristics of the arbitrators, they are often unable to agree
as to whether the candidates proposed by each side satisfy the contractual criteria.
Aside from specific technical or professional qualifications, it is not uncommon to find
language in arbitration clauses requiring arbitrators to be of a particular nationality or to
be fluent in particular languages. Depending on the nature of the parties’ underlying

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 contractual relationship, addressing such issues in the arbitration agreement can
sometimes be helpful. That said, care should be taken not to be excessively specific as to
the qualifications required of arbitrators as this may unnecessarily limit the number of
candidates for appointment to the tribunal. It is also important, however, that any
required qualifications are very carefully and precisely defined to avoid unnecessary
uncertainty, delay, and expense.
Lastly, parties will occasionally seek to name particular arbitrators in their agreement.
While this practice can hasten the appointment of an arbitral tribunal, especially where
P 173 the parties are submitting an existing dispute to arbitration, this approach should be used
P 174 with extreme caution. A named individual may not be available to serve as an arbitrator
when the parties’ dispute arises, for example, because of incapacity, or conflict of interest,
or scheduling conflicts. The person named in the arbitration clause may also not be the
most appropriate or best qualified to decide the dispute that may eventually arise. Lastly,
well-reputed lawyers who are experienced arbitrators will be reluctant to have their
names included in an arbitration agreement, as this may give rise to conflicts of interest in
their practice, which may prevent them from accepting other appointments with no
guarantee that any dispute will ever arise requiring their services. If an arbitrator is
specifically named, whether in an arbitration clause or submission agreement, it is
advisable to specify an alternative appointment procedure and appointing authority as a
contingency in the event that a named individual is unable or unwilling to serve for
whatever reason.
None of the rules under consideration require that an arbitrator have any particular
qualifications. For example, there are no requirements that the arbitrators be fluent in any
particular language (although arbitral institutions take language proficiency into account
when making appointments). Neither is expertise in particular fields nor particular legal
qualification a requirement under any of the above rules. Even the ICSID regime, which is
slightly more specific, merely provides that arbitrators shall be recognized “in the fields of
law, commerce, industry or finance.” (91) Competence in the field of law, while “of
particular importance” for arbitrators, is not indispensable. (92) However, when making an
appointment under the SIAC Rules, the President is required to give due regard to any
qualifications of the arbitrator established in the parties’ arbitration agreement. (93)
Few institutional regimes impose a meaningful limitation on the parties’ autonomy to
select the arbitrators by requiring that the arbitrators be identified by the parties from a
list maintained by the arbitral institution. Among the institutional regimes considered in
this work, only CIETAC requires the parties to nominate arbitrators from the Panel of
Arbitrators approved by CIETAC; any arbitrator nominated from outside of CIETAC’s panel
must be confirmed by the Chairman of CIETAC. (94) This is a relatively uncommon practice
today, although a number of institutions, including the ICDR and ICSID, continue to
maintain lists from which they will select a sole or presiding arbitrator in the absence of
party agreement.

[B] Evidentiary Procedure

Since most arbitration rules leave evidentiary issues to the discretion of the arbitrators,
the parties may desire to specify in their arbitration agreement the availability and scope
P 174 of document production and witness testimony. In this regard, the parties may incorporate
P 175 specific procedural rules, such as the International Bar Association (IBA) Rules of
Evidence. (95) Parties should examine the rules concerning evidentiary procedure under
their chosen arbitral regime in case they wish to make any deviations, or incorporate the
IBA Rules of Evidence to fill gaps. The rules concerning evidentiary procedure are
addressed in detail in Chapter 6 (Evidentiary Procedure).

[C] Expedited and Emergency Procedures

Some of the arbitral regimes under consideration make provision for expedited
procedures for smaller claims, interim measures of protection ordered by the tribunal or
by an emergency arbitrator, and for consolidation of multiple claims, parties, and
arbitrations. The parties to an arbitration agreement should take note of these rules which
will automatically apply to these special circumstances in the absence of an agreement to
the contrary. With respect to smaller claims, some of the rules set specific monetary
thresholds that will trigger expedited proceedings with only one arbitrator, shortened time
frames for written submissions, and possibly no hearing. The parties may wish to establish
in their arbitration agreement a different monetary threshold or deadlines, or a
requirement for a hearing.
With respect to interim measures, an application for interim relief from a court of
competent jurisdiction will not ordinarily result in a waiver of the parties’ arbitration
agreement. While seeking interim measures from a court has a more immediate and
certain effect than requesting a court to enforce such an order issued by an arbitral
tribunal, seeking interim measures from a court may complicate the matter by introducing
a second authority on potentially overlapping legal issues and evidence. With this
consideration in mind, the parties may wish to specify that interim measures may be
sought only from the arbitral tribunal (if permitted by the lex loci arbitri), especially if the
applicable arbitral rules contain provisions allowing for emergency interim relief.

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 The provisions in some of the rules permitting an emergency arbitrator to order interim
measures are “opt-out” provisions, meaning that they will apply unless the parties
expressly make provision to the contrary in their arbitration agreement. In emergency
situations, parties have traditionally sought relief from a court and may wish to continue
that practice notwithstanding this innovation in some of the rules.
Finally, the rules concerning complex proceedings allow the tribunal to join multiple
claims, parties, and arbitrations into one proceeding in certain situations. The parties may
wish to deviate from these default rules by indicating that certain claims, parties, or
arbitrations shall remain separate. A full examination and discussion of the rules
concerning these scenarios can be found in Chapter 10 (Special Procedures and Procedural
Innovations).
P 175
P 176
[D] Ex Parte Communications
The issue of private, or ex parte, communications between a party and an arbitrator does
not receive uniform treatment in the rules; it is an issue that parties may wish to take into
consideration when selecting an arbitral regime. Given the varying degree to which parties
to a dispute may observe the prohibition on ex parte arbitrator communications, parties
should take care to ensure that any lacunae in the arbitral rules are clearly and
comprehensively addressed in the parties’ agreement to arbitrate. Thus, for example,
parties agreeing to arbitrate pursuant to the ICC Rules (which do not address this subject)
may wish to include language in their arbitration clause reflecting the prohibition on ex
parte communications set out in the ICDR Rules. A detailed analysis of the rules concerning
ex parte communications can be found in section §4.03 (Ex Parte Communications).

[E] Confidentiality and Privacy

Confidentiality and privacy are commonly cited as among the main advantages of
arbitration. “Privacy” refers to the fact that, in most cases, arbitral hearings are held in
camera and without public access. (96) By contrast, “confidentiality” refers to the parties’
and arbitrators’ respective duties not to disclose the nature of, documents related to, or
events that occur during the proceedings. (97) While certain arbitration rules and laws do
address such matters as the confidentiality of the existence of the arbitration, disclosures
made during the arbitral proceedings, and the arbitral award, there is little consistency
among regimes (see Table 2.8). In addition, in light of the limited availability of sanctions
or other remedies, parties have been known to exploit any ambiguities as to the extent of
the obligation of confidentiality and privacy to their advantage.
Accordingly, depending on the arbitral regime that is chosen and the law applicable to the
arbitration, it may be advisable for parties to include additional language clarifying the
degree of confidentiality and privacy that is to be applied to the existence of the
arbitration, information disclosed in the context of the arbitration, and the arbitral award.
The range of provisions relating to confidentiality demonstrates the need to give this issue
careful consideration as part of the drafting process. While the tribunal appointed under
any of these rules is bound by a strict obligation of confidentiality, it is apparent that the
same is not always true in relation to the parties themselves.
P 176
P 177
The issue of confidentiality in investor-State arbitration is often controversial, given the
issues of public concern which are frequently at issue in such arbitration. Indeed, there is a
growing trend toward transparency in investor-State arbitration. Some investment treaties
and free trade agreements specifically require that certain information be publicly
available—with some even requiring that hearings be open to the public.
This emphasis on the importance of transparency and public access to information in
investment arbitration is reflected in the UNCITRAL ad hoc regime. The 2010 UNCITRAL
Rules were revised in 2013 to add a provision to Article 1 that specifically incorporates the
UNCITRAL Rules on Transparency for investor-State arbitration initiated pursuant to a
treaty providing for the protection of investments or investors. (98) The UNCITRAL
Transparency Rules, which came into effect on April 1, 2014, provide for transparency in
treaty-based investor-State arbitration, (99) and they apply to (i) disputes arising out of
treaties concluded prior to April 1, 2014, when the treaty parties agree to their application
and (ii) disputes arising out of treaties concluded on or after April 1, 2014, when investor-
State arbitration is initiated under the UNCITRAL Arbitration Rules, unless the parties
otherwise agree. Investment arbitration disputes under previous versions of the UNCITRAL
Rules, as well as under the SCC Rules, are far more likely to remain confidential. The
applicable rules are excerpted below. Further discussion of privacy of hearings can be
found in Chapter 7 (Written and Oral Proceedings), confidentiality of documents in Chapter
6 (Evidentiary Procedure), and confidentiality of the arbitration and the award in Chapter 9
(The Award: Form, Effect, and Enforceability).
P 177
P 178 Table 2.8 Confidentiality and Privacy
AAA-ICDR
PP 180
182
178
181
179
PP 180
182
183
181
179

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 Article 21. Exchange 5. The tribunal may condition any exchange of information subject
of Information to claims of commercial or technical confidentiality on appropriate
measures to protect such confidentiality.
Article 23. Hearing 6. Hearings are private unless the parties agree otherwise or the law
provides to the contrary.
Article 30. Time, 3. An award may be made public only with the consent of all parties
Form, and Effect of or as required by law, except that the Administrator may publish or
Award otherwise make publicly available selected awards, orders,
decisions, and rulings that have become public in the course of
enforcement or otherwise and, unless otherwise agreed by the
parties, may publish selected awards, orders, decisions, and rulings
that have been edited to conceal the names of the parties and other
identifying details.
Article 37. 1. Confidential information disclosed during the arbitration by the
Confidentiality parties or by witnesses shall not be divulged by an arbitrator or by
the Administrator. Except as provided in Article 30, unless otherwise
agreed by the parties or required by applicable law, the members of
the arbitral tribunal and the Administrator shall keep confidential
all matters relating to the arbitration or the award.
2. Unless the parties agree otherwise, the tribunal may make orders
concerning the confidentiality of the arbitration or any matters in
connection with the arbitration and may take measures for
protecting trade secrets and confidential information.

CIETAC
Article 38. 1. Hearings shall be held in camera. Where both parties request an
Confidentiality open hearing, the arbitral tribunal shall make a decision.
2. For cases heard in camera, the parties and their representatives,
the arbitrators, the witnesses, the interpreters, the experts consulted
by the arbitral tribunal, the appraisers appointed by the arbitral
tribunal and other relevant persons shall not disclose to any
outsider any substantive or procedural matters relating to the case.

HKIAC
Article 22. Evidence 22.7. Hearings shall be held in private unless the parties agree
and Hearings otherwise. The arbitral tribunal may require any witness or expert to
leave the hearing room at any time during the hearing.
Article 45. 45.1. Unless otherwise agreed by the parties, no party or party
Confidentiality representative may publish, disclose or communicate any
information relating to:
(a) the arbitration under the arbitration agreement; or
(b) an award or Emergency Decision made in the arbitration.
45.2. Article 45.1 also applies to the arbitral tribunal, any emergency
arbitrator, expert, witness, tribunal secretary and HKIAC.
45.3. Article 45.1 does not prevent the publication, disclosure or
communication of information referred to in Article 45.1 by a party
or party representative:

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 (a)
(i) to protect or pursue a legal right or interest of the party;
or
(ii) to enforce or challenge the award or Emergency Decision
referred to in Article 45.1; in legal proceedings before a
court or other authority; or
(b) to any government body, regulatory body, court or tribunal
where the party is obliged by law to make the publication,
disclosure or communication; or
(c) to a professional or any other adviser of any of the parties,
including any actual or potential witness or expert; or
(d) to any party or additional party and any confirmed or
appointed arbitrator for the purposes of Articles 27, 28, 29 or
30; or
(e) to a person for the purposes of having, or seeking, third party
funding of arbitration.
45.4. The deliberations of the arbitral tribunal are confidential.
45.5. HKIAC may publish any award, whether in its entirety or in the
form of excerpts or a summary, only under the following conditions:
(a) all references to the parties’ names and other identifying
information are deleted; and
(b) no party objects to such publication within the time limit fixed
for that purpose by HKIAC. In the case of an objection, the
award shall not be published.
ICC
Article 22. Conduct of 3. Upon the request of any party, the arbitral tribunal may make
the Arbitration orders concerning the confidentiality of the arbitration proceedings
or of any other matters in connection with the arbitration and may
take measures for protecting trade secrets and confidential
information.
Article 26. Hearings 3. The arbitral tribunal shall be in full charge of the hearings, at
which all the parties shall be entitled to be present. Save with the
approval of the arbitral tribunal and the parties, persons not
involved in the proceedings shall not be admitted.
Appendix II, Article 1. 8. Any documents, communications or correspondence submitted by
Confidential the parties or the arbitrators may be destroyed unless a party or an
Character of the arbitrator requests in writing within a period fixed by the Secretariat
Work of the the return of such documents, communications or correspondence.
International Court All related costs and expenses for the return of those documents
of Arbitration shall be paid by such party or arbitrator.
ICSID
ICSID Convention, 5. The Center shall not publish the award without the consent of the
Article 48. parties.
Arbitration Rules, 2. Before or at the first session of the Tribunal, each arbitrator shall
Rule 6. Constitution sign a declaration in the following form:
of the Tribunal.
“[…] I shall keep confidential all information coming to my
knowledge as a result of my participation in this proceeding, as well
as the contents of any award made by the Tribunal.
[…].”

Arbitration Rules, 1. The deliberations of the Tribunal shall take place in private and
Rule 15. remain secret.
Deliberations of the
Tribunal 2. Only members of the Tribunal shall take part in its deliberations.
No other person shall be admitted unless the tribunal decides
otherwise.

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 Arbitration Rules, 1. The oral procedure shall consist of the hearing by the Tribunal of
Rule 32. The Oral the parties, their agents, counsel and advocates, and of witnesses
Procedure and experts.
2. Unless either party objects, the Tribunal, after consultation with
the Secretary-General, may allow other persons, besides the parties,
their agents, counsel and advocates, witnesses and experts during
their testimony, and officers of the Tribunal, to attend or observe all
or part of the hearings, subject to appropriate logistical
arrangements. The Tribunal shall for such cases establish
procedures for the protection of proprietary or privileged
information.
3. The members of the Tribunal may, during the hearings, put
questions to the parties, their agents, counsel and advocates, and
ask them for explanations.

Arbitration Rules, 2. After consulting both parties, the Tribunal may allow a person or
Rule 37. Visits and entity that is not a party to the dispute (in this Rule called the “non-
Inquiries; disputing party”) to file a written submission with the Tribunal
Submissions of Non- regarding a matter within the scope of the dispute. In determining
disputing Parties whether to allow such a filing, the Tribunal shall consider, among
other things, the extent to which:
(a) the non-disputing party submission would assist the Tribunal
in the determination of a factual or legal issue related to the
proceeding by bringing a perspective, particular knowledge or
insight that is different from that of the disputing parties;
(b) the non-disputing party submission would address a matter
within the scope of the dispute;
(c) the non-disputing party has a significant interest in the
proceeding.
The Tribunal shall ensure that the non-disputing party
submission does not disrupt the proceeding or unduly burden
or unfairly prejudice either party, and that both parties are
given an opportunity to present their observations on the non-
disputing party submission.

Arbitration Rules, 4. The Center shall not publish the award without the consent of the
Rule 48. Rendering parties. The Center may, however, promptly include in its
of the Award publications excerpts of the legal reasoning of the Tribunal.
Administrative and 1. The Secretary-General shall appropriately publish information
Financial about the operation of the Center, including the registration of all
Regulations, requests for conciliation or arbitration and in due course an
Regulation 22. indication of the date and method of the termination of each
Publication proceeding.
2. If both parties to a proceeding consent to the publication of:
(a) reports of Conciliation Commissions;
(b) arbitral awards; or
(c) the minutes and other records of proceedings,
the Secretary-General shall arrange for the publication thereof, in
an appropriate form with a view to furthering the development of
international law in relation to investments.

Administrative and 1. The Secretary-General shall maintain, in accordance with rules to

Financial be promulgated by him, separate Registers for requests for
Regulations, conciliation and requests for arbitration. In these he shall enter all
Regulation 23. significant data concerning the institution, conduct and disposition
of each proceeding, including in particular the method of
The Registers constitution and the membership of each Commission, Tribunal and
Committee. On the Arbitration Register he shall also enter, with
respect to each award, all significant data concerning any request
for the supplementation, rectification, interpretation, revision or
annulment of the award, and any stay of enforcement.
2. The Registers shall be open for inspection by any person. The
Secretary-General shall promulgate rules concerning access to the
Registers, and a schedule of charges for the provision of certified
and uncertified extracts therefrom.

LCIA

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 Article 19. Oral 19.4. All hearings shall be held in private, unless the parties agree
Hearings otherwise in writing.
Article 30. 30.1. The parties undertake as a general principle to keep
Confidentiality. confidential all awards in the arbitration, together with all materials
in the arbitration created for the purpose of the arbitration and all
other documents produced by another party in the proceedings not
otherwise in the public domain, save and to the extent that
disclosure may be required of a party by legal duty, to protect or
pursue a legal right, or to enforce or challenge an award in legal
proceedings before a state court or other legal authority.
30.2. The deliberations of the Arbitral Tribunal shall remain
confidential to its members, save as required by any applicable law
and to the extent that disclosure of an arbitrator’s refusal to
participate in the arbitration is required of the other members of the
Arbitral Tribunal under Articles 10, 12, 26 and 27.
30.3. The LCIA does not publish any award or any part of an award
without the prior written consent of all parties and the Arbitral
Tribunal.

SCC
Article 3. Unless otherwise agreed by the parties, the SCC, the Arbitral Tribunal
Confidentiality and any administrative secretary of the Arbitral Tribunal shall
maintain the confidentiality of the arbitration and the award.
Article 32. Hearings 3. Unless otherwise agreed by the parties, hearings will be held in
private.
SIAC
Rule 24. Hearings 24.4. Unless otherwise agreed by the parties, all meetings and
hearings shall be in private, and any recordings, transcripts, or
documents used in relation to the arbitral proceedings shall remain
confidential.
Rule 32. The Award 32.12. SIAC may, with the consent of the parties and the Tribunal,
publish any Award with the names of the parties and other
identifying information redacted.

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 Rule 39. 39.1. Unless otherwise agreed by the parties, a party and any
Confidentiality arbitrator, including any Emergency Arbitrator, and any person
appointed by the Tribunal, including any administrative secretary
and any expert, shall at all times treat all matters relating to the
proceedings and the Award as confidential. The discussions and
deliberations of the Tribunal shall be confidential.
39.2. Unless otherwise agreed by the parties, a party or any
arbitrator, including any Emergency Arbitrator, and any person
appointed by the Tribunal, including any administrative secretary
and any expert, shall not, without the prior written consent of the
parties, disclose to a third party any such matter except:
(a) for the purpose of making an application to any competent
court of any State to enforce or challenge the Award;
(b) pursuant to the order of or a subpoena issued by a court of
competent jurisdiction;
(c) for the purpose of pursuing or enforcing a legal right or claim;
(d) in compliance with the provisions of the laws of any State
which are binding on the party making the disclosure or the
request or requirement of any regulatory body or other
authority;
(e) pursuant to an order by the Tribunal on application by a party
with proper notice to the other parties; or
(f) for the purpose of any application under Rule 7 or Rule 8 of
these Rules.
39.3. In Rule 39.1, “matters relating to the proceedings” includes the
existence of the proceedings, and the pleadings, evidence and other
materials in the arbitral proceedings and all other documents
produced by another party in the proceedings or the Award arising
from the proceedings, but excludes any matter that is otherwise in
the public domain.
39.4 The Tribunal has the power to take appropriate measures,
including issuing an order or Award for sanctions or costs, if a party
breaches the provisions of this Rule.

UNCITRAL
Article 1. Scope of 4. For investor-State arbitration initiated pursuant to a treaty
Application providing for the protection of investments or investors, these Rules
include the UNCITRAL Rules on Transparency in Treaty based
*2013 revision, Investor-State Arbitration (“Rules on Transparency”), subject to
effective 1 April 2014 article 1 of the Rules on Transparency.

Article 28. Hearings 3 Hearings shall be held in camera unless the parties agree
otherwise. The arbitral tribunal may require the retirement of any
witness or witnesses, including expert witnesses, during the
testimony of such other witnesses, except that a witness, including
an expert witness, who is a party to the arbitration shall not, in
principle, be asked to retire.
Article 34. Form and 5. An award may be made public with the consent of all parties or
Effect of the Award where and to the extent disclosure is required of a party by legal
duty, to protect of pursue a legal right or in relation to legal
proceedings before a court or other competent authority.

[F] Amiable Compositeur or Ex Aequo Et Bono

In some cases, a tribunal may act as an amiable compositeur and decide the case in equity,
or ex aequo et bono, without being bound by strict rules of law or the precise terms of the
parties’ agreement, but only if the parties so agree. (100) It is relatively rare to see a
contract selecting these methods of dispute resolution, largely because of the uncertainty
that it may create as to the rules that the tribunal might adopt to resolve the claim.
However, there may be circumstances where no consensus can be reached on the
governing substantive law making this option appropriate.
As shown in Table 2.9, under the rules of the major arbitral institutions, an arbitrator may
only decide a dispute as amiable compositeur or ex aequo et bono if the parties have
specifically agreed to allow them to do so. The CIETAC Rules make no mention of the
principle of amiable compositeur or ex aequo et bono. That said, it bears noting that Article
43 of the 2005 CIETAC Rules reflects principles that potentially overlap with the powers
conferred upon an arbitrator that is authorized to decide as an amiable compositeur or ex
aequo et bono: “The arbitral tribunal shall … make its arbitral award … in compliance with
the principles of fairness and reasonableness.” (101) Using a somewhat different
formulation, the 2012 and 2015 CIETAC Rules require that the arbitrator “independently and

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 P 183 impartially render a fair and reasonable arbitral award on the basis of the facts in
P 184 accordance with the law and the terms of the contracts.” (102) This topic is discussed
further in relation to the tribunal’s duty to decide the dispute in accord with applicable
law, in Chapter 9 (The Award: Form, Effect, and Enforceability).
P 184
P 185 Table 2.9 Ex Aequo Et Bono
AAA-ICDR
P 185 Article 31. Applicable 1. The arbitral tribunal shall apply the substantive law(s) or rules of
P 186 Laws and Remedies law agreed by the parties as applicable to the dispute. Failing such
an agreement by the parties, the tribunal shall apply such law(s) or
rules of law as it determines to be appropriate.
2. In arbitrations involving the application of contracts, the tribunal
shall decide in accordance with the terms of the contract and shall
take into account usages of the trade applicable to the contract.
3. The tribunal shall not decide as amiable compositeur or ex aequo
et bono unless the parties have expressly authorized it to do so.

CIETAC
Not explicitly mentioned in 2005, 2012, or 2015 Rules.
HKIAC
Article 36 Applicable 36.1. The arbitral tribunal shall decide the substance of the dispute
Law, Amiable in accordance with the rules of law agreed upon by the parties. Any
Compositeur designation of the law or legal system of a given jurisdiction shall be
construed, unless otherwise expressed, as directly referring to the
substantive law of that jurisdiction and not to its conflict of laws
rules. Failing such designation by the parties, the arbitral tribunal
shall apply the rules of law which it determines to be appropriate.
36.2. The arbitral tribunal shall decide as amiable compositeur or ex
aequo et bono only if the parties have expressly authorized the
arbitral tribunal to do so.
[…]

ICC
Article 21. Applicable 1. The parties shall be free to agree upon the rules of law to be
Rules of Law applied by the arbitral tribunal to the merits of the dispute. In the
absence of any such agreement, the arbitral tribunal shall apply the
rules of law which it determines to be appropriate.
2. The arbitral tribunal shall take account of the provisions of the
contract, if any, between the parties and of any relevant trade
usages.
3. The arbitral tribunal shall assume the powers of an amiable
compositeur or decide ex aequo et bono only if the parties have
agreed to give it such powers.

ICSID
ICSID Convention, 1. The Tribunal shall decide a dispute in accordance with such rules
Article 42. Powers of law as may be agreed by the parties. In the absence of such
and Functions of the agreement, the Tribunal shall apply the law of the Contracting State
Tribunal party to the dispute (including its rules on the conflict of laws) and
such rules of international law as may be applicable.
2. The Tribunal may not bring in a finding of non liquet on the
ground of silence or obscurity of the law.
3. The provisions of paragraphs (1) and (2) shall not prejudice the
power of the Tribunal to decide a dispute ex aequo et bono if the
parties so agree.

LCIA

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 Article 22. Additional 22.3. The Arbitral Tribunal shall decide the parties’ dispute in
Powers accordance with the law(s) or rules of law chosen by the parties as
applicable to the merits of their dispute. If and to the extent that the
Arbitral Tribunal decides that the parties have made no such choice,
the Arbitral Tribunal shall apply the law(s) or rules of law which it
considers appropriate.
22.4. The Arbitral Tribunal shall only apply to the merits of the
dispute principles deriving from “ex aequo et bono,” “amiable
composition” or “honourable engagement” where the parties have so
agreed in writing.

SCC
Article 27. Applicable 1. The Arbitral Tribunal shall decide the merits of the dispute on the
Law basis of the law(s) or rules of law agreed upon by the parties. In the
absence of such agreement, the Arbitral Tribunal shall apply the law
or rules of law that it considers most appropriate.
2. Any designation by the parties of the law of a given state shall be
deemed to refer to the substantive law of that state, not to its
conflict of laws rules.
3. The Arbitral Tribunal shall decide the dispute ex aequo et bono or
as amiable compositeur only if the parties have expressly authorized
it to do so.

SIAC
Rule 31. Applicable 1. The Tribunal shall apply the law or rules of law designated by the
Law, Amiable parties as applicable to the substance of the dispute. Failing such
Compositeur and Ex designation by the parties, the Tribunal shall apply the law or rules
Aequo et Bono of law which it determines to be appropriate.
2. The Tribunal shall decide as amiable compositeur or ex aequo et
bono only if the parties have expressly authorised it to do so.
3. In all cases, the Tribunal shall decide in accordance with the
terms of the contract, if any, and shall take into account any
applicable usage of trade.

UNCITRAL
Article 35. 1. The arbitral tribunal shall apply the rules of law designated by the
Applicable Law, parties as applicable to the substance of the dispute. Failing such
Amiable designation by the parties, the arbitral tribunal shall apply the law
Compositeur which it determines to be appropriate.
2. The arbitral tribunal shall decide as amiable compositeur or ex
aequo et bono only if the parties have expressly authorized the
arbitral tribunal to do so.
3. In all cases, the arbitral tribunal shall decide in accordance with
the terms of the contract, if any, and shall take into account any
usage of trade applicable to the transaction.

[G] Impartiality and Independence of Arbitrators

The vast majority of national arbitration laws and the procedural rules of all of the leading
arbitral institutions contain requirements that arbitrators should be independent and/or
impartial and should conduct themselves in a manner that will ensure that the parties to
the arbitration are treated equally. The parties may wish to emphasize these duties,
particularly if they have agreed to ad hoc arbitration in a country where the ethical
standards for arbitrators are not thought to be sufficiently stringent or adequately clear.
Both the American Bar Association (ABA) and the IBA publish rules of ethics applicable to
arbitrators, and these can usefully be adopted in the parties’ arbitration agreement to
ensure that these standards will be adhered to. (103) These duties are analyzed in detail in
section §4.02 (Independence, Impartiality, and Disclosure).

[H] Costs
Arbitration costs under each of the rules include administrative and arbitrators’ fees,
reasonable legal fees and expenses, and other incidental costs such as the hire of facilities
for the arbitration hearing, expert witness fees, interpreters, travel and accommodation for
the parties, their witnesses, and the tribunal. The controversial issue is what proportion of
those costs should be borne by each of the parties. Some regimes (such as the LCIA and
UNCITRAL Rules) adopt the English law presumption that the loser should pay the
successful party’s reasonable costs. All of the other rules under consideration in this book
leave the issue as a matter to be decided by the tribunal within its discretion.
P 186

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 P 186
P 187
Whichever approach is reflected in the arbitration rules selected to govern any dispute,
the parties are at liberty to agree to adopt a different approach to costs. It is therefore
sensible to consider whether an agreement on cost allocation would be either possible or
advantageous when drafting the arbitration agreement. The rules concerning costs under
the various arbitral regimes are discussed in detail in Chapter 8 (Costs and Fees).

[I] Appeals
Most arbitration rules contain express or implied limitations on the right to appeal from
arbitral awards and, as such, there is often no need for an express waiver of the right to
appeal in the parties’ arbitration agreement. Nonetheless, doing so can provide additional
assurance that an eventual award will be treated as final. That said, even if the parties
waive their rights to any appeal against an arbitration award, there can be no guarantee
that this waiver will be respected. In addition, appeals relating to due process concerns
cannot be waived. And, of course, New York Convention challenges will remain available
during the course of enforcement proceedings.
In any case, if the parties wish to derogate from the limitations imposed under the
arbitration rules—including, for example, by expanding the scope of judicial review,
subject to limitations imposed by the law applicable to the arbitration—it will be
necessary to include specific language to that effect in the arbitration agreement. Grounds
for judicial review of arbitral awards are discussed in detail in Chapter 9 (The Award: Form,
Effect, and Enforceability).

[J] Effect of the Award

MODEL CLAUSE—ENFORCEMENT
The parties agree that judgment upon any award rendered by the arbitral tribunal may be
entered in any court having jurisdiction thereof.
Where the designated procedural rules do not clarify the parties’ agreement as to the
effect to be given to the arbitral tribunal’s award, it is advisable to include language in the
arbitration clause concerning “entry of judgment” or “enforcement of judgment” whenever
enforcement proceedings are anticipated in U.S. courts. This issue arises because of
ambiguity in the language of the U.S. Federal Arbitration Act (FAA) as to whether party
consent is required for confirmation of an arbitration award. (104) The FAA, like many other
P 187 national arbitration laws, has a strong presumption for the validity of arbitral awards. (105)
P 188 Like the New York Convention, however, these laws give national courts discretion to
refuse to enforce an award in limited circumstances. (106) Thus, it is to the parties’ benefit
to ask the tribunal to include the “entry” or “enforcement of judgment” language in the
award to limit the losing party’s ability to challenge enforcement proceedings in national
court. Enforcement of arbitral awards is discussed in detail in Chapter 9 (The Award: Form,
Effect, and Enforceability).

[K] Representatives
Historically, there were restrictions in some jurisdictions as to who could act as a
representative of a party to arbitration proceedings. Most commonly, these restrictions
required that a party representative be qualified to practice law in the jurisdiction. (107)
This is rarely the case today, as most countries have adopted a liberal approach regarding
the selection of representatives as a matter for the parties themselves to decide. Even so,
many international arbitration rules confirm that parties are free to be represented by
whomever they choose. As such, there is little need to include language in a dispute
resolution clause clarifying parties’ freedom of choice insofar as their representatives are
concerned. This general statement, however, does not apply to the question of the proof of
authority that a chosen representative may have to provide to a tribunal, an arbitral
institution, or the opposing party. It is not uncommon in the regional arbitration centers for
the parties to be required to submit a Power of Attorney authorizing their representatives
to act on their behalf. This practice is reflected in the CIETAC Rules. (108) The HKIAC, LCIA,
SIAC, and UNCITRAL Rules provide tribunals with discretion to request proof of authority in
any form they determine (see Table 2.10). (109)
The arbitration rules traditionally have not addressed the standard of behavior to which
party representatives must adhere throughout the arbitration. In 2013, the IBA issued
Guidelines on Party Representation in International Arbitration. The Guidelines “are
inspired by the principle that party representatives should act with integrity and honesty
and should not engage in activities designed to produce unnecessary delay or expense,
P 188 including tactics aimed at obstructing the arbitration proceedings.” (110) Like other
P 189 guidelines and rules promulgated by the IBA, they apply only where the parties have so
agreed or the tribunal has otherwise decided to apply them. (111) Nevertheless, they
reflect increasing attention paid to the importance of governing the conduct of party
representatives in international arbitration in recent years.
The LCIA and ICDR Rules reflect increasing attention to this area as well. The LCIA Rules
require each party to “ensure that all its legal representatives have agreed to comply with

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 the general guidelines contained in the Annex to the LCIA Rules, as a condition of
appearing by name before the Arbitral Tribunal.” (112) The Annex delineates the expected
standards of ethical conduct including, among other things, the avoidance of any activities
“intended unfairly to obstruct the arbitration or jeopardize the finality of any award” and
refraining from knowingly making “any false statement to the Arbitral Tribunal.” (113) The
LCIA Rules also provide for the imposition of sanctions in the event that the tribunal
determines that a provision has been violated. (114) Possible sanctions include written
reprimand, reference to the legal representative’s regulatory body, and “[a]ny other
measure necessary to maintain the general duties of the Arbitral Tribunal.” (115) The ICDR
Rules do not go so far, merely providing that “[t]he conduct of party representatives shall
be in accordance with such guidelines as the ICDR may issue on the subject.” (116) No such
guidelines have been issued as of the time of this writing. Therefore, parties may wish to
include reference to the IBA Guidelines on Party Representation in their arbitration clause.
P 189
P 190 Table 2.10 Representatives
AAA-ICDR
PP 190
191 Article 16. Party Any party may be represented in the arbitration. The names,
P 192
191 Representation addresses, telephone numbers, fax numbers, and email addresses of
representatives shall be communicated in writing to the other party
and to the Administrator. Unless instructed otherwise by the
Administrator, once the arbitral tribunal has been established, the
parties or their representatives may communicate in writing directly
with the tribunal with simultaneous copies to the other party and,
unless otherwise instructed by the Administrator, to the
Administrator. The conduct of party representatives shall be in
accordance with such guidelines as the ICDR may issue on the
subject.
CIETAC
Article 22. A party may be represented by its authorized Chinese and/or foreign
Representation representative(s) in handling matters relating to the arbitration. In
such a case, a Power of Attorney shall be forwarded to the
Arbitration Court by the party or its authorized representative(s).
HKIAC
Article 13. General 13.6. The parties may be represented by persons of their choice,
Provisions subject to Article 13.5. The names, addresses, telephone and
facsimile numbers, and/or email addresses of party representatives
shall be communicated in writing to the other parties, HKIAC, any
emergency arbitrator, and the arbitral tribunal once constituted.
The arbitral tribunal, emergency arbitrator or HKIAC may require
proof of authority of any party representatives.
ICC
Article 26. Hearings 4. The parties may appear in person or through duly authorized
representatives. In addition, they may be assisted by advisers.
ICSID
Rule 18. 1. Each party may be represented or assisted by agents, counsel or
Representation of advocates whose names and authority shall be notified by that party
the Parties to the Secretary-General, who shall promptly inform the Tribunal
and the other party.
2. For the purposes of these Rules, the expression “party” includes,
where the context so admits, an agent, counsel or advocate
authorized to represent that party.

LCIA

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 Article 18. Legal 1. Any party may be represented in the arbitration by one or more
Representatives authorised legal representatives appearing by name before the
Arbitral Tribunal.
2. Until the Arbitral Tribunal’s formation, the Registrar may request
from any party: (i) written proof of the authority granted by that
party to any legal representative designated in its Request or
Response; and (ii) written confirmation of the names and addresses
of all such party’s legal representatives in the arbitration. After its
formation, at any time, the Arbitral Tribunal may order any party to
provide similar proof or confirmation in any form it considers
appropriate.
3. Following the Arbitral Tribunal’s formation, any intended change
or addition by a party to its legal representatives shall be notified
promptly in writing to all other parties, the Arbitral Tribunal and the
Registrar; and any such intended change or addition shall only take
effect in the arbitration subject to the approval of the Arbitral
Tribunal.

4. The Arbitral Tribunal may withhold approval of any intended

change or addition to a party’s legal representatives where such
change or addition could compromise the composition of the
Arbitral Tribunal or the finality of any award (on the grounds of
possible conflict or other like impediment). In deciding whether to
grant or withhold such approval, the Arbitral Tribunal shall have
regard to the circumstances, including: the general principle that a
party may be represented by a legal representative chosen by that
party, the stage which the arbitration has reached, the efficiency
resulting from maintaining the composition of the Arbitral Tribunal
(as constituted throughout the arbitration) and any likely wasted
costs or loss of time resulting from such change or addition.
5. Each party shall ensure that all its legal representatives
appearing by name before the arbitral tribunal have agreed to
comply with the general guidelines contained in the Annex to the
LCIA Rules, as a condition of such representation. In permitting any
legal representative so to appear, a party shall thereby represent
that the legal representative has agreed to such compliance.
6. In the event of a complaint by one party against another party’s
legal representative appearing by name before the Arbitral Tribunal
(or of such complaint by the Arbitral Tribunal upon its own
initiative), the Arbitral Tribunal may decide, after consulting the
parties and granting that legal representative a reasonable
opportunity to answer the complaint, whether or not the legal
representative has violated the general guidelines. If such violation
is found by the Arbitral Tribunal, the Arbitral Tribunal may order any
or all of the following sanctions against the legal representative: (i)
a written reprimand; (ii) a written caution as to future conduct in the
arbitration; and (iii) any other measure necessary to fulfil within the
arbitration the general duties required of the Arbitral Tribunal under
Articles 14.4(i) and (ii).

LCIA Rules Annex Paragraph 1. These general guidelines are intended to promote the
good and equal conduct of the parties’ legal representatives
General Guidelines appearing by name within the arbitration. Nothing in these
for the Parties’ Legal guidelines is intended to derogate from the Arbitration Agreement or
Representatives to undermine any legal representative’s primary duty of loyalty to
(Articles 18.5 and the party represented in the arbitration or the obligation to present
18.6 of the LCIA that party’s case effectively to the Arbitral Tribunal. Nor shall these
Rules) guidelines derogate from any mandatory laws, rules of law,
professional rules or codes of conduct if and to the extent that any
are shown to apply to a legal representative appearing in the
arbitration.

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 Paragraph 2. A legal representative should not engage in activities
intended unfairly to obstruct the arbitration or to jeopardise the
finality of any award, including repeated challenges to an
arbitrator’s appointment or to the jurisdiction or authority of the
arbitral tribunal known to be unfounded by that legal
representative.
Paragraph 3. A legal representative should not knowingly make any
false statement to the Arbitral Tribunal or the LCIA Court.
Paragraph 4. A legal representative should not knowingly procure or
assist in the preparation of or rely upon any false evidence presented
to the Arbitral Tribunal or the LCIA Court.
Paragraph 5. A legal representative should not knowingly conceal or
assist in the concealment of any document (or any part thereof)
which is ordered to be produced by the Arbitral Tribunal.
Paragraph 6. During the arbitration proceedings, a legal
representative should not deliberately initiate or attempt to initiate
with any member of the Arbitral Tribunal or with any member of the
LCIA Court making any determination or decision in regard to the
arbitration (but not including the Registrar) any unilateral contact
relating to the arbitration or the parties’ dispute, which has not been
not disclosed in writing prior to or shortly after the time of such
contact to all other parties, all members of the Arbitral Tribunal (if
comprised of more than one arbitrator) and the Registrar in
accordance with Article 13.4.
Paragraph 7. In accordance with Articles 18.5 and 18.6, the Arbitral
Tribunal may decide whether a legal representative has violated
these general guidelines and, if so, how to exercise its discretion to
impose any or all of the sanctions listed in Article 18.6.

SCC
Not specifically addressed.
SIAC
Rule 23. Party 1. Any party may be represented by legal practitioners or any other
Representatives authorised representatives. The Registrar and/or the Tribunal may
require proof of authority of any party representatives.
2. After the constitution of the Tribunal, any change or addition by a
party to its representatives shall be promptly communicated in
writing to the parties, the Tribunal and the Registrar.

UNCITRAL
Article 5. Each party may be represented or assisted by persons chosen by it.
Representation and The names and addresses of such persons must be communicated to
Assistance all parties and to the arbitral tribunal. Such communication must
specify whether the appointment is being made for purposes of
representation or assistance. Where a person is to act as a
representative of a party, the arbitral tribunal, on its own initiative
or at the request of any party, may at any time require proof of
authority granted to the representative in such a form as the arbitral
tribunal may determine.
P 192
P 193
[L] Waiver
Parties to an arbitration clause may elect to include language to the effect that a party’s
failure to invoke rights under the agreement will not be considered a waiver of those rights.
Absent such language, most arbitration rules require parties to exercise their rights within
a reasonable period of time or else be deemed to have waived those rights. The purpose of
these rules is to prevent a party from guarding silence as to an objection and then raising
that objection to resist enforcement of an unfavorable award. Most regimes apply the
waiver rule to situations known to the party; however, under the CIETAC, HKIAC, and ICSID
Rules waiver applies as well to situations that a party should have known (see Table 2.11).
(117) Parties may wish therefore to clarify in their arbitration agreement whether and to
what extent the waiver rule will apply to any eventual arbitration.
P 193
P 194 Table 2.11 Waiver
AAA-ICDR

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 Article 28. Waiver of A party who knows of any non-compliance with any provision or
Rules requirement of the Rules or the arbitration agreement, and proceeds
with the arbitration without promptly stating an objection in writing,
waives the right to object.
CIETAC
Article 10. Waiver of A party shall be deemed to have waived its right to object where it
Right to Object knows or should have known that any provision of, or requirement
under, these Rules has not been complied with and yet participates
in or proceeds with the arbitral proceedings without promptly and
explicitly submitting its objection in writing to such non-compliance.
HKIAC
Article 32. Waiver 32.1 A party who knows or ought reasonably to know that any
provision of, or requirement arising under, these Rules (including the
arbitration agreement) has not been complied with and yet proceeds
with the arbitration without promptly stating its objection to such
non-compliance, shall be deemed to have waived its right to object.
ICC
Article 40. Waiver A party which proceeds with the arbitration without raising its
objection to a failure to comply with any provision of the Rules, or of
any other rules applicable to the proceedings, any direction given by
the arbitral tribunal, or any requirement under the arbitration
agreement relating to the constitution of the arbitral tribunal or the
conduct of the proceedings, shall be deemed to have waived its right
to object.
ICSID
Arbitration Rules, A party which knows or should have known that a provision of the
Rule 27. Waiver Administrative and Financial Regulations, of these Rules, of any
other rules or agreement applicable to the proceeding, or of an
order of the Tribunal has not been complied with and which fails to
state promptly its objections thereto, shall be deemed –subject to
Article 45 of the Convention—to have waived its right to object.
LCIA
Article 32. General 1. A party who knows that any provision of the Arbitration Agreement
Rules has not been complied with and yet proceeds with the arbitration
without promptly stating its objection as to such non-compliance to
the Registrar (before the formation of the Arbitral Tribunal) or the
Arbitral Tribunal (after its formation), shall be treated as having
irrevocably waived its right to object for all purposes […].
SCC
Article 36. Waiver A party, who during the arbitration, fails to object without delay to
any failure to comply with the arbitration agreement, these Rules or
other rules applicable to the proceedings, shall be deemed to have
waived the right to object to such failure.
SIAC
Rule 41. General 41.1 Any party that proceeds with the arbitration without promptly
Provisions raising any objection to a failure to comply with any provision of
these Rules, or of any other rules applicable to the proceedings, any
direction given by the Tribunal, or any requirement under the
arbitration agreement relating to the constitution of the Tribunal or
the conduct of the proceedings, shall be deemed to have waived its
right to object.
UNCITRAL
Article 32. Waiver of A failure by any party to object promptly to any non-compliance
Right to Object with these Rules or with any requirement of the arbitration
agreement shall be deemed to be a waiver of the right of such party
to make such an objection, unless such party can show that, under
the circumstances, its failure to object was justified.

[M] Multitiered or Single-Step Dispute Resolution Clause

Parties may choose to include in their dispute resolution clause a requirement that their
representatives attempt to negotiate a solution to their differences prior to submitting the
dispute to arbitration. They might also include, either instead of a negotiation clause or in
addition to it, a mediation clause or a provision for a Dispute Adjudication Board (DAB).
Adding such a precondition, or preconditions, creates a multitiered process with certain
advantages and some potential disadvantages.
P 194

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 P 194
P 195
The addition of a negotiation provision as a precondition to arbitration has become
increasingly common in international contracts for several reasons. First and foremost, if a
negotiated solution can be reached, it precludes the time and expense of an arbitration.
Indeed, with such a clause in place, the parties will naturally compare the costs of
resolving the dispute through negotiation versus arbitration, which creates an incentive for
them to use best efforts to achieve a resolution through the former, less expensive, means.
Second, a negotiated solution tends to preserve the parties’ relationship. This is
particularly important in cases involving long-term investments, joint venture projects, and
public-private partnerships, in which most of the value at stake lies in the continuation of
the project. Many bilateral investment treaties and investment contracts contain a
negotiation requirement, commonly referred to as a “cooling-off period,” for this reason. By
contrast, parties to a one-off commercial transaction do not have quite the same incentive
to preserve a relationship through a negotiation or mediation, though they may wish to
adopt a multitiered clause for the other reasons given here. Third, a negotiation tends to
focus on the issues in dispute and draw out relevant information and evidence. Through
the negotiation process, the strengths and weaknesses of the parties’ positions become
clearer, and the parties may be able to negotiate a resolution to at least some of the
issues in dispute—and to bring a less complicated case before an arbitral tribunal.
Notwithstanding the foregoing, there may be disadvantages to including a negotiation
clause in the arbitration agreement. In case of an intractable dispute, a “cooling-off”
period only prolongs the conflict, adding to the parties’ costs. A party who attempts to
commence arbitration knowing negotiations would be futile will still likely face
jurisdictional objections from the other side. Even after the cooling-off period has run, a
party seeking to delay the commencement of the arbitration might challenge the
jurisdiction of the tribunal on grounds that the other party failed to negotiate in good faith
or that certain issues in dispute were not addressed in the negotiation. Parties may wish to
draft a single-tier arbitration clause to avoid these potential pitfalls.
The advantages and disadvantages of an agreement to mediate before proceeding to
arbitrate—sometimes known as a “med-arb” clause—are the same as for an agreement to
negotiate prior to arbitration. However, mediation has certain features that merit some
additional discussion. Mediation is essentially a negotiation facilitated by a third-party
neutral. Most of the criticism of “med-arb” concerns situations where the mediator and
arbitrator are one and the same person. The neutral must be experienced in both
mediation and arbitration; able to switch from the role of a facilitator to that of a decision-
maker; and able to disregard in the arbitration any confidential information that she
learned during the mediation—requirements that some view as very difficult if not
impossible to satisfy. These criticisms may be overstated, and in any event, they may be
overcome by specifying in the med-arb clause that the parties will appoint a different
neutral for each phase. (118) Mediation or conciliation combined with arbitration is
discussed in more detail in section §10.02 (Mediation-Arbitration).
P 195
P 196
A final option for multitiered dispute resolution clauses is to submit highly technical
disputes, such as disputes concerning sophisticated construction projects, to a standing,
on-site DAB that can resolve disagreements quickly with little to no disruption to the
project. In the rare event that a party does not accept a decision of the DAB, it can,
pursuant to the dispute resolution clause, “appeal” the decision in an arbitration. Such was
the case in a recent high-profile dispute arising out of a project to expand the Panama
Canal. The parties’ agreement provided a three-tiered dispute settlement mechanism:
first, negotiation; second, dispute resolution before a DAB; and third, binding ICC
arbitration. The parties in that case made use of all three tiers. (119)

FURTHER READING
Gary B. Born, Drafting International Arbitration Agreements, in International Arbitration and
Forum Selection Agreements (Kluwer Law International 2016).
Marcel Fontaine & Fillip de Ly, Drafting International Contracts: An Analysis of Contract
Clauses (Brill 2015).
Paul Friedl, Chapter Six: Drafting an Effective Arbitration Agreement, in Arbitration Clauses
for International Contracts (2d. ed., Juris 2007).
William Fox, Chapter Four: Drafting International Commercial Agreements, in International
Commercial Agreements: A Primer on Drafting Negotiating and Resolving Disputes (Springer
1994).
Michael McIlwrath & John Savage, Chapter One: The Elements of an International Dispute
Resolution Agreement, in International Arbitration and Mediation: A Practical Guide (Kluwer
Law International 2010).
Albert Jan Van den Berg, Improving the Efficiency of Arbitration Agreements and Awards: 40
Years of Application of the New York Convention (Kluwer Law International 1999).
Thomas E. Carbonneau, The Exercise of Contract Freedom in the Making of Arbitration

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© 2019 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 Agreements, in Carbonneau on International Arbitration: Collected Essays (JurisNet 2011).
Marcel Fontaine & Fillip de Ly, Drafting International Contracts: An Analysis of Contract
Clauses (Brill 2015).
Paul Friedland, Drafting an Effective Arbitration Agreement, in Arbitration Clauses for
International Contracts (2d ed., Juris 2007).
William Fox, Drafting International Commercial Agreements, in International Commercial
Agreements: A Primer on Drafting Negotiating and Resolving Disputes (Springer Netherlands
1994).
Michael McIlwrath & John Savage, The Elements of an International Dispute Resolution
Agreement, in International Arbitration and Mediation: A Practical Guide (Kluwer Law
International 2010).
P 196
P 197
Andrew Tweeddale & Keren Tweeddale, Arbitration of Commercial Disputes (Oxford
University Press 2007).
Albert Jan Van den Berg, Improving the Efficiency of Arbitration Agreements and Awards: 40
Years of Application of the New York Convention (Kluwer Law International 1999).
P 197

References
1) Arbitration is commonly referred to as a “creature of contract.” United Steel Workers
of Am. v. Am. Mfg. Co., 363 U.S. 564, 569 (1960) (Brennan, J., concurring). It is the
contractual expression of the parties’ desire to arbitrate their dispute rather than
submit it to litigation in domestic courts. As such, the parties are free to craft their
arbitration agreement in any way they choose. Most international arbitration
conventions, national laws, and institutional rules give parties wide discretion to
agree upon both the substantive and procedural rules that will apply to their dispute.
This includes the substantive law pursuant to which the dispute will be decided, as
well as the degree of formality and complexity that they wish to ascribe to the
proceedings themselves. See also Thomas E. Carbonneau, The Exercise of Contract
Freedom in the Making of Arbitration Agreements, in Carbonneau on International
Arbitration: Collected Essays 417, 419-420 (JurisNet 2011) (“Freedom of contract … is at
the very core of how the law regulates arbitration. What the contracting parties
provide in the agreement generally becomes the controlling law.”); Nigel Blackaby,
Constatine Partasides, Alan Redfern & J. Martin Hunter, Redfern and Hunter on
International Arbitration, 85 (5th ed., Oxford University Press 2009) (Arbitration
agreements “record[] the consent of the parties to submit [their dispute] to
arbitration”; therefore, the interpretation of such agreements “attach[es] great
importance to the wishes of the parties—l’autonomie de la volunté”).
2) See Blackaby, supran. 1, at 89 (“A valid agreement to arbitrate excludes the
jurisdiction of national courts. …”).
3) See also Lawrence Boo, The Enforcement of Arbitration Agreements under Article 8 of
the Model Law, in The UNCITRAL Model Law after 25 Years: Global Perspectives on
International Commercial Arbitration, 29, 35 (Frédéric Bachand and Fabien Gélinas
eds., Juris 2013) (“To date, New Zealand and Sweden remain the only states that have
taken the route of permitting fully oral agreements.”); Friedland, Arbitration Clauses
for International Contracts, 59-60 (“While certain national laws recognize an oral
agreement to arbitrate, as a matter of practice, it is evident that prudent parties and
counsel will not rely on the prospect of testimony to prove an arbitration
agreement”); Id., at note 150 (“In the United States, oral agreements to arbitrate are
enforceable in some jurisdictions based on common law. … Oral agreements to
arbitrate are not enforceable in Switzerland.”).
4) New York Convention, Art. II(1), 1958, 330 UNTS 38.
5) UNCITRAL Model Law, Art. 7(2), 24 ILM 1302 (“The arbitration agreement shall be in
writing.”).
6) Id., at Arts. 7(2)-7(3) (Option I).
7) Id., at Art. 7.
8) See UNCITRAL, Status, UNCITRAL Model Law on International Commercial Arbitration
(1985, with amendments as adopted in 2006),
http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/1985Model
_arbitration_status.html.
9) Decree No. 2011-48 Reforming the Law Governing Arbitration, Art. 1442 (Jan. 13, 2011).
10) See id., at Arts. 1506, 1507.

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 11) See also Gary B. Born, International Arbitration and Forum Selection Agreements:
Drafting and Enforcing, 36 (4th ed., Kluwer Law International 2013). See also Gary B.
Born, International Commercial Arbitration, 72 (2d ed., Kluwer Law International 2014)
(“In practice, almost all international commercial arbitrations occur pursuant to
arbitration clauses contained within underlying business contracts.”); Michael
McIlwrath & John Savage, International Arbitration and Mediation: A Practical Guide, 11
(Kluwer Law International 2010); Blackaby, supran. 1, at 86; Friedland, supran. 3, at 57,
note 142.
12) National laws can vary significantly with respect to these matters. For example, the
national arbitration law of Germany establishes a default rule that an arbitral
tribunal is to consist of three arbitrators if the parties are unable to reach agreement
on this issue. German Arbitration Law 98 § 1034(1), http://www.dis-
arb.de/en/51/materials /german-arbitration-law-98-id3 (accessed Feb. 1, 2018). In
contrast, the national arbitration law of Singapore provides for the appointment of a
sole arbitrator in such a situation. Singapore International Arbitration Act (Cap. 143A)
2012 § 9A,
http://www.siac.org.sg/images/stories/articles/rules/Singapore_IAA_with_2012_Ame
ndments.pdf (accessed Feb. 1, 2018).
13) Relate, Connection, Merriam-Webster Dictionary, retrieved Aug. 11, 2018, from
http://www.merriam-webster.com/dictionary/relate;http://www.merriam-
webster.com/dictionary/connection.
14) See Loukas A. Mistelis, Arbitrability—International and Comparative Perspectives, Is
Arbitrability a National or an International Law Issue?, in Arbitrability: International and
Comparative Perspectives 10 (Loukas A. Mistelis & Stavros L. Brekoulakis eds., Kluwer
Law International 2009) (“Indeed, every national law determines which types of
disputes are reserved for the exclusive domain of national courts and which can be
referred to arbitration. This differs from state to state, reflecting the political, social
and economic prerogatives of the state, as well as its general attitude towards
arbitration.”).
15) Friedland, supran. 3, at 62 (“An arbitration clause that provides ambiguously for
arbitration of a set of disputes that is less than the universe of disputes arising out of
or in connection with the contract is an invitation to litigation about the scope of the
arbitrators’ jurisdiction. Even where a narrow clause is drafted properly and is
without ambiguity, there is still often room for dispute about whether a certain fact
pattern falls within or without its coverage”).
16) ICDR Rules, Art. 1; HKIAC Rules, Art. 1; ICC Rules, Art. 6; LCIA Rules, Preamble; SCC Rules,
Preamble.
17) Friedland, supran. 3, at 95-96.
18) UNCITRAL Rules, Art. 1.
19) Id.
20) ICSID Convention, Art. 44.
21) See Francisco Orrego Vicuña, Arbitrating Investment Disputes, in The Leading
Arbitrators’ Guide to International Arbitration 712 (Lawrence W. Newman & Richard D.
Hill eds., 2d ed., Juris Publishing, Inc., 2008) (consent by investors under investment
agreements “happens typically when consent by the investor is given in a direct
agreement with the State concerned.”).
22) See CIETAC Model Arbitration Clauses (providing that the arbitration “shall be
conducted in accordance with the CIETAC’s arbitration rules in effect at the time of
applying for arbitration”), available at http://www.cietac.org/index.php?
m=Page&a=index&id=188&l=en (accessed Aug. 13, 2018).
23) This does not mean that the procedural rules applicable in local court proceedings in
the jurisdiction in which the arbitration is sited will apply to the arbitral proceedings.
This is an important distinction. The procedural framework applicable to the
arbitration is determined by the parties’ agreement and the arbitration rules that
they may have agreed upon within the bounds of the law of the seat.
24) ICDR Rules, Art. 1(2); UNCITRAL Rules, Art. 1(3). For a list of examples of mandatory
laws, see McIlwrath & Savage, supran. 11, at 25-26.
25) LCIA Rules, Art. 16.4.
26) Id.
27) On a related point, the ICC Rules recognize that the tribunal may refer to the lex loci
arbitri to supply rules for an issue in the proceedings not otherwise covered by the ICC
Rules and the parties’ agreement. ICC Rules, Art. 19.
28) UNCITRAL Model Law, Art. 11(4)-(5).
29) Id.
30) This restriction was introduced by the California Supreme Court’s judgment in
Birbrower, Montalbano, Condon & Frank PC v, Sup. Ct. (1998) 17 C4th 119; 70 CR2d 304.
This was followed by the adoption of California Code of Civil Procedure s. 1282.4,
which allowed a party to arbitration in California to be represented by lawyers
admitted in any other U.S. state, but did not address the participation of foreign
attorneys in those proceedings. With effect from Jan. 1, 2019, California expressly
permits non-U.S. qualified lawyers to appear in arbitrations with their seat in
California. California Code of Civil Procedure, Art. 1.5, ss 1297.185 et seq.

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 31) The term “arbitrability” is used here to refer to those substantive claims that, under
national laws, are considered to be capable of resolution by private arbitration. In
the U.S., the term “arbitrability” is frequently used to refer to the power of a tribunal
to decide upon its own jurisdiction, without the need for intervention by national
courts.
32) See McIlwrath & Savage, supran. 11, at 27 (“The line between supporting and
interfering with arbitration is what, in practice, separates an arbitration-friendly
place from an arbitration-unfriendly one, and the main reason why great care should
be taken when choosing the seat of arbitration.”).
33) For a detailed discussion of the legal framework surrounding the enforcement of
domestic and foreign arbitral awards, see Ch. 9 of this book.
34) There are rare exceptions to this rule. Art. V(1)(e) of the New York Convention provides
that “a court may refuse to enforce an award if that award had been set aside by a
competent authority in the country where the award was rendered” [emphasis
added]. Enforcement may be allowed in circumstances where the enforcing court
considers it would be contrary to public policy to recognize the court decision setting
aside the award. This principle was recognized in Yukos Capital s.a.r.l. v. OAO Rosneft
(Netherlands Court of Appeal 2009), Yearbook Commercial Arbitration XXXIV
(Netherlands No. 31) at 703-714.
35) ICDR Rules, Art. 17; CIETAC Rules, Art. 7; HKIAC Rules, Art. 14; ICC Rules, Art. 18; ICSID
Convention, Arts. 62-63; LCIA Rules, Art. 16; SCC Rules, Art. 25; SIAC Rules, Art. 21;
UNCITRAL Rules, Art. 18.
36) See Martin F. Gusy et al., A Guide to the ICDR International Arbitration Rules 144 (Oxford
2011). To that end, the 2014 ICDR Rules, as well as the 2014 and 1998 LCIA Rules, clarify
that even if the tribunal meets at a location other than the place of arbitration, the
arbitration will be deemed conducted at the place of arbitration and any award shall
be deemed made at the place of arbitration. ICDR Rules, Art. 17.2. The LCIA Rules
extend this principle to include orders as well as awards. However, “[i]t should be
kept in mind that, no matter where hearings and meetings are actually held, the
arbitral tribunal remains bound by and subject to the relevant arbitration law at the
place of the arbitration.” Jason Fry et al., The Secretariat’s Guide to ICC Arbitration 207
(ICC 2012).
37) See SIAC Rules, Rule 24.2; ICC Rules, Art. 18; LCIA Rules, Art. 16; SCC Rules, Art. 25.
38) ICC Rules, Art. 18(2); CIETAC Rules, Art. 35, SCC Rules, Art. 25(1); UNCITRAL Rules, Art.
18(1).
39) ICC Rules, Art. 18(3); LCIA Rules, Art. 16.3; SCC Rules, Art. 25(2); UNCITRAL Rules, Art.
18(2).
40) ICDR Rules 2014, Art. 17(2) (emphasis added). The 2009 ICDR Rules contain a similar
formulation but do not make express provision for hearings. See ICDR Rules 2009, Art.
13.2.
41) See Gary B. Born, International Commercial Arbitration 204, 349 (2d ed., Kluwer Law
International 2014) (“The separability presumption is one of the conceptual and
practical cornerstones of international arbitration.”).
42) See id., at 2058 (“[T]he choice of the arbitral seat will often have material influences
on the selection of the parties’ arbitrators … . [L]egislation in a few states imposes
idiosyncratic nationality or religion requirements on arbitrators in locally-seated
arbitrations.”).
43) UNCITRAL, Model Law.
44) ICC Rules, Art. 18(1); SCC Rules, Art. 25(1); UNCITRAL Rules, Art. 18(1).
45) ICDR Rules, Art. 17(1).
46) LCIA Rules, Art. 16.2.
47) HKIAC Rules, Art. 14.1.
48) SIAC Rules, Rule 21.1.
49) ICSID Convention, Art. 2.
50) CIETAC Rules, Art. 7(2).
51) HKIAC Rules, Art. 14.1; ICC Rules, Art. 18(2); LCIA Rules, Art. 16.2; SCC Rules, Art. 25(2);
SIAC Rules, Rule 21.1; UNCITRAL Rules, Art. 18(1). Like the LCIA Rules, the 2009 ICDR
Rules, Art. 13(1) requires the tribunal to determine the seat “having regard for the
contentions of the parties and the circumstances of the arbitration.” Although this
language was eliminated in the 2014 version of the rules, in practice ICDR tribunals
will typically determine the default seat having consulted with the parties or
received their submissions. See ICDR Rules, Art. 17.
52) Gusy, supran. 36, at 142. See also Yves Derains & Eric A. Schwartz, Guide to the ICC
Rules of Arbitration 213 (Kluwer Law International 2005).
53) ICDR Rules, Art. 11; HKIAC Rules, Art. 6.1; LCIA Rules, Art. 5.8.
54) CIETAC Rules, Art. 25; ICSID Convention, Art. 37(2)(b); UNCITRAL Rules, Art. 7(1).
55) UNCITRAL Rules, Art. 7(1).
56) Only the ICSID Convention and LCIA Rules permit tribunals of more than three
arbitrators. ICSID Convention, Art. 37(2)(a); LCIA Rules, Art. 5.8.
57) See, e.g., English Arbitration Act 1996, ss 16-18; Swiss Federal PILA (Dec. 18, 1987 as
amended until July 1, 2014), Art. 179(2); U.S. Federal Arbitration Act, 9 U.S.C. ss 5, 206;
UNCITRAL Model Law, Art. 11(4)-(5).

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 58) LCIA Rules 2014, Art. 6(3). The 1998 LCIA Rules did not specifically address the
situation in which a party may be from a colony or otherwise dependent territory, but
the general LCIA practice under those Rules has been not to appoint an arbitrator
who is a citizen of the “mother” country. Simon Nesbitt, LCIA Arbitration Rules, Article 6
on Nationality of Arbitrators, in Concise International Arbitration 416 (Loukas A. Mistelis
ed., Kluwer Law International 2010).
59) HKIAC Rules, Art. 11.2.
60) HKIAC Rules, Art. 11.3.
61) See Michael Moser & Chiann Bao, A Guide to the HKIAC Arbitration Rules, ¶ 7.164
(Oxford University Press 2017).
62) Fry, supran. 36, at 168.
63) In reality, the ICC Court applies this provision strictly and typically considers it
suitable to appoint a sole or presiding arbitrator with the same nationality as one of
the parties under two sets of circumstances. First, where all parties share the same
nationality, “such that the appointment cannot be said to favour one or more parties
over the others.” Second, where it appears to the Secretariat that the parties may be
expecting an arbitrator to have the same nationality as one of them. The Secretariat
provides the following example: case involving an English party and a German party
where the place of arbitration is Frankfurt, applicable law is German, language of the
arbitration is German, and the nationality of counsel selected by the parties as well
as co-arbitrators appointed by the parties is German. Fry, supran. 36, at 168.
64) ICC Rules 1998, Art. 9(6).
65) Id.
66) ICC Rules 2017, Art. 13(3); see ICC Rules 2012, Art. 13(3). In certain territories (e.g., Hong
Kong, Macau, and Palestine), the ICC has not been able to establish a national
committee because they are not recognized as sovereign states or for other reasons.
67) In 2011, the English Supreme Court confirmed its view that these rules do not
contravene European antidiscrimination regulations. Jivraj v. Hashwani (2011) UKSC
40.
68) Article 25 of the ICSID Convention sets forth the nationality requirements for parties to
ICSID proceedings. It provides for ICSID jurisdiction over legal disputes arising out of
an investment between a “Contracting State” and a “national of another Contracting
State.” Article 25(2) provides a further definition for “a national of another Contracting
State.” While this requirement may appear to be straightforward at first glance, the
issue of nationality is complex. Indeed, numerous ICSID arbitrations have resulted in
interesting and varying findings on the matter. See Robert Wisner & Nick Gallus,
Nationality Requirements in Investor-State Arbitration, 5 J. World Investment & Trade
927, 927 (2004); Tokios Tokeles v. Ukraine, ICSID Case No. ARB/02/18, Decision on
Jurisdiction (Apr. 29, 2004) (finding Tokios Tokeles had standing under the Ukraine-
Lithuania BIT as a Lithuanian company despite that it was almost entirely controlled
by Ukrainian nationals); Hussein Nuaman Soufraki v. The United Arab Emirates, ICSID
Case No. ARB/02/7, Award (July 7, 2004) (finding that Soufraki did not have Italian
citizenship and therefore did not have standing under the Italy-United Arab Emirates
BIT despite a declaration from the Italian Foreign Affairs Minister that Soufraki was
indeed a citizen and could claim under the BIT). For further commentary on the
effectiveness of ICSID nationality requirements, see David D. Caron, Are the ICSID Rules
Governing Nationality and Investment Working?—A Discussion, in Investment Treaty
Arbitration and International Law, 119-141 (TJ Gierson Weiler, ed., Juris, 2008). For an
analysis of ICSID cases discussing nationality requirements and, in particular, on the
effectiveness of “nationality planning” by investors, see Christoph Schreuer,
Nationality Planning, in Contemporary Issues in International Arbitration and
Mediation: The Fordham Papers, 15 (Arthur W. Rovine ed., Martinus Nijhoff Publishers,
2012).
69) See, e.g., NAFTA, 32 ILM 289, Arts. 1115-1138.2. Pursuant to NAFTA Art. 1123, arbitral
tribunals shall be composed of three arbitrators, one chosen by each party, and
another appointed. NAFTA, Art. 1123. If the parties cannot agree upon an arbitrator,
the Secretary-General of ICSID will have appointing authority and will choose
arbitrators who are not nationals of either party. NAFTA, Art. 1124(1)-(4). Other treaties
contain similar provisions. See also, e.g., ECT, 2080 UNTS 95, Art. 27 (providing that, in
an ad hoc settlement of disputes between contracting parties, one of three
arbitrators must not be a national of either party); CAFTA-DR, Arts. 20.6-20.10
(providing guidelines for the appointment of an arbitral panel).
70) CIETAC Rules, Art. 30.
71) The ICSID Arbitration Rules nominally limit the conduct of the arbitral proceedings to
two languages. It is conceivable, however, that an ICSID arbitration could be
conducted in three languages. For example, in a case involving a Latin American
respondent state, a U.S.-based parent company, and a French subsidiary of that U.S.
company, the languages of the arbitration could be Spanish, English, and French.
ICSID Rules.
72) Gusy, supran. 36, at 149.
73) CIETAC Rules, Art. 81(3); HKIAC Rules, Art. 15.3; ICDR Rules, Art. 18; ICSID Rules, Art. 22(2);
LCIA Rules, Art. 17; SCC Rules, Art. 26(2); SIAC Rules, Rule 22.2; UNCITRAL Rules, Art.
19(2).

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 74) It is not possible within the scope of this text to provide any definitive guidelines
regarding the substantive law that should be chosen to govern the parties’
relationship, as this choice will be predicated on a variety of factors, including the
parties’ identities, the strength of their respective negotiating positions, the subject
matter of the underlying transaction, the specifics of the potentially applicable
national laws, and the extent to which there is actually a conflict of legal principles
that could result in different outcomes. As a general matter, it is advisable to make
reference to a well-developed body of commercial, contractual, corporate, or
intellectual property law. It is also important to insist on a law with which the parties
are familiar or the content of which they are able to ascertain with reasonable ease
and certainty. Formulations that refer to “general principles of law,” “lex mercatoria,”
“international law and trade usages,” and the like should be avoided as these are
insufficiently well defined.
75) See Friedland, supran. 3, at 90 (“While every international contract should contain a
clause which provides for the governing substantive law … and most do, there are few
contracts that contain a choice of governing arbitration law [i.e. procedural law], and
there is rarely a need to do so”). For a list of the potential options open to those
parties who do wish to select a specific procedural law to govern their arbitration, see
W. Laurence Craig et al., International Chamber of Commerce Arbitration 107 (3d ed.,
Oceana 2000).
76) UNCITRAL Model Law, Explanatory Note by the UNCITRAL Secretariat on the 1985
Model Law on International Commercial Arbitration as amended in 2006, at 33.
77) See ICDR Rules, Art. 31(1); LCIA Rules, Art. 22.3; SCC Rules, Art. 27; SIAC Rules, Rule 31.1.
78) See Craig, supran. 75, at 300 (“By declining to make an explicit adoption of national
procedural norms, the arbitrators retain a maximum degree of discretion to adopt
procedures which are consistent with the requirements of international commerce
and which may differ from the procedures normally in force.”).
79) UNCITRAL Rules 2010, Art. 35(1). In any case, “while the discretion accorded to the
tribunal is less than that accorded to the parties under the principle of party
autonomy,” in this regard, the revised 2010 formulation accords the tribunal more
flexibility to determine the applicable law by eliminating the requirement in Art. 33.1
of the 1976 UNCITRAL Rules that the tribunal “choose” the law in accordance with the
“conflict of laws principles which it considers applicable.” David D. Caron & Lee M.
Caplan, The UNCITRAL Arbitration Rules: A Commentary, 118-119 (2d ed., Oxford 2013).
80) HKIAC Rules, Art. 36.1.
81) Id.
82) Compare HKIAC Rules 2008, Art. 31.1.
83) See SCC Rules, Art. 27(2); ICSID Convention, Art. 42(1).
84) ICDR Rules, Art. 31(2); HKIAC Rules, Art. 36.3; SIAC Rules, Rule 31.3; UNCITRAL Rules, Art.
35(3).
85) ICC Rules 2017, Art. 21(2).
86) CIETAC Rules 2015, Art. 49(1).
87) Id.
88) Id.
89) ICSID Rules, Art. 42(1).
90) LCIA Rules, Art. 14.5; SCC Rules, Art. 27.
91) ICSID Convention, Art. 14(1) (emphasis added).
92) Id.
93) SIAC Rules, Rule 13.2.
94) CIETAC Rules, Art. 26(1)-(2).
95) IBA Rules of Evidence.
96) See, e.g., ICC Rules, Art. 26(3) (“Save with the approval of the arbitral tribunal and the
parties, persons not involved in the proceedings shall not be admitted.”); UNCITRAL
Rules, Art. 28(3) (“Hearings shall be held in camera unless the parties agree
otherwise”).
97) See, e.g., LCIA Rules, Art. 30(1) (“The parties undertake as a general principle to keep
confidential all awards in the arbitration, together with all materials in the
arbitration created for the purpose of the arbitration and all other documents
produced by another party in the proceedings not otherwise in the public domain,
save and to the extent that disclosure may be required of a party by legal duty, to
protect or pursue a legal right, or to enforce or challenge an award in legal
proceedings before a state court or other legal authority.”).
98) The revised UNCITRAL Arbitration Rules incorporating the provision on transparency
also came into effect on Apr. 1, 2014. In all other respects, the Rules are identical to
the UNCITRAL 2010 Rules. UNCITRAL, UNCITRAL Rules on Transparency in Treaty-based
Investor-State Arbitration, http://www.uncitral.org/uncitral/uncitral_texts
/arbitration/2014Transparency.html (accessed July 20, 2018).
99) See id.
100) See Andreas F. Lowenfeld, A Primer on International Arbitration, in Lowenfeld on
International Arbitration: Collected Essays over Three Decades 14 (Juris 2005). See also
Black’s Law Dictionary(8th ed., 2009) (“A decision-maker … who is authorized to
decide ex aequo et bono is not bound by legal rules and may instead follow equitable
principles.”); Leon Trakman, Ex Aequo et Bono: Demystifying an Ancient Concept, 8(2)
Chi. J. Int’l. L. 621 (2008).
101) CIETAC Rules 2005, Art. 43(1).

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 102) CIETAC Rules, Art. 49(1); CIETAC Rules 2012, Art. 47(1).
103) Note that Rules 3 and 4 of the IBA Rules of Ethics (on impartiality and independence)
have been superseded in part by the IBA Guidelines on Conflicts of Interest in
International Arbitration. However, they “remain in effect as to subjects that are not
discussed in the Guidelines.” IBA, IBA Guidelines on Conflicts of Interest in International
Arbitration 5,
http://www.ibanet.org/ENews_Archive/IBA_July_2008_ENews_ArbitrationMultipleLan
g.aspx (accessed June 23, 2018).
104) 9 U.S.C. § 9 (1947) provides that a court may confirm an arbitration award, “[i]f the
parties in their agreement have agreed that a judgment of the court shall be entered
upon the award … .”
105) See Diapulse Corp. of Am. v. Carba, Ltd. 626 F.2d 1108 (2d Cir. 1980). See, e.g., Swiss Law
on Private International Law, Arts. 190, 194; Belgian Judicial Code, §1717; Italian Code
of Civil Procedure, Art. 829. See also Gary B. Born, International Arbitration: Law and
Practice 311-374 (2d ed., Kluwer Law International 2015).
106) See New York Convention on the Recognition and Enforcement of Foreign Arbitral
Awards, Art. V (listing the seven reasons a national court should not recognize and
enforce an arbitral award).
107) For example, some U.S. jurisdictions, such as Utah, require out-of-state attorneys to
obtain pro hac vice admission before they may represent clients in arbitral
proceedings within that state. See Utah Rules of Professional Conduct, Rule 5.5(a),
Utah Supreme Court Rules of Professional Practice, Rule 14-802(b)(2)(B) and Advisory
Committee Note. By default, this also implies that non-attorneys may not represent
parties in arbitral proceedings in Utah.
108) CIETAC Rules, Art. 22.
109) HKIAC Rules, Art. 13.6; LCIA Rules, Art. 18.2; UNCITRAL Rules, Art. 5.
110) International Bar Association, Practice Rules and Guidelines,
http://www.ibanet.org/Publications/publications_
IBA_guides_and_free_materials.aspx (accessed July 20, 2018).
111) Tom Cummins, The IBA Guidelines on Party Representation in International Arbitration—
Levelling the Playing Field?, 30 Arb. Int’l 429 (2014).
112) LCIA Rules, Art. 18.5.
113) LCIA Rules, Annex: General Guidelines for the Parties’ Legal Representatives, paras. 2
and 3.
114) Id., at para. 7.
115) LCIA Rules, Art. 18.6.
116) ICDR Rules, Art. 16.
117) CIETAC Rules, Art. 10; HKIAC Rules, Art. 32; ICSID Rules, Rule 27.
118) Martin C. Weisman, Med-Arb: The Best of Both Worlds, 19(3) Disp. Res. Magazine (Spring
2013).
119) See Ryan Mellske, Grupo Unidos por el Canal v. Autoridad del Canal de Panamá, Dispute
Adjudication Board Decision, A contribution by the ITA Board of Reporters (Kluwer Law
International Dec. 31, 2014).

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Document information
Chapter 3: Commencement of the Arbitration
Publication The rules concerning the commencement of the arbitration are founded on fundamental
principles of due process, including the respondent’s right to notice of the proceedings
The International Arbitration and all parties’ right to be heard. All of the rules under consideration provide for the
Rulebook: A Guide to Arbitral claimant to initiate the proceedings by presenting a written request or notice of
Regimes arbitration, setting forth basic information about the parties, the dispute, and the claims
for relief. This act triggers the official start of the arbitration and puts the respondent on
notice of the claims against it. The rules then provide for the respondent’s written answer,
Organization including defenses and any counterclaims. The respondent may raise objections to
jurisdiction at this time, which may be addressed initially by the institution before a final
International Centre for decision by the tribunal. The rules also address the requirements for notifications and
Dispute Resolution calculation of time periods and the consequences of default. In this chapter, we discuss
each of these key aspects of procedure in turn.

Organization §3.01 REQUEST FOR ARBITRATION

China International Filing a request for arbitration formally sets the arbitration in motion. (1) The request
Economic and Trade
Arbitration Commission P 199 “usually serves the same basic functions as a civil complaint or writ under national
P 200 litigation rules.” (2) That is, the request alerts the responding party to the submission of
a claim and the start of the arbitral proceeding. (3) In institutional arbitration, the request
for arbitration also serves as a request for the institution to act as the administering body.
Organization Accordingly, institutional arbitration rules typically provide that the date of receipt of the
request for arbitration by the arbitral institution is deemed to be the date of the
Hong Kong International commencement, or institution, of the arbitration proceedings. (4) Under the UNCITRAL
Arbitration Centre Rules, the commencement date is deemed to be the date of the respondent’s receipt (or
deemed receipt) of that notice. (5) The commencement date becomes the starting point
for calculating the various deadlines set forth in the rules for different stages in the
Organization arbitral process, such as the deadline for filing the answer to the request for arbitration, or
the date by which the arbitral award should be issued. In addition, the arbitration
International Court of commencement date is critical in relation to any applicable prescription of rights or
Arbitration of the limitation of actions under provisions of the substantive law governing the parties’
International Chamber of agreement or the law of the seat of the arbitration.
Commerce
The ICDR, HKIAC, and SIAC Rules require the claimant to provide the request to the
respondent(s) directly, along with filing it with the arbitral institution. (6) By contrast, the
Organization CIETAC, ICC, and SCC Rules require only that the request be filed with the arbitral
institution, which is then responsible for transmitting the request to the respondent,
International Centre for typically in accordance with the contact details provided by the claimant. (7) The ICSID
Settlement of Investment Administrative and Financial Regulations also provide that the Secretary-General “shall be
Disputes the official channel of written communications among the parties … [and the] Tribunal” for
pleadings required under the ICSID Convention, Institution, or Arbitration Rules. (8) Under
the UNCITRAL ad hoc arbitral system, the rules require that the notice of arbitration be
Organization served directly on the respondent by the claimant. (9)
London Court of Since most of the rules contemplate the institution acting as a conduit for the request of
International Arbitration arbitration, it is good practice for the claimant to include in the request for arbitration
specific instructions that the institution should follow in notifying the respondent based on
the law of the seat of arbitration, any contractual requirements, or local practice and rules
Organization P 200 where the respondent is based. It is also good practice to provide all known contact
P 201 details for the respondent, including e-mail addresses, in addition to those that are
Arbitration Institute of the stated in the section of the underlying agreement dealing with notifications or notices.
Stockholm Chamber of Each regime establishes the mandatory elements to be included in a request for
Commerce arbitration. Arbitral institutions rely on the information contained in the request for
arbitration in order to put the arbitral procedure in motion according to the agreement of
the parties (required for an enforceable award). (10) The regimes variously require the
Organization following information in a request for arbitration:
Singapore International – A demand that the dispute be submitted to arbitration.
Arbitration Centre – The name and contact information of the parties and their representatives.
– A description of the dispute, including the claims and supporting facts and amount in
dispute.
Organization – A copy of the arbitration agreement(s).
United Nations Commission – A reference to any contract that forms the basis of the dispute.
on International Trade Law – Proposals as to the number, method of appointment and qualifications of the
arbitrators (or, if already provided in the arbitration agreement, then the claimant’s
nomination of arbitrator), the seat of arbitration; the language(s) of the arbitration;
Bibliographic reference the applicable law; and any interest in mediating the dispute.
'Chapter 3: Commencement – Confirmation that the respondent has been notified (where applicable).
of the Arbitration', in Arif – Confirmation of payment of the filing fee.
Hyder Ali , Jane Wessel , et – A description of the relief requested. (11)

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al., The International – Additional points may be required based on the terms of the parties’ arbitration
Arbitration Rulebook: A agreement, or pursuant to the law of the seat of the arbitration.
Guide to Arbitral Regimes,
(© Kluwer Law International; The CIETAC Rules uniquely, additionally require the claimant to file “the relevant
Kluwer Law International documentary and other evidence” with its request for arbitration. (12) Also unique is the
2019) pp. 199 - 278 requirement contained in the HKIAC Rules that the claimant specify “the existence of any
funding agreement and the identity of any third party funder[.]” (13) Note also that all of
the proposals mentioned in the list above (i.e., arbitrators, seat, language, applicable law,
and mediation) may be obviated by agreement on these issues in the parties’ arbitration
agreement. (14)
It is essential that the claimant fulfill these requirements, or run the risk of delay or even
dismissal of its claim (without prejudice). (15) An emerging approach, however, is to require
the arbitral tribunal to resolve any controversy regarding the sufficiency of the notice of
P 201 arbitration without causing any delay in the arbitration process. This approach was
P 202 explicitly adopted in the 2010 revision to the UNCITRAL Rules and the 2014 revision to
the LCIA Rules, consistent with the overall objective of revising the rules to create more
streamlined and accelerated arbitration processes. (16) Even under the LCIA’s approach,
however, failure to pay the required filing fee will still result in delay, as the request for
arbitration will not be deemed to have been received until the filing fee is paid. (17) As a
practical matter, other institutions will also proceed in this manner.
There is no required format for drafting a request for arbitration, although some
institutions do provide model requests or online filing portals. Depending on the
circumstances of a case, the claimant may opt to file a short request for arbitration
including solely the identity of the parties, a brief description of the dispute and the relief
sought, and can then opt to follow up by filing more detailed briefs or memorials during
the written phase of the arbitration, as agreed by the parties or directed by the arbitral
tribunal. Such “short-form” requests may be as short as a single page, and it is not unusual
to see requests of only a few pages. Typical factors motivating a shorter request include a
disputing party’s desire not to show its hand early in the process, to be the first party to
file or to prevent the running of any applicable prescription period (statute of limitations).
However, even a brief request for arbitration must still contain enough information to:
establish the parties’ agreement to arbitrate; confirm the existence of a dispute,
controversy, or claim falling within the terms of the agreement; inform the respondent of
the “general context of the claim”; and enable the respondent to “decide on [a] future
course of action.” (18) Additionally, because a claimant may later need to rely on the
request for arbitration to demonstrate timeliness under any applicable prescription of
rights or limitation of actions under relevant laws, the claims asserted in the request
should be identified with a sufficient degree of detail.
In other instances, the claimant may prefer to file a longer request for arbitration, or even
elaborate the request so as to constitute its full Statement of Claim. Considerations that
might motivate the filing of a longer request include a claimant’s desire to provide a more
detailed account of its case (e.g., because it recognizes that the formal filing of a dispute
will result in the matter receiving the attention of more senior decision-makers within the
respondent’s decision-making hierarchy) or recognition that the request for arbitration will
be the first substantive document to be reviewed by the arbitral tribunal. Under the HKIAC,
LCIA, SCC, SIAC, and UNCITRAL Rules, a party is free to rely on its notice of arbitration as its
written statement of claim, on the condition that the notice also complies with the
additional requirements of the statement of claim. (19) A claimant’s decision to
P 202 consolidate the notice of arbitration and statement of claim may result in a more
P 203 expedited (and often less expensive) process; on the contrary, the two-tiered approach
of providing a notice of arbitration first, and then a statement of claim may facilitate
settlement discussions early in the arbitration before the parties have invested too much
time, money, or human or political capital in the dispute resolution process.
The relevant rules are reproduced in Table 3.1.
P 203
P 204 Table 3.1 The Request for Arbitration
AAA-ICDR
PPP208
204
205
206
209
207
210
212
213
214
215
211
PPP208
205
206
209
207
210
212
213
214
215
216
211

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 Article 2. Notice of 1. The party initiating arbitration (“Claimant”) shall, in compliance
Arbitration and with Article 10, give written Notice of Arbitration to the Administrator
Statement of Claim and at the same time to the party against whom a claim is being
made (“Respondent”). The Claimant may also initiate the arbitration
through the Administrator’s online filing system located
atwww.icdr.org.
2. The arbitration shall be deemed to commence on the date on
which the Administrator receives the Notice of Arbitration.
3. The Notice of Arbitration shall contain the following information:
(a) a demand that the dispute be referred to arbitration;
(b) the names, addresses, telephone numbers, fax numbers, and
email addresses of the parties and, if known, of their
representatives;
(c) a copy of the entire arbitration clause or agreement being
invoked, and, where claims are made under more than one
arbitration agreement, a copy of the arbitration agreement
under which each claim is made;
(d) a reference to any contract out of or in relation to which the
dispute arises;
(e) a description of the claim and of the facts supporting it;
(f) the relief or remedy sought and any amount claimed; and
(g) optionally, proposals, consistent with any prior agreement
between or among the parties, as to the means of designating
the arbitrators, the number of arbitrators, the place of
arbitration, the language(s) of the arbitration, and any interest
in mediating the dispute.
4. The Notice of Arbitration shall be accompanied by the appropriate
filing fee.
5. Upon receipt of the Notice of Arbitration, the Administrator shall
communicate with all parties with respect to the arbitration and
shall acknowledge the commencement of the arbitration.

CIETAC
Article 11. The arbitral proceedings shall commence on the day on which the
Commencement of Arbitration Court receives a Request for Arbitration.
Arbitration
Article 12. A party applying for arbitration under these Rules shall:
Application for
Arbitration 1. Submit a Request for Arbitration in writing signed and/or
sealed by the Claimant or its authorized representative(s),
which shall, inter alia, include:
(a) the names and addresses of the Claimant and the
Respondent, including the zip code, telephone, fax, email,
or any other means of electronic telecommunications;
(b) a reference to the arbitration agreement that is invoked;
(c) a statement of the facts of the case and the main issues
in dispute;
(d) the claim of the Claimant; and
(e) the facts and grounds on which the claim is based.
2. Attach to the Request for Arbitration the relevant documentary
and other evidence on which the Claimant’s claim is based.
3. Pay the arbitration fee in advance to CIETAC in accordance
with its Arbitration Fee Schedule.

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 Article 13. 1. Upon the written application of a party, CIETAC shall accept a case
Acceptance of a in accordance with an arbitration agreement concluded between the
Case parties either before or after the occurrence of the dispute, in which
it is provided that disputes are to be referred to arbitration by
CIETAC.
2. Upon receipt of a Request for Arbitration and its attachments,
where after examination the Arbitration Court finds the formalities
required for arbitration application to be complete, it shall send a
Notice of Arbitration to both parties together with one copy each of
these Rules and CIETAC’ s Panel of Arbitrators. The Request for
Arbitration and its attachments submitted by the Claimant shall be
sent to the Respondent under the same cover.
3. Where after examination the Arbitration Court finds the formalities
required for the arbitration application to be incomplete, it may
request the Claimant to complete them within a specified time
period. The Claimant shall be deemed not to have submitted a
Request for Arbitration if it fails to complete the required formalities
within the specified time period. In such a case, the Claimant’s
Request for Arbitration and its attachments shall not be kept on file
by the Arbitration Court.
4. After CIETAC accepts a case, the Arbitration Court shall designate
a case manager to assist with the procedural administration of the
case.
HKIAC

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 Article 4. Notice of 4.1. The party initiating arbitration (the “Claimant”) shall
Arbitration communicate a Notice of Arbitration to HKIAC and the other party
(the “Respondent”).
4.2. An arbitration shall be deemed to commence on the date on
which a copy of the Notice of Arbitration is received by HKIAC. For
the avoidance of doubt, this date shall be determined in accordance
with the provisions of Articles 3.1 to 3.5.
4.3. The Notice of Arbitration shall include the following:
(a) a request that the dispute be referred to arbitration;
(b) the names and (in so far as known) the addresses, facsimile
numbers and/or email addresses of the parties and of their
representatives;
(c) a copy of the arbitration agreement(s) invoked;
(d) a copy of the contract(s) or other legal instrument(s) out of or
in relation to which the dispute arises, or reference thereto;
(e) a description of the general nature of the claim and an
indication of the amount involved, if any;
(f) the relief or remedy sought;
(g) a proposal as to the number of arbitrators (i.e. one or three), if
the parties have not previously agreed thereon;
(h) the Claimant’s proposal and any comments regarding the
designation of a sole arbitrator under Article 7, or the
Claimant’s designation of an arbitrator under Article 8;
(i) the existence of any funding agreement and the identity of any
third party funder pursuant to Article 44; and
(j) confirmation that copies of the Notice of Arbitration and any
supporting materials included with it have been or are being
communicated simultaneously to the Respondent by one or
more means of service to be identified in such confirmation.
4.4. The Notice of Arbitration shall be accompanied by payment to
HKIAC of the Registration Fee as required by Schedule 1.
4.5. The Notice of Arbitration may include the Statement of Claim.
4.6. If the Notice of Arbitration does not comply with these Rules or if
the Registration Fee is not paid, HKIAC may request the Claimant to
remedy the defect within an appropriate time limit. If the Claimant
complies with such directions within the applicable time limit, the
arbitration shall be deemed to have commenced under Article 4.2 on
the date the initial version was received by HKIAC. If the Claimant
fails to comply, the arbitration shall be deemed not to have
commenced under Article 4.2 without prejudice to the Claimant’s
right to submit the same claim at a later date in a subsequent
Notice of Arbitration.

4.7. Where an amendment is made to the Notice of Arbitration prior

to the constitution of the arbitral tribunal, HKIAC has discretion to
determine whether and to what extent such amendment affects
other time limits under the Rules.
4.8 The Claimant shall notify, and lodge documentary verification
with, HKIAC of the date the Respondent receives the Notice of
Arbitration and any supporting materials included with it.

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 Article 16. Statement 16.1. Unless the Statement of Claim was contained in the Notice of
of Claim Arbitration (or the Claimant elects to treat the Notice of Arbitration
as the Statement of Claim), the Claimant shall communicate its
Statement of Claim to all other parties and to the arbitral tribunal
within a time limit to be determined by the arbitral tribunal.
16.2. The Statement of Claim shall include the following particulars:
(a) a statement of the facts supporting the claim;
(b) the points at issue;
(c) the legal arguments supporting the claim; and
(d) the relief or remedy sought.
16.3 The Claimant shall annex to its Statement of Claim all
supporting materials on which it relies.
16.4 The arbitral tribunal may vary any of the requirements in Article
16 as it deems appropriate.

ICC

Article 4. Request for 1. A party wishing to have recourse to arbitration under the Rules
Arbitration shall submit its Request for Arbitration (the “Request”) to the
Secretariat at any of the offices specified in the Internal Rules.
The Secretariat shall notify the claimant and respondent of the
receipt of the Request and the date of such receipt.
2. The date on which the Request is received by the Secretariat
shall, for all purposes, be deemed to be the date of the
commencement of the arbitration.
3. The Request shall contain the following information:
a) the name in full, description, address and other contact
details of each of the parties;
b) the name in full, address and other contact details of any
person(s)representing the claimant in the arbitration;
c) a description of the nature and circumstances of the
dispute giving rise to the claims and of the basis upon
which the claims are made;
d) a statement of the relief sought, together with the
amounts of any quantified claims and, to the extent
possible, an estimate of the monetary value of any other
claims;

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 Article 4. Request for
Arbitration
e) any relevant agreements and, in particular, the
arbitration agreement(s);
f) where claims are made under more than one arbitration
agreement, an indication of the arbitration agreement
under which each claim is made;
g) all relevant particulars and any observations or
proposals concerning the number of arbitrators and their
choice in accordance with the provisions of Articles 12
and 13, and any nomination of an arbitrator required
thereby; and
h) all relevant particulars and any observations or
proposals as to the place of the arbitration, the
applicable rules of law and the language of the
arbitration.
The claimant may submit such other documents or
information with the Request as it considers appropriate or as
may contribute to the efficient resolution of the dispute.
4. Together with the Request, the claimant shall:
a) submit the number of copies thereof required by Article
3(1); and
b) make payment of the filing fee required by Appendix III
(“Arbitration Costs and Fees”) in force on the date the
Request is submitted.
In the event that the claimant fails to comply with either of
these requirements, the Secretariat may fix a time limit within
which the claimant must comply, failing which the file shall be
closed without prejudice to the claimant’s right to submit the
same claims at a later date in another Request.
5. The Secretariat shall transmit a copy of the Request and the
documents annexed thereto to the respondent for its Answer to
the Request once the Secretariat has sufficient copies of the
Request and the required filing fee.

ICSID

ICSID Convention, (1) Any Contracting State or any national of a Contracting State
Article 36 wishing to institute arbitration proceedings shall address a
request to that effect in writing to the Secretary-General who
shall send a copy of the request to the other party.
(2) The request shall contain information concerning the issues in
dispute, the identity of the parties and their consent to
arbitration in accordance with the rules of procedure for the
institution of conciliation and arbitration proceedings.
(3) The Secretary-General shall register the request unless he
finds, on the basis of the information contained in the request,
that the dispute is manifestly outside the jurisdiction of the
Centre. He shall forthwith notify the parties of registration or
refusal to register.

Administrative and (1) During the pendency of any proceeding the Secretary-General
Financial shall be the official channel of written communications among
Regulations, the parties, the Commission, Tribunal or Committee, and the
Regulation 24. Chairman of the Administrative Council, except that:
Supporting
Documentation (a) the parties may communicate directly with each other
unless the communication is one required by the
Convention or the Institution, Conciliation or Arbitration
Rules …
(b) the members of any Commission, Tribunal or Committee
shall communicate directly with each other.

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 Administrative and (1) Documentation filed in support of any request, pleading,
Financial application, written observation or other instrument
Regulations, introduced into a proceeding shall consist of one original and
Regulation 30. of the number of additional copies specified in paragraph (2).
Supporting The original shall, unless otherwise agreed by the parties or
Documentation ordered by the competent Commission, Tribunal or Committee,
consist of the complete document or of a duly certified copy or
extract, except if the party is unable to obtain such document
or certified copy or extract (in which case the reason for such
inability must be stated).
(2) The number of additional copies of any document shall be
equal to the number of additional copies required of the
instrument to which the documentation relates, except that no
such copies are required if the document has been published
and is readily available. Each additional copy shall be certified
by the party presenting it to be a true and complete copy of
the original, except that if the document is lengthy and
relevant only in part, it is sufficient if it is certified to be a true
and complete extract of the relevant parts, which must be
precisely specified.
(3) Each original and additional copy of a document which is not
in a language approved for the proceeding in question, shall,
unless otherwise ordered by the competent Commission,
Tribunal or Committee, be accompanied by a certified
translation into such a language. However, if the document is
lengthy and relevant only in part, it is sufficient if only the
relevant parts, which must be precisely specified, are
translated, provided that the competent body may require a
fuller or a complete translation.
(4) Whenever an extract of an original document is presented
pursuant to paragraph (1) or a partial copy or translation
pursuant to paragraph (2) or (3), each such extract, copy and
translation shall be accompanied by a statement that the
omission of the remainder of the text does not render the
portion presented misleading.

Institution Rules, (1) Any Contracting State or any national of a Contracting State
Rule 1. The Request wishing to institute conciliation or arbitration proceedings
under the Convention shall address a request to that effect in
writing to the Secretary-General at the seat of the Centre. The
request shall indicate whether it relates to a conciliation or an
arbitration proceeding. It shall be drawn up in an official
language of the Centre, shall be dated, and shall be signed by
the requesting party or its duly authorized representative.
(2) The request may be made jointly by the parties to the dispute.

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 Institution Rules, (1) The request shall:
Rule 2. Contents of
the Request (a) designate precisely each party to the dispute and state
the address of each;
(b) state, if one of the parties is a constituent subdivision or
agency of a Contracting State, that it has been
designated to the Centre by that State pursuant to Article
25(1) of the Convention;
(c) indicate the date of consent and the instruments in which
it is recorded, including, if one party is a constituent
subdivision or agency of a Contracting State, similar data
on the approval of such consent by that State unless it
had notified the Centre that no such approval is required;
(d) indicate with respect to the party that is a national of a
Contracting State:
(i) its nationality on the date of consent; and
(ii) if the party is a natural person:
(A) his nationality on the date of the request; and
(B) that he did not have the nationality of the
Contracting State party to the dispute either
on the date of consent or on the date of the
request; or
(iii) if the party is a juridical person which on the date of
consent had the nationality of the Contracting
State party to the dispute, the agreement of the
parties that it should be treated as a national of
another Contracting State for the purposes of the
Convention;
(e) contain information concerning the issues in dispute
indicating that there is, between the parties, a legal
dispute arising directly out of an investment; and
(f) state, if the requesting party is a juridical person, that it
has taken all necessary internal actions to authorize the
request.
(2) The information required by subparagraphs (1)(c), (1)(d)(iii) and
(1)(f) shall be supported by documentation.
(3) “Date of consent” means the date on which the parties to the
dispute consented in writing to submit it to the Centre; if both
parties did not act on the same day, it means the date on
which the second party acted.

Institution Rules, The request may in addition set forth any provisions agreed by the
Rule 3. Optional parties regarding the number of conciliators or arbitrators and the
Information in the method of their appointment, as well as any other provisions agreed
Request concerning the settlement of the dispute.
Institution Rules, (1) The request shall be accompanied by five additional signed
Rule 4. Copies of the copies. The Secretary-General may require such further copies as he
Request may deem necessary.
(2) Any documentation submitted with the request shall conform to
the requirements of Administrative and Financial Regulation 30.

Institution Rules, (1) On receiving a request the Secretary-General shall:

Rule 5.
Acknowledgement of (a) send an acknowledgement to the requesting party;
the Request (b) take no other action with respect to the request until he has
received payment of the prescribed fee.
(2) As soon as he has received the fee for lodging the request, the
Secretary-General shall transmit a copy of the request and of the
accompanying documentation to the other party.

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 Institution Rules, (1) The Secretary-General shall, subject to Rule 5(1)(b), as soon as
Rule 6. Registration possible, either:
of the Request
(a) register the request in the Conciliation or the Arbitration
Register and on the same day notify the parties of the
registration; or
(b) if he finds, on the basis of the information contained in the
request, that the dispute is manifestly outside the jurisdiction
of the Centre, notify the parties of his refusal to register the
request and of the reasons therefor.
(2) A proceeding under the Convention shall be deemed to have been
instituted on the date of the registration of the request.

Institution Rules, The notice of registration of a request shall:

Rule 7. Notice of
Registration (a) record that the request is registered and indicate the date of
the registration and of the dispatch of that notice;
(b) notify each party that all communications and notices in
connection with the proceeding will be sent to the address
stated in the request, unless another address is indicated to
the Centre;
(c) unless such information has already been provided, invite the
parties to communicate to the Secretary-General any
provisions agreed by them regarding the number and the
method of appointment of the conciliators or arbitrators;

(d) invite the parties to proceed, as soon as possible, to constitute

a Conciliation Commission in accordance with Articles 29 to 31
of the Convention, or an Arbitral Tribunal in accordance with
Articles 37 to 40;
(e) remind the parties that the registration of the request is
without prejudice to the powers and functions of the
Conciliation Commission or Arbitral Tribunal in regard to
jurisdiction, competence and the merits; and
(f) be accompanied by a list of the members of the Panel of
Conciliators or of Arbitrators of the Centre.
Institution Rules, The requesting party may, by written notice to the Secretary-
Rule 8. Withdrawal General, withdraw the request before it has been registered. The
of the Request Secretary General shall promptly notify the other party, unless,
pursuant to Rule 5(1)(b), the request had not been transmitted to it.
Institution Rules, (1) The texts of these Rules in each official language of the Centre
Rule 9. Final shall be equally authentic.
Provisions
(2) These Rules may be cited as the “Institution Rules” of the Centre.

Arbitration Rules, The Arbitration Rules cover the period of time from the dispatch of
Preamble the notice of registration of a request for arbitration until an award
is rendered [ ].
Arbitration Rules, As soon as the Tribunal is constituted, the Secretary-General shall
Rule 30. transmit to each member a copy of the request by which the
Transmission of the proceeding was initiated, of the supporting documentation, of the
Request notice of registration and of any communication received from
either party in response thereto.
LCIA
Article 1. The 1.1. Any party wishing to commence an arbitration under the LCIA
Request for Rules (the “Claimant”) shall deliver to the Registrar of the LCIA Court
Arbitration (the “Registrar”) a written request for arbitration (the “Request”),
containing or accompanied by:
(i) the full name and all contact details (including postal address,
e-mail address, telephone and facsimile numbers) of the
Claimant for the purpose of receiving delivery of all
documentation in the arbitration; and the same particulars of
the Claimant’s legal representatives (if any) and of all other
parties to the arbitration;
(ii) the full terms of the Arbitration Agreement (excepting the LCIA
Rules) invoked by the Claimant to support its claim, together
with a copy of any contractual or other documentation in
which those terms are contained and to which the Claimant’s
claim relates;

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 (iii) a statement briefly summarising the nature and circumstances
of the dispute, its estimated monetary amount or value, the
transaction(s) at issue and the claim advanced by the
Claimant against any other party to the arbitration (each such
other party being here separately described as a
“Respondent”);
(iv) a statement of any procedural matters for the arbitration
(such as the arbitral seat, the language(s) of the arbitration,
the number of arbitrators, their qualifications and identities)
upon which the parties have already agreed in writing or in
respect of which the Claimant makes any proposal under the
Arbitration Agreement;
(v) if the Arbitration Agreement (or any other written agreement)
howsoever calls for any form of party nomination of
arbitrators, the full name, postal address, e-mail address,
telephone and facsimile numbers of the Claimant’s nominee;
(vi) confirmation that the registration fee prescribed in the
Schedule of Costs has been or is being paid to the LCIA, without
which actual receipt of such payment the Request shall be
treated by the Registrar as not having been delivered and the
arbitration as not having been commenced under the
Arbitration Agreement; and
(vii) confirmation that copies of the Request (including all
accompanying documents) have been or are being delivered to
all other parties to the arbitration by one or more means to be
identified specifically in such confirmation, to be supported
then or as soon as possible thereafter by documentary proof
satisfactory to the LCIA Court of actual delivery (including the
date of delivery) or, if actual delivery is demonstrated to be
impossible to the LCIA Court’s satisfaction, sufficient
information as to any other effective form of notification.
1.2. The Request (including all accompanying documents) may be
submitted to the Registrar in electronic form (as e-mail
attachments) or in paper form or in both forms. If submitted in
paper form, the Request shall be submitted in two copies where a
sole arbitrator is to be appointed, or, if the parties have agreed or
the Claimant proposes that three arbitrators are to be appointed, in
four copies.
1.3. The Claimant may use, but is not required to do so, the standard
electronic form available on-line from the LCIA’s website for LCIA
Requests.
1.4. The date of receipt by the Registrar of the Request shall be
treated as the date upon which the arbitration has commenced for
all purposes (the “Commencement Date”), subject to the LCIA’s
actual receipt of the registration fee.

1.5. There may be one or more Claimants (whether or not jointly

represented); and in such event, where appropriate, the term
“Claimant” shall be so interpreted under the Arbitration Agreement.
Article 5. Formation 5.1. The formation of the Arbitral Tribunal by the LCIA Court shall not
of Arbitral Tribunal be impeded by any controversy between the parties relating to the
sufficiency of the Request or the Response. The LCIA Court may also
proceed with the arbitration notwithstanding that the Request is
incomplete or the Response is missing, late or incomplete.
Article 15. Written 15.2. Within 28 days of receipt of the Registrar’s written notification
Statements of the Arbitral Tribunal’s formation, the Claimant shall deliver to the
Arbitral Tribunal and all other parties either: (i) its written election to
have its Request treated as its Statement of Case complying with
this Article 15.2; or (ii) its written Statement of Case setting out in
sufficient detail the relevant facts and legal submissions on which it
relies, together with the relief claimed against all other parties, and
all essential documents.
SCC

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 Article 6. Request for A Request for Arbitration shall include:
Arbitration
(i) the names, addresses, telephone numbers and e-mail
addresses of the parties and their counsel;
(ii) a summary of the dispute;
(iii) a preliminary statement of the relief sought by the Claimant,
including an estimate of the monetary value of the claims;
(iv) a copy or description of the arbitration agreement or clause
under which the dispute is to be settled;
(v) where claims are made under more than one arbitration
agreement, an indication of the arbitration agreement under
which each claim is made;
(vi) comments on the number of arbitrators and the seat of
arbitration; and
(vii) if applicable, the name, address, telephone number and e-mail
address of the arbitrator appointed by the Claimant.

Article 7. (1) Upon filing the Request for Arbitration, the Claimant shall pay a
Registration Fee Registration Fee. The amount of the Registration Fee shall be
determined in accordance with the Schedule of Costs (Appendix IV)
in force on the date the Request for Arbitration is filed.
(2) If the Registration Fee is not paid upon filing the Request for
Arbitration, the Secretariat shall set a time period within which the
Claimant shall pay the Registration Fee. If the Registration Fee is not
paid within this time period, the Secretariat shall dismiss the
Request for Arbitration.

Article 8. Arbitration shall be deemed to commence on the date the SCC

Commencement of receives the Request for Arbitration.
Arbitration
Article 29. Written (1) Within the period determined by the Arbitral Tribunal, the
Submissions Claimant shall submit a Statement of Claim […], unless previously
submitted […].
SIAC

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 Rule 3. Notice of 3.1. A party wishing to commence an arbitration under these Rules
Arbitration (the “Claimant”) shall file with the Registrar a Notice of Arbitration
which shall include:
(a) a demand that the dispute be referred to arbitration;
(b) the names, addresses, telephone numbers, facsimile numbers
and electronic mail addresses, if known, of the parties to the
arbitration and their representatives, if any;
(c) a reference to the arbitration agreement invoked and a copy of
the arbitration agreement;
(d) a reference to the contract or other instrument (e.g.
investment treaty) out of or in relation to which the dispute
arises and, where possible, a copy of the contract or other
instrument;
(e) a brief statement describing the nature and circumstances of
the dispute, specifying the relief claimed and, where possible,
an initial quantification of the claim amount;
(f) a statement of any matters which the parties have previously
agreed as to the conduct of the arbitration or with respect to
which the Claimant wishes to make a proposal;
(g) a proposal for the number of arbitrators if not specified in the
arbitration agreement;
(h) unless otherwise agreed by the parties, the nomination of an
arbitrator if the arbitration agreement provides for three
arbitrators, or a proposal for a sole arbitrator if the arbitration
agreement provides for a sole arbitrator;
(i) any comment as to the applicable rules of law;
(j) any comment as to the language of the arbitration; and
(k) payment of the requisite filing fee under these Rules.
3.2. The Notice of Arbitration may also include the Statement of
Claim referred to in Rule 20.2.
3.3. The date of receipt of the complete Notice of Arbitration by the
Registrar shall be deemed to be the date of commencement of the
arbitration. For the avoidance of doubt, the Notice of Arbitration is
deemed to be complete when all the requirements of Rule 3.1 and
Rule 6.1(b) (if applicable) are fulfilled or when the Registrar
determines that there has been substantial compliance with such
requirements. SIAC shall notify the parties of the commencement of
the arbitration.

3.4. The Claimant shall, at the same time as it files the Notice of
Arbitration with the Registrar, send a copy of the Notice of
Arbitration to the Respondent, and shall notify the Registrar that it
has done so, specifying the mode of service employed and the date
of service.
UNCITRAL
Article 2. Notice and 3. In the absence of such designation or authorization, a
Calculation of
Periods of Time notice is:
(a) Received if it is physically delivered to the addressee;
or
(b) Deemed to have been received if it is delivered at the place of
business, habitual residence or mailing address of the
addressee.
4. If, after reasonable efforts, delivery cannot be effected in
accordance with paragraphs 2 or 3, a notice is deemed to have been
received if it is sent to the addressee’s last-known place of business,
habitual residence or mailing address by registered letter or any
other means that provides a record of delivery or of attempted
delivery.

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 Article 3. Notice of 1. The party or parties initiating recourse to arbitration (hereinafter
Arbitration called the “claimant”) shall communicate to the other party or
parties (hereinafter called the “respondent”) a notice of arbitration.
2. Arbitral proceedings shall be deemed to commence on the date on
which the notice of arbitration is received by the respondent.
3. The notice of arbitration shall include the following:
(a) A demand that the dispute be referred to arbitration;
(b) The names and contact details of the parties;
(c) Identification of the arbitration agreement that is invoked;
(d) Identification of any contract or other legal instrument out of
or in relation to which the dispute arises or, in the absence of
such contract or instrument, a brief description of the relevant
relationship;
(e) A brief description of the claim and an indication of the
amount involved, if any;
(f) The relief or remedy sought;
(g) A proposal as to the number of arbitrators, language and
place of arbitration, if the parties have not previously agreed
thereon.

4. The notice of arbitration may also include:

(a) A proposal for the designation of an appointing authority
referred to in article 6, paragraph 1;
(b) A proposal for the appointment of a sole arbitrator referred to
in article 8, paragraph 1;
(c) Notification of the appointment of an arbitrator referred to in
article 9 or 10.
5. The constitution of the arbitral tribunal shall not be hindered by
any controversy with respect to the sufficiency of the notice of
arbitration, which shall be finally resolved by the arbitral tribunal.

Article 20. Statement 1. The claimant shall communicate its statement of claim in
of Claim writing to the respondent and to each of the arbitrators within
a period of time to be determined by the arbitral tribunal. The
claimant may elect to treat its notice of arbitration referred to
in article 3 as a statement of claim, provided that the notice of
arbitration also complies with the requirements of paragraphs
2 to 4 of this article.
2. The statement of claim shall include the following particulars:
(a) The names and contact details of the parties;
(b) A statement of the facts supporting the claim;
(c) The points at issue;
(d) The relief or remedy sought;
(e) The legal grounds or arguments supporting the claim.
3. A copy of any contract or other legal instrument out of or in
relation to which the dispute arises and of the arbitration
agreement shall be annexed to the statement of claim.
4. The statement of claim should, as far as possible, be
accompanied by all documents and other evidence relied upon
by the claimant, or contain references to them.

§3.02 ANSWER AND COUNTERCLAIMS

Once the respondent receives a request for arbitration, whether from the arbitral
institution or directly from the claimant, all the regimes under consideration except ICSID
require the respondent to file an answer. (20) The ICSID Arbitration Rules take an
altogether different approach. Under the ICSID regime, the request for arbitration serves
P 216 the function of a notification only, and no responsive filing is expected until after the
P 217 tribunal has been appointed and the claimant has submitted a memorial in support of
its claim. (21) Under the other regimes, the contents of the answer closely correspond to
those of the request for arbitration. The regimes under consideration variously require the
following elements to be included in the answer (see Table 3.2):
– The name and contact information for the respondent and his representatives.
– Comments on the nature and circumstances of the dispute and the amount in
dispute.
– Any objection to the validity of the arbitration agreement or other jurisdictional

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 objection.
– Confirmation or denial of the claimant’s claims.
– Defenses including relevant facts and legal grounds.
– Response to the relief sought.
– Agreement or counterproposals in response to any proposals in the request for
arbitration concerning the number, method of appointment, and qualifications of the
arbitrators (or, if already provided in the arbitration agreement, then the claimant’s
nomination of arbitrator); the seat of arbitration; the language(s) of the arbitration;
the applicable law; and any interest in mediating the dispute. (22)
As with the request for arbitration, the CIETAC Rules uniquely require the respondent to
submit with its answer “the relevant evidence supporting the defense.” (23) Also, like the
request for arbitration, the answer may be accompanied by the respondent’s full
statement of defense under most regimes. (24) The congruence between the requirements
for the request for arbitration and those of the answer serve to elucidate the points of
dispute between the parties concerning procedure, jurisdiction, merits, and damages, and
thereby immediately define the issues and orient the procedure going forward.
P 217 The time limits for the answer range from 14 days (SIAC) (25) to 28 days (LCIA) (26) to 30
P 218 days (ICDR, HKIAC, and ICC) (27) to 45 days (CIETAC). (28) The SCC Rules leave it to the SCC
Secretariat to set the deadline for the submission of the respondent’s answer. (29) Under
the ICSID Rules, no response is filed until after the tribunal has been impaneled and the
claimant has filed a substantive memorial. (30) Any time limits established for the
submission of the respondent’s answer may be extended by the institution. (31)
In keeping with the format of the request for arbitration and answer, the regimes under
consideration (except ICSID) further provide that the respondent may also file a
counterclaim as part of its answer. The requirements for the counterclaim are generally the
same as those for the claimant’s request for arbitration, including contents of the request,
notification, and filing fee. (32) The CIETAC Rules are unique in that they require submission
of a separate document, a “statement of counterclaim,” that must be filed within the same
time limit designated for filing of the response and contain the same level of information
and evidentiary support as required for an original request for arbitration. (33) Those
regimes that require the claimant to submit an answer to a counterclaim typically provide
the same time period as for an answer to a request for arbitration; only CIETAC provides a
shorter time period (30 days instead of 45). (34)
A number of investor-state tribunals have addressed counterclaims by respondents under
both the UNCITRAL (35) and ICSID (36) procedures. The UNCITRAL Rules contain provisions
P 218 that address the assertion by a respondent of any counterclaims and claims for setoff that
P 219 might fall within the scope of the arbitration agreement. (37) The ICSID regime also
provides for the parties to raise “ancillary claims” which must also fall within the scope of
the parties’ consent to arbitration. (38)
Finally, the regimes under consideration provide that a party’s delay or failure to submit
an answer to the request for arbitration or to a counterclaim will not preclude the
arbitration from proceeding. (39) The LCIA Rules are more specific: a party’s failure to
submit an answer on time constitutes an irrevocable waiver of that party’s right to
nominate an arbitrator but does not prevent that party from denying claims or advancing
defenses or cross-claims going forward. (40) The UNCITRAL Rules likewise confirm that, in
the absence of the respondent’s answer, the proceedings will continue, and the
respondent’s default will not be treated as an admission of any of the claims against him.
(41)
In practice, a respondent’s failure to engage with the arbitration process can lead to
problems with the enforcement of an award, and both arbitral tribunals and administering
institutions will make every effort to ensure that all parties have every opportunity to
participate meaningfully in the proceedings. Extensions of time are sometimes granted for
a respondent to answer the request for arbitration to ensure the integrity of the arbitral
process and the enforceability of an eventual arbitration award. In addition, the institution
and the arbitrators will make every effort to ensure that the defaulting party is notified of
any procedural or substantive developments in the arbitration. A party’s default, without
more, does not necessarily mean that the other party will prevail. Tribunals will still
P 219 require the nondefaulting party to prove its claims or counterclaims. This inevitably places
P 220 a greater burden on the tribunal to remain impartial and to ensure due process.
P 220
P 221 Table 3.2 Answer and Counterclaims
AAA-ICDR
PP 228
222
223
224
225
226
221
227
PP 228
222
223
224
225
226
229
227

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 Article 3. Answer and 1. Within 30 days after the commencement of the arbitration,
Counterclaim Respondent shall submit to Claimant, to any other parties, and to
the Administrator a written Answer to the Notice of Arbitration.
2. At the time Respondent submits its Answer, Respondent may make
any counterclaims covered by the agreement to arbitrate or assert
any setoffs and Claimant shall within 30 days submit to Respondent,
to any other parties, and to the Administrator a written Answer to
the counterclaim or setoffs.
3. A counterclaim or setoff shall contain the same information
required of a Notice of Arbitration under Article 2(3) and shall be
accompanied by the appropriate filing fee.
4. Respondent shall within 30 days after the commencement of the
arbitration submit to Claimant, to any other parties, and to the
Administrator a response to any proposals by Claimant not
previously agreed upon, or submit its own proposals, consistent with
any prior agreement between or among the parties, as to the means
of designating the arbitrators, the number of arbitrators, the place
of the arbitration, the language(s) of the arbitration, and any
interest in mediating the dispute.
5. The arbitral tribunal, or the Administrator if the tribunal has not
yet been constituted, may extend any of the time limits established
in this Article if it considers such an extension justified.
6. Failure of Respondent to submit an Answer shall not preclude the
arbitration from proceeding.
7. In arbitrations with multiple parties, Respondent may make
claims or assert setoffs against another Respondent and Claimant
may make claims or assert setoffs against another Claimant in
accordance with the provisions of this Article 3.

CIETAC
Article 15. Statement 1. The Respondent shall file a Statement of Defense in writing within
of Defense forty-five (45) days from the date of its receipt of the Notice of
Arbitration. If the Respondent has justified reasons to request an
extension of the time period, the arbitral tribunal shall decide
whether to grant an extension. Where the arbitral tribunal has not
yet been formed, the decision on whether to grant the extension of
the time period shall be made by the Arbitration Court.
2. The Statement of Defense shall be signed and/or sealed by the
Respondent or its authorized representative(s), and shall, inter alia,
include the following contents and attachments:

(a) the name and address of the Respondent, including the zip
code, telephone, fax, email, or any other means of electronic
telecommunications;
(b) the defense to the Request for Arbitration setting forth the
facts and grounds on which the defense is based; and
(c) the relevant documentary and other evidence on which the
defense is based.
3. The arbitral tribunal has the power to decide whether to accept a
Statement of Defense submitted after the expiration of the above
time period.
4. Failure by the Respondent to file a Statement of Defense shall not
affect the conduct of the arbitral proceedings.

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 Article 16. 1. The Respondent shall file a counterclaim, if any, in writing within
Counterclaim forty-five (45) days from the date of its receipt of the Notice of
Arbitration. If the Respondent has justified reasons to request an
extension of the time period, the arbitral tribunal shall decide
whether to grant an extension. Where the arbitral tribunal has not
yet been formed, the decision on whether to grant the extension of
the time period shall be made by the Arbitration Court.
2. When filing the counterclaim, the Respondent shall specify the
counterclaim in its Statement of Counterclaim and state the facts
and grounds on which the counterclaim is based with the relevant
documentary and other evidence attached thereto.
3. When filing the counterclaim, the Respondent shall pay an
arbitration fee in advance in accordance with the Arbitration Fee
Schedule of CIETAC within a specified time period, failing which the
Respondent shall be deemed not to have filed any counterclaim.
4. Where the formalities required for filing a counterclaim are found
to be complete, the Arbitration Court shall send a Notice of
Acceptance of Counterclaim to the parties. The Claimant shall
submit its Statement of Defense in writing within thirty (30) days
from the date of its receipt of the Notice. If the Claimant has justified
reasons to request an extension of the time period, the arbitral
tribunal shall decide whether to grant such an extension. Where the
arbitral tribunal has not yet been formed, the decision on whether to
grant the extension of the time period shall be made by the
Arbitration Court.
5. The arbitral tribunal has the power to decide whether to accept a
counterclaim or a Statement of Defense submitted after the
expiration of the above time period.
6. Failure of the Claimant to file a Statement of Defense to the
Respondent’s counterclaim shall not affect the conduct of the
arbitral proceedings.

HKIAC

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 Article 5. Answer to 5.1. Within 30 days from receipt of the Notice of Arbitration, the
the Notice of Respondent shall communicate an Answer to the Notice of
Arbitration Arbitration to HKIAC and the Claimant. The Answer to the Notice of
Arbitration shall include the following:
(a) the name, address, facsimile number, and/ or email address of
the Respondent and of its representatives (if different from the
description contained in the Notice of Arbitration);
(b) any plea that an arbitral tribunal constituted under these
Rules lacks jurisdiction;
(c) the Respondent’s comments on the particulars set forth in the
Notice of Arbitration, pursuant to Article 4.3(e);
(d) the Respondent’s answer to the relief or remedy sought in the
Notice of Arbitration, pursuant to Article 4.3(f);
(e) the Respondent’s proposal as to the number of arbitrators (i.e.
one or three), if the parties have not previously agreed thereon;
(f) the Respondent’s proposal and any comments regarding the
designation of a sole arbitrator under Article 7 or the
Respondent’s designation of an arbitrator under Article 8;
(g) the existence of any funding agreement and the identity of any
third party funder pursuant to Article 44; and
(h) confirmation that copies of the Answer to the Notice of
Arbitration and any supporting materials included with it have
been or are being communicated simultaneously to all other
parties to the arbitration by one or more means of service to
be identified in such confirmation.
5.2. The Answer to the Notice of Arbitration may also include the
Statement of Defence, if the Notice of Arbitration contained the
Statement of Claim.
5.3. Any counterclaim, set-off defence or cross-claim shall, to the
extent possible, be raised with the Respondent’s Answer to the
Notice of Arbitration, which should include in relation to any such
counterclaim, set-off defence or cross-claim:
(a) a copy of the contract(s) or other legal instrument(s) out of or
in relation to which it arises, or reference thereto;
(b) a description of the general nature of the counterclaim, set-off
defence and/or cross-claim, and an indication of the amount
involved, if any; and
(c) the relief or remedy sought.
5.4. HKIAC shall transmit the case file to the arbitral tribunal as soon
as it has been constituted, provided that any deposit requested by
HKIAC has been paid, unless HKIAC determines otherwise.

Article 17. Statement 17.1. Unless the Statement of Defence was contained in the Answer to
of Defense the Notice of Arbitration (or the Respondent elects to treat the
Answer to the Notice of Arbitration as the Statement of Defence), the
Respondent shall communicate its Statement of Defence to all other
parties and to the arbitral tribunal within a time limit to be
determined by the arbitral tribunal.
ICC

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 Article 5. Answer to 1. Within 30 days from the receipt of the Request from the
the Request; Secretariat, the respondent shall submit an Answer (the “Answer”)
Counterclaims which shall contain the following information:
(a) its name in full, description, address and other contact details;
(b) the name in full, address and other contact details of any
person(s) representing the respondent in the arbitration;
(c) its comments as to the nature and circumstances of the
dispute giving rise to the claims and the basis upon which the
claims are made;
(d) its response to the relief sought;
(e) any observations or proposals concerning the number of
arbitrators and their choice in light of the claimant’s proposals
and in accordance with the provisions of Articles 12 and 13, and
any nomination of an arbitrator required thereby; and
(f) any observations or proposals as to the place of the
arbitration, the applicable rules of law and the language of the
arbitration.
The respondent may submit such other documents or information
with the Answer as it considers appropriate or as may contribute to
the efficient resolution of the dispute.
2. The Secretariat may grant the respondent an extension of the time
for submitting the Answer, provided the application for such an
extension contains the respondent’s observations or proposals
concerning the number of arbitrators and their choice and, where
required by Articles 12 and 13, the nomination of an arbitrator. If the
respondent fails to do so, the Court shall proceed in accordance with
the Rules.
3. The Answer shall be submitted to the Secretariat in the number of
copies specified by Article 3(1).
4. The Secretariat shall communicate the Answer and the documents
annexed thereto to all other parties.
5. Any counterclaims made by the respondent shall be submitted
with the Answer and shall provide:

(a) a description of the nature and circumstances of the dispute

giving rise to the counterclaims and of the basis upon which
the counterclaims are made;
(b) a statement of the relief sought together with the amounts of
any quantified counterclaims and, to the extent possible, an
estimate of the monetary value of any other counterclaims;
(c) any relevant agreements and, in particular, the arbitration
agreement(s); and
(d) where counterclaims are made under more than one
arbitration agreement, an indication of the arbitration
agreement under which each counterclaim is made.
The respondent may submit such other documents or information
with the counterclaims as it considers appropriate or as may
contribute to the efficient resolution of the dispute.
6. The claimant shall submit a reply to any counterclaim within 30
days from the date of receipt of the counterclaims communicated by
the Secretariat. Prior to the transmission of the file to the arbitral
tribunal, the Secretariat may grant the claimant an extension of
time for submitting the reply.

ICSID
Not specifically addressed.
LCIA

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 Article 2. Response 2.1. Within 28 days of the Commencement Date, or such lesser or
greater period to be determined by the LCIA Court upon application
by any party or upon its own initiative (pursuant to Article 22.5), the
Respondent shall deliver to the Registrar a written response to the
Request (the “Response”), containing or accompanied by:
(i) the Respondent’s full name and all contact details (including
postal address, e-mail address, telephone and facsimile
numbers) for the purpose of receiving delivery of all
documentation in the arbitration and the same particulars of
its legal representatives (if any);
(ii) confirmation or denial of all or part of the claim advanced by
the Claimant in the Request, including the Claimant’s
invocation of the Arbitration Agreement in support of its claim;
(iii) if not full confirmation, a statement briefly summarising the
nature and circumstances of the dispute, its estimated
monetary amount or value, the transaction(s) at issue and the
defence advanced by the Respondent, and also indicating
whether any cross-claim will be advanced by the Respondent
against any other party to the arbitration (such cross-claim to
include any counterclaim against any Claimant and any other
cross-claim against any Respondent);

(iv) a response to any procedural statement for the arbitration

contained in the Request under Article 1.1(iv), including the
Respondent’s own statement relating to the arbitral seat, the
language(s) of the arbitration, the number of arbitrators, their
qualifications and identities and any other procedural matter
upon which the parties have already agreed in writing or in
respect of which the Respondent makes any proposal under
the Arbitration Agreement;
(v) if the Arbitration Agreement (or any other written agreement)
howsoever calls for party nomination of arbitrators, the full
name, postal address, e-mail address telephone and facsimile
numbers of the Respondent’s nominee; and
(vi) confirmation that copies of the Response (including all
accompanying documents) have been or are being delivered to
all other parties to the arbitration by one or more means of
delivery to be identified specifically in such confirmation, to be
supported then or as soon as possible thereafter by
documentary proof satisfactory to the LCIA Court of actual
delivery (including the date of delivery) or, if actual delivery is
demonstrated to be impossible to the LCIA Court’s satisfaction,
sufficient information as to any other defective effective form
of notification.
2.2. The Response (including all accompanying documents) may be
submitted to the Registrar in electronic form (as e-mail
attachments) or in paper form or in both forms. If submitted in
paper form, the Response shall be submitted in two copies where a
sole arbitrator is to be appointed, or, if the parties have agreed or
the Respondent proposes that three arbitrators are to be appointed,
in four copies.
2.3. The Respondent may use, but is not required to do so, the
standard electronic form available on-line from the LCIAs website
for LCIA Responses.
2.4. Failure to deliver a Response within time shall constitute an
irrevocable waiver of that party’s opportunity to nominate or
propose any arbitral candidate. Failure to deliver any or any part of
a Response within time or at all shall not (by itself) preclude the
Respondent from denying any claim or from advancing any defence
or cross-claim in the arbitration.
2.5. There may be one or more Respondents (whether or not jointly
represented); and in such event, where appropriate, the term
“Respondent” shall be so interpreted under the Arbitration
Agreement.

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 Article 15. Written 15.1. Unless the parties have agreed or jointly proposed in writing
Statements otherwise or the Arbitral Tribunal should decide differently, the
written stage of the arbitration and its procedural time-table shall
be as set out in this Article 15.
[…]
15.3. Within 28 days of receipt of the Claimant’s Statement of Case or
the Claimant’s election to treat the Request as its Statement of
Case, the Respondent shall deliver to the Arbitral Tribunal and all
other parties either: (i) its written election to have its Response
treated as its Statement of Defence and (if applicable) Cross-claim
complying with this Article 15.3; or (ii) its written Statement of
Defence and (if applicable) Statement of Cross-claim setting out in
sufficient detail the relevant facts and legal submissions on which it
relies, together with the relief claimed against all other parties, and
all essential documents.
[…]

SCC
Article 9. Answer (1) The Secretariat shall send a copy of the Request for Arbitration
and any attached documents to the Respondent. The Secretariat
shall set a time period within which the Respondent shall submit an
Answer to the SCC. The Answer shall include:
(i) any objections concerning the existence, validity or
applicability of the arbitration agreement; however, failure to
object shall not preclude the Respondent from raising such
objections at any time up to and including the submission of
the Statement of Defence;
(ii) an admission or denial of the relief sought in the Request for
Arbitration;
(iii) a preliminary statement of any counterclaims or setoffs,
including an estimate of the monetary value thereof;
(iv) where counterclaims or set-offs are made under more than one
arbitration agreement, an indication of the arbitration
agreement under which each counterclaim or set-off is made;
(v) comments on the number of arbitrators and the seat of
arbitration; and
(vi) if applicable, the name, address, telephone number and e-mail
address of the arbitrator appointed by the Respondent.
(2) The Secretariat shall send a copy of the Answer to the Claimant.
The Claimant may be given an opportunity to submit comments on
the Answer, having regard to the circumstances of the case.
(3) Failure by the Respondent to submit an Answer shall not prevent
the arbitration from proceeding.

Article 29. Written (2) Within the period determined by the Arbitral Tribunal, the
Submissions Respondent shall submit a Statement of Defence […], unless
previously submitted […].
SIAC

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 Rule 4. Response to 4.1. The Respondent shall file a Response with the Registrar within 14
the Notice of days of receipt of the Notice of Arbitration. The Response shall
Arbitration include:
(a) a confirmation or denial of all or part of the claims, including,
where possible, any plea that the Tribunal lacks jurisdiction;
(b) a brief statement describing the nature and circumstances of
any counterclaim, specifying the relief claimed and, where
possible, an initial quantification of the counterclaim amount;
(c) any comment in response to any statements contained in the
Notice of Arbitration under Rule 3.1 or any comment with
respect to the matters covered in such Rule;
(d) unless otherwise agreed by the parties, the nomination of an
arbitrator if the arbitration agreement provides for three
arbitrators or, if the arbitration agreement provides for a sole
arbitrator, comments on the Claimant’s proposal for a sole
arbitrator or a counter-proposal; and
(e) payment of the requisite filing fee under these Rules for any
counterclaim.
4.2. The Response may also include the Statement of Defence and a
Statement of Counterclaim, as referred to in Rule 20.3 and Rule 20.4.
4.3. The Respondent shall, at the same time as it files the Response
with the Registrar, send a copy of the Response to the Claimant, and
shall notify the Registrar that it has done so, specifying the mode of
service employed and the date of service.
Rule 28. Jurisdiction 28.5. A party may rely on a claim or defence for the purpose of a set-
of the Tribunal off to the extent permitted by these Rules and the applicable law.
UNCITRAL
Article 4. Response 1. Within 30 days of the receipt of the notice of arbitration, the
to the Notice of respondent shall communicate to the claimant a response to the
Arbitration notice of arbitration, which shall include:
(a) The name and contact details of each respondent;
(b) A response to the information set forth in the notice of
arbitration pursuant to article 3, paragraphs 3(c) to (g).
2. The response to the notice of arbitration may also include:
(a) Any plea that an arbitral tribunal to be constituted under these
Rules lacks jurisdiction;
(b) A proposal for the designation of an appointing authority
referred to in article 6, paragraph 1;
(c) A proposal for the appointment of a sole arbitrator referred to
in article 8, paragraph 1;
(d) Notification of the appointment of an arbitrator referred to in
article 9 or 10;
(e) A brief description of counterclaims or claims for the purpose
of a set-off, if any, including where relevant, an indication of
the amounts involved, and the relief or remedy sought;
(f) A notice of arbitration in accordance with article 3 in case the
respondent formulates a claim against a party to the
arbitration agreement other than the claimant.
3. The constitution of the arbitral tribunal shall not be hindered by
any controversy with respect to the respondent’s failure to
communicate a response to the notice of arbitration, or an
incomplete or late response to the notice of arbitration, which shall
be finally resolved by the arbitral tribunal.

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 Article 21. Statement 1. The respondent shall communicate its statement of defence in
of Defence writing to the claimant and to each of the arbitrators within a period
of time to be determined by the arbitral tribunal. The respondent
may elect to treat its response to the notice of arbitration referred to
in article 4 as a statement of defence, provided that the response to
the notice of arbitration also complies with the requirements of
paragraph 2 of this article.
[…]
3. In its statement of defence, or at a later stage in the arbitral
proceedings if the arbitral tribunal decides that the delay was
justified under the circumstances, the respondent may make a
counterclaim or rely on a claim for the purpose of a set-off provided
that the arbitral tribunal has jurisdiction over it.
4. The provisions of article 20, paragraphs 2 to 4, shall apply to a
counterclaim, a claim under article 4, paragraph 2(f), and a claim
relied on for the purpose of a set-off.

Article 30. Default 1. If, within the period of time fixed by these Rules or the arbitral
tribunal, without showing sufficient cause:
[…]
(b) The respondent has failed to communicate its response to the
notice of arbitration or its statement of defence, the arbitral tribunal
shall order that the proceedings continue, without treating such
failure in itself as an admission of the claimant’s allegations; the
provisions of this subparagraph also apply to a claimant’s failure to
submit a defence to a counterclaim or to a claim for the purpose of
a set-off.

§3.03 JURISDICTIONAL OBJECTIONS

The jurisdiction of the arbitral tribunal—literally, the power to decide the legal outcome of
the dispute—in commercial cases depends upon the parties’ arbitration agreement. To the
extent that the agreement is clear, there can be little doubt as to the jurisdiction of the
tribunal in a given case. (42) In investor-State cases at ICSID, the jurisdiction of the tribunal
depends upon the Member States’ ratification of the ICSID Convention and the criteria set
forth in the applicable instrument of consent (i.e., investment treaty, investment law, or
contract). Again, to the extent that the parties and the investment clearly meet these
criteria, there is little room for doubt as to the tribunal’s jurisdiction. However, in
international arbitration, as in other areas of the law, these matters are not always so
clear. One of the first major issues that arises upon commencement of many arbitrations is
whether the tribunal has jurisdiction to decide the dispute.
All of the arbitral regimes under consideration provide that the tribunal has jurisdiction
(competence) to rule upon its own jurisdiction, a concept known as competence-
competence. (43) These are set out in Table 3.3. Since the jurisdiction of every arbitral
tribunal depends upon the parties’ arbitration agreement, many regimes describe the
power as including the power to decide any question as to the existence, scope,
effectiveness, or validity of the arbitration agreement. (44)
A claim that the parties’ contract is null and void—and therefore that the arbitration
agreement contained therein is null and void—will not disturb the tribunal’s power to rule
upon its own jurisdiction based on the arbitration agreement. The principle of separability,
recognized in all of the regimes under consideration, provides that for purposes of such a
claim, the arbitration agreement is separate from the rest of the allegedly defective
P 229 contract. Consequently, the tribunal’s authority to rule upon its own jurisdiction remains
P 230 intact, notwithstanding any claim that the underlying contract is null and void, unless
the arbitration agreement itself, separately from the underlying contract, is also null and
void.
The principles of competence-competence and separability work together to ensure, at
least in the first instance, that the tribunal, rather than a court, has the power to address
and resolve any question concerning the tribunal’s jurisdiction. The LCIA and UNCITRAL
Rules make this clear: the parties are treated as having agreed not to apply to any state
court to determine the jurisdiction of the tribunal, (45) and the tribunal may proceed with
the arbitration and make an award notwithstanding any pending challenge to its
jurisdiction before a court. (46) Even in the face of these rules, a party who doubts (or
simply wishes to resist) the jurisdiction of the tribunal may be tempted to ask a court to
issue a ruling on the matter. However, in most arbitration-friendly jurisdictions, the court
normally will refer that party back to the arbitration, since the principle of competence-
competence and separability are recognized in many national arbitration laws.
Under most arbitration regimes, a party is required to raise any jurisdictional objection at
the first opportunity, typically as one of the required elements of an answer to a claim or

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 counterclaim. (47) The ICDR Rules expressly require a party to make any objection to
jurisdiction no later than the filing of the answer. (48) The ICSID, LCIA, SIAC, and UNCITRAL
Rules grant more time, requiring the objection to be raised no later than the filing of the
respondent’s written statement of defense. (49) The HKIAC Rules require the objection to
be raised in the answer if possible, and if not, no later than the statement of defense. (50)
The CIETAC Rules set the deadline at the first hearing, or, in a documents-only hearing, at
the “first substantive defense.” (51) The SCC Rules leave it to the tribunal to determine the
deadline. (52) The HKIAC, LCIA, and SIAC Rules further require parties to raise any objection
that the tribunal is exceeding the scope of its authority as soon as the issue arises (or, in
the case of SIAC Rules, within 14 days). (53) The ICDR, LCIA, SIAC, and UNCITRAL Rules
acknowledge that the tribunal may consider a late objection to jurisdiction if it considers
P 230 the delay justified in the circumstances. (54) If an extension is not granted, under every
P 231 regime a party’s failure to raise a jurisdictional objection by the prescribed deadline
may result in a waiver of that objection. (55)
If a party raises an objection to jurisdiction prior to the constitution of the tribunal, the
administering institution might make a preliminary determination on jurisdiction and
decide whether the arbitration should proceed. Under the HKIAC and SIAC Rules, the
administering institution will make a preliminary determination on jurisdiction if “a
question arises” or “any party objects” to the validity of the arbitration agreement or the
competence of the institution to administer the arbitration. (56) In that case, HKIAC or the
SIAC Court (on referral from the Registrar) will make a prima facie determination on
jurisdiction, without prejudice to an eventual tribunal’s final determination. (57)
Under the ICDR Rules, the ICDR does not assume responsibility for deciding any questions
as to jurisdiction, but instead refers to the determination in all cases to the tribunal. (58)
The ICC Rules take a hybrid approach between the ICDR Rules and the SIAC Rules. Under
the ICC Rules, the tribunal usually will be appointed notwithstanding any objections to
jurisdiction, as under the ICDR Rules. (59) However, as under the SIAC Rules, the ICC
Secretary-General may refer the objection (or lack of answer from the respondent) to the
ICC Court for a prima facie determination on jurisdiction, particularly in complex cases
involving multiple parties or multiple arbitration agreements. (60) Once again, a
determination that the case should go forward is without prejudice to the power of the
tribunal to rule on its own jurisdiction. (61)
The CIETAC, ICSID, and SCC Rules further authorize the institution to make a preliminary
assessment of jurisdiction on its own initiative. Indeed, under the CIETAC Rules, it is CIETAC,
not the arbitral tribunal, that has the only and final say on jurisdiction, unless CIETAC
delegates the decision to the tribunal. (62) Consequently, CIETAC will evaluate the request
for arbitration to determine whether there is prima facie evidence of a valid arbitration
agreement and only then permit the arbitration to proceed. (63) Under the ICSID Rules, the
Secretary-General will evaluate on its own initiative whether, based on the information
contained in the request for arbitration, the dispute is not “manifestly outside the
jurisdiction of the Centre.” (64) The SCC Rules empower the Board to make precisely the
P 231 same determination “when necessary.” (65) However, unlike CIETAC, a determination by the
P 232 ICSID Secretary-General and the SCC Board that the arbitration should proceed is always
without prejudice to the power of the arbitral tribunal to make the final determination on
the question of its jurisdiction. (66)
Additionally, while most of the institutions have a broad remit to cover international
disputes covered by a relevant arbitration agreement, both ICSID and CIETAC have further
restrictions on their jurisdiction that parties should bear in mind. ICSID generally has
jurisdiction only over legal disputes arising from a qualifying investment made by a
national of one ICSID Member States in the territory of another ICSID Member State and
governed by an investment treaty, investment law, or contract. (67) Under earlier versions
of its Rules, CIETAC’s jurisdiction is restricted to cover only disputes involving Chinese
entities and foreign-invested enterprises and domestic arbitrations. (68) CIETAC’s current
Rules contain no such limitations. (69)
P 232
P 233 Table 3.3 Jurisdiction
AAA-ICDR
PP 240
238
233
234
235
236
239
242
237 Article 1. Scope of
241 1. Where parties have agreed to arbitrate disputes under these
PP 240
238
234
235
236
239
242
243
237 These Rules
241 International Arbitration Rules (“Rules”), or have provided for
arbitration of an international dispute by the International Centre
for Dispute Resolution (ICDR) or the American Arbitration Association
(AAA) without designating particular rules, the arbitration shall take
place in accordance with these Rules as in effect at the date of
commencement of the arbitration, subject to modifications that the
parties may adopt in writing. The ICDR is the Administrator of these
Rules.

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 Article 19. Arbitral 1. The arbitral tribunal shall have the power to rule on its own
Jurisdiction jurisdiction, including any objections with respect to the existence,
scope, or validity of the arbitration agreement(s), or with respect to
whether all of the claims, counterclaims, and setoffs made in the
arbitration may be determined in a single arbitration.
2. The tribunal shall have the power to determine the existence or
validity of a contract of which an arbitration clause forms a part.
Such an arbitration clause shall be treated as an agreement
independent of the other terms of the contract. A decision by the
tribunal that the contract is null and void shall not for that reason
alone render invalid the arbitration clause.

3. A party must object to the jurisdiction of the tribunal or to arbitral

jurisdiction respecting the admissibility of a claim, counterclaim, or
setoff no later than the filing of the Answer, as provided in Article 3,
to the claim, counterclaim, or setoff that gives rise to the objection.
The tribunal may extend such time limit and may rule on any
objection under this Article as a preliminary matter or as part of the
final award.
4. Issues regarding arbitral jurisdiction raised prior to the
constitution of the tribunal shall not preclude the Administrator
from proceeding with administration and shall be referred to the
tribunal for determination once constituted.

Article 28. Waiver A party who knows of any non-compliance with any provision or
requirement of the Rules or the arbitration agreement, and proceeds
with the arbitration without promptly stating an objection in writing,
waives the right to object.
CIETAC
Article 4. Scope of 2. Where the parties have agreed to refer their dispute to CIETAC for
Application arbitration, they shall be deemed to have agreed to arbitration in
accordance with these Rules.
[…]

Article 3. Jurisdiction (1) CIETAC accepts cases involving economic, trade and other
disputes of a contractual or non-contractual nature, based on an
agreement of the parties.
(2) The cases referred to in the preceding paragraph include:
(a) international or foreign-related disputes;
(b) disputes related to the Hong Kong Special Administrative
Region, the Macao Special Administrative Region and the
Taiwan region; and
(c) domestic disputes.

Article 6. Objection 1. CIETAC has the power to determine the existence and validity of an
to Arbitration arbitration agreement and its jurisdiction over an arbitration case.
Agreement and/or CIETAC may, where necessary, delegate such power to the arbitral
Jurisdiction tribunal.
2. Where CIETAC is satisfied by prima facie evidence that a valid
arbitration agreement exists, it may make a decision based on such
evidence that it has jurisdiction over the arbitration case, and the
arbitration shall proceed. Such a decision shall not prevent CIETAC
from making a new decision on jurisdiction based on facts and/or
evidence found by the arbitral tribunal during the arbitral
proceedings that are inconsistent with the prima facie evidence.
3. Where CIETAC has delegated the power to determine jurisdiction to
the arbitral tribunal, the arbitral tribunal may either make a
separate decision on jurisdiction during the arbitral proceedings or
incorporate the decision in the final arbitral award.

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 4. Any objection to an arbitration agreement and/or the jurisdiction
over an arbitration case shall be raised in writing before the first oral
hearing held by the arbitral tribunal. Where a case is to be decided
on the basis of documents only, such an objection shall be raised
before the submission of the first substantive defense.
5. The arbitration shall proceed notwithstanding an objection to the
arbitration agreement and/or jurisdiction over the arbitration case.
6. The aforesaid objections to and/or decisions on jurisdiction by
CIETAC shall include objections to and/or decisions on a party’s
standing to participate in the arbitration.
7. CIETAC or its authorized arbitral tribunal shall decide to dismiss
the case upon finding that CIETAC has no jurisdiction over an
arbitration case. Where a case is to be dismissed before the
formation of the arbitral tribunal, the decision shall be made by the
President of the Arbitration Court. Where the case is to be dismissed
after the formation of the arbitral tribunal, the decision shall be
made by the arbitral tribunal.

Article 10. Waiver of A party shall be deemed to have waived its right to object where it
Right to Object knows or should have known that any provision of, or requirement
under, these Rules has not been complied with and yet participates
in or proceeds with the arbitral proceedings without promptly and
explicitly submitting its objection in writing to such non-compliance.
HKIAC
Article 1. Scope of 1.1. These Rules shall govern arbitrations where an arbitration
Application agreement (whether entered into before or after a dispute has
arisen) either: (a) provides for these Rules to apply; or (b) subject to
Articles 1.3 and 1.4 below, provides for arbitration “administered by
HKIAC” or words to similar effect.
Article 19. 19.1. The arbitral tribunal may rule on its own jurisdiction under
Jurisdiction of the these Rules, including any objections with respect to the existence,
Arbitral Tribunal validity or scope of the arbitration agreement.
19.2 The arbitral tribunal shall have the power to determine the
existence or validity of any contract of which an arbitration
agreement forms a part. For the purposes of Article 19, an
arbitration agreement which forms part of a contract, and which
provides for arbitration under these Rules, shall be treated as an
agreement independent of the other terms of the contract. A
decision by the arbitral tribunal that the contract is null and void
shall not necessarily entail the invalidity of the arbitration
agreement.

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 19.3. A plea that the arbitral tribunal does not have jurisdiction shall
be raised if possible in the Answer to the Notice of Arbitration, and
shall be raised no later than in the Statement of Defence, or, with
respect to a counterclaim, in the Defence to the Counterclaim. A
party is not precluded from raising such a plea by the fact that it has
designated or appointed, or participated in the designation or
appointment of, an arbitrator. A plea that the arbitral tribunal is
exceeding the scope of its authority shall be raised as soon as the
matter alleged to be beyond the scope of its authority is raised
during the arbitration. The arbitral tribunal may, in either case,
admit a later plea if it considers the delay justified.
19.4. Subject to Article 19.5, if a question arises as to:
(a) the existence, validity or scope of the arbitration agreement; or
(b) whether all of the claims have been properly made in a single
arbitration pursuant to Article 29; or
(c) the competence of HKIAC to administer an arbitration;
before the constitution of the arbitral tribunal, the arbitration
shall proceed and any such question shall be decided by the
arbitral tribunal once constituted.
19.5. The arbitration shall proceed only if and to the extent that
HKIAC is satisfied, prima facie, that an arbitration agreement under
the Rules may exist or the arbitration has been properly commenced
under Article 29. Any question as to the jurisdiction of the arbitral
tribunal shall be decided by the arbitral tribunal once constituted,
pursuant to Article 19.1.
19.6. HKIAC’s decision pursuant to Article 19.5 is without prejudice to
the admissibility or merits of any party’s claim or defence.

Article 32. Waiver 32.1. A party that knows, or ought reasonably to know, that any
provision of, or requirement arising under, these Rules (including the
arbitration agreement) has not been complied with and yet proceeds
with the arbitration without promptly stating its objection to such
non-compliance, shall be deemed to have waived its right to object.
32.2. The parties waive any objection, on the basis of the use of any
procedure under Articles 27, 28, 29, 30 or 43 and any decision made
in respect of such procedure, to the validity and/or enforcement of
any award made by the arbitral tribunal in the arbitration(s), in so
far as such waiver can validly be made.

ICC

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 Article 6. Effect of 3. If any party against which a claim has been made does not submit
the Arbitration an Answer, or if any party raises one or more pleas concerning the
Agreement existence, validity or scope of the arbitration agreement or
concerning whether all of the claims made in the arbitration may be
determined together in a single arbitration, the arbitration shall
proceed and any question of jurisdiction or of whether the claims
may be determined together in that arbitration shall be decided
directly by the arbitral tribunal, unless the Secretary General refers
the matter to the Court for its decision pursuant to Article 6(4).
4. In all cases referred to the Court under Article 6(3), the Court shall
decide whether and to what extent the arbitration shall proceed. The
arbitration shall proceed if and to the extent that the Court is prima
facie satisfied that an arbitration agreement under the Rules may
exist. In particular:
(i) where there are more than two parties to the arbitration, the
arbitration shall proceed between those of the parties,
including any additional parties joined pursuant to Article 7,
with respect to which the Court is prima facie satisfied that an
arbitration agreement under the Rules that binds them all may
exist; and
(ii) where claims pursuant to Article 9 are made under more than
one arbitration agreement, the arbitration shall proceed as to
those claims with respect to which the Court is prima facie
satisfied (a) that the arbitration agreements under which those
claims are made may be compatible, and (b) that all parties to
the arbitration may have agreed that those claims can be
determined together in a single arbitration.
The Court’s decision pursuant to Article 6(4) is without prejudice to
the admissibility or merits of any party’s plea or pleas.
5. In all matters decided by the Court under Article 6(4), any decision
as to the jurisdiction of the arbitral tribunal, except as to parties or
claims with respect to which the Court decides that the arbitration
cannot proceed, shall then be taken by the arbitral tribunal itself.
6. Where the parties are notified of the Court’s decision pursuant to
Article 6(4) that the arbitration cannot proceed in respect of some or
all of them, any party retains the right to ask any court having
jurisdiction whether or not, and in respect of which of them, there is
a binding arbitration agreement.

7. Where the Court has decided pursuant to Article 6(4) that the
arbitration cannot proceeding in respect of any of the claims, such
decision shall not prevent a party from reintroducing the same
claim at a later date in other proceedings.
[…]
9. Unless otherwise agreed, the arbitral tribunal shall not cease to
have jurisdiction by reason of any allegation that the contract is
non-existent or null and void, provided that the arbitral tribunal
upholds the validity of the arbitration agreement. The arbitral
tribunal shall continue to have jurisdiction to determine the parties’
respective rights and to decide their claims and pleas even though
the contract itself may be non-existent or null and void.

Article 40. Waiver A party which proceeds with the arbitration without raising its
objection to a failure to comply with any provision of the Rules, or of
any other rules applicable to the proceedings, any direction given by
the arbitral tribunal, or any requirement under the arbitration
agreement relating to the constitution of the arbitral tribunal or the
conduct of the proceedings, shall be deemed to have waived its right
to object.
ICSID

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 ICSID Convention, 1. The jurisdiction of the Centre shall extend to any legal dispute
Article 25. arising directly out of an investment, between a Contracting State
Jurisdiction of the (or any constituent subdivision or agency of a Contracting State
Centre designated to the Centre by that State) and a national of another
Contracting State, which the parties to the dispute consent in writing
to submit to the Centre. When the parties have given their consent,
no party may withdraw its consent unilaterally.
2. “National of another Contracting State” means:
(a) any natural person who had the nationality of a Contracting
State other than the State party to the dispute on the date on
which the parties consented to submit such dispute to
conciliation or arbitration as well as on the date on which the
request was registered pursuant to paragraph (3) of Article 28
or paragraph (3) of Article 36, but does not include any person
who on either date also had the nationality of the Contracting
State party to the dispute; and
(b) any juridical person which had the nationality of a Contracting
State other than the State party to the dispute on the date on
which the parties consented to submit such dispute to
conciliation or arbitration and any juridical person which had
the nationality of the Contracting State party to the dispute on
that date and which, because of foreign control, the parties
have agreed should be treated as a national of another
Contracting State for the purposes of this Convention.

3. Consent by a constituent subdivision or agency of a Contracting

State shall require the approval of that State unless that State
notifies the Centre that no such approval is required.
4. Any Contracting State may, at the time of ratification, acceptance
or approval of this Convention or at any time thereafter, notify the
Centre of the class or classes of disputes which it would or would not
consider submitting to the jurisdiction of the Centre. The Secretary
General shall forthwith transmit such notification to all Contracting
States. Such notification shall not constitute the consent required by
paragraph (1).

ICSID Convention, Consent of the parties to arbitration under this Convention shall,
Article 26. unless otherwise stated, be deemed consent to such arbitration to
Jurisdiction of the the exclusion of any other remedy. A Contracting State may require
Centre the exhaustion of local administrative or judicial remedies as a
condition of its consent to arbitration under this Convention.
ICSID Convention, (3) The Secretary-General shall register the request unless he finds,
Article 36. Request on the basis of the information contained in the request, that the
for Arbitration dispute is manifestly outside the jurisdiction of the Centre. He shall
forthwith notify the parties of registration or refusal to register.
ICSID Convention, 1. The Tribunal shall be the judge of its own competence.
Article 41. Powers
and Functions of the 2. Any objection by a party to the dispute that that dispute is not
Tribunal within the jurisdiction of the Centre, or for other reasons is not within
the competence of the Tribunal, shall be considered by the Tribunal
which shall determine whether to deal with it as a preliminary
question or to join it to the merits of the dispute.

Institution Rules, The Secretary-General shall, subject to Rule 5(1)(b), as soon as

Rule 6. Registration possible, either:
of the Request
(a) register the request in the Conciliation or the Arbitration
Register and on the same day notify the parties of the
registration; or
(b) if he finds, on the basis of the information contained in the
request, that the dispute is manifestly outside the jurisdiction
of the Centre, notify the parties of his refusal to register the
request and of the reasons therefor.

Institution Rules, The notice of registration of a request shall:

Rule 7. Notice of
Registration (e) remind the parties that the registration of the request is
without prejudice to the powers and functions of the
Conciliation Commission or Arbitral Tribunal in regard to
jurisdiction, competence and the merits; […]

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 Arbitration Rules. (3) Any step taken after expiration of the applicable time limit shall
Rule 26 be disregarded unless the Tribunal, in special circumstances and
after giving the other party an opportunity of stating its views,
decides otherwise.
Arbitration Rules. A party which knows or should have known that a provision of the
Rule 27 Administrative and Financial Regulations, of these Rules, of any
other rules or agreement applicable to the proceeding, or of an
order of the Tribunal has not been complied with and which fails to
state promptly its objections thereto, shall be deemed—subject to
Article 45 of the Convention—to have waived its right to object.
Arbitration Rules. 1. Any objection that the dispute or any ancillary claim is not within
Rule 41 the jurisdiction of the Centre or, for other reasons, is not within the
competence of the Tribunal shall be made as early as possible. A
party shall file the objection with the Secretary-General no later
than the expiration of the time limit fixed for the filing of the
counter-memorial, or, if the objection relates to an ancillary claim,
for the filing of the rejoinder—unless the facts on which the objection
is based are unknown to the party at the time.
2. The Tribunal may on its own initiative consider, at any stage of the
proceeding, whether the dispute or any ancillary claim before it is
within the jurisdiction of the Centre and within its own competence.
3. Upon the formal raising of an objection relating to the dispute, the
Tribunal may decide to suspend the proceeding on the merits. The
President of the Tribunal, after consultation with its other members,
shall fix a time limit within which the parties may file observations
on the objection.
4. The Tribunal shall decide whether or not the further procedures
relating to the objection made pursuant to paragraph (1) shall be
oral. It may deal with the objection as a preliminary question or join
it to the merits of the dispute. If the Tribunal overrules the objection
or joins it to the merits, it shall once more fix time limits for the
further procedures.
5. Unless the parties have agreed to another expedited procedure for
making preliminary objections, a party may, no later than 30 days
after the constitution of the Tribunal, and in any event before the
first session of the Tribunal, file an objection that a claim is
manifestly without legal merit. The party shall specify as precisely
as possible the basis for the objection. The Tribunal, after giving the
parties the opportunity to present their observations on the
objection, shall, at its first session or promptly thereafter, notify the
parties of its decision on the objection. The decision of the Tribunal
shall be without prejudice to the right of a party to file an objection
pursuant to paragraph (1) or to object, in the course of the
proceeding, that a claim lacks legal merit.

6. If the Tribunal decides that the dispute is not within the

jurisdiction of the Centre or not within its own competence, or that
all claims are manifestly without legal merit, it shall render an
award to that effect.
LCIA
Preamble Where any agreement, submission or reference howsoever made or
evidenced in writing (whether signed or not) provides in whatsoever
manner for arbitration under the rules of or by the LCIA, the London
Court of International Arbitration, the London Court of Arbitration or
the London Court, the parties thereto shall be taken to have agreed
in writing that any arbitration between them shall be conducted in
accordance with the LCIA Rules or such amended rules as the LCIA
may have adopted hereafter to take effect before the
commencement of the arbitration and that such LCIA Rules form
part of their agreement (collectively, the “Arbitration Agreement”).
These LCIA Rules comprise this Preamble, the Articles and the Index,
together with the Annex to the LCIA Rules and the Schedule of Costs
as both from time to time may be separately amended by the LCIA
(the “LCIA Rules”).

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 Article 23. 23.1. The Arbitral Tribunal shall have the power to rule upon its own
Jurisdiction and jurisdiction and authority, including any objection to the initial or
Authority continuing existence, validity, effectiveness or scope of the
Arbitration Agreement.
23.2. For that purpose, an arbitration clause which forms or was
intended to form part of another agreement shall be treated as an
arbitration agreement independent of that other agreement. A
decision by the Arbitral Tribunal that such other agreement is non-
existent, invalid or ineffective shall not entail (of itself) the non-
existence, invalidity or ineffectiveness of the arbitration clause.
23.3. An objection by a Respondent that the Arbitral Tribunal does
not have jurisdiction shall be raised as soon as possible but not later
than the time for its Statement of Defence; and a like objection by
any party responding to a cross-claiming party shall be raised as
soon as possible but not later than the time for its Statement of
Defence to Cross-claim. An objection that the Arbitral Tribunal is
exceeding the scope of its authority shall be raised promptly after
the Arbitral Tribunal has indicated its intention to act upon the
matter alleged to lie beyond its authority. The Arbitral Tribunal may
nevertheless admit an untimely objection as to its jurisdiction or
authority if it considers the delay justified in the circumstances.

23.4. The Arbitral Tribunal may decide the objection to its jurisdiction
or authority in an award as to jurisdiction or authority or later in an
award on the merits, as it considers appropriate in the
circumstances.
23.5. By agreeing to arbitration under the Arbitration Agreement,
after the formation of the Arbitral Tribunal the parties shall be
treated as having agreed not to apply to any state court or other
legal authority for any relief regarding the Arbitral Tribunal’s
jurisdiction or authority, except (i) with the prior agreement in
writing of all parties to the arbitration, or (ii) the prior authorisation
of the Arbitral Tribunal, or (iii) following the latter’s award on the
objection to its jurisdiction or authority.

Article 32. General 32.1. A party who knows that any provision of the Arbitration
Rules Agreement has not been complied with and yet proceeds with the
arbitration without promptly stating its objection as to such non-
compliance to the Registrar (before the formation of the Arbitral
Tribunal) or the Arbitral Tribunal (after its formation), shall be
treated as having irrevocably waived its right to object for all
purposes.
SCC
Preamble Under any arbitration agreement referring to the Arbitration Rules of
the Arbitration Institute of the Stockholm Chamber of Commerce
(the “Arbitration Rules”) the parties shall be deemed to have agreed
that the following rules, or such amended rules, in force on the date
of the commencement of the arbitration, or the filing of an
application for the appointment of an Emergency Arbitrator, shall be
applied unless otherwise agreed by the parties.
Article 11. Decisions When necessary the Board shall:
by the Board
(i) decide whether the SCC manifestly lacks jurisdiction over the
dispute pursuant to Article 12(i); […]

Article 12. Dismissal The Board shall dismiss a case, in whole or in part, if:
(i) the SCC manifestly lacks jurisdiction over the dispute; […]

Article 14. Multiple 4. In all cases where the Board decides that the claims may proceed
Contracts in a Single in a single arbitration, any decision as to the Arbitral Tribunal’s
Arbitration jurisdiction over the claims shall be made by the Arbitral Tribunal.
Article 29. Written 2. Within the period of time determined by the Arbitral Tribunal, the
Submissions Respondent shall submit a Statement of Defence which shall
include, unless previously submitted:
(i) any objections concerning the existence, validity or
applicability of the arbitration agreement;
[…]

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 Article 36. Waiver A party, who during the arbitration fails, to object without delay to
any failure to comply with the arbitration agreement, these Rules or
other rules applicable to the proceedings, shall be deemed to have
waived the right to object to such failure.
SIAC
Rule 1. Scope of 1.1. Where the parties have agreed to refer their disputes to SIAC for
Application and arbitration or to arbitration in accordance with the SIAC Rules, the
Interpretation parties shall be deemed to have agreed that the arbitration shall be
conducted pursuant to and administered by SIAC in accordance with
these Rules.
Rule 28. Jurisdiction 28.1. If any party objects to the existence or validity of the
of the Tribunal arbitration agreement or to the competence of SIAC to administer
an arbitration, before the Tribunal is constituted, the Registrar shall
determine if such objection shall be referred to the Court. If the
Registrar so determines, the Court shall decide if it is prima facie
satisfied that the arbitration shall proceed. The arbitration shall be
terminated if the Court is not so satisfied. Any decision by the
Registrar or the Court that the arbitration shall proceed is without
prejudice to the power of the Tribunal to rule on its own jurisdiction.
28.2. The Tribunal shall have the power to rule on its own
jurisdiction, including any objections with respect to the existence,
validity or scope of the arbitration agreement. An arbitration
agreement which forms part of a contract shall be treated as an
agreement independent of the other terms of the contract. A
decision by the Tribunal that the contract is null and void shall not
entail ipso jure the invalidity of the arbitration agreement, and the
Tribunal shall not cease to have jurisdiction by reason of any
allegation that the contract is non-existent or null and void.
28.3. Any objection that the Tribunal:
(a) does not have jurisdiction shall be raised no later than in a
Statement of Defence or in a Statement of Defence to a
Counterclaim; or
(b) is exceeding the scope of its jurisdiction shall be raised within
14 days after the matter alleged to be beyond the scope of the
Tribunal’s jurisdiction arises during the arbitral proceedings.
The Tribunal may admit an objection raised by a party outside
the time limits under this Rule 28.3 if it considers the delay
justified. A party is not precluded from raising an objection
under this Rule 28.3 by the fact that it has nominated, or
participated in the nomination of, an arbitrator.

Rule 41. General 41.1. Any party that proceeds with the arbitration without promptly
Provisions raising any objection to a failure to comply with any provision of
these Rules, or of any other rules applicable to the proceedings, any
direction given by the Tribunal, or any requirement under the
arbitration agreement relating to the constitution of the Tribunal or
the conduct of the proceedings, shall be deemed to have waived its
right to object.
UNCITRAL
Article 23. Pleas as 1. The arbitral tribunal shall have the power to rule on its own
to the Jurisdiction of jurisdiction, including any objections with respect to the existence or
the Arbitral Tribunal validity of the arbitration agreement. For that purpose, an
arbitration clause that forms part of a contract shall be treated as
an agreement independent of the other terms of the contract. A
decision by the arbitral tribunal that the contract is null shall not
entail automatically the invalidity of the arbitration clause.

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 2. A plea that the arbitral tribunal does not have jurisdiction shall be
raised no later than in the statement of defence or, with respect to a
counterclaim or a claim for the purpose of a set-off, in the reply to
the counterclaim or to the claim for purpose of set-off. A party is not
precluded from raising such a plea by the fact that it has appointed,
or participated in the appointment of, an arbitrator. A plea that the
arbitral tribunal is exceeding the scope of its authority shall be
raised as soon as the matter alleged to be beyond the scope of its
authority is raised during the arbitral proceedings. The arbitral
tribunal may, in either case, admit a later plea if it considers the
delay justified.
3. The arbitral tribunal may rule on a plea referred to in paragraph 2
either as a preliminary question or in an award on the merits. The
arbitral tribunal may continue the arbitration proceedings and
make an award, notwithstanding any pending challenge to its
jurisdiction before a court.

Article 32. Waiver of A failure by any party to object promptly to any non-compliance
Right to Object with these Rules, or with any requirement of the arbitration
agreement shall be deemed to be a waiver of the right of such party
to make such an objection, unless such party can show that, under
the circumstances, its failure to object was justified.

§3.04 NOTIFICATIONS AND CALCULATION OF TIME PERIODS

From the commencement of the arbitration and throughout the course of the proceedings,
the arbitral regimes under consideration prescribe the method and timing of
P 243 communications among the parties, the tribunal, and the institution. ICSID uniquely
P 244 designates the Secretary-General as the “official channel of written communications”
among the parties and the tribunal. (70) All of the other regimes under consideration
except ICSID provide that parties generally must send copies of notifications to the
tribunal, the institution, and all other parties. (71) Notifications made by one party to
another may be made either in person or by any means of communication that allows for a
record of the communication. (72) These methods variously include airmail, facsimile,
telex, telegram, or e-mail. Recent revisions to some rules have eliminated service by
technologies that are largely outdated, such as telex and telegram (73) but note that the
LCIA and UNCITRAL Rules do not permit notifications via e-mail unless the recipient has
indicated an e-mail address for this purpose. (74) Notifications should generally be sent to
the recipient’s address given in the arbitration documents; or if none indicated, to the
recipient’s address in other agreements between the parties; or failing any such address,
to the recipient’s domicile or regular place of business; or, if none, to the recipient’s last-
known address. (75) A notification is deemed to have been received on the date it
ordinarily would have been received using the means described above. (76)
The flexible approach of these regimes to the method of notification reflects the fact that,
unlike court proceedings, national arbitration laws typically do not include formal
requirements regarding notifications. All that is required is that the procedure that is
adopted should be sufficient to avoid any criticism that the award is unenforceable under
Article V(1)(b) of the New York Convention due to a lack of proper notice regarding the
proceedings or a party’s inability to present its case. This pragmatic approach derives
from the fact that the parties have previously consented to arbitration under the rules they
have chosen to adopt in their arbitration agreements. (77) However, given the range of
possible jurisdictions where service may be effected, it is always advisable to check local
national laws of both the seat of arbitration and the place where service is to be effected
to ensure that no particular requirements for service exist.
Where a deadline applies to the response to a notification, under most regimes the
prescribed time period begins to run on the day after the notification is received or
P 244 deemed received. (78) At ICSID, the time period begins to run on the day after the deadline
P 245 is announced in the presence of the parties or on which the Secretary-General
dispatches the notification. (79) The time period is based on calendar days, not business
days, so holidays at the place of receipt are included; however, if the last day of the period
falls on a holiday, then the response is due on the next business day. (80) Of the arbitration
rules under review, only the ICSID, LCIA, and SIAC Rules address the issue of time zones.
Deadlines under these regimes are fixed according to local time in Washington, D.C. (ICSID),
the recipient’s time zone (LCIA), and Singapore (SIAC). (81) Modifications to prescribed
time periods are possible under most regimes, whether by party agreement, decision of
the institution, and/or order of the tribunal. (82)
Table 3.4 reproduces the arbitral regimes’ general provisions concerning the method of
notifications and the calculation of time periods. Specific requirements pertaining to
particular communications are indicated in their respective sections, for example, the
Request for Arbitration (section §3.01), Answer and Counterclaims (section §3.02),
Appointment of Arbitrators (section §4.04), and Additional Written Submissions (section
§7.01). (83)
P 245

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 P 245
P 246 Table 3.4 Notifications and Calculation of Time Periods
ICDR
PP 250
248
246
249
252
253
254
247 Article 10. Notices
251 1. Unless otherwise agreed by the parties or ordered by the arbitral
PP 250
248
249
252
253
254
255
247
251 tribunal, all notices and written communications may be
transmitted by any means of communication that allows for a
record of its transmission including mail, courier, fax, or other
written forms of electronic communication addressed to the party or
its representative at its last-known address, or by personal service.
2. For the purpose of calculating a period of time under these Rules,
such period shall begin to run on the day following the day when a
notice is made. If the last day of such period is an official holiday at
the place received, the period is extended until the first business day
that follows. Official holidays occurring during the running of the
period of time are included in calculating the period.

Article 20. Conduct 5. Documents or information submitted to the tribunal by one party
of Proceedings shall at the same time be transmitted by that party to all parties
and, unless instructed otherwise by the Administrator, to the
Administrator.
CIETAC
Article 8. Service of 1. All documents, notices and written materials in relation to the
Documents and arbitration may be delivered in person or sent by registered mail or
Periods of Time express mail, fax, or by any other means considered proper by the
Arbitration Court or the arbitral tribunal.
2. The arbitration documents referred to in the preceding Paragraph
1 shall be sent to the address provided by the party itself or by its
representative(s), or to an address agreed by the parties. Where a
party or its representative(s) has not provided an address or the
parties have not agreed on an address, the arbitration documents
shall be sent to such party’s address as provided by the other party
or its representative(s).
3. Any arbitration correspondence to a party or its representative(s)
shall be deemed to have been properly served on the party if
delivered to the addressee or sent to the addressee’s place of
business, registration, domicile, habitual residence or mailing
address, or where, after reasonable inquiries by the other party, none
of the aforesaid addresses can be found, the arbitration
correspondence is sent by the Arbitration Court to the addressee’s
last known place of business, registration, domicile, habitual
residence or mailing address by registered or express mail, or by any
other means that can provide a record of the attempt at delivery.
4. The periods of time specified in these Rules shall begin on the day
following the day when the party receives or should have received
the arbitration correspondence, notices or written materials sent by
the Arbitration Court.

Article 20. 1. All arbitration documents from the parties shall be submitted to
Submissions and the Arbitration Court.
Exchange of
Arbitration 2. All arbitration documents to be exchanged during the arbitration
Documents proceedings shall be exchanged among the arbitral tribunal and the
parties by the Arbitration Court unless otherwise agreed by the
parties and with the consent of the arbitral tribunal or otherwise
decided by the arbitral tribunal.

Article 21. Copies of When submitting the Request for Arbitration, the Statement of
Submissions Defense, the Statement of Counterclaim, evidence, and other
arbitration documents, the parties shall make the submissions in
quintuplicate. Where there are multiple parties, additional copies
shall be provided accordingly. Where the party applies for
preservation of property or protection of evidence is applied for, it
shall also provide additional copies accordingly. Where the arbitral
tribunal is composed of a sole arbitrator, the number of copies
submitted may be reduced by two.
HKIAC
Article 3. Written 3.1. Any written communication pursuant to these Rules shall be
Communications and deemed to be received by a party, arbitrator, emergency arbitrator
Calculation of Time or HKIAC if:
Limits

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 (a) communicated to the address, facsimile number and/or email
address communicated by the addressee or its representative
in the arbitration; or
(b) in the absence of (a), communicated to the address, facsimile
number and/or email address specified in any applicable
agreement between the parties; or
(c) in the absence of (a) and (b), communicated to any address,
facsimile number and/or email address which the addressee
holds out to the world at the time of such communication; or
(d) in the absence of (a), (b) and (c), communicated to any last
known address, facsimile number and/or email address of the
addressee; or
(e) uploaded to any secured online repository that the parties
have agreed to use.
3.2. If, after reasonable efforts, communication cannot be effected in
accordance with Article 3.1, a written communication is deemed to
have been received if it is sent to the addressee’s last-known
address, facsimile number and/or email address by means that
provides a record of attempted communication.
3.3. Any written communication shall be deemed received on the
earliest day when it is communicated pursuant to paragraph 3.1(a)
to (d), uploaded pursuant to paragraph 3.1(e), or attempted to be
communicated pursuant to Article 3.2. For this purpose, the date
shall be determined according to the local time at the place of
receiving such written communication or a notice of the upload
pursuant to paragraph 3.1(e).
3.4. Where a written communication is being communicated to more
than one party, or more than one arbitrator, such written
communication shall be deemed received when it is communicated
pursuant to Article 3.1(a) to (d), or attempted to be communicated
pursuant to Article 3.2, to the last intended recipient, or when a
notice that such written communication has been uploaded
pursuant to Article 3.1(e) is communicated to the last intended
recipient.
3.5. Time limits under these Rules shall begin to run on the day
following the day when any written communication is received or
deemed received. If the last day of the time limit is an official
holiday or a non-business day at the place of receipt, the time limit
shall be extended until the first business day which follows. Official
holidays or non-business days occurring during the running of the
time limit shall be included in calculating the time limit.

3.6. If the circumstances of the case so justify, HKIAC may amend the
time limits provided for in these Rules, as well as any time limits
that it has set, whether any such time limits have expired. HKIAC
shall not amend any time limits agreed by the parties or set by the
arbitral tribunal or emergency arbitrator unless the parties agree or
the arbitral tribunal or emergency arbitrator directs otherwise.
ICC

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 Article 3. Written 1. All pleadings and other written communications submitted by any
Notifications or party, as well as all documents annexed thereto, shall be supplied in
Communications; a number of copies sufficient to provide one copy for each party,
Time Limits plus one for each arbitrator, and one for the Secretariat. A copy of
any notification or communication from the arbitral tribunal to the
parties shall be sent to the Secretariat.
2. All notifications or communications from the Secretariat and the
arbitral tribunal shall be made to the last address of the party or its
representative for whom the same are intended, as notified either by
the party in question or by the other party. Such notification or
communication may be made by delivery against receipt, registered
post, courier, email, or any other means of telecommunication that
provides a record of the sending thereof.
3. A notification or communication shall be deemed to have been
made on the day it was received by the party itself or by its
representative, or would have been received if made in accordance
with Article 3(2).
4. Periods of time specified in or fixed under the Rules shall start to
run on the day following the date a notification or communication is
deemed to have been made in accordance with Article 3(3). When the
day next following such date is an official holiday, or a non-business
day in the country where the notification or communication is
deemed to have been made, the period of time shall commence on
the first following business day. Official holidays and non-business
days are included in the calculation of the period of time. If the last
day of the relevant period of time granted is an official holiday or a
non-business day in the country where the notification or
communication is deemed to have been made, the period of time
shall expire at the end of the first following business day.

Article 39. Modified 1. The parties may agree to shorten the various time limits set out in
Time Limits the Rules. Any such agreement entered into subsequent to the
constitution of an arbitral tribunal shall become effective only upon
the approval of the arbitral tribunal.
2. The Court, on its own initiative, may extend any time limit which
has been modified pursuant to Article 38(1) if it decides that it is
necessary to do so in order that the arbitral tribunal and the Court
may fulfil their responsibilities in accordance with the Rules.

ICSID
Administrative and (1) During the pendency of any proceeding the Secretary General
Financial shall be the official channel of written communications among the
Regulations, parties, the Commission, Tribunal or Committee, and the Chairman
Regulation 24. of the Administrative Council, except that:
Means of
Communication (a) the parties may communicate directly with each other unless
the communication is one required by the Convention or the
Institution, Conciliation or Arbitration Rules (hereinafter
referred to as the “Rules”);
(b) the members of any Commission, Tribunal or Committee shall
communicate directly with each other.
(2) Instruments and documents shall be introduced into the
proceeding by transmitting them to the Secretary-General, who
shall retain the original for the files of the Centre and arrange for
appropriate distribution of copies. If the instrument or document
does not meet the applicable requirements, the Secretary-General:
(a) shall inform the party submitting it of the deficiency, and any
consequent action the Secretary-General is taking;
(b) may, if the deficiency is merely a formal one, accept it subject
to subsequent correction;
(c) may, if the deficiency consists merely of an insufficiency in the
number of copies or the lack of required translations, provide
the necessary copies or translations at the cost of the party
concerned.

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 Administrative and (1) All time limits, specified in the Convention or the Rules or fixed by
Financial a Commission, Tribunal, Committee or the Secretary-General, shall
Regulations, be computed from the date on which the limit is announced in the
Regulation 29. Time presence of the parties or their representatives or on which the
Limits Secretary-General dispatches the pertinent notification or
instrument (which date shall be marked on it). The day of such
announcement or dispatch shall be excluded from the calculation.
(2) A time limit shall be satisfied if a notification or instrument
dispatched by a party is delivered at the seat of the Centre, or to the
Secretary of the competent Commission, Tribunal or Committee that
is meeting away from the seat of the Centre, before the close of
business on the indicated date or, if that day is a Saturday, a
Sunday, a public holiday observed at the place of delivery or a day
on which for any reason regular mail delivery is restricted at the
place of delivery, then before the close of business on the next
subsequent day on which regular mail service is available.
Administrative and (1) Documentation filed in support of any request, pleading,
Financial application, written observation or other instrument introduced into
Regulations, a proceeding shall consist of one original and of the number of
Regulation 30. additional copies specified in paragraph (2). The original shall,
Supporting unless otherwise agreed by the parties or ordered by the competent
Documentation Commission, Tribunal or Committee, consist of the complete
document or of a duly certified copy or extract, except if the party is
unable to obtain such document or certified copy or extract (in
which case the reason for such inability must be stated).
(2) The number of additional copies of any document shall be equal
to the number of additional copies required of the instrument to
which the documentation relates, except that no such copies are
required if the document has been published and is readily available.
Each additional copy shall be certified by the party presenting it to
be a true and complete copy of the original, except that if the
document is lengthy and relevant only in part, it is sufficient if it is
certified to be a true and complete extract of the relevant parts,
which must be precisely specified.
(3) Each original and additional copy of a document which is not in a
language approved for the proceeding in question, shall, unless
otherwise ordered by the competent Commission, Tribunal or
Committee, be accompanied by a certified translation into such a
language. However, if the document is lengthy and relevant only in
part, it is sufficient if only the relevant parts, which must be precisely
specified, are translated, provided that the competent body may
require a fuller or a complete translation.
(4) Whenever an extract of an original document is presented
pursuant to paragraph (1) or a partial copy or translation pursuant
to paragraph (2) or (3), each such extract, copy and translation shall
be accompanied by a statement that the omission of the remainder
of the text does not render the portion presented misleading.

Institution Rules, (1) The request shall be accompanied by five additional signed
Rule 4. Copies of the copies. The Secretary-General may require such further copies as he
Request may deem necessary.
(2) Any documentation submitted with the request shall conform to
the requirements of Administrative and Financial Regulation 30.

Arbitration Rules, Except as otherwise provided by the Tribunal after consultation with
Rule 23. Copies of the parties and the Secretary-General, every request, pleading,
Instruments application, written observation, supporting documentation, if any,
or other instrument shall be filed in the form of a signed original
accompanied by the following number of additional copies:
(a) before the number of members of the Tribunal has been
determined: five;
(b) after the number of members of the Tribunal has been
determined: two more than the number of its members.

Arbitration Rules, Supporting documentation shall ordinarily be filed together with the
Rule 24. Supporting instrument to which it relates, and in any case within the time limit
Documentation fixed for the filing of such instrument.
Arbitration Rules, An accidental error in any instrument or supporting document may,
Rule 25. Correction with the consent of the other party or by leave of the Tribunal, be
of Errors corrected at any time before the award is rendered.

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 Arbitration Rules, (1) Where required, time limits shall be fixed by the Tribunal by
Rule 26. Time Limits assigning dates for the completion of the various steps in the
proceeding. The Tribunal may delegate this power to its President.
(2) The Tribunal may extend any time limit that it has fixed. If the
Tribunal is not in session, this power shall be exercised by its
President.
(3) Any step taken after expiration of the applicable time limit shall
be disregarded unless the Tribunal, in special circumstances and
after giving the other party an opportunity of stating its views,
decides otherwise.

LCIA
Article 4. Written 4.1. Any written communication by the LCIA Court, the Registrar or
Communications and any party may be delivered personally or by registered postal or
Periods of Time courier service or (subject to Article 4.3) by facsimile, e-mail or any
other electronic means of telecommunication that provides a record
of its transmission, or in any other manner ordered by the Arbitral
Tribunal.
4.2. Unless otherwise ordered by the Arbitral Tribunal, if an address
has been agreed or designated by a party for the purpose of
receiving any communication in regard to the Arbitration Agreement
or (in the absence of such agreement or designation) has been
regularly used in the parties’ previous dealings, any written
communication (including the Request and Response) may be
delivered to such party at that address, and if so delivered, shall be
treated as having been received by such party.

4.3. Delivery by electronic means (including e-mail and facsimile)

may only be effected to an address agreed or designated by the
receiving party for that purpose or ordered by the Arbitral Tribunal.
4.4. For the purpose of determining the commencement of any time-
limit, a written communication shall be treated as having been
received by a party on the day it is delivered or, in the case of
electronic means, transmitted in accordance with Articles 4.1 to 4.3
(such time to be determined by reference to the recipient’s time-
zone).
4.5. For the purpose of determining compliance with a time-limit, a
written communication shall be treated as having been sent by a
party if made or transmitted in accordance with Articles 4.1 to 4.3
prior to or on the date of the expiration of the time-limit.
4.6. For the purpose of calculating a period of time, such period shall
begin to run on the day following the day when a written
communication is received by the addressee. If the last day of such
period is an official holiday or non-business day at the place of that
addressee (or the place of the party against whom the calculation of
time applies), the period shall be extended until the first business
day which follows that last day. Official holidays and non-business
days occurring during the running of the period of time shall be
included in calculating that period.

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 Article 13. 13.1. Following the formation of the Arbitral Tribunal, all
Communications communications shall take place directly between the Arbitral
Between Parties and Tribunal and the parties (to be copied to the Registrar), unless the
Arbitral Tribunal Arbitral Tribunal decides that communications should continue to
be made through the Registrar.
13.2. Where the Registrar sends any written communication to one
party on behalf of the Arbitral Tribunal or the LCIA Court, he or she
shall send a copy to each of the other parties.
13.3. Where any party delivers to the Arbitral Tribunal any
communication (including statements and documents under Article
15), whether by electronic means or otherwise, it shall deliver a copy
to each arbitrator, all other parties and the Registrar; and it shall
confirm to the Arbitral Tribunal in writing that it has done or is doing
so.
13.4. During the arbitration from the Arbitral Tribunal’s formation
onwards, no party shall deliberately initiate or attempt to initiate
any unilateral contact relating to the arbitration or the parties’
dispute with any member of the Arbitral Tribunal or any member of
the LCIA Court exercising any function in regard to the arbitration
(but not including the Registrar), which has not been disclosed in
writing prior to or shortly after the time of such contact to all other
parties, all members of the Arbitral Tribunal (if comprised of more
than one arbitrator) and the Registrar.

13.5. Prior to the Arbitral Tribunal’s formation, unless the parties

agree otherwise in writing, any arbitrator, candidate or nominee who
is required to participate in the selection of a presiding arbitrator
may consult any party in order to obtain the views of that party as
to the suitability of any candidate or nominee as presiding
arbitrator, provided that such arbitrator, candidate or nominee
informs the Registrar of such consultation.
Article 22. Additional 22.1. The Arbitral Tribunal shall have the power, upon the application
Powers of any party or (save for sub-paragraphs (viii), (ix) and (x) below)
upon its own initiative, but in either case only after giving the parties
a reasonable opportunity to state their views and upon such terms
(as to costs and otherwise) as the Arbitral Tribunal may decide:
[…]
(ii) to abridge or extend (even where the period of time has expired)
any period of time prescribed under the Arbitration Agreement, any
other agreement of the parties or any order made by the Arbitral
Tribunal.

SCC
Article 4. Time The Board may, on application by either party or on its own motion,
Periods extend any time period set by the SCC for a party to comply with a
particular direction.
Article 5. Notices (1) Any notice or other communication from the Secretariat or the
Board shall be delivered to the last known address of the addressee.
(2) Any notice or other communication shall be delivered by courier
or registered mail, e-mail or any other means that records the
sending of the communication.
(3) A notice or communication sent in accordance with paragraph (2)
shall be deemed to have been received by the addressee on the date
it would normally have been received given the means of
communication used.
(4) This article shall apply equally to any communications from the
Arbitral Tribunal.

SIAC

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 Rule 2. Notice and 2.1. For the purposes of these Rules, any notice, communication or
Calculation of proposal shall be in writing. Any such notice, communication or
Periods of Time proposal may be delivered by hand, registered post or courier
service, or transmitted by any form of electronic communication
(including electronic mail and facsimile), or delivered by any other
appropriate means that provides a record of its delivery. Any notice,
communication or proposal shall be deemed to have been received
if it is delivered: (i) to the addressee personally or to its authorised
representative; (ii) to the addressee’s habitual residence, place of
business or designated address; (iii) to any address agreed by the
parties; (iv) according to the practice of the parties in prior dealings;
or (v) if, after reasonable efforts, none of these can be found, then at
the addressee’s last-known residence or place of business.
2.2. Any notice, communication or proposal shall be deemed to have
been received on the day it is delivered in accordance with Rule 2.1.
2.3. For the purpose of calculating any period of time under these
Rules, such period shall begin to run on the day following the day
when a notice, communication or proposal is deemed to have been
received. Unless the Registrar or the Tribunal determines otherwise,
any period of time under these Rules is to be calculated in
accordance with Singapore Standard Time (GMT +8).
2.4. Any non-business days at the place of receipt shall be included
in calculating any period of time under these Rules. If the last day of
any period of time under these Rules is not a business day at the
place of receipt in accordance with Rule 2.1. the period is extended
until the first business day which follows.
2.5. The parties shall file with the Registrar a copy of any notice,
communication or proposal concerning the arbitral proceedings.
2.6. Except as provided in these Rules, the Registrar may at any time
extend or abbreviate any time limits prescribed under these Rules.

UNCITRAL
Article 2. Notice, 1. A notice, including a notification, communication or proposal,
Calculation of may be transmitted by any means of communication that provides
Periods of Time or allows for a record of its transmission.
2. If an address has been designated by a party specifically for this
purpose or authorized by the arbitral tribunal, any notice shall be
delivered to that party at that address, and if so delivered shall be
deemed to have been received. Delivery by electronic means such as
facsimile or e-mail may only be made to an address so designated
or authorized.

3. In the absence of such designation or authorization, a notice is:

(a) Received if it is physically delivered to the addressee; or
(b) Deemed to have been received if it is delivered at the place of
business, habitual residence or mailing address of the
addressee.
4. If, after reasonable efforts, delivery cannot be effected in
accordance with paragraphs 2 or 3, a notice is deemed to have been
received if it is sent to the addressee’s last-known place of business,
habitual residence or mailing address by registered letter or any
other means that provides a record of delivery or of attempted
delivery.
5. A notice shall be deemed to have been received on the day it is
delivered in accordance with paragraph 2, 3 or 4, or attempted to be
delivered in accordance with paragraph 4. A notice transmitted by
electronic means is deemed to have been received on the day it is
sent, except that a notice of arbitration so transmitted is only
deemed to have been received on the day when it reached the
addressee’s electronic address.
6. For the purpose of calculating a period of time under these Rules,
such period shall begin to run on the day following the day when a
notice is received. If the last day of such period is an official holiday
or a non-business day at the residence or place of business of the
addressee, the period is extended until the first business day which
follows. Official holidays or non-business days occurring during the
running of the period of time are included in calculating the period.

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 §3.05 DEFAULT BY A PARTY
From the outset of the arbitration, counsel and their clients should take note of the
potential consequences of any failure by either party, intentional or unintentional, to fulfill
the procedural steps established in the parties’ agreement, the arbitration rules, and the
tribunal’s orders. There is, of course, a danger at any time during the course of the
proceedings that one of the parties may be unwilling or unable to pursue its claims or to
defend the claims raised against it. In principle, this situation may present the arbitral
tribunal with a conundrum. On the one hand, if the defaulting party were thus able to avoid
the resolution of the claims against it, the parties’ agreement to arbitrate would
essentially be circumvented by depriving it of practical effect. (84) On the other hand, an
arbitral tribunal has no power to compel any party to appear before it.
P 255
P 256
Given the potential importance of this issue, the various arbitration rules include
provisions addressing the course of action that the arbitral tribunal should adopt in the
event of default or absence by a party. The arbitral regimes are generally uniform in
including the following provisions, which we summarize here and discuss in detail in the
other chapters of this book as indicated below:
– A claimant’s failure to pay the registration fee and meet other formal requirements
for the request for arbitration may result in the institution not registering the claim or
deeming the claim withdrawn. See section §3.01 (Request for Arbitration).
– A respondent’s failure timely to submit its answer to the request for arbitration will
probably not impede the arbitration from proceeding. See section §3.02 (Answer and
Counterclaims).
– A respondent’s failure timely to raise an objection to the jurisdiction of the tribunal
will typically result in a waiver of that objection. See section §3.03 (Jurisdictional
Objections).
– A party’s failure to make the required advance on the costs of the arbitration usually
transfers the obligation to the other party to cover the full amount of the advance. If
that other party fails to cover the full amount, then the proceedings may be
suspended and/or discontinued. See Chapter 8 (Costs and Fees) and section §10.07
(Discontinuance).
– The parties’ failure to agree on the number and method of appointment of arbitrators
will typically result in the institution or appointing authority deciding these issues.
Where the parties fail to agree on a sole arbitrator, the institution or appointing
authority will make the appointment. Where a party fails to nominate an arbitrator to
a three-member tribunal, the institution or appointing authority will make the
appointment. Where more than two parties are involved in the arbitration and either
side (claimant or respondent) fails to agree on a joint nomination, the institution or
appointing authority will appoint the tribunal. See section §4.04 (Appointment of
Arbitrators).
– A party’s failure to submit a written defense to a claim or counterclaim will not
impede the arbitration from proceeding. A party’s failure timely to submit a
statement of claim or reply to a written defense may result in such claims being
deemed withdrawn. If all claims are so withdrawn, the tribunal may discontinue the
proceedings. See section §7.01 (Additional Written Submissions) and section §10.07
(Discontinuance).
– A party’s failure to attend a hearing will ordinarily not impede the hearing from
taking place and may, under some regimes, result in the tribunal drawing adverse
inferences or the absent claimant forfeiting its claims. See section §7.03 (Hearings).
P 256
P 257
– The failure of a witness to attend a hearing for questioning may result in the tribunal
discounting the weight of that witness’ written testimony. See Chapter 6 (Evidentiary
Procedure).
– All of the regimes contain a general provision that any failure by a party timely to
raise an objection to any deviation in the proceedings from the parties’ agreement or
the applicable rules will result in a waiver of such objection. See Table 3.5 (Default by
a Party), infra.
Arbitral regimes, and national arbitration laws, generally give effect to two basic
principles: first, that default or absence by a party must not paralyze or otherwise
significantly impede the progress of the arbitral proceedings; and second, that default
usually does not constitute an admission of liability or a concession by the defaulting
party as to the validity of the other party’s allegations or arguments. (85)
The basic principle whereby the arbitration will proceed in the event of default by one of
the parties is uncontroversial and is incorporated into all the major institutional and ad
hoc arbitral rules, as well as into the UNCITRAL Model Law (86) and the ICSID Convention.
(87) Moreover, this principle has been widely applied by arbitral tribunals, and national
courts have routinely rejected subsequent attempts by the defaulting party to block
recognition or enforcement of the resulting arbitral awards. (88)
However, the basic requirements of due process require that a defaulting party be

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 afforded a reasonable opportunity to present its case at each stage of the proceedings.
(89) This is reflected in Article V(1)(b) of the New York Convention, which provides that an
arbitral award may be refused recognition or enforcement where the party against whom
the award is invoked “was not given proper notice of the appointment of the arbitrator or
of the arbitration proceedings or was otherwise unable to present his case.” In view of this
requirement, an arbitral tribunal will generally be well advised (if not expressly required)
to actively solicit participation by an absent party and to ascertain whether the party may
be facing some genuine obstacle to participation rather than deliberately refusing to
P 257 appear. (90) Where a defaulting party appears to be acting in good faith, most arbitration
P 258 rules allow the tribunal to extend the deadlines for that party’s presentation of
submissions, subject to the general duty to maintain equality of arms between the parties.
In the case of the ICSID Rules, this is not merely allowed, but required. (91) In addition, the
rules of some arbitral institutions expressly require the tribunal to ascertain whether a
party has “refused” or merely “failed” to appear, (92) or whether there is a “sufficient
cause” or a “valid excuse” for a party’s default, prior to proceeding with a particular stage
of the arbitration. (93)
Moreover, even where a party’s default does appear to result from a deliberate refusal to
participate in the proceeding, the arbitral tribunal is not empowered to issue an award on
the basis of the default. Rather, the arbitral tribunal has a duty to evaluate the evidence
before it and issue a reasoned decision on the claims at issue. (94) This duty is reflected in
the second general principle mentioned above: that default does not constitute an
admission of liability or a concession by the defaulting party as to the validity of the other
party’s allegations or arguments. Again, this principle is expressly reflected in the ICSID
P 258 Convention, (95) in the UNCITRAL Model Law, (96) and in many of the commonly used
P 259 arbitration rules. Moreover, it has been accepted as applying in international
arbitration, regardless of whether it is expressly stated in the relevant rules or laws. (97)
In consequence, where an arbitral tribunal determines a case or an issue with no
involvement by one of the parties, the tribunal will typically be compelled to take the role
of devil’s advocate, challenging the evidence and arguments proffered by the other party
to test their reliability and adequacy. This may impose a greater burden on the tribunal as
well as on the cooperating party, particularly given that some of the evidence and
arguments at issue might otherwise simply have been accepted by the defaulting party.
(98) For example, an arbitral tribunal will not ordinarily need to examine its own
competence where both parties participate in the proceeding and neither party objects to
its jurisdiction. However, where one party fails to appear, the tribunal should in most cases
take the initiative to arrive at a reasoned conclusion on this issue, including by requiring
the presentation of additional evidence by the claimant where appropriate. (99)
However, any additional burden that default may create for the participating party may in
some measure be offset by an award of costs. Generally, arbitral tribunals have the
authority to apportion the costs of the arbitration to the defaulting party and in practice
they often choose to do so. (100)
P 259
P 260 Table 3.5 Default by a Party
AAA-ICDR
PP 268
260
262
263
264
265
266
269
270
261
267
272
273
274
275
271 Article 3. Answer and 6. Failure of Respondent to submit an Answer shall not preclude the
PP 268
262
263
264
265
266
269
270
261
267
272
273
274
275
276
271 Counterclaim arbitration from proceeding.
Article 11. Number of If the parties have not agreed on the number of arbitrators, one
Arbitrators arbitrator shall be appointed unless the Administrator determines in
its discretion that three arbitrators are appropriate […].
Article 12. 1. […] In the absence of party agreement as to the method of
Appointment of appointment, the Administrator may use the ICDR list method as
Arbitrators provided in Article 12(6).
[…]
3. If within 45 days after the commencement of the arbitration, all
parties have not agreed on a procedure for appointing the
arbitrator(s) or have not agreed on the selection of the arbitrator(s),
the Administrator shall, at the written request of any party, appoint
the arbitrator(s).

Article 20. Conduct 7. The parties shall make every effort to avoid unnecessary delay
of the Proceedings and expense in the arbitration. The arbitral tribunal may allocate
costs, draw adverse inferences, and take such additional steps as are
necessary to protect the efficiency and integrity of the arbitration.
Article 21. Exchange 9. In the event a party fails to comply with an order for information
of Information exchange, the tribunal may draw adverse inferences […].
Article 23. Hearing 4. […] The tribunal may require any witness to appear at a hearing. If
a witness whose appearance has been requested fails to appear
without valid excuse as determined by the tribunal, the tribunal may
disregard any written statement by that witness.

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 Article 26. Default 1. If a party fails to submit an Answer in accordance with Article 3,
the arbitral tribunal may proceed with the arbitration.
2. If a party, duly notified under these Rules, fails to appear at a
hearing without showing sufficient cause for such failure, the
tribunal may proceed with the hearing.
3. If a party, duly invited to produce evidence or take any other steps
in the proceedings, fails to do so within the time established by the
tribunal without showing sufficient cause for such failure, the
tribunal may make the award on the evidence before it.

Article 28. Waiver of A party who knows of any non-compliance with any provision or
Rules requirement of the Rules or the arbitration agreement, and proceeds
with the arbitration without promptly stating an objection in writing,
waives the right to object.
Article 32. 2. If continuation of the arbitration becomes unnecessary or
Settlement or Other impossible due to the non-payment of deposits required by the
Reasons for Administrator, the arbitration may be suspended or terminated as
Termination provided in Article 36(3).
3. If continuation of the arbitration becomes unnecessary or
impossible for any reason other than as stated in Sections 1 and 2 of
this Article, the tribunal shall inform the parties of its intention to
terminate the arbitration. The tribunal shall thereafter issue an
order terminating the arbitration, unless a party raises justifiable
grounds for objection.

Article 36. Deposits 3. If the deposits requested are not paid promptly and in full, the
Administrator shall so inform the parties in order that one or more
of them may make the required payment. If such payment is not
made, the arbitral tribunal may order the suspension or termination
of the proceedings. If the tribunal has not yet been appointed, the
Administrator may suspend or terminate the proceedings.
4. Failure of a party asserting a claim or counterclaim to pay the
required deposits shall be deemed a withdrawal of the claim or
counterclaim.

CIETAC
Article 13. 3. Where after examination the Arbitration Court finds the formalities
Acceptance of a required for the arbitration application to be incomplete, it may
Case request the Claimant to complete them within a specified time
period. The Claimant shall be deemed not to have submitted a
Request for Arbitration if it fails to complete the required formalities
within the specified time period. In such a case, the Claimant’s
Request for Arbitration and its attachments shall not be kept on file
by the Arbitration Court.
Article 10. Waiver of A party shall be deemed to have waived its right to object where it
Right to Object knows or should have known that any provision of, or requirement
under, these Rules has not been complied with and yet participates
in or proceeds with the arbitral proceedings without promptly and
explicitly submitting its objection in writing to such non-compliance.
Article 15. Statement 3. The arbitral tribunal has the power to decide whether to accept a
of Defense Statement of Defense submitted after the expiration of the above
time period.
4. Failure by the Respondent to file a Statement of Defense shall not
affect the conduct of the arbitral proceedings

Article 16. […]

Counterclaim
3. When filing the counterclaim, the Respondent shall pay an
arbitration fee in advance in accordance with the Arbitration Fee
Schedule of CIETAC within a specified time period, failing which the
Respondent shall be deemed not to have filed any counterclaim.
[…]
5. The arbitral tribunal has the power to decide whether to accept a
counterclaim or a Statement of Defense submitted after the
expiration of the above time period.
6. Failure of the Claimant to file a Statement of Defense to the
Respondent’s counterclaim shall not affect the conduct of the
arbitral proceedings.

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 Article 25. Number of 2. Unless otherwise agreed by the parties or provided by these Rules,
Arbitrators the arbitral tribunal shall be composed of three arbitrators.
Article 29. Multiple- 4. Where the parties have failed to jointly nominate the presiding
Party Tribunals arbitrator according to the above provisions, the presiding arbitrator
shall be appointed by the Chairman of CIETAC.
3. Where either the Claimant side or the Respondent side fails to
jointly nominate or jointly entrust the Chairman of CIETAC to appoint
one arbitrator within fifteen (15) days from the date of its receipt of
the Notice of Arbitration, the Chairman of CIETAC shall appoint all
three members of the arbitral tribunal and designate one of them to
act as the presiding arbitrator.
Article 37. Notice of 2. Where a party has justified reasons for failure to submit a request
Oral Hearing for a postponement of the oral hearing within the time period
specified in the preceding Paragraph 1, the arbitral tribunal shall
decide whether or not to accept the request.
Article 39. Default 1. If the Claimant fails to appear at an oral hearing without showing
sufficient cause, or withdraws from an on-going oral hearing without
the permission of the arbitral tribunal, the Claimant may be deemed
to have withdrawn its application for arbitration. In such a case, if
the Respondent has filed a counterclaim, the arbitral tribunal shall
proceed with the hearing of the counterclaim and make a default
award.
2. If the Respondent fails to appear at an oral hearing without
showing sufficient cause, or withdraws from an on-going oral
hearing without the permission of the arbitral tribunal, the arbitral
tribunal may proceed with the arbitration and make a default
award. In such a case, if the Respondent has filed a counterclaim,
the Respondent may be deemed to have withdrawn its counterclaim.

Article 41. Evidence 3. If a party bearing the burden of proof fails to produce evidence
within the specified time period, or if the produced evidence is not
sufficient to support its claim or counterclaim, it shall bear the
consequences thereof.
HKIAC
Article 4. Notice of 4.6. If the Notice of Arbitration does not comply with these Rules or if
Arbitration the Registration Fee is not paid, HKIAC may request the Claimant to
remedy the defect within an appropriate time limit. If the Claimant
complies with such directions within the applicable time limit, the
arbitration shall be deemed to have commenced under Article 4.2 on
the date the initial version was received by HKIAC. If the Claimant
fails to comply, the arbitration shall be deemed not to have
commenced under Article 4.2 without prejudice to the Claimant’s
right to submit the same claim at a later date in a subsequent
Notice of Arbitration.
Article 6. Number of 6.1. If the parties have not agreed upon the number of arbitrators
Arbitrators before the arbitration commences or within 30 days from the date
the Notice of Arbitration is received by the Respondent, HKIAC shall
decide whether the case shall be referred to a sole arbitrator or to
three arbitrators, taking into account the circumstances of the case.
Article 7. 7.2. If the parties fail to designate the sole arbitrator within the
Appointment of a applicable time limit, HKIAC shall appoint the sole arbitrator.
Sole Arbitrator
Article 8. 8.1(c). where the parties have not agreed upon the number of
Appointment of arbitrators and HKIAC has decided that the dispute shall be referred
Three Arbitrators to three arbitrators, the Claimant shall designate an arbitrator
within 15 days from receipt of HKIAC’s decision, and the Respondent
shall designate an arbitrator within 15 days from receiving notice of
the Claimant’s designation. If a party fails to designate an
arbitrator, HKIAC shall appoint the arbitrator.
8.2(d). the two arbitrators so appointed shall designate a third
arbitrator, who shall act as the presiding arbitrator. Failing such
designation within 30 days from the confirmation or appointment of
the second arbitrator, HKIAC shall appoint the presiding arbitrator.

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 Article 26. Default 26.1. If, within the time limit set by the arbitral tribunal, the Claimant
has failed to communicate its written statement without showing
sufficient cause for such failure, the arbitral tribunal may terminate
the arbitration unless another party has brought a claim and wishes
the arbitration to continue, in which case the tribunal may proceed
with the arbitration in respect of the other party’s claim.
26.2. If, within the time limit set by the arbitral tribunal, the
Respondent has failed to communicate its written statement without
showing sufficient cause for such failure, the arbitral tribunal may
proceed with the arbitration.
26.3. If one of the parties, duly notified under these Rules, fails to
present its case in accordance with these Rules including as directed
by the arbitral tribunal, without showing sufficient cause for such
failure, the arbitral tribunal may proceed with the arbitration and
make an award on the basis of the evidence before it.

Article 32. Waiver 32.1. A party that knows, or ought reasonably to know, that any
provision of, or requirement arising under, these Rules (including the
arbitration agreement) has not been complied with and yet proceeds
with the arbitration without promptly stating its objection to such
non-compliance, shall be deemed to have waived its right to object.
32.2. The parties waive any objection, on the basis of the use of any
procedure under Articles 27, 28, 29, 30 or 43 and any decision made
in respect of such procedure, to the validity and/or enforcement of
any award made by the arbitral tribunal in the arbitration(s), in so
far as such waiver can validly be made.

ICC
Article 4. Request for 4. Together with the Request, the claimant shall:
Arbitration
a) submit the number of copies thereof required by Article 3(1);
and
b) make payment of the filing feerequired by Appendix III
(“Arbitration Costs and Fees”) in force on the date the Request
is submitted.
In the event that the claimant fails to comply with either of these
requirements, the Secretariat may fix a time limit within which the
claimant must comply, failing which the file shall be closed without
prejudice to the claimant’s right to submit the same claims at a
later date in another Request.

Article 6. Effect of 8. If any of the parties refuses or fails to take part in the arbitration
the Arbitration or any stage thereof, the arbitration shall proceed notwithstanding
Agreement such refusal or failure.
Article 12. 2. Where the parties have not agreed upon the number of arbitrators,
Constitution of the the Court shall appoint a sole arbitrator, save where it appears to
Arbitration Tribunal the Court that the dispute is such as to warrant the appointment of
three arbitrators. […] If a party fails to nominate an arbitrator, the
appointment shall be made by the Court.
3. […]. If the parties fail to nominate a sole arbitrator within 30 days
from the date when the claimant’s Request for Arbitration has been
received by the other party, or within such additional time as may be
allowed by the Secretariat, the sole arbitrator shall be appointed by
the Court.
4. […] If a party fails to nominate an arbitrator, the appointment
shall be made by the Court.
8. In the absence of a joint nomination pursuant to Articles 12(6) or
12(7) and where all parties are unable to agree to a method for the
constitution of the arbitral tribunal, the Court may appoint each
member of the arbitral tribunal and shall designate one of them to
act as president.

Article 23. Terms of 3. If any of the parties refuses to take part in the drawing up of the
Reference Terms of Reference or to sign the same, they shall be submitted to
the Court for approval. When the Terms of Reference have been
signed in accordance with Article 23(2) or approved by the Court, the
arbitration shall proceed.

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 Article 26. Hearings 1. When a hearing is to be held, the arbitral tribunal, giving
reasonable notice, shall summon the parties to appear before it on
the day and at the place fixed by it.
2. If any of the parties, although duly summoned, fails to appear
without valid excuse, the arbitral tribunal shall have the power to
proceed with the hearing.

Article 37. Advance 5. […] In all cases, any party shall be free to pay any other party’s
to Cover the Costs of share of any advance on costs should such other party fail to pay its
the Arbitration share.
6. When a request for an advance on costs has not been complied
with, and after consultation with the arbitral tribunal, the Secretary
General may direct the arbitral tribunal to suspend its work and set
a time limit, which must be not less than 15 days, on the expiry of
which the relevant claims shall be considered as withdrawn. Should
the party in question wish to object to this measure, it must make a
request within the aforementioned period for the matter to be
decided by the Court. Such party shall not be prevented, on the
ground of such withdrawal, from reintroducing the same claims at a
later date in another proceeding.

Article 40. Waiver A party which proceeds with the arbitration without raising its
objection to a failure to comply with any provision of the Rules, or of
any other rules applicable to the proceedings, any direction given by
the arbitral tribunal, or any requirement under the arbitration
agreement relating to the constitution of the arbitral tribunal or the
conduct of the proceedings, shall be deemed to have waived its right
to object.
ICSID
ICSID Convention, (2)(b) Where the parties do not agree upon the number of arbitrators
Article 37. and the method of their appointment, the Tribunal shall consist of
Constitution of the three arbitrators, one arbitrator appointed by each party and the
Tribunal third, who shall be the president of the Tribunal, appointed by
agreement of the parties.
ICSID Convention, If the Tribunal shall not have been constituted within 90 days after
Article 38. notice of registration of the request has been dispatched by the
Constitution of the Secretary-General in accordance with paragraph (3) of Article 36, or
Tribunal such other period as the parties may agree, the Chairman shall, at
the request of either party and after consulting both parties as far as
possible, appoint the arbitrator or arbitrators not yet appointed. […]
Arbitration Rules, (1) If the parties, at the time of the registration of the request for
Rule 2. Method of arbitration, have not agreed upon the number of arbitrators and the
Constituting the method of their appointment, they shall, unless they agree
Tribunal in the otherwise, follow the following procedure […].
Absence of Previous
Agreement
Arbitration Rules, (1) If the Tribunal is not constituted within 90 days after the dispatch
Rule 4. Appointment by the Secretary-General of the notice of registration, or such other
of Arbitrators by the period as the parties may agree, either party may, through the
Chairman of the Secretary-General, address to the Chairman of the Administrative
Administrative Council a request in writing to appoint the arbitrator or arbitrators
Council not yet appointed and to designate an arbitrator to be the President
of the Tribunal.
ICSID Convention, (1) Failure of a party to appear or to present his case shall not be
Article 45. Powers deemed an admission of the other party’s assertions.
and Functions of the
Tribunal (2) If a party fails to appear or to present his case at any stage of the
proceedings the other party may request the Tribunal to address the
questions submitted to it and to render an award. Before rendering
an award, the Tribunal shall notify, and grant a period of grace to,
the party failing to appear or to present its case, unless it is satisfied
that that party does not intend to do so.

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 Administrative and (3)(d) [I]n connection with every conciliation proceeding, and in
Financial connection with every arbitration proceeding unless a different
Regulations, division is provided for in the Arbitration Rules or is decided by the
Regulation 14. Direct parties or the Tribunal, each party shall pay one half of each
Costs of Individual advance or supplemental charge, without prejudice to the final
Proceedings decision on the payment of the cost of an arbitration proceeding to
be made by the Tribunal pursuant to Article 61(2) of the Convention.
All advances and charges shall be payable, at the place and in the
currencies specified by the Secretary-General, as soon as a request
for payment is made by him. If the amounts requested are not paid
in full within 30 days, then the Secretary-General shall inform both
parties of the default and give an opportunity to either of them to
make the required payment. At any time 15 days after such
information is sent by the Secretary-General, he may move that the
Commission or Tribunal stay the proceeding, if by the date of such
motion any part of the required payment is still outstanding. If any
proceeding is stayed for non-payment for a consecutive period in
excess of six months, the Secretary-General may, after notice to and
as far as possible in consultation with the parties, move that the
competent body discontinue the proceeding;
Institution Rules, (1) On receiving a request the Secretary-General shall:
Rule 5.
Acknowledgement of (a) send an acknowledgement to the requesting party;
the Request (b) take no other action with respect to the request until he has
received payment of the prescribed fee.

Arbitration Rules, 3. The parties shall cooperate with the Tribunal in the production of
Rule 34. Evidence: the evidence and in the other measures provided for in paragraph
General Principles (2). The Tribunal shall take formal note of the failure of a party to
comply with its obligations under this paragraph and of any reasons
given for such failure.
Arbitration Rules, (1) If a party (in this Rule called the “defaulting party”) fails to
Rule 42. Default appear or to present its case at any stage of the proceeding, the
other party may, at any time prior to the discontinuance of the
proceeding, request the Tribunal to address the questions submitted
to it and to render an award.
(2) The Tribunal shall promptly notify the defaulting party of such a
request. Unless it is satisfied that that party does not intend to
appear or to present its case in the proceeding, it shall, at the same
time, grant a period of grace and to this end:

(a) if that party had failed to file a pleading or any other

instrument within the time limit fixed therefor, fix a new time
limit for its filing; or
(b) if that party had failed to appear or present its case at a
hearing, fix a new date for the hearing.
The period of grace shall not, without the consent of the other
party, exceed 60 days.
(3) After the expiration of the period of grace or when, in accordance
with paragraph (2), no such period is granted, the Tribunal shall
resume the consideration of the dispute. Failure of the defaulting
party to appear or to present its case shall not be deemed an
admission of the assertions made by the other party.
[…]

Arbitration Rules, If the parties fail to take any steps in the proceeding during six
Rule 45. consecutive months or such period as they may agree with the
Discontinuance for approval of the Tribunal, or of the Secretary-General if the Tribunal
Failure of Parties to has not yet been constituted, they shall be deemed to have
Act discontinued the proceeding and the Tribunal, or if appropriate the
Secretary-General, shall, after notice to the parties, in an order take
note of the discontinuance.
LCIA

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 Article 1. Request for 1.1. Any party wishing to commence an arbitration under the LCIA
Arbitration Rules (the “Claimant”) shall deliver to the Registrar of the LCIA Court
(the “Registrar”) a written request for arbitration (the “Request”),
containing or accompanied by:
(vi) confirmation that the registration fee prescribed in the Schedule
of Costs has been or is being paid to the LCIA, without which actual
receipt of such payment the Request shall be treated by the
Registrar as not having been delivered and the arbitration as not
having been commenced under the Arbitration Agreement. […]

Article 2. Response 2.4. Failure to deliver a Response within time shall constitute an
irrevocable waiver of that party’s opportunity to nominate or
propose any arbitral candidate. Failure to deliver any or any part of
a Response within time or at all shall not (by itself) preclude the
Respondent from denying any claim or from advancing any defence
or cross-claim in the arbitration.
Article 5. Formation 1. The formation of the Arbitral Tribunal by the LCIA Court shall not
of Arbitral Tribunal be impeded by any controversy between the parties relating to the
sufficiency of the Request or the Response. The LCIA Court may also
proceed with the arbitration notwithstanding that the Request is
incomplete or the Response is missing, late or incomplete.
[…]
8. A sole arbitrator shall be appointed unless the parties have
agreed in writing otherwise or if the LCIA Court determines that in
the circumstances a three-member tribunal is appropriate (or,
exceptionally, more than three).

Article 7. Party and 2. Where the parties have howsoever agreed that the Claimant or the
Other Nominations Respondent or any third person (other than the LCIA Court) is to
nominate an arbitrator and such nomination is not made within time
or at all (in the Request, Response or otherwise), the LCIA Court may
appoint an arbitrator notwithstanding any absent or late
nomination.
Article 8. Three or 1. Where the Arbitration Agreement entitles each party howsoever to
More Parties nominate an arbitrator, the parties to the dispute number more than
two and such parties have not all agreed in writing that the
disputant parties represent collectively two separate “sides” for the
formation of the Arbitral Tribunal (as Claimants on one side and
Respondents on the other side, each side nominating a single
arbitrator), the LCIA Court shall appoint the Arbitral Tribunal without
regard to any party’s entitlement or nomination.
Article 11. 2. The LCIA Court may determine that any opportunity given to a
Nomination and party to make any re-nomination (under the Arbitration Agreement
Replacement or otherwise) shall be waived if not exercised within 14 days (or such
lesser or greater time as the LCIA Court may determine), after which
the LCIA Court shall appoint the replacement arbitrator without
such re-nomination.
Article 15. Written 15.8. If the Respondent fails to submit a Statement of Defence or the
Statements Claimant a Statement of Defence to Cross-claim, or if at any time
any party fails to avail itself of the opportunity to present its written
case in the manner required under this Article 15 or otherwise by
order of the Arbitral Tribunal, the Arbitral Tribunal may nevertheless
proceed with the arbitration (with or without a hearing) and make
one or more awards.
Article 17. Languages 17.3. A non-participating or defaulting party shall have no cause for
of the Arbitration complaint if communications to and from the LCIA Court and
Registrar are conducted in the initial language(s) of the arbitration
or of the arbitral seat.
Article 20. 20.4. The Arbitral Tribunal and any party may request that a witness,
Witness(es) on whose written testimony another party relies, should attend for
oral questioning at a hearing before the Arbitral Tribunal. If the
Arbitral Tribunal orders that other party to secure the attendance of
that witness and the witness refuses or fails to attend the hearing
without good cause, the Arbitral Tribunal may place such weight on
the written testimony or exclude all or any part thereof altogether
as it considers appropriate in the circumstances.

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 Article 22. Additional 22.1. The Arbitral Tribunal shall have the power, upon the application
Powers of any party or (save for sub-paragraphs (viii), (ix) and (x) below)
upon its own initiative, but in either case only after giving the parties
a reasonable opportunity to state their views and upon such terms
(as to costs and otherwise) as the Arbitral Tribunal may decide:
(xi) to order the discontinuance of the arbitration if it appears to the
Arbitral Tribunal that the arbitration has been abandoned by the
parties or all claims and any cross-claims withdrawn by the parties,
provided that, after fixing a reasonable period of time within which
the parties shall be invited to agree or to object to such
discontinuance, no party has stated its written objection to the
Arbitral Tribunal to such discontinuance upon the expiry of such
period of time.

Article 24. Deposits 24.4 In the event that a party fails or refuses to make any payment
on account of the Arbitration Costs as directed by the LCIA Court, the
LCIA Court may direct the other party or parties to effect a substitute
payment to allow the arbitration to proceed (subject to any order or
award on Arbitration Costs).
24.5 In such circumstances, the party effecting the substitute
payment may request the Arbitral Tribunal to make an order or
award in order to recover that amount as a debt immediately due
and payable to that party by the defaulting party, together with any
interest.24.6 Failure by a claiming or cross-claiming party to make
promptly and in full any required payment on account of Arbitration
Costs may be treated by the Arbitral Tribunal as a withdrawal from
the arbitration of the claim or cross-claim respectively, thereby
removing such claim or cross-claim (as the case may be) from the
scope of the Arbitral Tribunal’s jurisdiction under the Arbitration
Agreement, subject to any terms decided by the Arbitral Tribunal as
to the reinstatement of the claim or cross-claim in the event of
subsequent payment by the claiming or cross-claiming party. Such a
withdrawal shall not preclude the claiming or cross-claiming party
from defending as a respondent any claim or cross-claim made by
another party.

Article 32. General 1. A party who knows that any provision of the Arbitration Agreement
Rules has not been complied with and yet proceeds with the arbitration
without promptly stating its objection as to such non-compliance to
the Registrar (before the formation of the Arbitral Tribunal) or the
Arbitral Tribunal (after its formation), shall be treated as having
irrevocably waived its right to object for all purposes […].
SCC
Article 7. (2) If the Registration Fee is not paid upon filing the Request for
Registration Fee Arbitration, the Secretariat shall set a time period within which the
Claimant shall pay the Registration Fee. If the Registration Fee is not
paid within this time period, the Secretariat shall dismiss the
Request for Arbitration.
Article 9. Answer (3) Failure by the Respondent to submit an Answer shall not prevent
the arbitration from proceeding.
Article 10. Request (1) The Board may request further details from either party regarding
for Further Details any of their written submissions to the SCC.
(2) If the Claimant fails to comply with a request for further details,
the Board may dismiss the case.
(3) If the Respondent fails to comply with a request for further
details regarding its counterclaim or set-off, the Board may dismiss
the counterclaim or set-off.
(4) Failure by the Respondent to otherwise comply with a request for
further details shall not prevent the arbitration from proceeding.

Article 12. Dismissal The Board shall dismiss a case, in whole or in part, if:
[…] (ii) the Advance on Costs is not paid pursuant to Article 51.

Article 16. Number of (2) Where the parties have not agreed on the number of arbitrators,
Arbitrators the Board shall decide whether the Arbitral Tribunal shall consist of
a sole arbitrator or three arbitrators, having regard to the
complexity of the case, the amount in dispute and any other
relevant circumstances.

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 Article 17. (2) Where the parties have not agreed on a procedure, or if the
Appointment of Arbitral Tribunal has not been appointed within the time period
Arbitrators agreed by the parties or, where the parties have not agreed on a
time period, within the time period set by the Board, the
appointment shall be made pursuant to paragraphs (3)–(7).
3) Where the Arbitral Tribunal is to consist of a sole arbitrator, the
parties shall be given 10 days to jointly appoint the arbitrator. If the
parties fail to appoint the arbitrator within this time, the Board shall
make the appointment.

(4) Where the Arbitral Tribunal is to consist of more than one

arbitrator, each party shall appoint an equal number of arbitrators
and the Board shall appoint the Chairperson. Where a party fails to
appoint arbitrator(s) within the stipulated time period, the Board
shall make the appointment.
(5) Where there are multiple Claimants or Respondents and the
Arbitral Tribunal is to consist of more than one arbitrator, the
multiple Claimants, jointly, and the multiple Respondents, jointly,
shall appoint an equal number of arbitrators. If either side fails to
make such joint appointment, the Board may appoint the entire
Arbitral Tribunal.
[…]

Article 35. Default (1) If the Claimant, without good cause, fails to submit a Statement
of Claim in accordance with Article 29, the Arbitral Tribunal shall
terminate the proceedings, provided the Respondent has not filed a
counterclaim.
(2) If a party, without good cause, fails to submit a Statement of
Defence or other written statement in accordance with Article 29,
fails to appear at a hearing, or otherwise fails to avail itself of the
opportunity to present its case, the Arbitral Tribunal may proceed
with the arbitration and make an award.
(3) If a party, without good cause, fails to comply with any provision
of, or requirement under, these Rules or any procedural order given
by the Arbitral Tribunal, the Arbitral Tribunal may draw such
inferences as it considers appropriate.

Article 36. Waiver A party, who during the arbitration, fails to object without delay to
any failure to comply with the arbitration agreement, these Rules or
other rules applicable to the proceedings, shall be deemed to have
waived the right to object to such failure.
Article 51. Advance (5) If a party fails to make a required payment, the Secretariat shall
on Costs give the other party an opportunity to do so within a specified period
of time. If the payment is not made within that time, the Board shall
dismiss the case in whole or in part. If the other party makes the
required payment, the Arbitral Tribunal may, at the request of that
party, make a separate award for reimbursement of the payment.
SIAC
Rule 10. Sole 10.2. If within 21 days after the date of commencement of the
Arbitrator arbitration, or within the period otherwise agreed by the parties or
set by the Registrar, the parties have not reached an agreement on
the nomination of a sole arbitrator, or if at any time either party so
requests, the President shall appoint the sole arbitrator.

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 Rule 12. Multi-party 12.1. Where there are more than two parties to the arbitration, and a
Appointment of sole arbitrator is to be appointed, the parties may agree to jointly
Arbitrator(s) nominate the sole arbitrator. In the absence of such joint
nomination having been made within 28 days of the date of
commencement of the arbitration or within the period otherwise
agreed by the parties or set by the Registrar, the President shall
appoint the sole arbitrator.
12.2. Where there are more than two parties to the arbitration, and
three arbitrators are to be appointed, the Claimant(s) shall jointly
nominate one arbitrator and the Respondent(s) shall jointly
nominate one arbitrator. The third arbitrator, who shall be the
presiding arbitrator, shall be appointed in accordance with Rule 11.3.
In the absence of both such joint nominations having been made
within 28 days of the date of commencement of the arbitration or
within the period otherwise agreed by the parties or set by the
Registrar, the President shall appoint all three arbitrators and shall
designate one of them to be the presiding arbitrator.

Rule 11. Three 11.1. If three arbitrators are to be appointed, each party shall
Arbitrators nominate one arbitrator.
11.2. If a party fails to make a nomination of an arbitrator within 14
days after receipt of a party’s nomination of an arbitrator, or within
the period otherwise agreed by the parties or set by the Registrar,
the President shall proceed to appoint an arbitrator on its behalf.

Rule 15. Notice of 15.3. The party making the challenge shall pay the requisite
Challenge challenge fee under these Rules in accordance with the applicable
Schedule of Fees. If the party making the challenge fails to pay the
challenge fee within the time limit set by the Registrar, the
challenge shall be considered as withdrawn.
Rule 25. Witnesses 25.2. The Tribunal may allow, refuse or limit the appearance of
witnesses to give oral evidence at any hearing.
[…]
25.4. The Tribunal may direct the testimony of witnesses to be
presented in written form, either as signed statements or sworn
affidavits or any other form of recording. Subject to Rule 25.2, any
party may request that such a witness should attend for oral
examination. If the witness fails to attend for oral examination, the
Tribunal may place such weight on the written testimony as it thinks
fit, disregard such written testimony, or exclude such written
testimony altogether.

Rule 20. 20.8. If the Claimant fails within the time specified to submit its
Submissions by the Statement of Claim, the Tribunal may issue an order for the
Parties termination of the arbitral proceedings or give such other directions
as may be appropriate.
20.9 If the Respondent fails to submit its Statement of Defence, or if
at any point any party fails to avail itself of the opportunity to
present its case in the manner directed by the Tribunal, the Tribunal
may proceed with the arbitration.
Rule 24. Hearings 24.3. If any party fails to appear at a meeting or hearing without
showing sufficient cause for such failure, the Tribunal may proceed
with the arbitration and may make the Award based on the
submissions and evidence before it.
Rule 25. Witnesses 25.4. The Tribunal may direct the testimony of witnesses to be
presented in written form, either as signed statements or sworn
affidavits or any other form of recording. Subject to Rule 25.2, any
party may request that such a witness should attend for oral
examination. If the witness fails to attend for oral examination, the
Tribunal may place such weight on the written testimony as it thinks
fit, disregard such written testimony, or exclude such written
testimony altogether.

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 Rule 27. Additional Unless otherwise agreed by the parties, in addition to the other
Powers of the powers specified in these Rules, and except as prohibited by the
Tribunal mandatory rules of law applicable to the arbitration, the Tribunal
shall have the power to:
[…]
l. proceed with the arbitration notwithstanding the failure or refusal
of any party to comply with these Rules or with the Tribunal’s orders
or directions or any partial Award or to attend any meeting or
hearing, and to impose such sanctions as the Tribunal deems
appropriate in relation to such failure or refusal;

Rule 34. Fees and 34.5. Parties are jointly and severally liable for the costs of the
Deposits arbitration. Any party is free to pay the whole of the deposits
towards the costs of the arbitration should the other party fail to
pay its share.
34.6. If a party fails to pay the deposits directed by the Registrar
either wholly or in part:
(a) the Tribunal may suspend its work and the Registrar may
suspend SIAC’s administration of the arbitration, in whole or in
part; and
(b) the Registrar may, after consultation with the Tribunal (if
constituted) and after informing the parties, set a time limit on
the expiry of which the relevant claims or counterclaims shall
be considered as withdrawn without prejudice to the party
reintroducing the same claims or counterclaims in another
proceeding.

Rule 41. General 41.1. Any party that proceeds with the arbitration without promptly
Provisions raising any objection to a failure to comply with any provision of
these Rules, or of any other rules applicable to the proceedings, any
direction given by the Tribunal, or any requirement under the
arbitration agreement relating to the constitution of the Tribunal or
the conduct of the proceedings, shall be deemed to have waived its
right to object.
UNCITRAL
Article 4. Response 3. The constitution of the arbitral tribunal shall not be hindered by
to the Notice of any controversy with respect to the respondent’s failure to
Arbitration communicate a response to the notice of arbitration, or an
incomplete or late response to the notice of arbitration, which shall
be finally resolved by the arbitral tribunal.
Article 6. 2. If all parties have not agreed on the choice of an appointing
Designating and authority within 30 days after a proposal made in accordance with
Appointing paragraph 1 has been received by all other parties, any party may
Authorities request the Secretary-General of the PCA to designate the
appointing authority.
Article 7. Number of 1. If the parties have not previously agreed on the number of
Arbitrators arbitrators, and if within 30 days after the receipt by the respondent
of the notice of arbitration the parties have not agreed that there
shall be only one arbitrator, three arbitrators shall be appointed.
2. Notwithstanding paragraph 1, if no other parties have responded
to a party’s proposal to appoint a sole arbitrator within the time
limit provided for in paragraph 1 and the party or parties concerned
have failed to appoint a second arbitrator in accordance with article
9 or 10, the appointing authority may, at the request of a party,
appoint a sole arbitrator […]

Article 8. 1. If the parties have agreed that a sole arbitrator is to be appointed

Appointment of and if within 30 days after receipt by all other parties of a proposal
Arbitrators for the appointment of a sole arbitrator the parties have not reached
agreement thereon, a sole arbitrator shall, at the request of a party,
be appointed by the appointing authority.
2. […] d) If for any reason the appointment cannot be made
according to this procedure, the appointing authority may exercise
its discretion in appointing the sole arbitrator.

Article 9. 2. If within 30 days after the receipt of a party’s notification of the

Appointment of appointment of an arbitrator the other party has not notified the
Arbitrators first party of the arbitrator he has appointed the first party may
request the appointing authority to appoint the second arbitrator.

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 Article 10. 3. In the event of any failure to constitute the arbitral tribunal under
Appointment of these Rules, the appointing authority shall, at the request of any
Arbitrators party, constitute the arbitral tribunal and, in doing so, may revoke
any appointment already made and appoint or reappoint each of
the arbitrators and designate one of them as the presiding
arbitrator.
Article 20. 20.9 If the Respondent fails to submit its Statement of Defence, or if
Submissions by the at any point any party fails to avail itself of the opportunity to
Parties present its case in the manner directed by the Tribunal, the Tribunal
may proceed with the arbitration.
Article 30. Default 1. If, within the period of time fixed by these Rules or by the arbitral
tribunal, without showing sufficient cause:
(a) The claimant has failed to communicate its statement of
claim, the arbitral tribunal shall issue an order for the
termination of the arbitral proceedings, unless there are
remaining matters that may need to be decided and the
arbitral tribunal considers it appropriate to do so;
(b) The respondent has failed to communicate its response to the
notice of arbitration or its statement of defence, the arbitral
tribunal shall order that the proceedings continue, without
treating such failure in itself as an admission of the claimant’s
allegations; the provisions of this subparagraph also apply to
a claimant’s failure to submit a defence to a counterclaim or
to a claim for the purpose of a set-off.
2. If a party, duly notified under these Rules, fails to appear at a
hearing, without showing sufficient cause for such failure, the
arbitral tribunal may proceed with the arbitration.
3. If a party, duly invited by the arbitral tribunal to produce
documents, exhibits or other evidence, fails to do so within the
established period of time, without showing sufficient cause for such
failure, the arbitral tribunal may make the award on the evidence
before it.

Article 32. Waiver of A failure by any party to object promptly to any non-compliance
Right to Object with these Rules or with any requirement of the arbitration
agreement shall be deemed to be a waiver of the right of such party
to make such an objection, unless such party can show that, under
the circumstances, its failure to object was justified.
Article 43. Deposit of 4. If the required deposits are not paid in full within 30 days after the
Costs receipt of the request, the arbitral tribunal shall so inform the
parties in order that one or more of them may make the required
payment. If such payment is not made, the arbitral tribunal may
order the suspension or termination of the arbitral proceedings.
P 276
P 277

FURTHER READING
Gary B. Born, Chapter Fifteen: Procedures in International Arbitration, in International
Commercial Arbitration (2d ed., Kluwer Law International 2014).
David D. Caron & Lee M. Caplan, The UNCITRAL Arbitration Rules, A Commentary (2d ed.,
Oxford University Press 2013).
Clyde Croft et al., Guide to the UNCITRAL Arbitration Rules (Cambridge University Press
2013).
Yves Derains & Eric Schwartz, Guide to the ICC Rules of Arbitration (2d ed., Kluwer Law
International 2005).
Jason Fry et al., The Secretariat’s Guide to ICC Arbitration (ICC 2012).
William Fox, Chapter Nine: International Commercial Arbitration: Commencing Arbitration,
the Arbitration Hearing and the Arbitral Award, in International Commercial Agreements: A
Primer on Drafting, Negotiating and Resolving Disputes (4th ed., Kluwer Law International
2009).
Pierre Karrer, Chapter Four: Initial Steps in an Arbitration, in Introduction to International
Arbitration Practice (Kluwer Law International 2014).
Joaquim Muniz et al., Chapter Three: Commencement of Arbitration, in International
Arbitration Checklists (2d ed., JurisNet, LLC 2009).
Lucy Reed, Jan Paulsson, et al., Chapter 4: ICSID Arbitration Procedure in Guide to ICSID
Arbitration 147-148 (Kluwer Law International 2010).

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 José Antonio Rivas, ICSID Treaty Counterclaims: Case Law and Treaty Evolution Transnational
Disp. Mgmt. (2014).
Christoph H. Schreuer et al. The ICSID Convention: A Commentary (2d ed., Cambridge
University Press 2009).
Peter Turner & Reza Mohtashami, A Guide to the LCIA Arbitration Rules (Oxford University
Press 2009).
P 277

References
1) The ICC, CIETAC, SCC, and LCIA Rules use the term “request for arbitration,” while the
ICDR, HKIAC, SIAC, and UNCITRAL Rules use the term “notice of arbitration.” In this
chapter we use the term “request for arbitration.” A “notice of arbitration” should not
be confused with a “notice of dispute,” which is sometimes required in investment
treaty arbitration by the provisions of the specific treaty. A “notice of dispute” by
itself will not set in motion the arbitral process. Instead, the notice of dispute starts a
period of negotiation that may be required by the treaty as a prerequisite for
commencing arbitration.
2) Gary B. Born, Chapter Fifteen: Procedures in International Arbitration, in International
Commercial Arbitration2213 (2d ed., Kluwer Law International 2014).
3) UNCITRAL, UNCITRAL Yearbook: Report of the Secretary-General: Preliminary Draft Set
of Arbitration Rules for optional use in ad hoc arbitration relating to international trade
(UNCITRAL Arbitration Rules) (A/CN.9/97), vol. VI, 163, 167 (UNCITRAL 1975) (Commentary
on Draft Art. 3).
4) HKIAC Rules, Art. 4.2; ICC Rules, Art. 4(2); ICSID Rules, Rule 6(2); LCIA Rules, Art. 1(4);
SIAC Rules, Rule 3.3. As discussed in section §3.04 (Notifications and Calculation of
Time Periods), infra, a request for arbitration is deemed to be received by the
respondent so long as requirements for the method of notification are fulfilled. It is
therefore possible for an arbitration to be validly commenced even without actual
receipt of the notice of arbitration by a respondent. See also Clyde Croft et al., Guide
to the UNCITRAL Arbitration Rules 57 (Cambridge University Press 2013).
5) Articles 2(3)(b) and 2(4) of the UNCITRAL Rules 2014 provide that, in certain
circumstances, a notice will be deemed to have been received if delivered to a valid
address of the respondent.
6) ICDR Rules, Art. 2(1); HKIAC Rules, Art. 4.3(j); SIAC Rules, Rule 3.4. For a discussion of
formal requirements regarding service, see section §3.04, infra.
7) CIETAC Rules, Arts 11, 12; ICC Rules, Art. 4; SCC Rules, Art. 8.
8) ICSID Administrative and Financial Regulations, Regulation 24(1).
9) UNCITRAL Rules, Art. 3(1).
10) See Ch. 9 (The Award: Form, Effect, and Enforceability).
11) ICDR Rules, Art. 2(3)(f); HKIAC Rules, Art. 4.3(f); ICC Rules, Art. 4; SCC Rules, Art. 6(iii);
SIAC Rules, Rule 3.1(e); UNCITRAL Rules, Art. 3(f).
12) CIETAC Rules, Art. 12(2). This is in contrast to the 2005 Rules under which the claimant
must attach to the request for arbitration the “relevant evidence supporting the facts
on which the Claimant’s claim is based.” See CIETAC Rules 2005, Art. 10(2).
13) HKIAC Rules, Art. 4.3(i).
14) See Ch. 2 (Agreements to Arbitrate).
15) CIETAC Rules, Art. 13(3); HKIAC Rules, Art. 4.6; ICC Rules, Art. 4(4); ICSID Institution
Rules, Rule 5(1)(b); SCC Rules, Art. 7; UNCITRAL Rules, Art. 3(5).
16) UNCITRAL Rules, Art. 3(5); LCIA Rules, Art. 5(1).
17) LCIA Rules, Arts 1.1(vi), 1.4.
18) UNCITRAL Yearbook, at 163, 167; See also David D. Caron & Lee M. Caplan, The
UNCITRAL Arbitration Rules, A Commentary, 363 (2d ed., Oxford University Press 2013).
An applicable agreement to arbitrate may expressly state the parties by name, or in
some cases implicate a party by extension as a matter of law or by contract with a
third party.
19) HKIAC Rules, Art. 4.5; LCIA Rules, Art. 15.2; SCC Rules, Art. 29(1); SIAC Rules, Rule 3.2;
UNCITRAL Rules, Art. 20(1). See section §7.01 (Additional Written Submissions).
20) The ICDR, HKIAC, ICC, and SCC Rules refer to the respondent’s initial submission as the
“answer”; the CIETAC Rules refer to it as the “statement of defence”; the LCIA, SIAC,
and UNCITRAL Rules refer to it as the “response.” In this chapter we use the term
“answer.”
21) ICSID Arbitration Rules, Rule 31(1). However, ICSID is considering an amendment to its
Institutional Rules that would permit a claimant to opt to have the request to initiate
proceedings substitute for the first memorial in the arbitration. See Proposals for
Amendment of the ICSID Rules—Synopsis, para. 17. ICSID, World Bank Group, 2018
(thereafter “ICSID Synopsis”).
https://icsid.worldbank.org/en/amendments/Documents/Homepage/Synopsis_Engli
sh. pdf.

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 22) ICDR Rules, Art. 3(4); CIETAC Rules, Art. 15(2); HKIAC Rules, Art. 5.1; ICC Rules, Art. 5(1);
LCIA Rules, Art. 2.1; SCC Rules, Art. 9(1); SIAC Rules, Rule 4.1; UNCITRAL Rules, Art. 4(1)-
(2).
23) CIETAC Rules, Art. 15(2)(c).
24) See HKIAC Rules, Art. 17.1; LCIA Rules, Art. 15.3; SCC Rules, Art. 29(2); SIAC Rules, Rule
4.2; UNCITRAL Rules, Art. 21(1). Although the ICC Rules do not expressly provide for
further written submissions, they do permit the respondent to submit evidence along
with its answer. ICC Rules, Art. 5(1).
25) SIAC Rules, Rule 4.1.
26) LCIA Rules, Art. 2.1.
27) ICDR Rules, Art. 3(1); HKIAC Rules, Art. 5.1; ICC Rules, Art. 5(1); UNCITRAL Rules, Art. 4(1).
Under the 1976 UNCITRAL Rules, the respondent was not required to respond to the
notice of arbitration but, rather, to the statement of claim. The 1998 UNCITRAL Rules,
Art. 19(1), enabled a response at an earlier stage in the proceedings with the
submission of a Statement of Defence within “a period of time”; this was defined in
the 2010 update as the current 30 days. See also Caron & Caplan, supran. 18, at 372.
28) CIETAC Rules, Art. 15(1).
29) See SCC Rules, Art. 9(1).
30) ICSID Arbitration Rules, Rule 31(1).
31) CIETAC Rules, Art. 15(1); ICC Rules, Art. 5(2); LCIA Rules, Art. 2.1.
32) ICDR Rules, Art. 3(2)-(3); CIETAC, Art. 16; HKIAC Rules, Art. 5.3; ICC Rules, Art. 5(5); LCIA
Rules, Art. 2.1(iii); SCC Rules, Art. 9(1)(iii); SIAC Rules, Rule 4.1(b); UNCITRAL Rules, Art.
4(2)(e).
33) CIETAC Rules, Art. 16.
34) ICDR Rules, Art. 3(2) (“30 days”); CIETAC Rules, Art. 16(4) (“30 days”); ICC Rules, Art. 5(6)
(“30 days”).
35) See, e.g., Saluka Investments BV v. Czech Republic, UNCITRAL, Decision on Jurisdiction
over the Czech Republic’s Counterclaim, IIC 209 (May 7, 2004); Zeevi Holdings v.
Bulgaria and Privatization Agency of Bulgaria, UNCITRAL, Final Award, IIC 360 (Oct. 25,
2006); Paushok v. Mongolia, UNCITRAL, Award on Jurisdiction and Liability, IIC 490
(Apr. 28, 2011).
36) See, e.g., Benvenuti and Bonfant v. Congo, ICSID Case No. ARB/77/2, Award (Aug. 15,
1980); Klöckner v. Cameroon, ICSID Case No. ARB/81/2, Award (Oct. 21, 1983); Atlantic
Triton Company Limited v. Guinea, ICSID Case No. ARB/84/1, Award (Apr. 21, 1986);
Maritime International Nominees Establishment (“Mine”) v. Guinea, ICSID Case No.
ARB/84/4, Award (Jan. 6, 1988); Amco v. Indonesia, ICSID Case No. ARB/81/1,
Resubmitted Case: Decision on Jurisdiction (May 10, 1988); Genin v. Estonia, ICSID Case
No ARB/99/2, Award (June 25, 2001); Mitchell v. Democratic Republic of the Congo, ICSID
Case No. ARB/99/7, Excerpts of Award (Feb. 9, 2004); Desert Line v. Yemen, ICSID Case
No. ARB/05/17, Award (Feb. 6, 2008); RSM Production Corporation v. Grenada, ICSID
Case No ARB/05/14, Award, IIC 363 (Mar. 13, 2009); Hamester v. Ghana, ICSID Case No.
ARB/07/24, Award (June 18, 2010); Roussalis v. Romania, ICSID Case No ARB/06/1,
Award, IIC 516 (Dec. 7, 2011); Inmaris Perestroika Sailing Maritime Services GmbH v.
Ukraine, ICSID Case No. ARB/08/8, Award (Mar. 1, 2012); Antoine Goetz v. Republic of
Burundi [II], ICSID Case No. ARB/01/2, Award (June 21, 2012); Occidental Petroleum Corp.
and Occidental Exploration and Production Co. v. Ecuador, ICSID Case No ARB/06/11,
Award, IIC 561(Oct. 5, 2012); Metal-Tech Limited v. Uzbekistan, ICSID Case No ARB/10/3,
Award, IIC 619 (Oct. 4, 2013).
37) 2010 UNCITRAL Rules, Art. 22. For a discussion of the jurisdictional requirement for
counterclaims or setoffs, see Caron & Caplan, supran. 18, at 468-489.
38) ICSID Convention, Art. 46; ICSID Arbitration Rules, Rule 40. For recent commentary on
counterclaims in investor-State cases, see Jean Kalicki, Counterclaims by States in
Investment Arbitration, Investment Treaty News,
https://www.iisd.org/itn/2013/01/14/counterclaims-by-states-in-investment-
arbitration-2/ (accessed June 26, 2018); J.A. Rivas, ICSID Treaty Counterclaims: Case
Law and Treaty Evolution, Transnational Disp. Mgmt., https://www.transnational-
dispute-management.com (accessed June 26, 2018). For commentary on Art. 46(2) of
the ICSID Convention and Rule 40(2) of the ICSID Arbitration Rules, see Christoph H.
Schreuer et al., The ICSID Convention: A Commentary 731-756 (2d ed., Cambridge
University Press 2009).
39) ICDR Rules, Art. 3(6); CIETAC Rules, Arts 15(3)-(4) and 16(5)-(6); LCIA Rules, Art. 2.4; SCC
Rules, Art. 9(3); UNCITRAL Rules, Art. 4(3).
40) LCIA Rules, Art. 2.4. See also Peter Turner & Reza Mohtashami, A Guide to the LCIA
Arbitration Rules 40 (Oxford University Press 2009).
41) UNCITRAL Rules, Art. 30(1)(b). The 1976 UNCITRAL Rules do not explicitly direct the
tribunal not to interpret a failure to respond as an admission.
42) See Ch. 2 (Agreements to Arbitrate).
43) ICDR Rules, Art. 19(1); CIETAC Rules, Art. 6(3); HKIAC rules, Art. 19.1; ICC Rules, Art. 6(3);
ICSID Convention, Art. 41(2); LCIA Rules, Art. 23.1; SCC Rules, Art. 14(4); SIAC Rules, Rule
28.2; UNCITRAL Rules, Art. 23(1). Note that under the CIETAC Rules, CIETAC has the
power to determine jurisdiction unless it delegates this power to the tribunal.
44) ICDR Rules, Art. 19(1); CIETAC Rules, Art. 6(1); HKIAC rules, Art. 19.1; ICC Rules, Art. 6(3);
LCIA Rules, Art. 23.1; SIAC Rules, Rule 28.2; UNCITRAL Rules, Art. 23(1).

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 45) LCIA Rules, Art. 23.5. The LCIA Rules do provide exceptions to this rule: when all
parties consent, when the tribunal consents, or following the tribunal’s award on
jurisdiction.
46) UNCITRAL Rules, Art. 23(3).
47) See section §3.02 above.
48) ICDR Rules, Art. 19(3).
49) ICSID Arbitration Rule 41(1) (a party must object “no later than the expiration of the
time limit fixed for the filing of the counter-memorial”); LCIA Rules, Art. 23.3 (a party
must object “as soon as possible but not later than the time for its Statement of
Defence”); UNCITRAL Art. 23(2) (a party must object “no later than the statement of
defence”). See section §7.01 (Additional Written Submissions).
50) HKIAC Rules, Art. 19.3.
51) CIETAC Rules, Art. 6(4).
52) SCC Rules, Art. 29(2).
53) HKIAC Rules, Art. 19.3; LCIA Rules, Art. 23.3; SIAC Rules, Rule 28.3(b).
54) ICDR Rules, Art. 19(3); LCIA Rules, Art. 23.3; SIAC Rules, Rule 28.3; UNCITRAL Rules, Art.
23(2). See also Caron & Caplan, supran. 18, at 456.
55) ICDR Rules, Art. 28; CIETAC Rules, Art. 10; HKIAC Rules, Art. 32; ICC Rules, Art. 40; ICSID
Rules, Rule 27; LCIA Rules, Art. 32; SCC Rules, Art. 36; SIAC Rules, Rule 41.1; UNCITRAL
Rules, Art. 32.
56) HKIAC Rules, Arts 19.4 and 19.5; SIAC Rules, Rule 28.1.
57) HKIAC Rules, Art. 19.5; SIAC Rules, Rule 28.1.
58) ICDR Rules, Art. 19(4).
59) ICC Rules, Art. 6(3).
60) ICC Rules, Art. 6(3)-(4).
61) ICC Rules, Art. 6(5).
62) CIETAC Rules, Art. 6(1).
63) CIETAC Rules, Art. 6(2).
64) ICSID Convention, Art. 36(3). In such cases, ICSID will refuse to register the request.
65) SCC Rules, Arts 11 and 12.
66) ICSID Institution Rules, Rule 7(e).
67) ICSID Convention, Art. 25(1).
68) See generally CIETAC Rules 1994; CIETAC Rules 1998; CIETAC Rules 2000.
69) See CIETAC Rules 2015, Art. 3.
70) ICSID Administrative and Financial Regulations, Regulation 24(1).
71) ICDR Rules, Art. 10(1); CIETAC Rules, Arts 20 and 21; ICSID Rules, Rule 23; LCIA Rules, Art.
13; SIAC Rules, Rule 2.5.
72) ICDR Rules, Art. 10(1); CIETAC Rules, Art. 8(1); HKIAC Rules, Art. 3.1; ICC Rules, Art. 3(2);
LCIA Rules, Art. 4.1; SCC Rules, Art. 5(2); SIAC Rules, Rule 2.1; UNCITRAL Rules, Art. 2(1).
73) Compare, 2005 CIETAC with 2015 CIETAC, and 1998 LCIA Rules with 2014 LCIA Rules.
74) LCIA Rules, Art. 4.3; UNCITRAL Rules, Art. 2(2).
75) ICDR Rules, Art. 10(1); CIETAC Rules, Art. 8(2)-(3); HKIAC Rules, Art. 3.1; ICC Rules, Art.
3(2); LCIA Rules, Art. 4.2; SCC Rules, Art. 5(1); SIAC Rules, Rule 2.1; UNCITRAL Rules, Art.
2.4.
76) CIETAC Rules, Art. 8(4); HKIAC Rules, Art. 3.3; ICC Rules, Art. 3(3); LCIA Rules, Arts 4.2 and
4.4; SCC Rules, Art. 5(3); SIAC Rules, Rule 2.2; UNCITRAL Rules, Art. 2(3)-(4).
77) By consenting to arbitration, the parties deliberately exchange court procedures and
formalities for the simplicity, informality, and expedition of arbitration. See, e.g.,
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1985); Born,
supran. 2, at 2125.
78) ICDR Rules, Art. 10(2); CIETAC Rules, Art. 8(4); HKIAC Rules, Art. 3.5; ICC Rules, Art. 3(4);
LCIA Rules, Art. 4.6; SIAC Rules, Rule 2.3; UNCITRAL Rules, Art. 2(6).
79) ICSID Administrative and Financial Regulations, Regulation 29(1).
80) ICDR Rules, Art. 10(2); HKIAC Rules, Art. 3.5; ICC Rules, Art. 3(4); ICSID Administrative
and Financial Regulations, Regulation 29(2); LCIA Rules, Art. 4.6; SIAC Rules, Rule 2.4;
UNCITRAL Rules, Art. 2(6).
81) ICSID Arbitration Rules, Administrative and Financial Regulations, Regulation 29.2;
LCIA Rules, Art. 4.4; SIAC Rules, Rule 2.3. The 1998 LCIA Rules did not address this
point. See LCIA Rules 1998, Art. 4.
82) HKIAC Rules, Art. 3.6; ICC Rules, Art. 39(1) and (2); ICSID Rules, Rule 26; LCIA Rules, Art.
22.1(ii); SCC Rules, Art. 4.
83) Recent versions of the regimes contain shorter time periods compared to earlier
versions. For example, the revised LCIA Rules reduced all time periods (save for
extending the time period for constituting the tribunal from 30 to 35 days). See LCIA
Rules 2014, Art. 5.6; LCIA Rules 1998, Art. 5.4.
84) Having agreed to arbitration, the parties have a contractual obligation to participate
in any proceeding arising out of that agreement. A similar obligation pertains in the
context of ICSID arbitration, regardless of whether the parties’ consent to arbitration
is embodied in a contract or in another kind of instrument. See Schreuer supran. 38, at
720 (“The general circumstances of ICSID arbitration support the view that non-
cooperation with the tribunal is a breach of an obligation. Participation in the
Convention, together with consent to arbitration, establishes not only jurisdiction but
also an obligation to participate actively in the resulting procedure.”).
85) Lucy Reed, Jan Paulsson, et al., Chapter 4: ICSID Arbitration Procedure in Guide to ICSID
Arbitration 147-148 (Kluwer Law International 2010).

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 86) UNCITRAL Model Law, Art. 25(b)-(c).
87) ICSID Convention, Art. 45(2).
88) Born, supran. 2, at 2296-2297.
89) See, e.g., id., at 2297 (“If a party defaults, the tribunal should proceed with the
arbitration on an ex parte basis, first attempting to obtain the defaulting party’s
participation and thereafter ensuring at every step that the defaulting party receives
notice of the ongoing proceedings.”).
90) See, e.g., Jason Fry et al., The Secretariat’s Guide to ICC Arbitration 91 (ICC 2012) (“Where
a party fails to participate, the arbitral tribunal should ensure that this party is
nonetheless given a reasonable opportunity to enter the proceedings at any time.
More concretely, the arbitral tribunal should make all reasonable efforts to ensure
that such parties are notified of all correspondence including procedural orders,
hearing dates, deadlines for the submission of documents, etc. This applies even
where the party in question has clearly communicated its refusal to participate.”);
Schreuer, supran. 38, at 724 (“[T]he procedure in default is not a sanction for
procedural shortcomings that is imposed automatically once a party has failed to
take certain procedural steps. Rather, it is a measure of last resort that is taken once
the tribunal has reached the conclusion that there is no realistic chance to secure
cooperation.”).
91) ICSID Convention, Art. 45(2); ICSID Arbitration Rules, Rule 42(2). See also Schreuer,
supran. 38, at 728 (“The granting of a period of grace [in ICSID arbitration] is obligatory
unless the tribunal is satisfied that there is no intention to cooperate. This would be
case if the defaulting party has specifically stated that it will not participate in the
proceedings.”).
92) See ICC Rules, Art. 23(3); see also ICC Rules 2012, Art. 23(3); ICC Rules 1998, Art. 18(3)
(relating to a party’s refusal to participate in drafting the Terms of Reference); see
also Yves Derains & Eric Schwartz, Guide to the ICC Rules of Arbitration 262 (2d ed.,
Kluwer Law International 2005) (“[I]n at least one instance, the Court would not
approve Terms of Reference where the Court believed that the Respondent had
‘failed’, but not ‘refused’, to sign them because of a state of civil war in its country.”).
93) See, e.g., ICDR Rules, Arts 26(2), 26(3); see also ICC Rules, Art. 26(2). See also Derains &
Schwartz, supran. 92, at 288 (“[A]rbitrators are normally inclined to be relatively
indulgent [in determining whether there is a valid excuse for default], except where it
appears that a party’s behavior is deliberately dilatory or obstructionist.”).
94) Born, supran. 2, at 2297-2298 (“[A]n arbitral tribunal is not a court, empowered to issue
a default judgment predicated simply on one party’s non-participation. Rather, the
tribunal is responsible for evaluating the evidence and arguments presented to it and
making a reasoned decision; one party’s non-participation does not abrogate that
obligation … . The tribunal should, without substituting itself for the defaulting party,
satisfy itself that the claimant’s claims are well-founded in law and fact (or not). This
procedure culminates in a reasoned award, setting forth the facts and the basis for
decision in the same manner that an award in a contested proceeding would be
rendered.”); Fry et al., The Secretariat’s Guide to ICC Arbitration 91 (ICC 2012)
(“Importantly, and unlike the procedure in many state courts, a party’s failure to
participate in arbitral proceedings does not empower the arbitral tribunal to make a
default ruling in the party’s favour. On the contrary, in these circumstances an arbitral
tribunal should continue to require the remaining party to make submissions, file
evidence and, where a hearing is to be held, attend that hearing and present its
case.”).
95) ICSID Convention, Art. 45(1). (“Failure by a party to appear or to present his case shall
not be deemed an admission of the other party’s assertions.”).
96) UNCITRAL Model Law, Art. 25(b) (“[if] the respondent fails to communicate his
statement of defence …, the arbitral tribunal shall continue the proceedings without
treating such failure in itself as an admission of the claimant’s allegations”) (emphasis
added); Art. 25(c) (“[if] any party fails to appear at a hearing or to produce
documentary evidence, the arbitral tribunal may continue the proceedings and make
the award on the evidence before it”) (emphasis added).
97) See, e.g., Caron & Caplan, supran. 18, at 673 (“In international arbitration, the arbitral
tribunal does not have the same powers as a court to issues what is known in some
legal systems as a ‘default judgment’; the arbitrators must render any award or
decision on the basis of the arguments and evidence proffered by the non-defaulting
party.”); Derains & Schwartz, supran. 92, at n. 288 (“It needs to be emphasized that,
although nowhere stated in the [ICC] Rules, a party’s failure to appear at a hearing, or
more generally to participate in the arbitration, should not normally be deemed to
constitute an admission of the other party’s claims or allegations. In other words, it is
not generally acceptable for an Arbitral Tribunal to issue a default Award in such
circumstances. Rather, the Claimant is still required to prove its claims. This is a
widely accepted principle of international arbitration …”).
98) See, e.g., Schreuer, supran. 38, at 712, 720 (“Non-participation causes an additional
burden for the other party and for the tribunal.”). See also Born, supran. 2, at 2298 (“A
tribunal’s task in deciding the parties’ dispute will inevitably be less complex in a
default proceeding …”).
99) In the case of ICSID arbitration, this is expressly required by the terms of Arbitration
Rule 42(4).

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 100) See, e.g., Born, supran. 2, at 2299 (noting that an award issued in a default proceeding
“should include an award of costs in favor of the non-defaulting party”); Schreuer,
supran. 38, at 726 (“The illegal nature of non-cooperation [] together with the
considerable additional burden for the other party as well as for the tribunal [] would
call for a sanction against the defaulting party … ICSID tribunals have made use of
this possibility to address defaulting parties.”).

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Document information
Chapter 4: The Arbitral Tribunal
Publication The arbitral tribunal generally enjoys broad authority to decide procedural and
substantive issues throughout the course of the arbitration. Of course, in exercising those
The International Arbitration powers, the constant independence, impartiality, and diligence of the arbitrators are vital
Rulebook: A Guide to Arbitral to the integrity of the proceedings—and to the very legitimacy of international arbitration.
Regimes At least in theory, and increasingly as a practical matter, arbitration as a system of private
justice is accepted—and indeed supported—by national courts in enforcement
proceedings because of the standards and procedures of the various arbitral regimes for
Organization appointing unbiased arbitrators, as well as the mechanisms for ensuring their continued
neutrality and diligence throughout an arbitration. Failure to adhere to these rules can
International Centre for undermine the enforceability of the tribunal’s award. This chapter examines: (i) the power
Dispute Resolution of the arbitral tribunal to conduct the proceedings; (ii) the arbitrators’ duty to remain
impartial to the issues in dispute and independent of the parties; (iii) the prohibition of ex
parte communications; (iv) the procedures by which arbitrators are appointed under each
Organization of the arbitral regimes; (v) the standards and procedures for challenging an arbitrator’s
appointment; (vi) the procedures for replacing an arbitrator; and (vii) the limitation of
China International arbitrators’ liability in connection with the proceedings.
Economic and Trade
Arbitration Commission
§4.01 POWER OF THE TRIBUNAL TO CONDUCT THE PROCEEDINGS
All of the arbitral regimes under consideration give the arbitral tribunal broad authority to
Organization determine the manner in which to conduct the proceedings. The SCC Rules state this
proposition plainly: “The Arbitral Tribunal may conduct the arbitration in such a manner as
Hong Kong International
Arbitration Centre P 279 it considers appropriate.” (1) Most of the other regimes contain similar language. (2) The
P 280 LCIA Rules go so far as to say: “The Arbitral Tribunal shall have the widest discretion to
discharge [its] general duties.” (3) As suggested by the ICC Rules, this core concept tends to
ensure the “effective case management” needed to preserve order in the proceedings. (4)
Organization The ICSID Convention and Rules do not contain such a pronouncement; instead, the ICSID
regime is more circumspect, merely granting the tribunal the authority to make necessary
International Court of procedural orders. (5)
Arbitration of the
International Chamber of Subject to applicable law and the parties’ arbitration agreement (including their choice of
Commerce arbitral rules), the regimes under consideration variously empower the tribunal to exercise
the following functions. The tribunal may: rule upon its own jurisdiction; make orders for
interim measures of protection; order a party to provide security for the costs of the
Organization arbitration; conduct procedural conferences; determine the place, language, and
applicable law of the arbitration; set the timetable for the proceedings; produce terms of
International Centre for reference; appoint a secretary to the tribunal; bifurcate (or trifurcate) proceedings; join
Settlement of Investment additional parties and consolidate proceedings; direct the parties to focus their
Disputes presentations on particular issues; issue procedural orders (by majority or by the presiding
arbitrator); issue lists of questions to the parties; appoint an expert; order the parties to
give documentary and testimonial evidence and make property available for inspection;
Organization undertake its own inquiries to determine relevant issues, facts, and law; determine the
manner in which witnesses are examined; take measures to protect the confidentiality of
London Court of documents; require translations of documents; determine the admissibility, relevance,
International Arbitration materiality, and weight of evidence; exclude irrelevant or cumulative evidence; require
additional written submissions from the parties; allow a party to modify or amend a claim
or defense; determine the place of hearings; take measures to ensure the privacy of
Organization hearings; dispense with the hearing; extend time periods; discontinue the proceedings;
interpret the rules concerning its own powers and duties; allocate costs and draw adverse
Arbitration Institute of the inferences to compel the parties to comply with its orders; proceed with the arbitration
Stockholm Chamber of notwithstanding a party’s default or absence; hold deliberations in any place and manner
Commerce it considers appropriate; decide the substance of the dispute; order the payment of
damages with interest, the rectification of a contract, an injunction, or specific
performance; and interpret or correct awards when it sees fit. These and other powers of
Organization the tribunal are discussed in detail in connection with other rules throughout this book. We
group these powers together here in summary form to underscore the potentially extensive
Singapore International powers of every international arbitral tribunal to conduct the proceedings.
Arbitration Centre
P 280 Of course, no tribunal’s discretion is unfettered. Most of the rules require the tribunal to
P 281 exercise its powers with the purpose of achieving two overarching (and sometimes
Organization competing) objectives: due process and efficiency. The SCC Rules, for example,
immediately add to the provision concerning the tribunal’s general power the following
United Nations Commission proviso: “In all cases, the Arbitral Tribunal shall conduct the arbitration in an impartial,
on International Trade Law efficient and expeditious manner, giving each party an equal and reasonable opportunity
to present its case.” (6) The HKIAC and UNCITRAL Rules present the tribunal’s broad
authority along with the duty to ensure fairness and efficiency in a single rule using similar
Bibliographic reference language, adding two important duties related to efficiency: to avoid unnecessary delay
and expense. (7) The ICDR, LCIA, and SIAC Rules include similar provisions. (8) The CIETAC
'Chapter 4: The Arbitral Rules impose upon the tribunal a duty to ensure due process in the proceedings but do not
Tribunal', in Arif Hyder Ali , mention efficiency as a general duty of the tribunal. (9) ICSID is considering an amendment
Jane Wessel , et al., The to its Rules that expressly states the duties of the tribunal to ensure equal treatment of the

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International Arbitration parties and the expeditious and cost-effective conduct of the arbitration. (10) The LCIA
Rulebook: A Guide to Arbitral Rules expressly impose an obligation of good faith cooperation on the parties: “ … at all
Regimes, (© Kluwer Law times the parties shall do everything necessary in good faith for the fair, efficient and
International; Kluwer Law expeditious conduct of the arbitration, including the Arbitral Tribunal’s discharge of its
International 2019) pp. 279 - general duties.”
350
Additionally, most of the regimes subject the tribunal’s authority on many issues to any
limitations imposed by national and international laws concerning the enforceability of
the award, the rules themselves, and any agreement of the parties. First, the LCIA Rules
impose upon the tribunal (as well as the institutional authorities and the parties) a duty
“to make every reasonable effort to ensure that any award is legally recognised and
enforceable at the arbitral seat.” (11) The HKIAC, ICC, SCC, and SIAC Rules also impose this
duty on the tribunal. (12) As discussed in Chapter 9 (The Award: Form, Effect, and
Enforceability), the enforceability of an award depends upon the tribunal having ensured
due process in its conduct of the proceedings. Second, the ICDR, HKIAC, ICC, ICSID, SCC, and
UNCITRAL Rules indicate that the tribunal’s discretion to conduct the proceedings is
limited to matters not expressly provided for in the rules themselves. (13) Third, the
CIETAC, ICC, and ICSID Rules contain blanket provisions subjecting the tribunal’s discretion
on the conduct of the proceedings to any agreement between the parties. (14) The other
rules include such a provision in connection with various particular rules, as discussed
throughout this book. Thus, in one sense, the tribunal’s authority is the least of these
various sources of rules, since the tribunal cannot make an order or decision which
P 281 contradicts any of them. However, where the tribunal acts within, or in the absence of, any
P 282 such rule, its authority governs and the parties are bound to abide by the decisions of
the tribunal. The ICC Rules make this clear: “The parties undertake to comply with any
order made by the arbitral tribunal.” (15)
The rules relating to the tribunal’s general powers are set out in Table 4.1.
P 282
P 283 Table 4.1 The Tribunal’s General Power to Conduct the Proceedings
AAA-ICDR
P 283 Article 20. Conduct 1. Subject to these Rules, the arbitral tribunal may conduct the
P 284 of Proceedings arbitration in whatever manner it considers appropriate, provided
that the parties are treated with equality and that each party has
the right to be heard and is given a fair opportunity to present its
case.
2. The tribunal shall conduct the proceedings with a view to
expediting the resolution of the dispute. […]

CIETAC
Article 35. Conduct 1. The arbitral tribunal shall examine the case in any way it deems
of Hearing appropriate unless otherwise agreed by the parties. Under all
circumstances, the arbitral tribunal shall act impartially and fairly
and shall afford a reasonable opportunity to both parties to present
their case.
HKIAC
Article 13. General 13.1 Subject to these Rules, the arbitral tribunal shall adopt suitable
Provisions procedures for the conduct of the arbitration in order to avoid
unnecessary delay or expense, having regard to the complexity of
the issues, the amount in dispute and the effective use of
technology, and provided that such procedures ensure equal
treatment of the parties and afford the parties a reasonable
opportunity to present their case. […]
13.5 The arbitral tribunal and the parties shall do everything
necessary to ensure the fair and efficient conduct of the arbitration.
13.10 The arbitral tribunal or emergency arbitrator shall make every
reasonable effort to ensure that an award is valid.

ICC
Article 19. Rules The proceedings before the arbitral tribunal shall be governed by the
Governing the Rules and, where the Rules are silent, by any rules which the parties
Proceedings or, failing them, the arbitral tribunal may settle on, whether or not
reference is thereby made to the rules of procedure of a national law
to be applied to the arbitration.

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 Article 22. Conduct of 1. The arbitral tribunal and the parties shall make every effort to
the Arbitration conduct the arbitration in an expeditious and cost-effective manner,
having regard to the complexity and value of the dispute.
2. In order to ensure effective case management, the arbitral
tribunal, after consulting the parties, may adopt such procedural
measures as it considers appropriate, provided that they are not
contrary to any agreement of the parties.
[…]
4. In all cases, the arbitral tribunal shall act fairly and impartially
and ensure that each party has a reasonable opportunity to present
its case.
5. The parties undertake to comply with any order made by the
arbitral tribunal.

Article 42. General In all matters not expressly provided for in the Rules, the Court and
Rule the arbitral tribunal shall act in the spirit of the Rules and shall
make every effort to make sure that the award is enforceable at law.
ICSID
ICSID Convention, Any arbitration proceeding shall be conducted in accordance with
Article 44 the provisions of this Section and, except as the parties otherwise
agree, in accordance with the Arbitration Rules in effect on the date
on which the parties consented to arbitration. If any question of
procedure arises which is not covered by this Section or the
Arbitration Rules or any rules agreed by the parties, the Tribunal
shall decide the question.
Arbitration Rules, The Tribunal shall make the orders required for the conduct of the
Rule 19. proceeding
LCIA
Article 14. Conduct of 14.4. Under the Arbitration Agreement, the Arbitral Tribunal’s general
Proceedings duties at all times during the arbitration shall include:
(i) a duty to act fairly and impartially as between all parties,
giving each a reasonable opportunity of putting its case and
dealing with that of its opponent(s); and
(ii) a duty to adopt procedures suitable to the circumstances of
the arbitration, avoiding unnecessary delay and expense, so as
to provide a fair, efficient and expeditious means for the final
resolution of the parties’ dispute.
14.5. The Arbitral Tribunal shall have the widest discretion to
discharge these general duties, subject to such mandatory law(s) or
rules of law as the Arbitral Tribunal may decide to be applicable;
and at all times the parties shall do everything necessary in good
faith for the fair, efficient and expeditious conduct of the arbitration,
including the Arbitral Tribunal’s discharge of its general duties.

Article 32. General 32.2. For all matters not expressly provided in the Arbitration
Rules Agreement, the LCIA Court, the LCIA, the Registrar, the Arbitral
Tribunal and each of the parties shall act at all times in good faith,
respecting the spirit of the Arbitration Agreement, and shall make
every reasonable effort to ensure that any award is legally
recognised and enforceable at the arbitral seat.
SCC
Article 2. General (1) Throughout the proceedings, the SCC, the Arbitral Tribunal and
Conduct of the the parties shall act in an efficient and expeditious manner.
Participants to the
Arbitration (2) In all matters not expressly provided for in these Rules, the SCC,
the Arbitral Tribunal and the parties shall act in the spirit of these
Rules and shall make every reasonable effort to ensure that all
awards are legally enforceable.

Article 23. Conduct of (1) The Arbitral Tribunal may conduct the arbitration in such manner
the Arbitration by as it considers appropriate …
the Arbitral Tribunal
(2) In all cases, the Arbitral Tribunal shall conduct the arbitration in
an impartial, efficient and expeditious manner, giving each party an
equal and reasonable opportunity to present its case.

SIAC

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 Rule 19. Conduct of 19.1. The Tribunal shall conduct the arbitration in such manner as it
the Proceedings considers appropriate, after consulting with the parties, to ensure
the fair, expeditious, economical and final resolution of the dispute.
Rule 27. Additional Unless otherwise agreed by the parties, in addition to the other
Powers of the powers specified in these Rules, and except as prohibited by the
Tribunal mandatory rules of law applicable to the arbitration, the Tribunal
shall have the power to [conduct the proceedings]. […]
Rule 41. General 41.2. In all matters not expressly provided for in these Rules, the
Provisions President, the Court, the Registrar and the Tribunal shall act in the
spirit of these Rules and shall make every reasonable effort to
ensure the fair, expeditious and economical conclusion of the
arbitration and the enforceability of any Award.
UNCITRAL
Article 17. General 1. Subject to these Rules, the arbitral tribunal may conduct the
Provisions arbitration in such manner as it considers appropriate, provided that
the parties are treated with equality and that at an appropriate
stage of the proceedings each party is given a reasonable
opportunity of presenting its case. The arbitral tribunal, in exercising
its discretion, shall conduct the proceedings so as to avoid
unnecessary delay and expense and to provide a fair and efficient
process for resolving the parties’ dispute.
P 284
P 285

§4.02 INDEPENDENCE, IMPARTIALITY, AND DISCLOSURE

One of the fundamental obligations of an arbitrator in the exercise of his or her powers is
to remain independent of the parties and impartial with respect to the issues in dispute.
(16) As discussed in section §4.05 (Arbitrator Challenge), a party may challenge an
arbitrator’s nomination or appointment based on insufficient impartiality or
independence. And, as discussed in Chapter 9 (The Award: Form, Effect, and Enforceability),
an arbitrator’s lack of impartiality or independence may provide grounds for a court’s
refusal to recognize or enforce, or to set aside, an award, or for an ICSID annulment
committee to annul an ICSID award. (17) With these consequences in mind, most arbitral
regimes require arbitrators upon nomination to sign a declaration affirming their
independence and impartiality and/or disclosing any facts or circumstances that may give
rise to justifiable doubts as to their impartiality and independence (see Table 4.2). (18)
Thereafter, the arbitrator is required to disclose any new facts or circumstances that may
arise and cast any doubt on his or her impartiality or independence. (19)
The rule requiring the broadest scope of disclosure is ICSID Arbitration Rule 6, which
requires each arbitrator to submit a declaration stating his or her past and present
relationships with the parties and “any other circumstance that might cause [his or her]
reliability for independent judgment to be questioned by a party.” The other rules under
consideration only require disclosure of facts that may give rise to “reasonable” or
“justifiable doubts,” although there are again distinctions. The 2017 ICC Rules, for instance,
provide that potential arbitrators must disclose “any facts or circumstances which might
be of such a nature as to call into question the arbitrator’s independence in the eyes of the
P 285 parties as well as any circumstances that could give rise to reasonable doubts as to the
P 286 arbitrator’s impartiality.” (20) The ICDR, SCC, and SIAC Rules similarly require disclosure
of “any circumstances that may give rise to justifiable doubts” as to the prospective
arbitrator’s impartiality or independence. (21) The Rules of CIETAC, HKIAC, LCIA, and
UNCITRAL require the disclosure of information “likely to give rise to justifiable doubts”
regarding an arbitrator’s independence and impartiality (emphasis added). (22)
The IBA Rules of Ethics for International Arbitrators, the IBA Guidelines on Conflicts of
Interest in International Arbitration, and the 2004 AAA-ABA Revised Code of Ethics for
Arbitrators in Commercial Disputes provide content and guidance for interpreting these
requirements. (23) Although these soft-law standards are not directly binding on arbitrators
or parties unless adopted by agreement, they do provide a framework for understanding
certain generally accepted duties, such as impartiality, independence, neutrality,
disclosure, and competence. (24)
Impartiality and independence are core standards embodied in the IBA Rules of Ethics,
the IBA Guidelines on Conflicts of Interest, and the AAA-ABA Revised Code of Ethics. The IBA
Rules of Ethics, however, were replaced by the IBA Guidelines on Conflicts of Interest to the
extent they differ with respect to standards of independence and impartiality. (25)
Applying a subjective standard, the IBA Guidelines on Conflicts urge arbitrators to decline
an appointment or refuse continued service if they have any doubts as to their ability to
be impartial or independent. (26) In addition, the IBA Guidelines on Conflicts apply an
objective standard by defining a lack of “impartiality or independence” as facts giving rise
to justifiable doubts as to whether an arbitrator is biased in favor of, or prejudiced against,
a particular party or its case from the point of view of a reasonable third person. (27) This is
because confidence in the fairness of the arbitral process requires not only actual but also

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 perceived impartiality and independence. (28)
P 286
P 287
The IBA Guidelines on Conflicts define specific situations that may, depending on the
context, constitute a conflict of interest. (29) The Guidelines categorize these situations
into four lists, as follows: (1) a “Non-Waivable Red List,” (2) a “Waivable Red List,” (3) an
“Orange List,” and (4) a “Green List.” The Non-Waivable Red List comprises four sets of
circumstances that clearly give rise to justifiable doubt as to an arbitrator’s impartiality
and independence: (1) an identity between a party and the arbitrator; (2) a controlling
influence exercised by the arbitrator on one of the parties; (3) a significant financial
interest of the arbitrator in one of the parties or the outcome of the case; and (4) regular
counsel provided by the arbitrator to the appointing party or an affiliate for a significant
profit. (30) Disclosure of these situations cannot cure the conflict, nor can they be waived.
(31)
The Waivable Red List sets forth three circumstances that may give rise to justifiable doubt
as to an arbitrator’s impartiality and independence, but may be waived by express
statement of the parties: (32) (1) relationship of the arbitrator to the dispute, including
legal advice or prior involvement with the dispute; (2) direct or indirect interest of an
arbitrator in the dispute; and (3) an arbitrator’s current professional relationship with the
parties or counsel. (33)
The Orange List is “a non-exhaustive enumeration of specific situations which (depending
on the facts of a given case) in the eyes of the parties may give rise to justifiable doubts as
to the arbitrator’s impartiality or independence.” (34) The Orange List includes previous or
current services for a party; a relationship between the arbitrator and a party or counsel
and/or others involved in the arbitration, including another arbitrator; and other
circumstances including public statements regarding an essential matter at issue in the
P 287 dispute or a relationship or ownership interest in an affiliate of a party. (35) The arbitrator
P 288 has a duty to disclose these situations. If, following such disclosure, the parties fail to
raise any timely objections, the parties are deemed to have accepted the arbitrator. (36)
The Green List contains examples of situations that create no apparent or actual conflict of
interest and which, therefore, the arbitrator has no duty to disclose. (37) These include
previously expressed legal opinions, unrelated previous services against one party, and
contacts with another arbitrator or with counsel for one of the parties through, for example,
membership in the same professional association or prior work as arbitrators or co-
counsel. (38)
According to the IBA Guidelines on Conflicts, the mere disclosure of certain facts by an
arbitrator does not imply, and should not be understood to mean, that he or she has
doubts regarding his or her independence and impartiality. (39) In fact, the opposite is
presumed to be true. When an arbitrator makes a disclosure required under the IBA
Guidelines, it is presumed that he or she considers himself or herself to be impartial and
independent but is offering the parties the opportunity to evaluate whether they agree
with this assessment before proceeding. (40)
The situation in the U.S. has historically been somewhat different. Party-appointed
“neutrals” were openly expected to advocate the position of the party appointing them to
a three-member tribunal. The 2004 AAA-ABA Revised Code of Ethics incorporates the
concepts of independence and impartiality by broader reference to the principle of
neutrality. Marking a fundamental distinction from its 1977 predecessor, the AAA-ABA
Revised Code applies a presumption of neutrality to all arbitrators, including party-
P 288 appointed arbitrators. (41) Under the current version of the Code, party-appointed
P 289 arbitrators to a three-member tribunal are not expected to act as advocates for the
positions of their appointing parties. Rather they are expected to be neutral decision-
makers and to refrain from prejudging any of the specific legal or factual determinations to
be addressed during the arbitration. (42) The Code takes the position that “[t]his
expectation generally is essential in arbitrations where the parties, the nature of the
dispute, or the enforcement of any resulting award may have international aspects.” (43)
The AAA-ABA Revised Code does, however, acknowledge that the presumption of neutrality
may be overridden by the parties’ agreement, the governing law, or applicable arbitration
rules. (44) Moreover, the Code acknowledges that some arbitrators, typically in domestic
U.S. disputes (referred to in the Code as “Canon X arbitrators”), are exempt from the
requirement of neutrality. (45) Canon X arbitrators are not expected to withdraw because
of alleged partiality when requested to do so by the nonappointing party. (46) Similar to
neutral party-appointed arbitrators, they can engage in certain ex parte communications
with their appointing party, pursuant to the expectations that they act in good faith, with
integrity and fairness, and without causing delay or harassment. (47) They are also subject
to the same disclosure requirements as neutral arbitrators and to specific limitations on
the scope of their ex parte communications with their appointing parties and with the
third arbitrator. (48)
The AAA-ABA Revised Code subjects all arbitrators to the obligation to disclose interests or
relationships likely to affect impartiality or create an appearance of partiality. (49) This
obligation applies to known financial or personal interests in the outcome of the
arbitration and existing or previous relationships. Prospective arbitrators should make a

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 reasonable effort to inform themselves of relevant interests or relationships and, in the
event of doubt, should opt in favor of disclosure. In addition, Canon IX of the AAA-ABA
Revised Code imposes a duty on every party-appointed arbitrator to ascertain and
disclose whether he or she will be acting as a neutral arbitrator or as a Canon X arbitrator.
(50) The default rule provided in Canon IX (C)(3) explains that in the event of doubt, all
party-appointed arbitrators should serve in a neutral capacity until such doubt is
resolved. Party-appointed arbitrators also have a duty to undertake the necessary
investigations in discharging their obligations to ascertain and disclose their status as
neutral or nonneutral. (51) They are expressly permitted to discuss ex parte the subject of
their status in this regard with their appointing parties.
P 289 The AAA-ABA Revised Code provides that arbitrators should withdraw or else obtain
P 290 consent from the source prior to disclosing information that they believe to be
privileged or confidential. (52) Full disclosure of a conflicting relationship or interest does
not necessitate disqualification under the Revised Code. On the contrary, the Revised Code
recognizes the importance of party autonomy by allowing the parties to consent freely to
continued service or appointment after full disclosure of the interest or relationship. (53)
Lastly, several of the most recent versions of the arbitral rules under consideration
additionally require candidates to confirm upon nomination their availability to carry out
the responsibilities of an arbitrator. The LCIA Rules contain the most precise formulation
and require potential arbitrators to confirm that they are “ready, willing and able to
devote sufficient time, diligence and industry to ensure the expeditious and efficient
conduct of the arbitration.” (54) The most recent revisions to the ICDR, HKIAC, ICC, and SIAC
Rules also require prospective arbitrators to confirm that they are available to undertake
the role. (55) The ICC has emphasized the importance of arbitrator availability since 2009,
even before the most recent revision to its rules, by requiring detailed information
regarding the timing of arbitrators’ ongoing cases. (56)
P 290
P 291 Table 4.2 Arbitrator Disclosures
AAA-ICDR
P 293
292
291 Article 13. 1. Arbitrators acting under these Rules shall be impartial and
P 294
292 Impartiality and
293 independent and shall act in accordance with the terms of the
Independence of Notice of Appointment provided by the Administrator.
Arbitrator
2. Upon accepting appointment, an arbitrator shall sign the Notice
of Appointment provided by the Administrator affirming that the
arbitrator is available to serve and is independent and impartial. The
arbitrator shall disclose any circumstances that may give rise to
justifiable doubts as to the arbitrator’s impartiality or independence
and any other relevant facts the arbitrator wishes to bring to the
attention of the parties.
3. If, at any stage during the arbitration, circumstances arise that
may give rise to such doubts, an arbitrator or party shall promptly
disclose such information to all parties and to the Administrator.
Upon receipt of such information from an arbitrator or a party, the
Administrator shall communicate it to all parties and to the
tribunal.
4. Disclosure by an arbitrator or party does not necessarily indicate
belief by the arbitrator or party that the disclosed information gives
rise to justifiable doubts as to the arbitrator’s impartiality or
independence.

5. Failure of a party to disclose any circumstances that may give rise

to justifiable doubts as to an arbitrator’s impartiality or
independence within a reasonable period after the party becomes
aware of such information constitutes a waiver of the right to
challenge an arbitrator based on those circumstances.
CIETAC
Article 24. Duties of An arbitrator shall not represent either party, and shall be and
Arbitrator remain independent of the parties and treat them equally.
Article 31. Disclosure 1. An arbitrator nominated by the parties or appointed by the
Chairman of CIETAC shall sign a Declaration and disclose any facts
or circumstances likely to give rise to justifiable doubts as to his/her
impartiality or independence.
2. If circumstances that need to be disclosed arise during the arbitral
proceedings, the arbitrator shall promptly disclose such
circumstances in writing.
3. The Declaration and/or the disclosure of the arbitrator shall be
submitted to the Arbitration Court to be forwarded to the parties.

HKIAC

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 Article 11. 11.4. Before confirmation or appointment, a prospective arbitrator
Qualifications and shall (a) sign a statement confirming his or her availability to decide
Challenges of the the dispute and his or her impartiality and independence; and (b)
Arbitral Tribunal disclose any circumstances likely to give rise to justifiable doubts as
to his or her impartiality or independence. An arbitrator, once
confirmed or appointed and throughout the arbitration, shall
disclose without delay any such circumstances to the parties unless
they have already been informed by him or her of these
circumstances.
ICC
Article 11. General 1. Every arbitrator must be and remain impartial and independent of
Provisions the parties involved in the arbitration.
2. Before appointment or confirmation, a prospective arbitrator
shall sign a statement of acceptance, availability, impartiality and
independence. The prospective arbitrator shall disclose in writing to
the Secretariat any facts or circumstances which might be of such a
nature as to call into question the arbitrator’s independence in the
eyes of the parties, as well as any circumstances that could give rise
to reasonable doubts as to the arbitrator’s impartiality. The
Secretariat shall provide such information to the parties in writing
and fix a time limit for any comments from them.
3. An arbitrator shall immediately disclose in writing to the
Secretariat and to the parties any facts or circumstances of a similar
nature to those referred to in Article 11(2) concerning the arbitrator’s
impartiality or independence which may arise during the arbitration.

[…]
5. By accepting to serve, arbitrators undertake to carry out their
responsibilities in accordance with the Rules.

ICSID
ICSID Convention, (1) Persons designated to serve on the Panels shall be persons of
Article 14. The high moral character and recognized competence in the fields of
Panels law, commerce, industry or finance, who may be relied upon to
exercise independent judgment. Competence in the field of law shall
be of particular importance in the case of persons on the Panel of
Arbitrators.
ICSID Arbitration (2) Before or at the first session of the Tribunal, each arbitrator shall
Rules, Rule 6. sign a declaration in the following form:
Constitution of the
Tribunal “To the best of my knowledge there is no reason why I
should not serve on the Arbitral Tribunal constituted by
the International Centre for Settlement of Investment
Disputes with respect to a dispute between
___________________and___________________.”
[…]
“Attached is a statement of (a) my past and present
professional, business and other relationships (if any)
with the parties and (b) any other circumstance that
might cause my reliability for independent judgment to
be questioned by a party. I acknowledge that by signing
this declaration, I assume a continuing obligation
promptly to notify the Secretary-General of the Centre of
any such relationship or circumstance that subsequently
arises during this proceeding.”
Any arbitrator failing to sign a declaration by the end of the first
session of the Tribunal shall be deemed to have resigned.

LCIA

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 Article 5. Formation 2. The expression the “Arbitral Tribunal” includes a sole arbitrator or
of Arbitral Tribunal all the arbitrators where more than one.
3. All arbitrators shall be and remain at all times impartial and
independent of the parties; and none shall act in the arbitration as
advocate for or representative of any party. No arbitrator shall
advise any party on the parties’ dispute or the outcome of the
arbitration.
4. Before appointment by the LCIA Court, each arbitral candidate
shall furnish to the Registrar (upon the latter’s request) a brief
written summary of his or her qualifications and professional
positions (past and present); the candidate shall also agree in
writing fee-rates conforming to the Schedule of Costs; the candidate
shall sign a written declaration stating: (i) whether there are any
circumstances currently known to the candidate which are likely to
give rise in the mind of

any party to any justifiable doubts as to his or her impartiality or

independence and, if so, specifying in full such circumstances in the
declaration; and (ii) whether the candidate is ready, willing and able
to devote sufficient time, diligence and industry to ensure the
expeditious and efficient conduct of the arbitration. The candidate
shall furnish promptly such agreement and declaration to the
Registrar.
5. If appointed, each arbitral candidate shall thereby assume a
continuing duty as an arbitrator, until the arbitration is finally
concluded, forthwith to disclose in writing any circumstances
becoming known to that arbitrator after the date of his or her
written declaration (under Article 5.4) which are likely to give rise in
the mind of any party to any justifiable doubts as to his or her
impartiality or independence, to be delivered to the LCIA Court, any
other members of the Arbitral Tribunal and all parties in the
arbitration.

SCC
Article 18. (1) Every arbitrator must be impartial and independent.
Impartiality,
Independence and (2) Before being appointed, a prospective arbitrator shall disclose
Availability any circumstances that may give rise to justifiable doubts as to the
prospective arbitrator’s impartiality or independence.
(3) Once appointed, an arbitrator shall submit to the Secretariat a
signed statement of acceptance, availability, impartiality and
independence, disclosing any circumstances that may give rise to
justifiable doubts as to the arbitrator’s impartiality or independence.
The Secretariat shall send a copy of the statement of acceptance,
availability, impartiality and independence to the parties and the
other arbitrators.
(4) An arbitrator shall immediately inform the parties and the other
arbitrators in writing if any circumstances that may give rise to
justifiable doubts as to the arbitrator’s impartiality or independence
arise during the course of the arbitration.

SIAC
Rule 13. 13.1. Any arbitrator appointed in an arbitration under these Rules,
Qualifications of whether or not nominated by the parties, shall be and remain at all
Arbitrators times independent and impartial.

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 13.2. In appointing an arbitrator under these Rules, the President
shall have due regard to any qualifications required of the arbitrator
by the agreement of the parties and to such considerations that are
relevant to the impartiality or independence of the arbitrator.
13.3. The President shall also consider whether the arbitrator has
sufficient availability to determine the case in a prompt and efficient
manner that is appropriate given the nature of the arbitration.
13.4. A nominated arbitrator shall disclose to the parties and to the
Registrar any circumstances that may give rise to justifiable doubts
as to his impartiality or independence as soon as reasonably
practicable and in any event before his appointment.
13.5. An arbitrator shall immediately disclose to the parties, to the
other arbitrators and to the Registrar any circumstances that may
give rise to justifiable doubts as to his impartiality or independence
that may be discovered or arise during the arbitration.

UNCITRAL
Article 11. When a person is approached in connection with his or her possible
Disclosures by and appointment as an arbitrator, he or she shall disclose any
Challenge of circumstances likely to give rise to justifiable doubts as to his or her
Arbitrators impartiality or independence. An arbitrator, from the time of his or
her appointment and throughout the arbitral proceedings, shall
without delay disclose any such circumstances to the parties and
the other arbitrators unless they have already been informed by him
or her of these circumstances.
Article 12. 1. Any arbitrator may be challenged if circumstances exist that give
Disclosures by and rise to justifiable doubts as to the arbitrator’s impartiality or
Challenge of independence.
Arbitrators

§4.03 EX PARTE COMMUNICATIONS

Ex parte communications between a party and arbitrators are generally prohibited. But
questions persist in practice as to when the prohibition becomes absolute, what
communications may be had before the prohibition takes effect, and the consequences of
such communications. Indeed, the issue of ex parte communication is perhaps one of the
areas in which the clash of legal and ethical cultures is most acutely present in
international arbitration due to the differing legal traditions of the parties, as well as of
the arbitrators. Also, it may be difficult to avoid all communication, since the international
P 294 arbitration community of counsel and arbitrators is relatively small. Members of the
P 295 community may sit together as arbitrators one day, appear before each other the next,
and participate in bar association activities and conferences together on the third. (57)
Under the IBA Rules of Ethics, prospective arbitrators are free to respond to inquiries
designed to determine their suitability and availability to assume the role of arbitrator,
provided that the merits of the case are not discussed. (58) When required to participate in
the selection of a presiding arbitrator, party-appointed arbitrators can obtain the views of
their appointing parties as to the acceptability of proposed candidates. (59) If an
arbitrator learns that a fellow arbitrator has been in improper communication with a
party, he or she can consult with the remaining arbitrators to determine the appropriate
course of action. (60) Throughout the proceedings, arbitrators should avoid any unilateral
communications regarding the case with any party or its representatives. (61)
The IBA Guidelines on Conflicts likewise contemplate a limited degree of ex parte contact
between parties and prospective arbitrators regarding the arbitrator’s availability and
qualifications to serve or to the names of possible candidates for a chairperson. (62) They
must not discuss the merits or procedural aspects of the dispute.
The AAA-ABA Revised Code lists three subject areas that prospective arbitrators may
discuss on an ex parte basis with appointing parties: (1) the identities of the parties,
counsel, or witness; (2) the general nature of the case; and (3) the arbitrator’s suitability or
availability for the appointment. Here again, arbitrators are expressly prohibited from
discussing the merits of the case. Party-appointed arbitrators can consult with their
appointing parties concerning (1) the choice of the presiding arbitrator; (2) compensation;
and (3) the status of the arbitrator as a neutral or a Canon X arbitrator. (63) Consistent with
each of the foregoing guidelines, the best practice is usually for the parties to agree
expressly that each party can communicate with its party-appointed arbitrator concerning
the choice of presiding arbitrator.
The different arbitral regimes differ in the extent to which ex parte communications are
prohibited as set out in Table 4.3. The ICDR Rules are among the most comprehensive in
addressing the issue of ex parte communications with arbitrators. That is perhaps
understandable due to the prevalence in domestic arbitration in the U.S. of Canon X

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 arbitrators, i.e., arbitrators whose role is to advocate a particular party’s position in the
deliberations of the tribunal. (64) The prohibition on ex parte communications is absolute
P 295 and comprehensive with respect to any candidate for presiding arbitrator. That said,
P 296 parties will often jointly interview a sole arbitrator candidate. This is not considered an
ex parte communication. The same is true when the two party-appointed arbitrators jointly
interview a presiding arbitrator candidate. (65)
The ICDR, HKIAC, and SIAC Rules set out specific guidelines regarding which
communications may be had with a candidate for party-appointed arbitrator. Ex parte
communication is permitted by these regimes in the following specified circumstances: to
advise the candidate of the general nature of the controversy and of the anticipated
proceedings; to discuss the candidate’s qualifications, availability or impartiality, and
independence in relation to the parties; and to discuss the suitability of candidates for
selection as a third arbitrator where the parties or party-appointed arbitrators are to
participate in that selection. (66) Of course, even communications with an arbitrator in
these limited contexts can be abused, and it will be incumbent on both the party that is
interviewing an arbitrator candidate and the opposing party to police the discussion in a
manner that does not impair an arbitrator’s impartiality and independence. Once the
tribunal is formed, these regimes prohibit any ex parte contact between a party and the
arbitrators. (67)
The 2014 LCIA Rules also permit ex parte communications between a party and any
arbitrator or candidate for an arbitrator who is required to participate in the selection of a
presiding arbitrator regarding the suitability of any proposed presiding arbitrator. (68) The
Rules do not refer to party communication with proposed arbitrator candidates. (69) In any
case, once the tribunal is formed, the 2014 LCIA Rules go further than the ICDR Rules in
regulating ex parte communication. The Rules prohibit not only contact with the tribunal
but also any “unilateral contact” with any member of the LCIA Court exercising any function
in regard to the arbitration, unless such contact is disclosed in writing (either prior to or
shortly thereafter) to the other parties, to the tribunal, and, where appropriate, to the LCIA
Registrar. (70)
Despite the importance of regulating ex parte communications, the other regimes do not
address the issue directly. The ICC and UNCITRAL Rules do include a provision that would
effectively restrict ex parte communications by requiring all communication to the
tribunal by one party to be simultaneously communicated by that party to all other
P 296 parties. (71) The issue is not specifically addressed in the CIETAC Rules (2005, 2012, or 2015
P 297 versions), the ICSID Rules, or the SCC Rules.
P 297
P 298 Table 4.3 Ex Parte Communications
AAA-ICDR
P 298 Article 13. 6. No party or anyone acting on its behalf shall have any ex parte
P 299 Impartiality and communication relating to the case with any arbitrator, or with any
Independence of candidate for party-appointed arbitrator, except to advise the
Arbitrator candidate of the general nature of the controversy and of the
anticipated proceedings and to discuss the candidate’s
qualifications, availability, or impartiality and independence in
relation to the parties, or to discuss the suitability of candidates for
selection as a presiding arbitrator where the parties or party-
appointed arbitrators are to participate in that selection. No party
or anyone acting on its behalf shall have any ex parte
communication relating to the case with any candidate for presiding
arbitrator.
Article 16. Party […] Unless instructed otherwise by the Administrator, once the
Representation arbitral tribunal has been established, the parties or their
representatives may communicate in writing directly with the
tribunal with simultaneous copies to the other party and, unless
otherwise instructed by the Administrator, to the Administrator. […]
CIETAC
Not specifically addressed
HKIAC
Article 11. 11.5. No party or its representatives shall have any ex parte
Qualifications and communication relating to the arbitration with any arbitrator, or
Challenges of the with any candidate to be designated as arbitrator by a party, except
Arbitral Tribunal to advise the candidate of the general nature of the dispute, to
discuss the candidate’s qualifications, availability, impartiality or
independence, or to discuss the suitability of candidates for the
designation of a third arbitrator where the parties or party-
designated arbitrators are to designate that arbitrator. No party or
its representatives shall have any ex parte communication relating
to the arbitration with any candidate for the presiding arbitrator.
ICC

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 Article 3. Written 1) All pleadings and other written communications submitted by any
Notifications or party, as well as all documents annexed thereto, shall be supplied in
Communications; a number of copies sufficient to provide one copy for each party,
Time Limits plus one for each arbitrator, and one for the Secretariat. A copy of
any notification or communication from the arbitral tribunal to the
parties shall be sent to the Secretariat.
ICSID
Not specifically addressed.
LCIA
Article 13. 1. Following the formation of the Arbitral Tribunal, all
Communications communications shall take place directly between the Arbitral
Between Parties and Tribunal and the parties (to be copied to the Registrar), unless the
Arbitral Tribunal Arbitral Tribunal decides that communications should continue to
be made through the Registrar.
2. Where the Registrar sends any written communication to one
party on behalf of the Arbitral Tribunal or the LCIA Court, he or she
shall send a copy to each of the other parties.
3. Where any party delivers to the Arbitral Tribunal any
communication (including statements and documents under Article
15), whether by electronic means or otherwise, it shall deliver a copy
to each arbitrator, all other parties and the Registrar; and it shall
confirm to the Arbitral Tribunal in writing that it has done or is doing
so.
4. During the arbitration from the Arbitral Tribunal’s formation
onwards, no party shall deliberately initiate or attempt to initiate
any unilateral contact relating to the arbitration or the parties’
dispute with any member of the Arbitral Tribunal or any member of
the LCIA Court exercising any function in regard to the arbitration
(but not including the Registrar), which has not been disclosed in
writing prior to or shortly after the time of such contact to all other
parties, all members of the Arbitral Tribunal (if comprised of more
than one arbitrator) and the Registrar.
5. Prior to the Arbitral Tribunal’s formation, unless the parties agree
otherwise in writing, any arbitrator, candidate or nominee who is
required to participate in the selection of a presiding arbitrator may
consult any party in order to obtain the views of that party as to the
suitability of any candidate or nominee as presiding arbitrator,
provided that such arbitrator, candidate or nominee informs the
Registrar of such consultation.

SCC
Not specifically addressed.
SIAC
Rule 13. 13.6 No party or person acting on behalf of a party shall have any ex
Qualifications of parte communication relating to the case with any arbitrator or with
Arbitrators any candidate for appointment as party-nominated arbitrator,
except to advise the candidate of the general nature of the
controversy and of the anticipated proceedings; to discuss the
candidate’s qualifications, availability or independence in relation to
the parties; or to discuss the suitability of candidates for selection as
the presiding arbitrator where the parties or party-nominated
arbitrators are to participate in that selection. No party or person
acting on behalf of a party shall have any ex parte communication
relating to the case with any candidate for presiding arbitrator.
Rule 19. Conduct of 19.6 All statements, documents or other information supplied to the
the Proceedings Tribunal and/or the Registrar by a party shall simultaneously be
communicated to the other party.
UNCITRAL
Article 17. General 4. All communication to the arbitral tribunal by one party shall be
Provisions communicated by that party to all other parties. Such
communications shall be made at the same time, except as
otherwise permitted by the arbitral tribunal if it may do so under
applicable law.

§4.04 APPOINTMENT OF ARBITRATORS

Each of the arbitral regimes under consideration has adopted detailed and

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 comprehensive rules relating to the constitution of the tribunal. The relevant rules are
reproduced in Table 4.4. These provisions concern the number of arbitrators, the method
of their appointment, specific deadlines for the parties to nominate arbitrators and
arbitrator qualifications, which apply in the absence of any party agreement to the
contrary. The regimes also provide that the institution or, in the case of ad hoc arbitration,
the appointing authority will make the necessary appointments when the parties fail to do
so. (72) Although the various appointment rules have many similarities, the depth of
treatment varies significantly by institution. As mentioned in Chapter 2 (Agreements to
Arbitrate), it is critical that parties make specific provisions on each of these points in
their arbitration agreement, rather than assume that the default rules and discretion of
the institution will result in a tribunal that will satisfy their preferences.
P 299 First, if the parties have not agreed on the number of arbitrators, then a default number of
P 300 arbitrators, either one or three, will apply. The CIETAC, ICSID, and UNCITRAL Rules fix the
default number at three. (73) The other regimes leave it to the discretion of the institution
(or, under the UNCITRAL Rules, the appointing authority) to determine whether a sole
arbitrator or a three-member tribunal is appropriate considering the value or complexity
of the case. (74) The LCIA Rules further provide that the LCIA Court may appoint more than
three arbitrators in exceptional cases. (75)
Next, most of the regimes under consideration give the parties the opportunity to appoint
arbitrator(s) to the tribunal. As an exception to this rule, the ICC and LCIA Rules consider
that party selections of arbitrators are merely nominations, while the institution retains
the ultimate authority to make arbitrator appointments. The LCIA Rules make this
distinction very clear: “No party or third person may appoint any arbitrator under the
Arbitration Agreement: the LCIA Court alone is empowered to appoint arbitrators (albeit
taking into account any written agreement or joint nomination by the parties).” (76)
Instead, agreements for party appointments are treated as agreements to nominate an
arbitrator, subject to the LCIA Court’s confirmation and appointment. (77) Similarly, the ICC
Rules provide that parties may “nominate” an arbitrator or arbitrators for subsequent
“confirmation” by the Court. (78) In practice, both the LCIA Court and the ICC Court usually
appoint the arbitrators nominated by the parties, unless there is some significant reason
not to do so.
In case a sole arbitrator is to be appointed, under most rules, the parties must try to reach
an agreement on whom to select within a specified period of time. (79) The CIETAC Rules
prescribe the list method for the parties to make a joint selection: each party sends to the
other a list of proposed candidates; if only one name appears on both lists, then that
individual will be appointed as arbitrator; if more than one name appears on both lists,
CIETAC will choose which one of them to appoint; if no name appears on both lists, then
CIETAC will make the appointment. (80)
In case the parties fail to reach an agreement on the sole arbitrator after conferring with
one another, the ICDR and UNCITRAL Rules provide that the administrator or appointing
authority, respectively, may apply a strike-and-rank list method: the administrator or
appointing authority sends an identical list of names to both parties who then have 15 days
P 300 to strike unacceptable names and rank those that remain so that the administrator or
P 301 appointing authority may appoint an arbitrator in accord with the parties’ preferences.
(81) Under all of the regimes, if no agreement is reached on the nomination of the sole
arbitrator (including after the list methods applied by CIETAC, ICDR, and UNCITRAL Rules),
then the institution or appointing authority will decide whom to appoint. (82)
If there will be a three-member tribunal, most regimes permit each party to nominate one
arbitrator, and, failing such nomination, the institution or appointing authority will decide
whom to appoint on behalf of that party. (83) The parties are generally free to agree on the
method of appointment of the third, presiding, arbitrator; however, in the absence of such
agreement, the regimes variously prescribe that the presiding arbitrator will be chosen by:
the two co-arbitrators (UNCITRAL); (84) the parties (ICSID); (85) or the institution (all
others). (86) If the co-arbitrators or the parties in an UNCITRAL or ICSID arbitration cannot
reach agreement on the presiding arbitrator, then the appointing authority or the ICSID
Chairman, respectively, will finally appoint the presiding arbitrator. (87) Where there are
two or more claimants or respondents, the parties on each side generally must make a
joint nomination of one co-arbitrator, failing which the institution or appointing authority
will decide whom to appoint. (88) However, when a new party is joined to the arbitration
after an arbitrator has been appointed, generally the appointment is revoked and the
institution will appoint the tribunal.
Finally, where the institution or appointing authority will decide whom to appoint to the
tribunal, the regimes generally show concern for the suitability of candidates and variously
require the institution to consider the candidate’s inclusion on the institution’s list of
arbitrators, qualifications required by the parties’ arbitration agreement, impartiality and
P 301 independence, ability to serve, nationality or country of residence vis-à-vis the parties,
P 302 and any relationship to the institution. (89)
P 302
P 303 Table 4.4 Appointment of the Tribunal
AAA-ICDR
PPP308
303
304
305
306
309
320
307
310
318
312
313
314
315
316
319
311
317
PPP308
304
305
306
309
320
307
310
318
312
313
314
315
316
319
321
311
317

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 Article 11. Number of If the parties have not agreed on the number of arbitrators, one
Arbitrators arbitrator shall be appointed unless the Administrator determines in
its discretion that three arbitrators are appropriate because of the
size, complexity, or other circumstances of the case.
Article 12. 1. The parties may agree upon any procedure for appointing
Appointment of arbitrators and shall inform the Administrator as to such procedure.
Arbitrators In the absence of party agreement as to the method of appointment,
the Administrator may use the ICDR list method as provided in
Article 12(6).
2. The parties may agree to select arbitrators, with or without the
assistance of the Administrator. When such selections are made, the
parties shall take into account the arbitrators’ availability to serve
and shall notify the Administrator so that a Notice of Appointment
can be communicated to the arbitrators, together with a copy of
these Rules.
3. If within 45 days after the commencement of the arbitration, all
parties have not agreed on a procedure for appointing the
arbitrator(s) or have not agreed on the selection of the arbitrator(s),
the Administrator shall, at the written request of any party, appoint
the arbitrator(s). Where the parties have agreed upon a procedure
for selecting the arbitrator(s), but all appointments have not been
made within the time limits provided by that procedure, the
Administrator shall, at the written request of any party, perform all
functions provided for in that procedure that remain to be
performed.
4. In making appointments, the Administrator shall, after inviting
consultation with the parties, endeavor to appoint suitable
arbitrators, taking into account their availability to serve. At the
request of any party or on its own initiative, the Administrator may
appoint nationals of a country other than that of any of the parties.
5. If there are more than two parties to the arbitration, the
Administrator may appoint all arbitrators unless the parties have
agreed otherwise no later than 45 days after the commencement of
the arbitration.

6. If the parties have not selected an arbitrator(s) and have not

agreed upon any other method of appointment, the Administrator,
at its discretion, may appoint the arbitrator(s) in the following
manner using the ICDR list method. The Administrator shall send
simultaneously to each party an identical list of names of persons
for consideration as arbitrator(s). The parties are encouraged to
agree to an arbitrator(s) from the submitted list and shall advise the
Administrator of their agreement. If, after receipt of the list, the
parties are unable to agree upon an arbitrator(s), each party shall
have 15 days from the transmittal date in which to strike names
objected to, number the remaining names in order of preference, and
return the list to the Administrator. The parties are not required to
exchange selection lists. If a party does not return the list within the
time specified, all persons named therein shall be deemed
acceptable. From among the persons who have been approved on
the parties’ lists, and in accordance with the designated order of
mutual preference, the Administrator shall invite an arbitrator(s) to
serve. If the parties fail to agree on any of the persons listed, or if
acceptable arbitrators are unable or unavailable to act, or if for any
other reason the appointment cannot be made from the submitted
lists, the Administrator shall have the power to make the
appointment without the submission of additional lists. The
Administrator shall, if necessary, designate the presiding arbitrator
in consultation with the tribunal.
7. The appointment of an arbitrator is effective upon receipt by the
Administrator of the Administrator’s Notice of Appointment
completed and signed by the arbitrator.
CIETAC
Article 25. Number of 1. The arbitral tribunal shall be composed of one or three
Arbitrators arbitrators.
2. Unless otherwise agreed by the parties or provided by these Rules,
the arbitral tribunal shall be composed of three arbitrators.

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 Article 26. 1. CIETAC maintains a Panel of Arbitrators which uniformly applies to
Nomination or itself and all its sub-commissions/arbitration centers. The parties
Appointment of shall nominate arbitrators from the Panel of Arbitrators provided by
Arbitrator CIETAC.
2. Where the parties have agreed to nominate arbitrators from
outside CIETAC’s Panel of Arbitrators, an arbitrator so nominated by
the parties or nominated according to the agreement of the parties
may act as arbitrator subject to the confirmation by the Chairman of
CIETAC.

Article 27. Three- 1. Within fifteen (15) days from the date of receipt of the Notice of
Arbitrator Tribunal Arbitration, the Claimant and the Respondent shall each nominate,
or entrust the Chairman of CIETAC to appoint, an arbitrator, failing
which the arbitrator shall be appointed by the Chairman of CIETAC.
2. Within fifteen (15) days from the date of the Respondent’s receipt
of the Notice of Arbitration, the parties shall jointly nominate, or
entrust the Chairman of CIETAC to appoint, the third arbitrator, who
shall act as the presiding arbitrator.
3. The parties may each recommend one to five arbitrators as
candidates for the presiding arbitrator and shall each submit a list
of recommended candidates within the time period specified in the
preceding Paragraph 2. Where there is only one common candidate
on the lists, such candidate shall be the presiding arbitrator jointly
nominated by the parties. Where there is more than one common
candidate on the lists, the Chairman of CIETAC shall choose the
presiding arbitrator from among the common candidates having
regard to the circumstances of the case, and he/she shall act as the
presiding arbitrator jointly nominated by the parties. Where there is
no common candidate on the lists, the presiding arbitrator shall be
appointed by the Chairman of CIETAC.
4. Where the parties have failed to jointly nominate the presiding
arbitrator according to the above provisions, the presiding arbitrator
shall be appointed by the Chairman of CIETAC.

Article 28. Sole- Where the arbitral tribunal is composed of one arbitrator, the sole
Arbitrator Tribunal arbitrator shall be nominated pursuant to the procedures stipulated
in Paragraphs 2, 3 and 4 of Article 27 of these Rules.
Article 29. Multiple- 1. Where there are two or more Claimants and/or Respondents in an
Party Tribunal arbitration case, the Claimant side and/or the Respondent side,
following discussion, shall each jointly nominate or jointly entrust
the Chairman of CIETAC to appoint one arbitrator.
2. The presiding arbitrator or the sole arbitrator shall be nominated
in accordance with the procedures stipulated in Paragraphs 2, 3 and
4 of Article 27 of these Rules. When making such nomination
pursuant to Paragraph 3 of Article 27 of these Rules, the Claimant
side and/or the Respondent side, following discussion, shall each
submit a list of their jointly agreed candidates.
3. Where either the Claimant side or the Respondent side fails to
jointly nominate or jointly entrust the Chairman of CIETAC to appoint
one arbitrator within fifteen (15) days from the date of its receipt of
the Notice of Arbitration, the Chairman of CIETAC shall appoint all
three members of the arbitral tribunal and designate one of them to
act as the presiding arbitrator.

HKIAC
Article 6. Number of 6.1. If the parties have not agreed upon the number of arbitrators
Arbitrators before the arbitration commences or within 30 days from the date
the Notice of Arbitration is received by the Respondent, HKIAC shall
decide whether the case shall be referred to a sole arbitrator or to
three arbitrators, taking into account the circumstances of the case.

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 Article 7. 7.1. Unless the parties have agreed otherwise:
Appointment of a
Sole Arbitrator (a) where the parties have agreed before the arbitration
commences that the dispute shall be referred to a sole
arbitrator, they shall jointly designate the sole arbitrator
within 30 days from the date the Notice of Arbitration was
received by the Respondent.
(b) where the parties have agreed after the arbitration commences
to refer the dispute to a sole arbitrator, they shall jointly
designate the sole arbitrator within 15 days from the date of
that agreement.
(c) where the parties have not agreed upon the number of
arbitrators and HKIAC has decided that the dispute shall be
referred to a sole arbitrator, the parties shall jointly designate
the sole arbitrator within 15 days from the date HKIAC’s
decision was received by the last of them.
7.2. If the parties fail to designate the sole arbitrator within the
applicable time limit, HKIAC shall appoint the sole arbitrator.
7.3. Where the parties have agreed on a different procedure for
designating the sole arbitrator and such procedure does not result in
a designation within a time limit agreed by the parties or set by
HKIAC, HKIAC shall appoint the sole arbitrator.

Article 8. 8.1. Where a dispute between two parties is referred to three

Appointment of arbitrators, the arbitral tribunal shall be constituted as follows,
Three Arbitrators unless the parties have agreed otherwise:
(a) where the parties have agreed before the arbitration
commences that the dispute shall be referred to three
arbitrators, each party shall designate in the Notice of
Arbitration and the Answer to the Notice of Arbitration,
respectively, one arbitrator. If either party fails to designate an
arbitrator, HKIAC shall appoint the arbitrator.
(b) where the parties have agreed after the arbitration commences
to refer the dispute to three arbitrators, the Claimant shall
designate an arbitrator within 15 days from the date of that
agreement, and the Respondent shall designate an arbitrator
within 15 days from receiving notice of the Claimant’s
designation. If a party fails to designate an arbitrator, HKIAC
shall appoint the arbitrator.

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 (c) where the parties have not agreed upon the number of
arbitrators and HKIAC has decided that the dispute shall be
referred to three arbitrators, the Claimant shall designate an
arbitrator within 15 days from receipt of HKIAC’s decision, and
the Respondent shall designate an arbitrator within 15 days
from receiving notice of the Claimant’s designation. If a party
fails to designate an arbitrator, HKIAC shall appoint the
arbitrator.
(d) the two arbitrators so appointed shall designate a third
arbitrator, who shall act as the presiding arbitrator. Failing
such designation within 30 days from the confirmation or
appointment of the second arbitrator, HKIAC shall appoint the
presiding arbitrator.
8.2. Where there are more than two parties to the arbitration and the
dispute is to be referred to three arbitrators, the arbitral tribunal
shall be constituted as follows, unless the parties have agreed
otherwise:
(a) the Claimant or group of Claimants shall designate an
arbitrator and the Respondent or group of Respondents shall
designate an arbitrator in accordance with the procedure in
Article 8.1(a), (b) or (c), as applicable;
(b) if the parties have designated arbitrators in accordance with
Article 8.2(a), the procedure in Article 8.1(d) shall apply to the
designation of the presiding arbitrator;
(c) in the event of any failure to designate arbitrators under
Article 8.2(a) or if the parties do not all agree that they
represent two separate sides (as Claimant and Respondent
respectively) for the purposes of designating arbitrators, HKIAC
may appoint all members of the arbitral tribunal with or
without regard to any party’s designation.
8.3. Where the parties have agreed on a different procedure for
designating three arbitrators and such procedure does not result in
the designation of an arbitrator within a time limit agreed by the
parties or set by HKIAC, HKIAC shall appoint the arbitrator.

ICC
Article 11. General 4. The decisions of the Court as to the appointment, confirmation,
Provisions challenge or replacement of an arbitrator shall be final.
[…]
6. Insofar as the parties have not provided otherwise, the arbitral
tribunal shall be constituted in accordance with the provisions of
Articles 12 and 13.

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 Article 12. Number of Arbitrators
Constitution of the
Arbitration Tribunal 1. The disputes shall be decided by a sole arbitrator or by three
arbitrators.
2. Where the parties have not agreed upon the number of arbitrators,
the Court shall appoint a sole arbitrator, save where it appears to
the Court that the dispute is such as to warrant the appointment of
three arbitrators. In such case, the claimant shall nominate an
arbitrator within a period of 15 days from the receipt of the
notification of the decision of the Court, and the respondent shall
nominate an arbitrator within a period of 15 days from the receipt of
the notification of the nomination made by the claimant. If a party
fails to nominate an arbitrator, the appointment shall be made by
the Court.
Sole Arbitrator
3. Where the parties have agreed that the dispute shall be resolved
by a sole arbitrator, they may, by agreement, nominate the sole
arbitrator for confirmation. If the parties fail to nominate a sole
arbitrator within 30 days from the date when the claimant’s Request
for Arbitration has been received by the other party, or within such
additional time as may be allowed by the Secretariat, the sole
arbitrator shall be appointed by the Court.
Three Arbitrators
4. Where the parties have agreed that the dispute shall be resolved
by three arbitrators, each party shall nominate in the Request and
the Answer, respectively, one arbitrator for confirmation. If a party
fails to nominate an arbitrator, the appointment shall be made by
the Court.
5. Where the dispute is to be referred to three arbitrators, the third
arbitrator, who will act as president of the arbitral tribunal, shall be
appointed by the Court, unless the parties have agreed upon another
procedure for such appointment, in which case the nomination will
be subject to confirmation pursuant to Article 13. Should such
procedure not result in a nomination within 30 days from the
confirmation or appointment of the co-arbitrators or any other time
limit agreed by the parties or fixed by the Court, the third arbitrator
shall be appointed by the Court.
6. Where there are multiple claimants or multiple respondents, and
where the dispute is to be referred to three arbitrators, the multiple
claimants, jointly, and the multiple respondents, jointly, shall
nominate an arbitrator for confirmation pursuant to Article 13.
7. Where an additional party has been joined, and where the dispute
is to be referred to three arbitrators, the additional party may,
jointly with the claimant(s) or with the respondent(s), nominate an
arbitrator for confirmation pursuant to Article 13.

8. In the absence of a joint nomination pursuant to Articles 12(6) or

12(7) and where all parties are unable to agree to a method for the
constitution of the arbitral tribunal, the Court may appoint each
member of the arbitral tribunal and shall designate one of them to
act as president. In such case, the Court shall be at liberty to choose
any person it regards as suitable to act as arbitrator, applying
Article 13 when it considers this appropriate.

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 Article 13. 1. In confirming or appointing arbitrators, the Court shall consider
Appointment and the prospective arbitrator’s nationality, residence and other
Confirmation of the relationships with the countries of which the parties or the other
Arbitrators arbitrators are nationals and the prospective arbitrator’s availability
and ability to conduct the arbitration in accordance with the Rules.
The same shall apply where the Secretary General confirms
arbitrators pursuant to Article 13(2).
2. The Secretary General may confirm as co-arbitrators, sole
arbitrators and presidents of arbitral tribunals persons nominated
by the parties or pursuant to their particular agreements, provided
that the statement they have submitted contains no qualification
regarding impartiality or independence or that a qualified statement
regarding impartiality or independence has not given rise to
objections. Such confirmation shall be reported to the Court at its
next session. If the Secretary General considers that a co-arbitrator,
sole arbitrator or president of an arbitral tribunal should not be
confirmed, the matter shall be submitted to the Court.
3. Where the Court is to appoint an arbitrator, it shall make the
appointment upon proposal of a National Committee or Group of
the ICC that it considers to be appropriate. If the Court does not
accept the proposal made, or if the National Committee or Group
fails to make the proposal requested within the time limit fixed by
the Court, the Court may repeat its request, request a proposal from
another National Committee or Group that it considers to be
appropriate, or appoint directly any person whom it regards as
suitable.
4. The Court may also appoint directly to act as arbitrator any
person whom it regards as suitable where:
a) one or more of the parties is a state or may be considered to be
a state entity;
b) the Court considers that it would be appropriate to appoint an
arbitrator from a country or territory where there is no
National Committee or Group; or
c) the President certifies to the Court that circumstances exist
which, in the President’s opinion, make a direct appointment
necessary and appropriate.

5. The sole arbitrator or the president of the arbitral tribunal shall be

of a nationality other than those of the parties. However, in suitable
circumstances and provided that none of the parties objects within
the time limit fixed by the Court, the sole arbitrator or the president
of the arbitral tribunal may be chosen from a country of which any
of the parties is a national.
Appendix II, Article 1. The President and the members of the Secretariat of the Court
2. Participation of may not act as arbitrators or as counsel in cases submitted to ICC
Members of the arbitration.
International Court
of Arbitration in ICC 2. The Court shall not appoint Vice-Presidents or members of the
Arbitration Court as arbitrators. They may, however, be proposed for such duties
by one or more of the parties, or pursuant to any other procedure
agreed upon by the parties, subject to confirmation.
3. When the President, a Vice-President or a member of the Court or
of the Secretariat is involved in any capacity whatsoever in
proceedings pending before the Court, such person must inform the
Secretary General of the Court upon becoming aware of such
involvement.
4. Such person must be absent from the Court session whenever the
matter is considered by the Court and shall not participate in the
discussions or in the decisions of the Court.
5. Such person will not receive any material documentation or
information pertaining to such proceedings.

ICSID
ICSID Convention, The Panel of Conciliators and the Panel of Arbitrators shall each
Article 12. The consist of qualified persons, designated as hereinafter provided, who
Panels are willing to serve thereon.

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 ICSID Convention, (1) Each Contracting State may designate to each Panel four persons
Article 13. The who may but need not be its nationals.
Panels
(2) The Chairman may designate ten persons to each Panel. The
persons so designated to a Panel shall each have a different
nationality.

ICSID Convention, (1) Persons designated to serve on the Panels shall be persons of
Article 14. The high moral character and recognized competence in the fields of
Panels law, commerce, industry or finance, who may be relied upon to
exercise independent judgment. Competence in the field of law shall
be of particular importance in the case of persons on the Panel of
Arbitrators.
(2) The Chairman, in designating persons to serve on the Panels,
shall in addition pay due regard to the importance of assuring
representation on the Panels of the principal legal systems of the
world and of the main forms of economic activity.

ICSID Convention, (1) Panel members shall serve for renewable periods of six years.
Article 15. The
Panels (2) In case of death or resignation of a member of a Panel, the
authority which designated the member shall have the right to
designate another person to serve for the remainder of that
member’s term.
(3) Panel members shall continue in office until their successors
have been designated.

ICSID Convention, (1) A person may serve on both Panels.

Article 16. The
Panels (2) If a person shall have been designated to serve on the same
Panel by more than one Contracting State, or by one or more
Contracting States and the Chairman, he shall be deemed to have
been designated by the authority which first designated him or, if
one such authority is the State of which he is a national, by that
State.
(3) All designations shall be notified to the Secretary-General and
shall take effect from the date on which the notification is received.

ICSID Convention, (1) The Arbitral Tribunal (hereinafter called the Tribunal) shall be
Article 37. constituted as soon as possible after registration of a request
Constitution of the pursuant to Article 36.
Tribunal
(2)(a) The Tribunal shall consist of a sole arbitrator or any uneven
number of arbitrators appointed as the parties shall agree.
(b) Where the parties do not agree upon the number of arbitrators
and the method of their appointment, the Tribunal shall consist of
three arbitrators, one arbitrator appointed by each party and the
third, who shall be the president of the Tribunal, appointed by
agreement of the parties.

ICSID Convention, If the Tribunal shall not have been constituted within 90 days after
Article 38. notice of registration of the request has been dispatched by the
Constitution of the Secretary-General in accordance with paragraph (3) of Article 36, or
Tribunal such other period as the parties may agree, the Chairman shall, at
the request of either party and after consulting both parties as far as
possible, appoint the arbitrator or arbitrators not yet appointed.
Arbitrators appointed by the Chairman pursuant to this Article shall
not be nationals of the Contracting State party to the dispute or of
the Contracting State whose national is a party to the dispute.
ICSID Convention, The majority of the arbitrators shall be nationals of States other
Article 39. than the Contracting State party to the dispute and the Contracting
Constitution of the State whose national is a party to the dispute; provided, however,
Tribunal that the foregoing provisions of this Article shall not apply if the sole
arbitrator or each individual member of the Tribunal has been
appointed by agreement of the parties.
ICSID Convention, (1) Arbitrators may be appointed from outside the Panel of
Article 40. Arbitrators, except in the case of appointments by the Chairman
Constitution of the pursuant to Article 38.
Tribunal
(2) Arbitrators appointed from outside the Panel of Arbitrators shall
possess the qualities stated in paragraph (1) of Article 14.

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 Arbitration Rules, (1) Upon notification of the registration of the request for arbitration,
Rule 1. General the parties shall, with all possible dispatch, proceed to constitute a
Obligations Tribunal, with due regard to Section 2 of Chapter IV of the
Convention.
(2) Unless such information is provided in the request, the parties
shall communicate to the Secretary-General as soon as possible any
provisions agreed by them regarding the number of arbitrators and
the method of their appointment.
(3) The majority of the arbitrators shall be nationals of States other
than the State party to the dispute and of the State whose national
is a party to the dispute, unless the sole arbitrator or each individual
member of the Tribunal is appointed by agreement of the parties.
Where the Tribunal is to consist of three members, a national of
either of these States may not be appointed as an arbitrator by a
party without the agreement of the other party to the dispute. Where
the Tribunal is to consist of five or more members, nationals of
either of these States may not be appointed as arbitrators by a party
if appointment by the other party of the same number of arbitrators
of either of these nationalities would result in a majority of
arbitrators of these nationalities.
(4) No person who had previously acted as a conciliator or arbitrator
in any proceeding for the settlement of the dispute may be
appointed as a member of the Tribunal.

Arbitration Rules, (1) If the parties, at the time of the registration of the request for
Rule 2. Method of arbitration, have not agreed upon the number of arbitrators and the
Constituting the method of their appointment, they shall, unless they agree
Tribunal in the otherwise, follow the following procedure:
Absence of Previous
Agreement (a) the requesting party shall, within 10 days after the registration
of the request, propose to the other party the appointment of a
sole arbitrator or of a specified uneven number of arbitrators
and specify the method proposed for their appointment;
(b) within 20 days after receipt of the proposals made by the
requesting party, the other party shall:
(i) accept such proposals; or
(ii) make other proposals regarding the number of
arbitrators and the method of their appointment;
(c) within 20 days after receipt of the reply containing any such
other proposals, the requesting party shall notify the other
party whether it accepts or rejects such proposals.

(2) The communications provided for in paragraph (1) shall be made

or promptly confirmed in writing and shall either be transmitted
through the Secretary-General or directly between the parties with a
copy to the Secretary-General. The parties shall promptly notify the
Secretary-General of the contents of any agreement reached.
(3) At any time 60 days after the registration of the request, if no
agreement on another procedure is reached, either party may inform
the Secretary-General that it chooses the formula provided for in
Article 37(2)(b) of the Convention. The Secretary-General shall
thereupon promptly inform the other party that the Tribunal is to be
constituted in accordance with that Article.

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 Arbitration Rules, (1) If the Tribunal is to be constituted in accordance with Article 37(2)
Rule 3. Appointment (b) of the Convention:
of Arbitrators to a
Tribunal Constituted (a) either party shall in a communication to the other party:
in Accordance with (i) name two persons, identifying one of them, who shall not
Convention Article have the same nationality as nor be a national of either
37(2)(b) party, as the arbitrator appointed by it, and the other as
the arbitrator proposed to be the President of the
Tribunal; and
(ii) invite the other party to concur in the appointment of the
arbitrator proposed to be the President of the Tribunal
and to appoint another arbitrator;
(b) promptly upon receipt of this communication the other party
shall, in its reply:
(i) name a person as the arbitrator appointed by it, who
shall not have the same nationality as nor be a national
of either party; and
(ii) concur in the appointment of the arbitrator proposed to
be the President of the Tribunal or name another person
as the arbitrator proposed to be President;
(c) promptly upon receipt of the reply containing such a proposal,
the initiating party shall notify the other party whether it
concurs in the appointment of the arbitrator proposed by that
party to be the President of the Tribunal.
(2) The communications provided for in this Rule shall be made or
promptly confirmed in writing and shall either be transmitted
through the Secretary-General or directly between the parties with a
copy to the Secretary-General.

Arbitration Rules, (1) If the Tribunal is not constituted within 90 days after the dispatch
Rule 4. Appointment by the Secretary-General of the notice of registration, or such other
of Arbitrators by the period as the parties may agree, either party may, through the
Chairman of the Secretary-General, address to the Chairman of the Administrative
Administrative Council a request in writing to appoint the arbitrator or arbitrators
Council not yet appointed and to designate an arbitrator to be the President
of the Tribunal.
(2) The provision of paragraph (1) shall apply mutatis mutandis in
the event that the parties have agreed that the arbitrators shall
elect the President of the Tribunal and they fail to do so.
(3) The Secretary-General shall forthwith send a copy of the request
to the other party.
(4) The Chairman shall use his best efforts to comply with that
request within 30 days after its receipt. Before he proceeds to make
an appointment or designation, with due regard to Articles 38 and
40(1) of the Convention, he shall consult both parties as far as
possible.
(5) The Secretary-General shall promptly notify the parties of any
appointment or designation made by the Chairman.

Arbitration Rules, (1) The party or parties concerned shall notify the Secretary-General
Rule 5. Acceptance of the appointment of each arbitrator and indicate the method of his
of Appointments appointment.
(2) As soon as the Secretary-General has been informed by a party or
the Chairman of the Administrative Council of the appointment of an
arbitrator, he shall seek an acceptance from the appointee.
(3) If an arbitrator fails to accept his appointment within 15 days, the
Secretary-General shall promptly notify the parties, and if
appropriate the Chairman, and invite them to proceed to the
appointment of another arbitrator in accordance with the method
followed for the previous appointment.

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 Arbitration Rules, (1) The Tribunal shall be deemed to be constituted and the
Rule 6. Constitution proceeding to have begun on the date the Secretary-General notifies
of the Tribunal the parties that all the arbitrators have accepted their appointment.
(2) Before or at the first session of the Tribunal, each arbitrator shall
sign a declaration in the following form:
“To the best of my knowledge there is no reason why I should not
serve on the Arbitral Tribunal constituted by the International Centre
for Settlement of Investment Disputes with respect to a dispute
between ___________________and___________________.”
“I shall keep confidential all information coming to my knowledge
as a result of my participation in this proceeding, as well as the
contents of any award made by the Tribunal.”
“I shall judge fairly as between the parties, according to the
applicable law, and shall not accept any instruction or
compensation with regard to the proceeding from any source except
as provided in the Convention on the Settlement of Investment
Disputes between States and Nationals of Other States and in the
Regulations and Rules made pursuant thereto.”

“Attached is a statement of (a) my past and present professional,

business and other relationships (if any) with the parties and (b) any
other circumstance that might cause my reliability for independent
judgment to be questioned by a party. I acknowledge that by signing
this declaration, I assume a continuing obligation promptly to notify
the Secretary-General of the Centre of any such relationship or
circumstance that subsequently arises during this proceeding.”
Any arbitrator failing to sign a declaration by the end of the first
session of the Tribunal shall be deemed to have resigned.

LCIA
Article 5. Formation 1. The formation of the Arbitral Tribunal by the LCIA Court shall not
of Arbitral Tribunal be impeded by any controversy between the parties relating to the
sufficiency of the Request or the Response. The LCIA Court may also
proceed with the arbitration notwithstanding that the Request is
incomplete or the Response is missing, late or incomplete.
2. The expression the “Arbitral Tribunal” includes a sole arbitrator or
all the arbitrators where more than one.
[…]
6. The LCIA Court shall appoint the Arbitral Tribunal promptly after
receipt by the Registrar of the Response or, if no Response is
received, after 35 days from the Commencement Date (or such other
lesser or greater period to be determined by the LCIA Court pursuant
to Article 22.5).
7. No party or third person may appoint any arbitrator under the
Arbitration Agreement: the LCIA Court alone is empowered to
appoint arbitrators (albeit taking into account any written
agreement or joint nomination by the parties).
8. A sole arbitrator shall be appointed unless the parties have
agreed in writing otherwise or if the LCIA Court determines that in
the circumstances a three-member tribunal is appropriate (or,
exceptionally, more than three).
9. The LCIA Court shall appoint arbitrators with due regard for any
particular method or criteria of selection agreed in writing by the
parties. The LCIA Court shall also take into account the
transaction(s) at issue, the nature and circumstances of the dispute,
its monetary amount or value, the location and languages of the
parties, the number of parties and all other factors which it may
consider relevant in the circumstances.

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 10. The President of the LCIA Court shall only be eligible to be
appointed as an arbitrator if the parties agree in writing to nominate
him or her as the sole or presiding arbitrator; and the Vice Presidents
of the LCIA Court and the Chairman of the LCIA Board of Directors
(the latter being ex officio a member of the LCIA Court) shall only be
eligible to be appointed as arbitrators if nominated in writing by a
party or parties—provided that no such nominee shall have taken or
shall take thereafter any part in any function of the LCIA Court or
LCIA relating to such arbitration.
Article 6. Nationality 1. Where the parties are of different nationalities, a sole arbitrator or
of Arbitrators the presiding arbitrator shall not have the same nationality as any
party unless the parties who are not of the same nationality as the
arbitral candidate all agree in writing otherwise.
2. The nationality of a party shall be understood to include those of
its controlling shareholders or interests.
3. A person who is a citizen of two or more States shall be treated as
a national of each State; citizens of the European Union shall be
treated as nationals of its different Member States and shall not be
treated as having the same nationality; a citizen of a State’s
overseas territory shall be treated as a national of that territory and
not of that State; and a legal person incorporated in a State’s
overseas territory shall be treated as such and not (by such fact
alone) as a national of or a legal person incorporated in that State.

Article 7. Party and 1. If the parties have agreed howsoever that any arbitrator is to be
Other Nominations appointed by one or more of them or by any third person (other than
the LCIA Court), that agreement shall be treated under the
Arbitration Agreement as an agreement to nominate an arbitrator
for all purposes. Such nominee may only be appointed by the LCIA
Court as arbitrator subject to that nominee’s compliance with
Articles 5.3 to 5.5; and the LCIA Court shall refuse to appoint any
nominee if it determines that the nominee is not so compliant or is
otherwise unsuitable.
2. Where the parties have howsoever agreed that the Claimant or the
Respondent or any third person (other than the LCIA Court) is to
nominate an arbitrator and such nomination is not made within time
or at all (in the Request, Response or otherwise), the LCIA Court may
appoint an arbitrator notwithstanding any absent or late
nomination.
3. In the absence of written agreement between the Parties, no party
may unilaterally nominate a sole arbitrator or presiding arbitrator.

Article 8. Three or 1. Where the Arbitration Agreement entitles each party howsoever to
More Parties nominate an arbitrator, the parties to the dispute number more than
two and such parties have not all agreed in writing that the
disputant parties represent collectively two separate “sides” for the
formation of the Arbitral Tribunal (as Claimants on one side and
Respondents on the other side, each side nominating a single
arbitrator), the LCIA Court shall appoint the Arbitral Tribunal without
regard to any party’s entitlement or nomination.
2. In such circumstances, the Arbitration Agreement shall be treated
for all purposes as a written agreement by the parties for the
nomination and appointment of the Arbitral Tribunal by the LCIA
Court alone.

Article 11. 1. In the event that the LCIA Court determines that justifiable doubts
Nomination and exist as to any arbitral candidate’s suitability, independence or
Replacement impartiality, or if a nominee declines appointment as arbitrator, or if
an arbitrator is to be replaced for any reason, the LCIA Court may
determine whether or not to follow the original nominating process
for such arbitral appointment.
2. The LCIA Court may determine that any opportunity given to a
party to make any re-nomination (under the Arbitration Agreement
or otherwise) shall be waived if not exercised within 14 days (or such
lesser or greater time as the LCIA Court may determine), after which
the LCIA Court shall appoint the replacement arbitrator without
such re-nomination.

SCC

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 Article 11. Decisions The Board takes decisions as provided under these Rules, including
by the Board deciding:
[…]
(v) on the number of arbitrators pursuant to Article 16;
(vi) on any appointment of arbitrators pursuant to Article 17; […]
(viii) on the seat of arbitration pursuant to Article 25; […]

Article 16. Number of (1) The parties may agree on the number of arbitrators.
Arbitrators
(2) Where the parties have not agreed on the number of arbitrators,
the Board shall decide whether the Arbitral Tribunal shall consist of
a sole arbitrator or three arbitrators, having regard to the
complexity of the case, the amount in dispute and any other
relevant circumstances.

Article 17. (1) The parties may agree on a procedure for appointment of the
Appointment of Arbitral Tribunal.
Arbitrators
(2) Where the parties have not agreed on a procedure, or if the
Arbitral Tribunal has not been appointed within the time period
agreed by the parties or, where the parties have not agreed on a
time period, within the time period set by the Board, the
appointment shall be made pursuant to paragraphs (3)–(7).

(3) Where the Arbitral Tribunal is to consist of a sole arbitrator, the

parties shall be given 10 days to jointly appoint the arbitrator. If the
parties fail to appoint the arbitrator within this time, the Board shall
make the appointment.
(4) Where the Arbitral Tribunal is to consist of more than one
arbitrator, each party shall appoint an equal number of arbitrators
and the Board shall appoint the Chairperson. Where a party fails to
appoint arbitrator(s) within the stipulated time period, the Board
shall make the appointment.
(5) Where there are multiple Claimants or Respondents and the
Arbitral Tribunal is to consist of more than one arbitrator, the
multiple Claimants, jointly, and the multiple Respondents, jointly,
shall appoint an equal number of arbitrators. If either side fails to
make such joint appointment, the Board may appoint the entire
Arbitral Tribunal.
(6) If the parties are of different nationalities, the sole arbitrator or
the Chairperson of the Arbitral Tribunal shall be of a different
nationality than the parties, unless the parties have agreed
otherwise or the Board otherwise deems it appropriate.
(7) When appointing arbitrators, the Board shall consider the nature
and circumstances of the dispute, the applicable law, the seat and
language of the arbitration and the nationality of the parties.

SIAC
Rule 9. Number and 9.1. A sole arbitrator shall be appointed in any arbitration under
Appointment of these Rules unless the parties have otherwise agreed; or it appears
Arbitrators to the Registrar, giving due regard to any proposals by the parties,
that the complexity, the quantum involved or other relevant
circumstances of the dispute, warrants the appointment of three
arbitrators.
9.2. If the parties have agreed that any arbitrator is to be appointed
by one or more of the parties, or by any third person including by the
arbitrators already appointed, that agreement shall be deemed an
agreement to nominate an arbitrator under these Rules.
9.3. In all cases, the arbitrators nominated by the parties, or by any
third person including by the arbitrators already appointed, shall be
subject to appointment by the President in his discretion.
9.4. The President shall appoint an arbitrator as soon as practicable.
Any decision by the President to appoint an arbitrator under these
Rules shall be final and not subject to appeal.
9.5. The President may appoint any nominee whose appointment has
already been suggested or proposed by any party.

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 9.6. The terms of appointment of each arbitrator shall be fixed by the
Registrar in accordance with these Rules and any Practice Notes for
the time being in force, or in accordance with the agreement of the
parties.
Rule 10. Sole 10.1. If a sole arbitrator is to be appointed, either party may propose
Arbitrator to the other party the names of one or more persons to serve as the
sole arbitrator. Where the parties have reached an agreement on the
nomination of a sole arbitrator, Rule 9.3 shall apply.
10.2. If within 21 days after the date of commencement of the
arbitration, or within the period otherwise agreed by the parties or
set by the Registrar, the parties have not reached an agreement on
the nomination of a sole arbitrator, or if at any time either party so
requests, the President shall appoint the sole arbitrator.

Rule 11. Three 11.1. If three arbitrators are to be appointed, each party shall
Arbitrators nominate one arbitrator.
11.2. If a party fails to make a nomination of an arbitrator within 14
days after receipt of a party’s nomination of an arbitrator, or within
the period otherwise agreed by the parties or set by the Registrar,
the President shall proceed to appoint an arbitrator on its behalf.
11.3. Unless the parties have agreed upon another procedure for
appointing the third arbitrator, or if such agreed procedure does not
result in a nomination within the period agreed by the parties or set
by the Registrar, the President shall appoint the third arbitrator, who
shall be the presiding arbitrator.

Rule 12. Multi-party 12.1. Where there are more than two parties to the arbitration, and a
Appointment of sole arbitrator is to be appointed, the parties may agree to jointly
Arbitrator(s) nominate the sole arbitrator. In the absence of such joint
nomination having been made within 28 days of the date of
commencement of the arbitration or within the period otherwise
agreed by the parties or set by the Registrar, the President shall
appoint the sole arbitrator.
12.2. Where there are more than two parties to the arbitration, and
three arbitrators are to be appointed, the Claimant(s) shall jointly
nominate one arbitrator and the Respondent(s) shall jointly
nominate one arbitrator. The third arbitrator, who shall be the
presiding arbitrator, shall be appointed in accordance with Rule 11.3.
In the absence of both such joint nominations having been made
within 28 days of the date of commencement of the arbitration or
within the period otherwise agreed by the parties or set by the
Registrar, the President shall appoint all three arbitrators and shall
designate one of them to be the presiding arbitrator.

Rule 13. 13.2. In appointing an arbitrator under these Rules, the President
Qualifications of shall have due regard to any qualifications required of the arbitrator
Arbitrators by the agreement of the parties and to such considerations that are
relevant to the impartiality or independence of the arbitrator.
UNCITRAL

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 Article 6. 1. Unless the parties have already agreed on the choice of an
Designating and appointing authority, a party may at any time propose the name or
Appointing names of one or more institutions or persons, including the
Authorities Secretary-General of the Permanent Court of Arbitration at The
Hague (hereinafter called the “PCA”), one of whom would serve as
appointing authority.
2. If all parties have not agreed on the choice of an appointing
authority within 30 days after a proposal made in accordance with
paragraph 1 has been received by all other parties, any party may
request the Secretary-General of the PCA to designate the
appointing authority.
3. Where these Rules provide for a period of time within which a
party must refer a matter to an appointing authority and no
appointing authority has been agreed on or designated, the period is
suspended from the date on which a party initiates the procedure for
agreeing on or designating an appointing authority until the date of
such agreement or designation.
4. Except as referred to in article 41, paragraph 4, if the appointing
authority refuses to act, or if it fails to appoint an arbitrator within
30 days after it receives a party’s request to do so, fails to act within
any other period provided by these Rules, or fails to decide on a
challenge to an arbitrator within a reasonable time after receiving a
party’s request to do so, any party may request the Secretary-
General of the PCA to designate a substitute appointing authority.
5. In exercising their functions under these Rules, the appointing
authority and the Secretary-General of the PCA may require from
any party and the arbitrators the information they deem necessary
and they shall give the parties and, where appropriate, the
arbitrators, an opportunity to present their views in any manner they
consider appropriate. All such communications to and from the
appointing authority and the Secretary-General of the PCA shall also
be provided by the sender to all other parties.
6. When the appointing authority is requested to appoint an
arbitrator pursuant to articles 8, 9, 10 or 14, the party making the
request shall send to the appointing authority copies of the notice of
arbitration and, if it exists, any response to the notice of arbitration.

7. The appointing authority shall have regard to such considerations

as are likely to secure the appointment of an independent and
impartial arbitrator and shall take into account the advisability of
appointing an arbitrator of a nationality other than the nationalities
of the parties.
Article 7. Number of 1. If the parties have not previously agreed on the number of
Arbitrators arbitrators, and if within 30 days after the receipt by the respondent
of the notice of arbitration the parties have not agreed that there
shall be only one arbitrator, three arbitrators shall be appointed.
2. Notwithstanding paragraph 1, if no other parties have responded
to a party’s proposal to appoint a sole arbitrator within the time
limit provided for in paragraph 1 and the party or parties concerned
have failed to appoint a second arbitrator in accordance with article
9 or 10, the appointing authority may, at the request of a party,
appoint a sole arbitrator pursuant to the procedure provided for in
article 8, paragraph 2, if it determines that, in view of the
circumstances of the case, this is more appropriate.

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 Article 8. 1. If the parties have agreed that a sole arbitrator is to be appointed
Appointment of and if within 30 days after receipt by all other parties of a proposal
Arbitrators for the appointment of a sole arbitrator the parties have not reached
agreement thereon, a sole arbitrator shall, at the request of a party,
be appointed by the appointing authority.
2. The appointing authority shall appoint the sole arbitrator as
promptly as possible. In making the appointment, the appointing
authority shall use the following list-procedure, unless the parties
agree that the list-procedure should not be used or unless the
appointing authority determines in its discretion that the use of the
list-procedure is not appropriate for the case:
(a) The appointing authority shall communicate to each of the
parties an identical list containing at least three names;
(b) Within 15 days after the receipt of this list, each party may
return the list to the appointing authority after having deleted
the name or names to which it objects and numbered the
remaining names on the list in the order of its preference;
(c) After the expiration of the above period of time the appointing
authority shall appoint the sole arbitrator from among the
names approved on the lists returned to it and in accordance
with the order of preference indicated by the parties;
(d) If for any reason the appointment cannot be made according
to this procedure, the appointing authority may exercise its
discretion in appointing the sole arbitrator.

Article 9. 1. If three arbitrators are to be appointed, each party shall appoint

Appointment of one arbitrator. The two arbitrators thus appointed shall choose the
Arbitrators third arbitrator who will act as the presiding arbitrator of the
tribunal.
2. If within 30 days after the receipt of a party’s notification of the
appointment of an arbitrator the other party has not notified the
first party of the arbitrator he has appointed the first party may
request the appointing authority to appoint the second arbitrator.
3. If within 30 days after the appointment of the second arbitrator
the two arbitrators have not agreed on the choice of the presiding
arbitrator, the presiding arbitrator shall be appointed by the
appointing authority in the same way as a sole arbitrator would be
appointed under article 8.

Article 10. 1. For the purposes of article 9, paragraph 1, where three arbitrators
Appointment of are to be appointed and there are multiple parties as claimant or as
Arbitrators respondent, unless the parties have agreed to another method of
appointment of arbitrators, the multiple parties jointly, whether as
claimant or as respondent, shall appoint an arbitrator.
2. If the parties have agreed that the arbitral tribunal is to be
composed of a number of arbitrators other than one or three, the
arbitrators shall be appointed according to the method agreed upon
by the parties.
3. In the event of any failure to constitute the arbitral tribunal under
these Rules, the appointing authority shall, at the request of any
party, constitute the arbitral tribunal and, in doing so, may revoke
any appointment already made and appoint or reappoint each of
the arbitrators and designate one of them as the presiding
arbitrator.

§4.05 ARBITRATOR CHALLENGE

All of the regimes under consideration permit a party to request the removal of an
arbitrator on specified grounds, commonly referred to as an arbitrator challenge. These
regimes unanimously provide that a party may challenge an arbitrator on the ground of
justifiable doubts about the arbitrator’s impartiality or independence. (90) The standards
for sustaining this ground for challenge are set forth in section §4.02 (Independence,
Impartiality, and Disclosure).
The HKIAC, SCC, and SIAC Rules additionally permit a challenge on the ground that the
P 321 arbitrator lacks a qualification agreed by the parties. (91) The ICC Rules employ a catchall
P 322 provision that would generally permit a challenge on this and the grounds discussed in
the following paragraph. (92) We discuss whether, and to what extent, the parties should
agree on specific qualifications of the arbitrators in Chapter 2 (Agreements to Arbitrate),
section §2.04 (Optional Provisions). The ICSID Convention similarly provides for challenge

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 on the ground of a manifest lack of qualifications set forth in the Convention itself. (93)
Professor Schreuer, in his commentary on the ICSID Convention, notes that “[t]he
requirement that the lack of qualities must be ‘manifest’ imposes a relatively heavy
burden of proof” on the party challenging an arbitrator. (94) The other regimes do not
expressly establish a special burden of proof to sustain a challenge on this ground.
The HKIAC, ICC, ICSID, LCIA, SIAC, and UNCITRAL Rules permit a party to challenge an
arbitrator on the grounds that the arbitrator has become unable, or unwilling, to perform
his or her functions as required by the rules. (95) These regimes variously recognize that an
arbitrator’s inability to act may be due to legal or circumstantial impediments (including
serious illness), refusal to act, or unfitness to act. (96) The LCIA Rules specify that an
arbitrator may be found unfit to act if he or she acts in deliberate violation of the parties’
arbitration agreement, does not act fairly or impartially as between the parties, or does
not conduct or participate in the arbitration with reasonable efficiency, diligence, and
industry. (97) The HKIAC and SIAC Rules echo this last prong, providing that an arbitrator
may be challenged by a party for undue delays or failing to act within prescribed time
periods. (98) The ICDR and CIETAC Rules do not expressly provide for a party to challenge
an arbitrator for failing to perform his or her duties, but instead indicate that the
institution may, on its own initiative, remove an arbitrator on this ground. (99) However, in
practice, a party to ICDR or CIETAC arbitration may effectively “challenge” an arbitrator on
this basis by bringing the relevant facts to the attention of the institution. (100)
P 322 A notice of challenge must be filed within strict deadlines (ranging from 14 to 30 days)
P 323 upon learning of the basis for challenge; a party’s failure to do so may be interpreted as
a waiver to the objection. (101) The application must state the reasons for the challenge.
(102) Under some regimes, the requesting party must file its challenge with the institution,
who will forward the challenge to the parties and the arbitrators for comment. (103) Under
other regimes, the requesting party is responsible for transmitting the challenge
simultaneously to the institution, the other party, and the arbitrator(s). (104) Uniquely,
among the regimes under consideration, the ICDR upon receipt of a notice of challenge
does not provide the notice itself to the tribunal, but only informs the tribunal of its
existence without identifying the requesting party. (105) The purpose of this rule is to
prevent the challenged arbitrator from possibly becoming biased against the challenging
party following an unsuccessful challenge.
At this point, the challenge will result in one of three processes. First, the nonrequesting
party may agree with the challenge, in which case the arbitrator will be removed. (106)
Second, the challenged arbitrator(s) may voluntarily withdraw or resign. The ICDR, CIETAC,
HKIAC, LCIA, SIAC, and UNCITRAL Rules expressly contemplate this outcome. (107) The ICC
Rules also consider that an arbitrator may resign in response to a challenge raised by a
party but that the arbitrator’s right to resign is not absolute. (108) According to the ICC
Secretariat, the ICC Court may reject the arbitrator’s resignation if it feels that resignation
would be unhelpful to the subsequent conduct of the case. (109) The ICC Secretariat has
taken the position that by refusing to accept the arbitrator’s resignation in those
circumstances, the ICC Court is reaffirming its confidence in the challenged arbitrator. (110)
Third, if the nonrequesting party does not agree and the arbitrator does not withdraw, then
under all of the regimes under consideration, the arbitral institution or appointing
authority will decide whether to accept or to dismiss the challenge. (111) The LCIA and SIAC
Rules require the Court to state reasons for its decision. (112) The decisions of the
P 323 institution or appointing authority are generally final and binding and not subject to
P 324 appeal; the SIAC Rules confirm this general rule with respect to a decision on an
arbitrator challenge. (113) Consequently, if the institution or appointing authority accepts
the challenge, the allegations of the grounds for challenge will be confirmed as a matter of
law. An arbitrator may not wish to risk this outcome and may avoid it altogether by
withdrawing prior to the decision. Indeed, all of the regimes make clear that an arbitrator’s
withdrawal, or revocation based on party agreement, will not be deemed to be an
acceptance of the allegations. (114)
ICSID addresses challenges to arbitrators slightly differently by assigning the power to
decide upon an arbitrator challenge to the other members of the tribunal. (115) However,
where a sole arbitrator is challenged, or the unchallenged members are equally divided, or
the majority of the members of the tribunal have been challenged, the decision on the
challenge is made by the Chairman of the Administrative Council of the World Bank. The
new draft arbitration rules go further, allowing the two unchallenged arbitrators to send
the challenge to the Chairman if they are unable to decide for any reason. (116)
Another notable difference in the ICSID system is that there is no clear deadline for a party
to challenge an arbitrator. (117) Article 57 of the ICSID Convention requires that a challenge
be made “promptly, and in any event before the proceeding is closed,” although there is
no guidance in the ICSID Convention or in the ICSID Rules on how “promptly” is defined. It
has been left to the tribunals to interpret the meaning, and this has resulted in different
interpretations by different tribunals. (118) However, ICSID is considering an amendment
that would specify a time limit of 20 days after the basis for the challenge arises. (119)
The available statistics on arbitrator challenges are limited. However, arbitrator
challenges are relatively uncommon and only occasionally successful. During the period
from January 1, 2006, to December 31, 2010, the LCIA Court decided 30 challenges among

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 986 arbitrators. (120) During the period from January 1, 1999, to December 31, 2010, the SCC
decided 64 challenges in a total of 1,831 arbitrations (not including the number of
P 324 arbitrators who resigned after being challenged). (121) As of mid-2014, a total of 84
P 325
challenges had been made to ICSID arbitrators. (122) Of these challenges, 21 resulted in
the resignation of arbitrators, 3 were withdrawn or discontinued prior to a decision, and 59
were pursued until the issuance of a decision. Only 4 of the 59 decisions accepted the
challenge of the arbitrator. (123) Depending on the manner in which an institution resolves
the challenge, the procedures for challenging an arbitrator can delay proceedings for a few
months or longer. (124) And yet, as discussed in Chapter 9 (The Award: Form, Effect, and
Enforceability), it may be necessary to challenge an arbitrator in order to ensure the fair
and efficient conduct of the proceedings and the integrity of the final award.
The rules relating to arbitrator challenges are set out in Table 4.5.
P 325
P 326 Table 4.5 Arbitrator Challenges
AAA-ICDR
PP 330
328
326
329
327 Article 14. Challenge 1. A party may challenge an arbitrator whenever circumstances exist
331
PP 330
328
329
332
327 of an Arbitrator
331 that give rise to justifiable doubts as to the arbitrator’s impartiality
or independence. A party shall send a written notice of the challenge
to the Administrator within 15 days after being notified of the
appointment of the arbitrator or within 15 days after the
circumstances giving rise to the challenge become known to that
party. The challenge shall state in writing the reasons for the
challenge. The party shall not send this notice to any member of the
arbitral tribunal.
2. Upon receipt of such a challenge, the Administrator shall notify
the other party of the challenge and give such party an opportunity
to respond. The Administrator shall not send the notice of challenge
to any member of the tribunal but shall notify the tribunal that a
challenge has been received, without identifying the party
challenging. The Administrator may advise the challenged arbitrator
of the challenge and request information from the challenged
arbitrator relating to the challenge. When an arbitrator has been
challenged by a party, the other party may agree to the acceptance
of the challenge and, if there is agreement, the arbitrator shall
withdraw. The challenged arbitrator, after consultation with the
Administrator, also may withdraw in the absence of such agreement.
In neither case does withdrawal imply acceptance of the validity of
the grounds for the challenge.
3. If the other party does not agree to the challenge or the
challenged arbitrator does not withdraw, the Administrator in its
sole discretion shall make the decision on the challenge.
4. The Administrator, on its own initiative, may remove an arbitrator
for failing to perform his or her duties.
CIETAC

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 Article 32. Challenge 1. Upon receipt of the Declaration and/or the written disclosure of
to the Arbitrator an arbitrator, a party wishing to challenge the arbitrator on the
grounds of the disclosed facts or circumstances shall forward the
challenge in writing within ten (10) days from the date of such
receipt. If a party fails to file a challenge within the above time
period, it may not subsequently challenge the arbitrator on the basis
of the matters disclosed by the arbitrator.
2. A party having justifiable doubts as to the impartiality or
independence of an arbitrator may challenge that arbitrator in
writing and shall state the facts and reasons on which the challenge
is based with supporting evidence.
3. A party may challenge an arbitrator in writing within fifteen (15)
days from the date it receives the Notice of Formation of the Arbitral
Tribunal. Where a party becomes aware of a reason for a challenge
after such receipt, the party may challenge the arbitrator in writing
within fifteen (15) days after such reason has become known to it,
but no later than the conclusion of the last oral hearing.
4. The challenge by one party shall be promptly communicated to
the other party, the arbitrator being challenged and the other
members of the arbitral tribunal.
5. Where an arbitrator is challenged by one party and the other
party agrees to the challenge, or the arbitrator being challenged
voluntarily withdraws from his/her office, such arbitrator shall no
longer be a member of the arbitral tribunal. However, in neither case
shall it be implied that the reasons for the challenge are sustained.
6. In circumstances other than those specified in the preceding
Paragraph 5, the Chairman of CIETAC shall make a final decision on
the challenge with or without stating the reasons.
7. An arbitrator who has been challenged shall continue to serve on
the arbitral tribunal until a final decision on the challenge has been
made by the Chairman of CIETAC.

Article 33. 1. In the event that an arbitrator is prevented de jure or de facto

Replacement of from fulfilling his/her functions, or fails to fulfill his/her functions in
Arbitrator accordance with the requirements of these Rules or within the time
period specified in these Rules, the Chairman of CIETAC shall have
the power to replace the arbitrator. Such arbitrator may also
voluntarily withdraw from his/her office.
2. The Chairman of CIETAC shall make a final decision on whether or
not an arbitrator should be replaced with or without stating the
reasons.
[…]

HKIAC

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 Article 11. 11.6. Any arbitrator may be challenged if circumstances exist that
Qualifications and give rise to justifiable doubts as to the arbitrator’s impartiality or
Challenge of the independence, or if the arbitrator does not possess qualifications
Arbitral Tribunal agreed by the parties, or if the arbitrator becomes de jure or de facto
unable to perform his or her functions or for other reasons fails to
act without undue delay. A party may challenge the arbitrator
designated by it or in whose appointment it has participated only for
reasons of which it becomes aware after the designation has been
made.
11.7. A party that intends to challenge an arbitrator shall send notice
of its challenge within 15 days after the confirmation or appointment
of that arbitrator has been communicated to the challenging party
or within 15 days after that party became aware of the
circumstances mentioned in Article 11.6.
11.8. The notice of challenge shall be communicated to HKIAC, all
other parties, the challenged arbitrator and any other members of
the arbitral tribunal. The notice of challenge shall state the reasons
for the challenge.
11.9. Unless the arbitrator being challenged resigns or the non-
challenging party agrees to the challenge within 15 days from
receiving the notice of challenge, HKIAC shall decide on the
challenge. Pending the determination of the challenge, the arbitral
tribunal (including the challenged arbitrator) may continue the
arbitration.
11.10. If an arbitrator resigns or a party agrees to a challenge under
Article 11.9, no acceptance of the validity of any ground referred to
in Article 11.6 shall be implied.

ICC
Article 14. Challenge 1. A challenge of an arbitrator, whether for an alleged lack of
of Arbitrators impartiality or independence, or otherwise, shall be made by the
submission to the Secretariat of a written statement specifying the
facts and circumstances on which the challenge is based.
2. For a challenge to be admissible, it must be submitted by a party
either within 30 days from receipt by that party of the notification of
the appointment or confirmation of the arbitrator, or within 30 days
from the date when the party making the challenge was informed of
the facts and circumstances on which the challenge is based if such
date is subsequent to the receipt of such notification.
3. The Court shall decide on the admissibility and, at the same time,
if necessary, on the merits of a challenge after the Secretariat has
afforded an opportunity for the arbitrator concerned, the other party
or parties and any other members of the arbitral tribunal to
comment in writing within a suitable period of time. Such comments
shall be communicated to the parties and to the arbitrators.

ICSID
ICSID Convention, A party may propose to a Commission or Tribunal the
Article 57 disqualification of any of its members on account of any fact
indicating a manifest lack of the qualities required by paragraph (1)
of Article 14. A party to arbitration proceedings may, in addition,
propose the disqualification of an arbitrator on the ground that he
was ineligible for appointment to the Tribunal under Section 2 of
Chapter IV.
ICSID Convention, The decision on any proposal to disqualify a conciliator or arbitrator
Article 58 shall be taken by the other members of the Commission or Tribunal
as the case may be, provided that where those members are equally
divided, or in the case of a proposal to disqualify a sole conciliator
or arbitrator, or a majority of the conciliators or arbitrators, the
Chairman shall take that decision. If it is decided that the proposal
is well-founded the conciliator or arbitrator to whom the decision
relates shall be replaced in accordance with the provisions of
Section 2 of Chapter III or Section 2 of Chapter IV.

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 Arbitration Rules, (1) If an arbitrator becomes incapacitated or unable to perform the
Rule 8. Incapacity or duties of his office, the procedure in respect of the disqualification of
Resignation of arbitrators set forth in Rule 9 shall apply.
Arbitrators
(2) An arbitrator may resign by submitting his resignation to the
other members of the Tribunal and the Secretary-General. If the
arbitrator was appointed by one of the parties, the Tribunal shall
promptly consider the reasons for his resignation and decide
whether it consents thereto. The Tribunal shall promptly notify the
Secretary-General of its decision.

Arbitration Rules, (1) A party proposing the disqualification of an arbitrator pursuant

Rule 9. to Article 57 of the Convention shall promptly, and in any event
Disqualification of before the proceeding is declared closed, file its proposal with the
Arbitrators Secretary-General, stating its reasons therefor.
(2) The Secretary-General shall forthwith:
(a) transmit the proposal to the members of the Tribunal and, if it
relates to a sole arbitrator or to a majority of the members of
the Tribunal, to the Chairman of the Administrative Council;
and
(b) notify the other party of the proposal.
(3) The arbitrator to whom the proposal relates may, without delay,
furnish explanations to the Tribunal or the Chairman, as the case
may be.

(4) Unless the proposal relates to a majority of the members of the

Tribunal, the other members shall promptly consider and vote on
the proposal in the absence of the arbitrator concerned. If those
members are equally divided, they shall, through the Secretary-
General, promptly notify the Chairman of the proposal, of any
explanation furnished by the arbitrator concerned and of their
failure to reach a decision.
(5) Whenever the Chairman has to decide on a proposal to disqualify
an arbitrator, he shall use his best efforts to take that decision
within 30 days after he has received the proposal.
(6) The proceeding shall be suspended until a decision has been
taken on the proposal.

LCIA
Article 10. 10.1. The LCIA Court may revoke any arbitrator’s appointment upon
Revocation and its own initiative, at the written request of all other members of the
Challenges Arbitral Tribunal or upon a written challenge by any party if: (i) that
arbitrator gives written notice to the LCIA Court of his or her intent
to resign as arbitrator, to be copied to all parties and all other
members of the Arbitral Tribunal (if any); (ii) that arbitrator falls
seriously ill, refuses or becomes unable or unfit to act; or (iii)
circumstances exist that give rise to justifiable doubts as to that
arbitrator’s impartiality or independence.
10.2. The LCIA Court may determine that an arbitrator is unfit to act
under Article 10.1. if that arbitrator: (i) acts in deliberate violation of
the Arbitration Agreement; (ii) does not act fairly or impartially as
between the parties; or (iii) does not conduct or participate in the
arbitration with reasonable efficiency, diligence and industry.
10.3. A party challenging an arbitrator under Article 10.1 shall, within
14 days of the formation of the Arbitral Tribunal or (if later) within 14
days of becoming aware of any grounds described in Article 10.1 or
10.2, deliver a written statement of the reasons for its challenge to
the LCIA Court, the Arbitral Tribunal and all other parties. A party
may challenge an arbitrator whom it has nominated, or in whose
appointment it has participated, only for reasons of which it
becomes aware after the appointment has been made by the LCIA
Court.
10.4. The LCIA Court shall provide to those other parties and the
challenged arbitrator a reasonable opportunity to comment on the
challenging party’s written statement. The LCIA Court may require at
any time further information and materials from the challenging
party, the challenged arbitrator, other parties and other members of
the Arbitral Tribunal (if any).

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 10.5. If all other parties agree in writing to the challenge within 14
days of receipt of the written statement, the LCIA Court shall revoke
that arbitrator’s appointment (without reasons).
10.6. Unless the parties so agree or the challenged arbitrator resigns
in writing within 14 days of receipt of the written statement, the LCIA
Court shall decide the challenge and, if upheld, shall revoke that
arbitrator’s appointment. The LCIA Court’s decision shall be made in
writing, with reasons; and a copy shall be transmitted by the
Registrar to the parties, the challenged arbitrator and other
members of the Arbitral Tribunal (if any). A challenged arbitrator
who resigns in writing prior to the LCIA Court’s decision shall not be
considered as having admitted any part of the written statement.
10.7. The LCIA Court shall determine the amount of fees and
expenses (if any) to be paid for the former arbitrator’s services, as it
may consider appropriate in the circumstances. The LCIA Court may
also determine whether, in what amount and to whom any party
should pay forthwith the costs of the challenge; and the LCIA Court
may also refer all or any part of such costs to the later decision of
the Arbitral Tribunal and/or the LCIA Court under Article 28.

SCC
Article 19. Challenge (1) A party may challenge any arbitrator if circumstances exist that
to Arbitrators give rise to justifiable doubts as to the arbitrator’s impartiality or
independence or if the arbitrator does not possess the qualifications
agreed by the parties.
(2) A party may challenge an arbitrator it has appointed, or in whose
appointment it has participated, only for reasons it becomes aware
of after the appointment was made.
(3) A party wishing to challenge an arbitrator shall submit a written
statement to the Secretariat stating the reasons for the challenge,
within 15 days from the date the circumstances giving rise to the
challenge became known to the party. Failure to challenge an
arbitrator within the stipulated time constitutes a waiver of the
party’s right to make the challenge.
(4) The Secretariat shall notify the parties and the arbitrators of the
challenge and give them an opportunity to submit comments.
(5) If the other party agrees to the challenge, the arbitrator shall
resign. In all other cases, the Board shall take the final decision on
the challenge.

SIAC
Rule 14. Challenge of 14.1. Any arbitrator may be challenged if circumstances exist that
Arbitrators give rise to justifiable doubts as to the arbitrator’s impartiality or
independence or if the arbitrator does not possess any requisite
qualification on which the parties have agreed.
14.2. A party may challenge the arbitrator nominated by it only for
reasons of which it becomes aware after the appointment has been
made.

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 Rule 15. Notice of 15.1. A party that intends to challenge an arbitrator shall file a
Challenge notice of challenge with the Registrar in accordance with the
requirements of Rule 15.2 within 14 days after receipt of the notice of
appointment of the arbitrator who is being challenged or within 14
days after the circumstances specified in Rule 14.1 or Rule 14.2
became known or should have reasonably been known to that party.
15.2. The notice of challenge shall state the reasons for the
challenge. The date of receipt of the notice of challenge by the
Registrar shall be deemed to be the date the notice of challenge is
filed. The party challenging an arbitrator shall, at the same time as
it files a notice of challenge with the Registrar, send the notice of
challenge to the other party, the arbitrator who is being challenged
and the other members of the Tribunal (or if the Tribunal has not yet
been constituted, any appointed arbitrator), and shall notify the
Registrar that it has done so, specifying the mode of service
employed and the date of service.
15.3. The party making the challenge shall pay the requisite
challenge fee under these Rules in accordance with the applicable
Schedule of Fees. If the party making the challenge fails to pay the
challenge fee within the time limit set by the Registrar, the
challenge shall be considered as withdrawn.
15.4. After receipt of a notice of challenge under Rule 15.2, the
Registrar may order a suspension of the arbitral proceedings until
the challenge is resolved. Unless the Registrar orders the suspension
of the arbitral proceedings pursuant to this Rule 15.4, the challenged
arbitrator shall be entitled to continue to participate in the
arbitration pending the determination of the challenge by the Court
in accordance with Rule 16.
15.5. Where an arbitrator is challenged by a party, the other party
may agree to the challenge, and the Court shall remove the
arbitrator if all parties agree to the challenge. The challenged
arbitrator may also voluntarily withdraw from office. In neither case
does this imply acceptance of the validity of the grounds for the
challenge.
[…]

Rule 16. Decision on 16.1. If, within seven days of receipt of the notice of challenge under
Challenge Rule 15, the other party does not agree to the challenge and the
arbitrator who is being challenged does not withdraw voluntarily
from office, the Court shall decide the challenge. The Court may
request comments on the challenge from the parties, the challenged
arbitrator and the other members of the Tribunal (or if the Tribunal
has not yet been constituted, any appointed arbitrator), and set a
schedule for such comments to be made.
[…]
16.4. The Court’s decision on any challenge to an arbitrator under
this Rule 16 shall be reasoned, unless otherwise agreed by the
parties, and shall be issued to the parties by the Registrar. Any such
decision on any challenge by the Court shall be final and not subject
to appeal.

UNCITRAL
Article 12. Challenge 1. Any arbitrator may be challenged if circumstances exist that give
of Arbitrators rise to justifiable doubts as to the arbitrator’s impartiality or
independence.
2. A party may challenge the arbitrator appointed by him only for
reasons of which he becomes aware after the appointment has been
made.
3. In the event that an arbitrator fails to act or in the event of the de
jure or de facto impossibility of his or her performing his or her
functions, the procedure in respect of the challenge of an arbitration
as provided in Article 13 shall apply

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 Article 13. Challenge 1. A party that intends to challenge an arbitrator shall send notice of
of Arbitrators its challenge within 15 days after it has been notified of the
appointment of the challenged arbitrator, or within 15 days after the
circumstances mentioned in articles 11 and 12 became known to
that party.
2. The notice of challenge shall be communicated to all other
parties, to the arbitrator who is challenged and to the other
arbitrators. The notice of challenge shall state the reasons for the
challenge.
3. When an arbitrator has been challenged by a party, all parties
may agree to the challenge. The arbitrator may also, after the
challenge, withdraw from his or her office. In neither case does this
imply acceptance of the validity of the grounds of the challenge.
4. If, within 15 days from the date of the notice of challenge, all
parties do not agree to the challenge or the challenged arbitrator
does not withdraw, the party making the challenge may elect to
pursue it. In that case, within 30 days from the date of the notice of
challenge, it shall seek a decision on the challenge by the
appointing authority.
P 332
P 333

§4.06 REPLACEMENT OF AN ARBITRATOR

The institution or appointing authority typically will remove and replace an arbitrator
following a successful challenge or in other specified circumstances. (125) The first of these
other circumstances is a determination by the institution, acting on its own initiative, that
the arbitrator in question is failing to fulfill his or her functions on the tribunal. As
mentioned in section §4.05 (Arbitrator Challenge), this is a specified or permissible ground
for a challenge by a party under the HKIAC, ICC, ICSID, LCIA, SIAC, and UNCITRAL Rules. By
contrast, all of the regimes under consideration except the ICSID and UNCITRAL Rules
expressly authorize the institution to act sua sponte to remove and replace an arbitrator
for failure to fulfill his or her functions. (126) Other grounds for the institution or appointing
authority to replace an arbitrator include the arbitrator’s withdrawal or resignation,
removal from the institution’s panel of arbitrators, incapacity (including serious illness)
and death, or a joint request by both parties. (127) All of these rules are reproduced in
Table 4.5.
Under the ICDR and ICSID Rules, the regimes’ default provisions for arbitrator
appointments generally apply to the appointment of the new arbitrator. (128) Similarly,
under the CIETAC, HKIAC, and SIAC Rules, the replacement arbitrator will be appointed
according to the same procedure as the original arbitrator. (129) By contrast, under the ICC,
LCIA, SCC, and UNCITRAL Rules, the Court, Board, or appointing authority will decide
whether or not to follow the original nominating process. (130)
Following the appointment of the replacement arbitrator, one party may wish to repeat
the presentation of its case in the interest of due process, while the other party may wish
to move forward with the proceedings in the interest of efficiency. The regimes under
consideration make provisions to address this potential conflict. The ICDR, CIETAC, and SCC
Rules take a neutral position on the matter: the tribunal will determine in its sole
discretion whether part or all of the case shall be repeated. (131) The HKIAC and UNCITRAL
P 333 Rules provide a presumption in favor of moving forward: the proceedings will pick up
P 334 where they left off—unless the tribunal decides otherwise. (132) Likewise, the ICSID Rules
provide that the proceedings shall resume unless the newly appointed arbitrator requests
the oral proceedings to be restarted. (133) The SIAC Rules are the most precise: (i) if the
sole or presiding arbitrator is replaced, then any hearings previously held shall be
repeated; (ii) if a co-arbitrator is replaced, then hearings may be repeated at the
discretion of the tribunal further to consultation with the parties; (iii) any hearing related
to an interim or partial award already issued shall not be repeated. (134)
As an alternative to appointing a replacement arbitrator, all of the regimes under
consideration except the ICSID and SIAC Rules contemplate that the remaining arbitrators
on the tribunal might be able to move forward with the proceedings in the absence of an
arbitrator. (135) Note, however, that the ICDR and LCIA Rules only indicate this option in the
event that the arbitrator in question fails to participate in the arbitration without good
cause. (136) Note also that the HKIAC, LCIA, and UNCITRAL Rules admit this option only in
“exceptional circumstances.” (137) Most regimes vest the power to make this determination
in the institution or appointing authority, while the ICDR Rules uniquely authorize the
remaining arbitrators to decide in their sole discretion whether to carry on without a
replacement. (138)
A key factor to consider in deciding to exercise this option is whether the arbitration is at a
late stage. Proceeding in the absence of one of the arbitrators will, of course, avoid the
time and cost of repeating much or all of the proceedings for a new arbitrator. The CIETAC
and UNCITRAL Rules permit the arbitration to proceed in the absence of an arbitrator only

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 after the conclusion of the last oral hearing. (139) The ICC Rules set the requirement
possibly even later: after the proceedings are declared closed. (140) The ICDR, LCIA, and
SCC Rules merely require consideration of the “stage of the proceedings” in making the
determination whether to proceed in the absence of an arbitrator. (141)
Other factors to consider include the likely effect on the enforceability of the eventual
award at the seat of arbitration; (142) the reasons, if any, given by the absent arbitrator for
P 334 not participating in the arbitration; (143) the views of the remaining arbitrators; (144) the
P 335 views of the parties; (145) and any other relevant circumstances. (146) Of these factors,
the first one deserves special mention. Parties will do well to check the lex loci arbitri to
confirm whether it permits an arbitration to be conducted in the absence of an arbitrator
and to raise any concerns about enforceability of the award in the event the institution or
tribunal considers exercising this option. The ability of a majority of arbitrators to render
an award in the absence of an arbitrator, and the enforceability of such an award, is
discussed in Chapter 9 (The Award: Form, Effect, and Enforceability).
The rules relating to the replacement of arbitrations are reproduced in Table 4.6.
P 335
P 336 Table 4.6 Arbitrator Replacement
AAA-ICDR
PP 340
338
336
339
337 Article 15.
341 1. If an arbitrator resigns, is incapable of performing the duties of an
PP 340
338
339
342
337 Replacement of an
341 arbitrator, or is removed for any reason and the office becomes
Arbitrator vacant, a substitute arbitrator shall be appointed pursuant to the
provisions of Article 12, unless the parties otherwise agree.
2. If a substitute arbitrator is appointed under this Article, unless the
parties otherwise agree the arbitral tribunal shall determine at its
sole discretion whether all or part of the case shall be repeated.
3. If an arbitrator on a three-person arbitral tribunal fails to
participate in the arbitration for reasons other than those identified
in Article 15(1), the two other arbitrators shall have the power in their
sole discretion to continue the arbitration and to make any decision,
ruling, order, or award, notwithstanding the failure of the third
arbitrator to participate. In determining whether to continue the
arbitration or to render any decision, ruling, order, or award without
the participation of an arbitrator, the two other arbitrators shall
take into account the stage of the arbitration, the reason, if any,
expressed by the third arbitrator for such non-participation and such
other matters as they consider appropriate in the circumstances of
the case. In the event that the two other arbitrators determine not to
continue the arbitration without the participation of the third
arbitrator, the Administrator on proof satisfactory to it shall declare
the office vacant, and a substitute arbitrator shall be appointed
pursuant to the provisions of Article 12, unless the parties otherwise
agree.

CIETAC
Article 33. 1. In the event that an arbitrator is prevented de jure or de facto
Replacement of from fulfilling his/her functions, or fails to fulfill his/her functions in
Arbitrator accordance with the requirements of these Rules or within the time
period specified in these Rules, the Chairman of CIETAC shall have
the power to replace the arbitrator. Such arbitrator may also
voluntarily withdraw from his/her office.
2. The Chairman of CIETAC shall make a final decision on whether or
not an arbitrator should be replaced with or without stating the
reasons.
3. In the event that an arbitrator is unable to fulfill his/her functions
due to challenge or replacement, a substitute arbitrator shall be
nominated or appointed within the time period specified by the
Arbitration Court according to the same procedure that applied to
the nomination or appointment of the arbitrator being challenged or
replaced. If a party fails to nominate or appoint a substitute
arbitrator accordingly, the substitute arbitrator shall be appointed
by the Chairman of CIETAC.
4. After the replacement of an arbitrator, the arbitral tribunal shall
decide whether and to what extent the previous proceedings in the
case shall be repeated.

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 Article 34. After the conclusion of the last oral hearing, if an arbitrator on a
Continuation of three-member tribunal is unable to participate in the deliberations
Arbitration by and/or to render the award owing to his/her demise or to his/her
Majority removal from CIETAC’s Panel of Arbitrators, or for any other reason,
the other two arbitrators may request the Chairman of CIETAC to
replace that arbitrator pursuant to Article 33 of these Rules. After
consulting with the parties and upon the approval of the Chairman
of CIETAC, the other two arbitrators may also continue the arbitral
proceedings and make decisions, rulings, or render the award. The
Arbitration Court shall notify the parties of the above circumstances.
HKIAC
Article 12. 12.1 Subject to Articles 12.2, 27.13 and 28.8, where an arbitrator dies,
Replacement of an has been successfully challenged, has been otherwise removed or
Arbitrator has resigned, a substitute arbitrator shall be appointed pursuant to
the rules that were applicable to the appointment of the arbitrator
being replaced. These rules shall apply even if, during the process of
appointing the arbitrator being replaced, a party had failed to
exercise its right to designate or to participate in the appointment.
12.2 If, at the request of a party, HKIAC determines that, in view of
the exceptional circumstances of the case, it would be justified for a
party to be deprived of its right to designate a substitute arbitrator,
HKIAC may, after giving an opportunity to the parties and the
remaining arbitrators to express their views:
(a) appoint the substitute arbitrator; or
(b) authorise the other arbitrators to proceed with the arbitration
and make any decision or award.
12.3 If an arbitrator is replaced, the arbitration shall resume at the
stage where the arbitrator was replaced or ceased to perform his or
her functions, unless the arbitral tribunal decides otherwise.

ICC
Article 15. 1. An arbitrator shall be replaced upon death, upon acceptance by
Replacement of the Court of the arbitrator’s resignation, upon acceptance by the
Arbitrators Court of a challenge, or upon acceptance by the Court of a request
of all the parties.
2. An arbitrator shall also be replaced on the Court’s own initiative
when it decides that the arbitrator is prevented de jure or de facto
from fulfilling the arbitrator’s functions, or that the arbitrator is not
fulfilling those functions in accordance with the Rules or within the
prescribed time limits.
3. When, on the basis of information that has come to its attention,
the Court considers applying Article 15(2), it shall decide on the
matter after the arbitrator concerned, the parties and any other
members of the arbitral tribunal have had an opportunity to
comment in writing within a suitable period of time. Such comments
shall be communicated to the parties and to the arbitrators.
4. When an arbitrator is to be replaced, the Court has discretion to
decide whether or not to follow the original nominating process.
Once reconstituted, and after having invited the parties to comment,
the arbitral tribunal shall determine if and to what extent prior
proceedings shall be repeated before the reconstituted arbitral
tribunal.
5. Subsequent to the closing of the proceedings, instead of replacing
an arbitrator who has died or been removed by the Court pursuant
to Articles 15(1) or 15(2), the Court may decide, when it considers it
appropriate, that the remaining arbitrators shall continue the
arbitration. In making such determination, the Court shall take into
account the views of the remaining arbitrators and of the parties
and such other matters that it considers appropriate in the
circumstances.

ICSID

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 ICSID Convention, (1) After a Commission or a Tribunal has been constituted and
Article 56. proceedings have begun, its composition shall remain unchanged;
Replacement and provided, however, that if a conciliator or an arbitrator should die,
Disqualification of become incapacitated, or resign, the resulting vacancy shall be
Conciliators and filled in accordance with the provisions of … Section 2 of Chapter IV
Arbitrators (referring to the provision relating to the appointment of the original
members of the Tribunal).
(2) A member of a Commission or Tribunal shall continue to serve in
that capacity notwithstanding that he shall have ceased to be a
member of the Panel.
(3) If a conciliator or arbitrator appointed by a party shall have
resigned without the consent of the Commission or Tribunal of which
he was a member, the Chairman shall appoint a person from the
appropriate Panel to fill the resulting vacancy.

Arbitration Rules, At any time before the Tribunal is constituted, each party may
Rule 7. Replacement replace any arbitrator appointed by it and the parties may by
of Arbitrators common consent agree to replace any arbitrator. The procedure of
such replacement shall be in accordance with Rules, 1, 5 and 6.
Arbitration Rules, (1) If an arbitrator becomes incapacitated or unable to perform the
Rule 8. duties of his office, the procedure in respect of the disqualification of
arbitrators set forth in Rule 9 shall apply.
Incapacity or
Resignation of (2) An arbitrator may resign by submitting his resignation to the
Arbitrators other members of the Tribunal and the Secretary-General. If the
arbitrator was appointed by one of the parties, the Tribunal shall
promptly consider the reasons for his resignation and decide
whether it consents thereto. The Tribunal shall promptly notify the
Secretary-General of its decision.

Arbitration Rules, (1) The Secretary-General shall forthwith notify the parties and, if
Rule 10. Procedure necessary, the Chairman of the Administrative Council of the
During a Vacancy on disqualification, death, incapacity or resignation of an arbitrator
the Tribunal and of the consent, if any, of the Tribunal to a resignation.
(2) Upon the notification by the Secretary-General of a vacancy on
the Tribunal, the proceeding shall be or remain suspended until the
vacancy has been filled.

Arbitration Rules, (1) Except as provided in paragraph (2), a vacancy resulting from the
Rule 11. Filling disqualification, death, incapacity or resignation of an arbitrator
Vacancies on the shall be promptly filled by the same method by which his
Tribunal appointment had been made.
(2) In addition to filling vacancies relating to arbitrators appointed
by him, the Chairman of the Administrative Council shall appoint a
person from the Panel of Arbitrators:

(a) to fill a vacancy caused by the resignation, without the

consent of the Tribunal, of an arbitrator appointed by a party;
or
(b) at the request of either party, to fill any other vacancy, if no
new appointment is made and accepted within 45 days of the
notification of the vacancy by the Secretary-General.
(3) The procedure for filling a vacancy shall be in accordance with
Rules 1, 4(4), 4(5), 5 and, mutatis mutandis, 6(2).

Arbitration Rules, As soon as a vacancy on the Tribunal has been filled, the proceeding
Rule 12. Resumption shall continue from the point it had reached at the time the vacancy
of Proceeding after occurred. The newly appointed arbitrator may, however, require that
Filling a Vacancy the oral procedure be recommenced, if this had already been
started.
LCIA

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 Article 10. 10.1. The LCIA Court may revoke any arbitrator’s appointment upon
Revocation and its own initiative, at the written request of all other members of the
Challenges Arbitral Tribunal or upon a written challenge by any party if: (i) that
arbitrator gives written notice to the LCIA Court of his or her intent
to resign as arbitrator, to be copied to all parties and all other
members of the Arbitral Tribunal (if any); (ii) that arbitrator falls
seriously ill, refuses or becomes unable or unfit to act; or (iii)
circumstances exist that give rise to justifiable doubts as to that
arbitrator’s impartiality or independence.
10.2. The LCIA Court may determine that an arbitrator is unfit to act
under Article 10.1 if that arbitrator: (i) acts in deliberate violation of
the Arbitration Agreement; (ii) does not act fairly or impartially as
between the parties; or (iii) does not conduct or participate in the
arbitration with reasonable efficiency, diligence and industry.
[…]

Article 11. 11.1. In the event that the LCIA Court determines that justifiable
Nomination and doubts exist as to any arbitral candidate’s suitability, independence
Replacement or impartiality, or if a nominee declines appointment as arbitrator,
or if an arbitrator is to be replaced for any reason, the LCIA Court
may determine whether or not to follow the original nominating
process for such arbitral appointment.
11.2. The LCIA Court may determine that any opportunity given to a
party to make any re-nomination (under the Arbitration Agreement
or otherwise) shall be waived if not exercised within 14 days (or such
lesser or greater time as the LCIA Court may determine), after which
the LCIA Court shall appoint the replacement arbitrator without
such re-nomination.

Article 12. Majority 12.1. In exceptional circumstances, where an arbitrator without good
Power to Continue cause refuses or persistently fails to participate in the deliberations
Deliberations of an Arbitral Tribunal, the remaining arbitrators jointly may decide
(after their written notice of such refusal or failure to the LCIA Court,
the parties and the absent arbitrator) to continue the arbitration
(including the making of any award) notwithstanding the absence of
that other arbitrator, subject to the written approval of the LCIA
Court.
12.2. In deciding whether to continue the arbitration, the remaining
arbitrators shall take into account the stage of the arbitration, any
explanation made by or on behalf of the absent arbitrator for his or
her refusal or non-participation, the likely effect upon the legal
recognition or enforceability of any award at the seat of the
arbitration and such other matters as they consider appropriate in
the circumstances. The reasons for such decision shall be stated in
any award made by the remaining arbitrators without the
participation of the absent arbitrator.
12.3. In the event that the remaining arbitrators decide at any time
thereafter not to continue the arbitration without the participation
of the absent arbitrator, the remaining arbitrators shall notify in
writing the parties and the LCIA Court of such decision; and, in that
event, the remaining arbitrators or any party may refer the matter
to the LCIA Court for the revocation of the absent arbitrator’s
appointment and the appointment of a replacement arbitrator
under Articles 10 and 11.

SCC
Article 20. Release (1) The Board shall release an arbitrator from appointment where:
from Appointment
(i) the Board accepts the resignation of the arbitrator;
(ii) a challenge to the arbitrator under Article 19 is sustained; or
(iii) the arbitrator is otherwise unable or fails to perform the
arbitrator’s functions.
(2) Before the Board releases an arbitrator, the Secretariat may give
the parties and the arbitrators an opportunity to submit comments.

Article 21. (1) The Board shall appoint a new arbitrator where an arbitrator has
Replacement of been released from appointment pursuant to Article 20, or where an
Arbitrators arbitrator has died. If the released arbitrator was appointed by a
party, that party shall appoint the new arbitrator, unless the Board
otherwise deems it appropriate.

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 (2) Where the Arbitral Tribunal consists of three or more arbitrators,
the Board may decide that the remaining arbitrators shall proceed
with the arbitration. Before the Board takes a decision, the parties
and the arbitrators shall be given an opportunity to submit
comments. In taking its decision, the Board shall have regard to the
stage of the arbitration and any other relevant circumstances.
(3) Where an arbitrator has been replaced, the newly composed
Arbitral Tribunal shall decide whether and to what extent the
proceedings are to be repeated.

SIAC
Rule 15. Notice of 15.6. If an arbitrator is removed or withdraws from office in
Challenge accordance with Rule 15.5. a substitute arbitrator shall be appointed
in accordance with the procedure applicable to the nomination and
appointment of the arbitrator being replaced. This procedure shall
apply even if, during the process of appointing the challenged
arbitrator, a party failed to exercise its right to nominate an
arbitrator. The time limits applicable to the nomination and
appointment of the substitute arbitrator shall commence from the
date of receipt of the agreement of the other party to the challenge
or the challenged arbitrator’s withdrawal from office.
Rule 16. Decision on 16.2. If the Court accepts the challenge to an arbitrator, the Court
Challenge shall remove the arbitrator, and a substitute arbitrator shall be
appointed in accordance with the procedure applicable to the
nomination and appointment of the arbitrator being replaced. The
time limits applicable to the nomination and appointment of the
substitute arbitrator shall commence from the date of the
Registrar’s notification to the parties of the decision by the Court.
16.3. If the Court rejects the challenge to an arbitrator, the
challenged arbitrator shall continue with the arbitration.

Rule 17. 17.1. Except as otherwise provided in these Rules, in the event of the
Replacement of an death, resignation, withdrawal or removal of an arbitrator during
Arbitrator the course of the arbitral proceedings, a substitute arbitrator shall
be appointed in accordance with the procedure applicable to the
nomination and appointment of the arbitrator being replaced.
17.2. In the event that an arbitrator refuses or fails to act or perform
his functions in accordance with the Rules or within prescribed time
limits, or in the event of any de jure or de facto impossibility by an
arbitrator to act or perform his functions, the procedure for
challenge and replacement of an arbitrator provided in Rule 14 to
Rule 16 and Rule 17.1 shall apply.

17.3. The President may, at his own initiative and in his discretion,
remove an arbitrator who refuses or fails to act or to perform his
functions in accordance with the Rules or within prescribed time
limits, or in the event of a de jure or de facto impossibility of an
arbitrator to act or perform his functions, or if the arbitrator does
not conduct or participate in the arbitration with due diligence
and/or in a manner that ensures the fair, expeditious, economical
and final resolution of the dispute. The President shall consult the
parties and the members of the Tribunal, including the arbitrator to
be removed (or if the Tribunal has not yet been constituted, any
appointed arbitrator) prior to the removal of an arbitrator under this
Rule.
Rule 18. Repetition If the sole or presiding arbitrator is replaced in accordance with the
of Hearings in the procedure in Rule 15 to Rule 17, any hearings held previously shall be
Event of repeated unless otherwise agreed by the parties. If any other
Replacement of an arbitrator is replaced, any hearings held previously may be repeated
Arbitrator at the discretion of the Tribunal after consulting with the parties. If
the Tribunal has issued an interim or partial Award, any hearings
relating solely to that Award shall not be repeated, and the Award
shall remain in effect.
UNCITRAL

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 Article 14. 1. Subject to paragraph 2, in any event where an arbitrator has to be
Replacement of an replaced during the course of the arbitral proceedings, a substitute
Arbitrator arbitrator shall be appointed or chosen pursuant to the procedure
provided for in articles 8 to 11 that was applicable to the
appointment or choice of the arbitrator being replaced. This
procedure shall apply even if during the process of appointing the
arbitrator to be replaced, a party had failed to exercise its right to
appoint or to participate in the appointment.
2. If, at the request of a party, the appointing authority determines
that, in view of the exceptional circumstances of the case, it would
be justified for a party to be deprived of its right to appoint a
substitute arbitrator, the appointing authority may, after giving an
opportunity to the parties and the remaining arbitrators to express
their views: (a) appoint the substitute arbitrator; or (b) after the
closure of the hearings, authorize the other arbitrators to proceed
with the arbitration and make any decision or award.

Article 15. Repetition If an arbitrator is replaced, the proceedings shall resume at the
of Hearings in the stage where the arbitrator who was replaced ceased to perform his
Event of the or her functions, unless the arbitral tribunal decided otherwise.
Replacement of an
Arbitrator
P 342
P 343

§4.07 LIMITATION OF LIABILITY

All of the arbitral regimes under consideration except the CIETAC Rules include a
limitation of liability for the arbitrators for their acts or omissions in connection with the
arbitration (see Table 4.7). (147) Insofar as the limitation of liability forms part of the
regime agreed by the parties, it operates as a waiver. The UNCITRAL Rules make this clear:
“the parties waive … any claim against the arbitrators … .” (148) The ICDR, LCIA, and SCC
Rules similarly apply this waiver to “any party.” (149) The ICC and SIAC Rules purport to
apply the waiver more broadly to “any person,” while the HKIAC Rules do not indicate to
whom the waiver applies, though it is unclear how a nonparty could be subject to such a
waiver absent a specific agreement. (150)
The regimes vary in the scope of protection afforded to the arbitrators according to the
degree of culpability of the act or omission in question. The ICDR and ICC Rules provide the
largest scope of protection by excluding from liability any act or omission by the
arbitrators in connection with the arbitration. (151) Under the ICSID Convention, arbitrators
have immunity from all lawsuits and criminal prosecution (“immunity from legal process”),
unless the Centre waives this immunity. (152) The LCIA and UNCITRAL Rules protect
arbitrators in all cases except intentional wrongdoing. (153) Similarly, the HKIAC Rules do
not exclude from liability those actions or omissions that were done “dishonestly.” (154)
The SCC Rules are still less protective of arbitrators; the waiver does not apply in cases of
both intentional wrongdoing and gross negligence. (155) Similarly, the SIAC Rules expressly
protect arbitrators from liability in cases of negligence, but not more. (156)
Notwithstanding these varying standards, some of the regimes expressly acknowledge that
the arbitrators’ limitation of liability applies only to the extent that such limitation is not
prohibited by applicable law. (157) In most cases, the applicable law will be the law of the
seat of arbitration and/or the law of the jurisdiction where the arbitrator’s act or omission
occurred. Modern arbitration laws vary widely on this issue: some laws expressly impose
P 343 liability on arbitrators, while others limit or exclude it altogether, and any of these might
P 344 permit, or prohibit, the parties to agree to the limitations and exclusions described
above. (158) Consequently, the limitation-of-liability provision in most regimes must be
viewed as a contractual starting point and an aspiration, subject in most cases to
confirmation under the applicable law.
Also, these regimes generally extend the limitation of liability not only to the members of
the tribunal but also to any emergency arbitrator and any expert or secretary appointed
by the tribunal, as well as to the administering institution and its employees. (159) The
ICSID Convention extends the limitation of liability further still to protect all persons
appearing in proceedings as parties, agents, counsel, advocates, witnesses, or experts.
(160)
Lastly, the ICDR, HKIAC, LCIA, and SIAC Rules add a clarification that no arbitrator or
administrative personnel shall have any obligation to make any statement about the
arbitration, or to act as a witness in any subsequent judicial proceedings arising out of the
arbitration. (161) This provision reinforces the limitation of liability clause discussed
above, by precluding a party from calling one arbitrator (or administrative employee) to
testify against another in any subsequent claim that the latter committed any misconduct
or omission in the course of the arbitration. This provision may produce important
derivative benefits, as well. First, the limitation on statements and testimony tends to
ensure that the information exchanged in the proceedings will remain confidential.

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 Second, it tends to encourage arbitrators and administrators to participate in arbitrations
by exempting them from possible continuing obligations outside the arbitration and after
it has concluded. Third, by not imposing an obligation on arbitrators and administrators to
P 344
P 345
act as witnesses in any related judicial proceedings after the arbitration, it discourages a
party from commencing such proceedings and promote the notion that the conclusion of
the arbitration truly marks the final resolution of the parties’ dispute. (162)
P 345
P 346 Table 4.7 Arbitrator’s Limitation of Liability
AAA-ICDR
P 346
347 Article 38. Exclusion The members of the arbitral tribunal, any emergency arbitrator
PP 348
347 of Liability appointed under Article 6, any consolidation arbitrator appointed
under Article 8, and the Administrator shall not be liable to any
party for any act or omission in connection with any arbitration
under these Rules, except to the extent that such a limitation of
liability is prohibited by applicable law. The parties agree that no
arbitrator, emergency arbitrator, or consolidation arbitrator, nor the
Administrator shall be under any obligation to make any statement
about the arbitration, and no party shall seek to make any of these
persons a party or witness in any judicial or other proceedings
relating to the arbitration.
CIETAC
Not specifically addressed.
HKIAC
Article 46. Exclusion 46.1. None of the Council members of HKIAC nor any body or person
of Liability specifically designated by it to perform the functions in these Rules,
nor the Secretary-General of HKIAC or other staff members of the
Secretariat of HKIAC, the arbitral tribunal, any emergency arbitrator,
tribunal-appointed expert or tribunal secretary shall be liable for
any act or omission in connection with an arbitration conducted
under these Rules, save where such act was done or omitted to be
done dishonestly.
46.2. After the award has been made and the possibilities of
correction, interpretation and additional awards referred to in
Articles 38 to 40 have lapsed or been exhausted, neither HKIAC nor
the arbitral tribunal, any emergency arbitrator, tribunal-appointed
expert or tribunal secretary shall be under an obligation to make
statements to any person about any matter concerning the
arbitration, nor shall a party seek to make any of these persons a
witness in any legal or other proceedings arising out of the
arbitration.

ICC
Article 41. Limitation The arbitrators, any person appointed by the arbitral tribunal, the
of Liability emergency arbitrator, the Court and its members, the ICC and its
employees, and the ICC National Committees and Groups and their
employees and representatives shall not be liable to any person for
any act or omission in connection with the arbitration, except to the
extent such limitation of liability is prohibited by applicable law.
ICSID
ICSID Convention, The Centre, its property and assets shall enjoy immunity from all
Article 20 legal process, except when the Centre waives this immunity.
ICSID Convention, The Chairman, the members of the Administrative Council, persons
Article 21 acting as conciliators or arbitrators or members of a Committee
appointed pursuant to paragraph (3) of Article 52, and the officers
and employees of the Secretariat
(a) shall enjoy immunity from legal process with respect to acts
performed by them in the exercise of their functions, except
where the Centre waives this immunity;
(b) not being local nationals, shall enjoy the same immunities
from immigration restrictions, alien registration requirements
and national service obligations, the same facilities as regards
exchange restrictions and the same treatment in respect of
travelling facilities as are accorded by Contracting States to
the representatives, officials and employees of comparable
rank of other Contracting States.

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 ICSID Convention, The provisions of Article 21 shall apply to persons appearing in
Article 22 proceedings under this Convention as parties, agents, counsel,
advocates, witnesses or experts; provided, however, that sub-
paragraph (b) thereof shall apply only in connection with their travel
to and from, and their stay at, the place where the proceedings are
held.
Administrative and (1) The Secretary-General may waive the immunity of:
Financial
Regulations, (a) the Centre;
Regulation 32 (b) members of the staff of the Centre.
(2) The Chairman of the Council may waive the immunity of:
(a) the Secretary-General or any Deputy Secretary-General;
(b) members of a Commission, Tribunal or Committee;
(c) the parties, agents, counsel, advocates, witnesses or experts
appearing in a proceeding, if a recommendation for such
waiver is made by the Commission, Tribunal or Committee
concerned.

(3) The Administrative Council may waive the immunity of:

(a) the Chairman and members of the Council;
(b) the parties, agents, counsel, advocates, witnesses or experts
appearing in a proceeding, even if no recommendation for such
a waiver is made by the Commission, Tribunal or Committee
concerned;
(c) the Centre or any person mentioned in paragraph (1) or (2).

LCIA
Article 31. Limitation 31.1. None of the LCIA (including its officers, members and
of Liability employees), the LCIA Court (including its President, Vice-Presidents,
Honourary Vice-Presidents and members), the Registrar (including
any deputy Registrar), any arbitrator, any Emergency Arbitrator and
any expert to the Arbitral Tribunal shall be liable to any party
howsoever for any act or omission in connection with any
arbitration, save: (i) where the act or omission is shown by that party
to constitute conscious and deliberate wrongdoing committed by
the body or person alleged to be liable to that party; or (ii) to the
extent that any part of this provision is shown to be prohibited by
any applicable law.
31.2. After the award has been made and all possibilities of any
memorandum or additional award under Article 27 have lapsed or
been exhausted, neither the LCIA (including its officers, members and
employees), the LCIA Court (including its President, Vice-Presidents,
Honourary Vice-Presidents and members), the Registrar (including
any deputy Registrar), any arbitrator, any Emergency Arbitrator or
any expert to the Arbitral Tribunal shall be under any legal
obligation to make any statement to any person about any matter
concerning the arbitration; nor shall any party seek to make any of
these bodies or persons a witness in any legal or other proceedings
arising out of the arbitration.

SCC
Article 52. Exclusion Neither the SCC, the arbitrator(s), the administrative secretary of the
of Liability Arbitral Tribunal, nor any expert appointed by the Arbitral Tribunal,
is liable to any party for any act or omission in connection with the
arbitration, unless such act or omission constitutes willful
misconduct or gross negligence.
SIAC
Rule 38. Exclusion of 38.1. Any arbitrator, including any Emergency Arbitrator, any person
Liability appointed by the Tribunal, including any administrative secretary
and any expert, the President, members of the Court, and any
directors, officers and employees of SIAC, shall not be liable to any
person for any negligence, act or omission in connection with any
arbitration administered by SIAC in accordance with these Rules.

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 38.2. SIAC, including the President, members of the Court, directors,
officers, employees or any arbitrator, including any Emergency
Arbitrator, and any person appointed by the Tribunal, including any
administrative secretary and any expert, shall not be under any
obligation to make any statement in connection with any arbitration
administered by SIAC in accordance with these Rules. No party shall
seek to make the President, any member of the Court, director,
officer, employee of SIAC, or any arbitrator, including any
Emergency Arbitrator, and any person appointed by the Tribunal,
including any administrative secretary and any expert, act as a
witness in any legal proceedings in connection with any arbitration
administered by SIAC in accordance with these Rules.
UNCITRAL
Article 16. Exclusion Save for intentional wrongdoing, the parties waive, to the fullest
of Liability extent permitted under the applicable law, any claim against the
arbitrators, the appointing authority and any person appointed by
the arbitral tribunal based on any act or omission in connection with
the arbitration.

FURTHER READING
Gerald Aksen, The Tribunal’s Appointment, in The Leading Arbitrator’s Guide to International
Arbitration (Lawrence W. Newman & Richard D. Hill eds., 3d ed., 2014).
Jesús Almoguera, The Independence and Impartiality of Arbitrators, in Liber Amicorum
Bernardo Cremades (Miguel Ángel Fernández-Ballesteros & David Arias eds., La Ley 2010).
Nigel Blackaby et al., Redfern and Hunter on International Arbitration, ¶ 10.10 (6th ed.,
Oxford University Press 2015).
Doak Bishop & Lucy Reed, Practical Guidelines for Interviewing, Selecting, and Challenging
Party-Appointed Arbitrators in International Commercial Arbitration, 14 Arb. Int’l 395 (1998).
Karen Daele, Challenge and Disqualification of Arbitrators in International Arbitration
(Kluwer Law International 2012).
Yves Derains & Eric A. Schwartz, A Guide to the ICC Rules of Arbitration (2d ed., Kluwer Law
International 2005).
Dmitri Evseev, Comparison of 2010 Final Draft and 1999 IBA Rules on the Taking of Evidence
in International (Commercial) Arbitration, Transnational Disp. Mgmt. 1 (2010).
P 348 Antonio A. de Fina, Comparative Analysis of Power of Arbitrators to Determine Procedures
P 349 under Various Arbitration Rules, in Planning Efficient Arbitration Proceedings. The Law
Applicable in International Arbitration (Albert Jan van den Berg ed., Kluwer Law
International 1996).
Fouchard Gaillard Goldman on International Commercial Arbitration (Emmanuel Gaillard &
John Savage eds., Kluwer Law International 1999).
James D. Fry & Juan Ignacio Stampalija, Forged Independence and Impartiality: Conflicts of
Interest of International Arbitrators in Investment Disputes, 30 Arb. Int’l 2 (2014).
Jason Fry et al., The Secretariat’s Guide to ICC Arbitration (ICC 2012).
Chiara Georgetti, Challenges and Recusals of Judges and Arbitrators in International Courts
and Tribunals (Brill 2015).
Simon Greenberg, Tackling Guerilla Challenges Against Arbitrators: Institutional Perspective,
Transnational Disp. Mgmt. 2 (2010).
Jacob Grierson & Annet van Hooft, Arbitrating under the 2012 ICC Rules (Kluwer Law
International 2012).
Martin F. Gusy et al., A Guide to the ICDR International Arbitration Rules (Oxford University
Press 2011).
Martin Hunter & Allan Philip, The Duties of an Arbitrator, in Leading Arbitrators’ Guide to
International Arbitration (Lawrence W. Newman & Richard D. Hill eds., Juris 2004).
Pierre A. Karrer, Responsibility of Arbitrators and Arbitral Institutions, in Leading Arbitrators’
Guide to International Arbitration (Lawrence W. Newman & Richard D. Hill eds., Juris 2004).
Christopher Kee, Judicial Approaches to Arbitrator Independence and Impartiality, in
International Commercial Arbitration in Investment and Commercial Arbitration—Similarities
and Divergences (Christina Knahr et al. eds., Eleven International Publishing 2010).
David A. Lawson, Impartiality and Independence of International Arbitrators—Commentary
on the 2004 IBA Guidelines on Conflicts of Interest in International Arbitration, 23 ASA Bull.
22-44 (2005).
Julian M. Lew et al., Comparative International Commercial Arbitration (Kluwer Law
International 2003).

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 Andreas F. Lowenfeld, Lowenfeld on International Arbitration: Collected Essays over Three
Decades (Juris Publishing 2005).
Sam Luttrell, Bias Challenges in International Commercial Arbitration: The Need for a “Real
Danger” Test (Kluwer Law International 2009).
Michael McIlwrath & John Savage, International Arbitration and Mediation: A Practical Guide
(Kluwer Law International 2010).
Margaret L. Moses, Inherent and Implied Powers of Arbitrators, in Defining Issues in
International Arbitration: Celebrating 100 Years of the Chartered Instituted of Arbitrators
(Julio Cesar Betancourt ed., Oxford University Press 2016).
Jan Paulsson, Ethics, Elitism, Eligibility, 14 J. Int’l Arb. 13 (1997).
Jan Paulsson, Moral Hazard in International Dispute Resolution, Transnational Disp. Mgmt. 2
(2011).
P 349
P 350
Karl Pörnbacher & Alexander Dolgorukow, Reconciling Due Process and Efficiency in
International Arbitration—The Arbitrator’s Task of Achieving the One Without Sacrificing the
Other, 2013 Annals Fac. L. Belgrade Int’l Ed. 50 (2013).
Catherine A. Rogers & Jeffrey C. Jeng, The Ethics of International Arbitrators, in The Leading
Arbitrator’s Guide to International Arbitration (Lawrence W. Newman & Richard D. Hill eds.,
3d. ed., 2014).
Hans Smit & Vratislav Pechota, The Roster of International Arbitrators (Juris Publishing
Sweet & Maxwell 1997).
Ana Stanic, Challenging Arbitrators and the Importance of Disclosure: Recent Cases and
Reflections, Transnational Disp. Mgmt. 1 (2011).
Raphaël de Vietri & Kanaga Dharmananda, Impartiality and the Issue of Repeat Arbitrators,
28 J. Int’l Arb. 187 (2011).
Thomas W. Walsh & Ruth Teitelbaum, The LCIA Court Decisions on Challenges to Arbitrators:
An Introduction, 27(3) Arb. Int’l (2011).
Anne Marie Whitesell, Independence in ICC Arbitration: ICC Court Practice Concerning the
Appointment, Confirmation, Challenge and Replacement of Arbitrators, in Independence of
Arbitrators (ICC 2007).
Otto L O de Witt Wijnen et al., New IBA Guidelines on Conflicts of Interest in International
Arbitration, 5 Bus. L. Int’l. 433 (2004).
P 350

References
1) SCC Rules, Art. 23(1).
2) ICDR Rules, Art. 20(1) (“the arbitral tribunal may conduct the arbitration in whatever
manner it considers appropriate”); CIETAC Rules, Art. 35(1) (“[t]he arbitral tribunal
shall examine the case in any way it deems appropriate”); HKIAC Rules, Art. 13.1 (“the
arbitral tribunal shall adopt suitable procedures for the conduct of the arbitration in
order to avoid unnecessary delay or expense, having regard to the complexity of the
issues and the amount in dispute”); ICC Rules, Art. 19 (“The proceedings before the
arbitral tribunal shall be governed by … any rules which … the arbitral tribunal may
settle on”); SIAC Rules, Rule 19.1 (“The Tribunal shall conduct the arbitration in such
manner as it considers appropriate”); UNCITRAL Rules, Art. 17(1) (“the arbitral tribunal
may conduct the arbitration in such manner as it considers appropriate”).
3) LCIA Rules, Art. 14.5 (emphasis added).
4) See ICC Rules, Art. 22(2).
5) ICSID Convention, Executive Report, Art. 44 (“[i]f any question of procedure arises …
the Tribunal shall decide the question”).
6) SCC Rules, Art. 23(2).
7) HKIAC Rules, Arts. 13.1, 13.5; UNCITRAL Rules, Art. 17(1).
8) ICDR Rules, Art. 20(1)-(2); LCIA Rules, Art. 14.4(i)-(ii); SIAC Rules, Rule 19.1.
9) CIETAC Rules, Art. 35(1).
10) Proposals for Amendment of the ICSID Rules—Synopsis, para. 22, ICSID, World Bank
Group (Aug. 3, 2018) (ICSID Synopsis), available at
https://icsid.worldbank.org/en/amendments/Documents/Homepage/Synopsis_Engli
sh.pdf (accessed Jan. 22, 2019).
11) LCIA Rules, Art. 14.5.
12) HKIAC Rules, Art. 13.10; ICC Rules, Art. 42; SCC Rules, Art. 2(2); SIAC Rules, Rule 41.2.
13) ICDR Rules, Art. 20(1); HKIAC Rules, Art. 13.1; ICC Rules, Art. 19; ICSID Convention, Art. 44;
SCC Rules, Art. 2(2); SIAC Rules, Rule 27; UNCITRAL Rules, Art. 17(1).
14) CIETAC Rules, Art. 35(1); ICC Rules, Art. 19; ICSID Convention, Art. 44.

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 15) ICC Rules, Art. 22(5); see also LCIA Rules, Art. 14.5 (“[A]t all times the parties shall do
everything necessary in good faith for the fair, efficient and expeditious conduct of
the arbitration, including the Arbitral Tribunal’s discharge of its general duties”);
ICSID Synopsis, para. 22 (requiring the parties to act in an expeditious and cost-
effective manner and to cooperate to implement the tribunal’s decisions).
16) Nigel Blackaby et al., Redfern and Hunter on International Arbitration, ¶ 10.10 (6th ed.,
Oxford University Press 2015).
17) Id., at para. 7.03.
18) ICDR Rules, Art. 13(2); CIETAC Rules, Art. 31(1); HKIAC Rules, Art. 11.4; ICC Rules, Art. 11(2);
ICSID Rules, Rule 6(2); LCIA Rules, Art. 5.4; SCC Rules, Art. 18(3).
19) ICDR Rules, Art. 13(3); CIETAC Rules, Art. 31(2); HKIAC Rules, Art. 11.4; ICC Rules, Art. 11(3);
ICSID Rules, Rule 6(2); LCIA Rules, Art. 5.5; SCC Rules, Art. 18(4); SIAC Rules, Rule 13.5;
UNCITRAL Rules, Art. 11. See also James D. Fry & Juan Ignacio Stampalija, Forged
Independence and Impartiality: Conflicts of Interest of International Arbitrators in
Investment Disputes, 30(2) Arb. Int’l 189, 194 (2014).
20) ICC Rules, Art. 11(2). Article 7(2) of the 1998 ICC Rules required disclosure only with
respect to independence. According to the ICC, “[t]he Court has always considered
challenges based on independence and impartiality alike … . The inclusion of
impartiality in the Rules is not expected to affect the standard applied by the Court
in determining objections or challenges to arbitrators. However, the express
reference to impartiality … may affect the scope of disclosure obligations.” Jason Fry
et al., The Secretariat’s Guide to ICC Arbitration 117 (ICC 2012). Some commentators
believe this formulation, i.e., “which might be of such nature as to call into question,”
is more encompassing than the corresponding duty in other arbitration rules,
requiring ICC arbitrators to “‘stretch their minds’ so as to consider how particular facts
and circumstances may be perceived by the parties.” Yves Derains & Eric A. Schwartz,
A Guide to the ICC Rules of Arbitration 135 (2d ed., Kluwer Law International 2005). The
recent updates to the ICC Court of Arbitration’s Note to Parties and Arbitral Tribunals
on the Conduct of Arbitration under the ICC Rules of Arbitration (effective Jan. 1, 2019)
urge arbitrators to consider relationships even with nonparties having an interest in
the arbitration and acknowledges that the Secretariat may assist prospective
arbitrators in this task by identifying relevant entities. See para. 24.
21) ICDR Rules, Art. 6(2); SCC Rules, Art. 18(2); SIAC Rules, Rule 13.4.
22) CIETAC Rules, Art. 31(1); HKIAC Rules, Art. 11.4; LCIA Rules, Art. 5.5; UNCITRAL Rules, Art.
11.
23) The IBA Rules of Ethics have been superseded, at least in part, by the IBA Guidelines
on Conflicts of Interest in International Arbitration. The IBA has taken the position
that the rules of ethics “remain in effect as to subjects that are not discussed in the
Guidelines.” IBA Guidelines on Conflicts of Interest in International Arbitration, 5.
24) In practice, the IBA Guidelines are the “first port of call for many practitioners” due to
the fact that “they constitute the only attempt to codify the principles applicable to
the disclosure required of international arbitrators regarding their impartiality and
independence.” Challenges to and Replacement of Arbitrators, in Arbitrating under the
2012 ICC Rules 199-205 (Jacob Grierson & Annet van Hooft eds., Kluwer Law
International 2012).
25) According to a background paper provided by the IBA, the IBA Guidelines on Conflicts
of Interest supersede IBA Rules of Ethics 3 and 4, which address impartiality and
independence. See also Otto L O de Witt Wijnen et al., New IBA Guidelines on Conflicts
of Interest in International Arbitration, 5 Bus. L. Int’l. 433, 456 (2004).
26) IBA Guidelines on Conflicts of Interest in International Arbitration, Part I, General
Standard (2)(a), 7.
27) Id., at (2)(b), 7.
28) See Catherine A. Rogers & Jeffrey C. Jeng, The Ethics of International Arbitrators, in The
Leading Arbitrator’s Guide to International Arbitration 175, 187 (Lawrence W. Newman &
Richard D. Hill eds., 3d ed., (Juris 2014) (“Arbitrators, after all, take the place of judges
and the act of adjudicating necessarily requires a neutral third-party decision maker.
Moreover, the opposite of impartiality is bias or partiality, which is a form of
misconduct that is unexpected and unacceptable among such decision makers”);
Doak Bishop & Lucy Reed, Practical Guidelines for Interviewing, Selecting, and
Challenging Party-Appointed Arbitrators in International Commercial Arbitration, 14
Arb. Int’l 395 (1998).
29) The IBA Rules of Ethics take a more categorical approach than the IBA Guidelines on
Conflicts, and they provide examples of situations that normally give rise to
justifiable doubts as to an arbitrator’s impartiality or independence, thus creating an
appearance of bias. These situations include (1) having a material interest in the
outcome of the dispute; (2) taking a position in relation to the dispute; (3) having a
current business relationship with a party or a potentially important witness or a past
business relationship of such magnitude or nature as to be likely to affect the
arbitrator’s judgment; or (4) maintaining a continuous and substantial social or
professional relationship with a party or a potentially important witness. The Rules
establish that an arbitrator’s failure to disclose any of these facts creates an
appearance of bias. IBA Rules of Ethics for International Arbitration, Rules 3-4, 2.
30) IBA Guidelines on Conflicts of Interest in International Arbitration, Part II, Practical
Application of the General Standards, 20.

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 31) Id., at 17.
32) Id.
33) Id., at 20-22.
34) Id., at 18.
35) Id., at 22-25.
36) Id., at 18.
37) Id.
38) Id., at 25-27.
39) IBA Guidelines on Conflicts of Interest in International Arbitration, Part I, General
Standard 3(b), 9. The IBA Rules of Ethics adopted the position that the appearance of
bias is best overcome by full disclosure. Under these rules, prospective arbitrators
should disclose all facts that may raise justifiable doubts as to their impartiality or
independence. Matters that should be disclosed include: past or present business
relationships; the nature and duration of substantial social relationships with any
party or person known to be a potentially important witness; the nature of any
previous relationship with any fellow arbitrator; the extent of any prior knowledge of
the dispute; and the extent of any commitments which may affect availability. Failure
to make such disclosure could be a ground for disqualification under the IBA Rules of
Ethics, even if the nondisclosed facts would not require disqualification. IBA Rules of
Ethics, Rule 4.
40) IBA Guidelines on Conflicts of Interest in International Arbitration, Part I, General
Standard 3(b).
41) The 1977 AAA Code of Ethics for Arbitrators in Commercial Disputes took the position
that “[i]n [all arbitrations in which there are two or more party-appointed arbitrators],
the two party-appointed arbitrators should be considered non-neutrals unless both
parties inform the arbitrators that all three arbitrators are to be neutral, or unless the
contract, the applicable arbitration rules, or any governing law requires that all three
arbitrators are to be neutral.” AAA Code of Ethics for Arbitrators in Commercial
Disputes (1977), Canon VII, Introductory Note, 137. This presumption was reversed in
the 2004 Revised Code, which states that “it is preferable for all arbitrators including
any party-appointed arbitrators to be neutral, that is, independent and impartial,
and to comply with the same ethical standards … . This Code establishes a
presumption of neutrality for all arbitrators, including party-appointed arbitrators,
which applies unless the parties’ agreement, the arbitration rules agreed to by the
parties or applicable laws provide otherwise.” The AAA-ABA Code of Ethics for
Arbitrators in Commercial Disputes (2004), 2 (“Note on Neutrality”).
42) Note on Neutrality, id., at 2.
43) Id.
44) Id.
45) Id., at Canon X.
46) Id., at Canon X (B)(2).
47) Id., at Canon III, Canon X (A)(1), (C)(1).
48) Id., at Canon X (B)(1).
49) The AAA-ABA Code of Ethics for Arbitrators in Commercial Disputes (2004), Canon II,
Canon X (B)(1), 4, 9.
50) Id., at Canon IX, 8.
51) Id., at Canon IX (C), 8.
52) Id., at Canon II (H), 5.
53) Id., at Canon II (F), 4.
54) LCIA Rules, Art. 5.4.
55) ICDR Rules, Art. 13(2); HKIAC Rules, Art. 11.4; ICC Rules, Art. 11(2); SIAC Rules, Rule 13.3.
56) Fry, supran. 20, at 120.
57) The extent to which such circumstances must be disclosed and can result in the
disqualification of an arbitrator is discussed in section §4.02 (Independence,
Impartiality, and Disclosure), supra.
58) IBA Rules of Ethics, Rules 5.1, 3.
59) Id., Rule 5.2.
60) Id., Rule 5.4.
61) Id., Rule 5.3.
62) IBA Guidelines on Conflicts of Interest in International Arbitrations, Part II, Practical
Application of the General Standards, 24.
63) The AAA-ABA Code of Ethics for Arbitrators in Commercial Disputes (2004), Canon III
(B), 5.
64) See Note on Neutrality, supran. 41 and accompanying text for a discussion of Canon X
arbitrators.
65) Similarly, parties may agree with one another that each can communicate with its
party-appointed arbitrator concerning the selection of a presiding arbitrator.
66) ICDR Rules, Art. 13(6); HKIAC Rules, Art. 11.5; SIAC Rules, Rule 13.6.
67) Id.
68) LCIA Rules, Art. 13.5.
69) See LCIA Rules, Arts. 5.7, 7.1.
70) LCIA Rules, Art. 13.4.
71) ICC Rules, Art. 3(1); UNCITRAL Rules, Art. 17(4). See also ICDR Rules, Art. 16; LCIA Rules,
Art. 13.3; SIAC Rules, Rule 19.6.

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 72) Because it is a frequent occurrence that the parties do not reach an agreement
regarding the appointment of the chairman or a sole arbitrator, the designation of an
appointing authority by the parties from the outset of the arbitration is common.
Julian M. Lew et al., Comparative International Commercial Arbitration 238 (Kluwer Law
International 2003).
73) CIETAC Rules, Art. 25; ICSID Convention, Art. 37; UNCITRAL Rules, Art. 7 (indicating a
default tribunal of three arbitrators, unless one party proposes a sole arbitrator and
the other party does not respond and the appointing authority considers that a sole
arbitrator is appropriate).
74) ICDR Rules, Art. 11; HKIAC Rules, Art. 6; ICC Rules, Art. 12; LCIA Rules, Art. 5.8; SCC Rules,
Art. 16(2); SIAC Rules, Rule 9.1.
75) LCIA Rules, Art. 5.8.
76) LCIA Rules, Art. 5.7.
77) LCIA Rules, Art. 7.1.
78) ICC Rules, Art. 13(3)-(4). The Secretariat may assist the parties by proposing possible
candidates or providing nonconfidential information on identified candidates. ICC
Court of Arbitration, Note to Parties and Arbitral Tribunals on the Conduct of Arbitration
under the ICC Rules of Arbitration (update effective Jan. 1, 2019), para. 32.
79) ICDR Rules, Art. 12(1) (45 days); CIETAC Rules, Art. 28 (15 days); HKIAC Rules, Art. 7.1 (30
days “from the date the Notice of Arbitration was received by the Respondent”); SCC
Rules, Art. 17(3) (10 days); SIAC Rules, Rule 10.2 (21 days); UNCITRAL Rules, Art. 8(1) (30
days).
80) CIETAC Rules, Art. 27(3).
81) ICDR Rules, Art. 12(6); UNCITRAL Rules, Art. 8(2).
82) ICDR Rules, Art. 12(6); CIETAC Rules, Art. 28; HKIAC Rules, Art. 7.2; ICC Rules, Art. 12.3;
SCC Rules, Art. 17(3); SIAC Rules, Rule 10.2; UNCITRAL Rules, Art. 8(2)(d). The ICC Court
may allow the parties to be involved in the Secretariat’s selection process,
particularly by way of a list procedure. ICC Court of Arbitration, Note to Parties and
Arbitral Tribunals on the Conduct of Arbitration under the ICC Rules of Arbitration
(update effective Jan. 1, 2019), para. 33.
83) HKIAC Rules, Art. 8.1(a)-(c); ICC Rules, Art. 12(4); ICSID Convention, Art. 37(2)(b); SCC
Rules, Art. 17(4); SIAC Rules, Rules 11.1 and 11.2; UNCITRAL Rules, Art. 9(1)-(2).
84) UNCITRAL Rules, Art. 9(1).
85) ICSID Convention, Art. 37(2)(b), ICSID Rules, Rule 3.
86) ICDR Rules, Art. 12(3); CIETAC Rules, Art. 27(4); ICC Rules, Art. 12(5); SIAC Rules, Rule 11.3.
87) ICSID Convention, Art. 38; ICSID Rules, Rule 4(1); UNCITRAL Rules, Art. 9(3).
88) ICDR Rules, Art. 12(5); CIETAC Rules, Art. 29; HKIAC Rules, Art. 8.2; ICC Rules, Art. 12(6)-
(8); SCC Rules, Art. 17(5); SIAC Rules, Rule 12; UNCITRAL Rules, Arts. 10(1) and 10(3).
89) ICDR Rules, Art. 12(4); CIETAC Rules, Art. 26; ICC Rules, Art. 13(1), (2), (5) and Appx. II, Art.
2(1) and (2); ICSID Convention, Arts. 39 and 40; LCIA Rules, Arts. 5.9, 6, and 11.1; SIAC
Rules, Rule 13.
90) ICDR Rules, Art. 14(1); CIETAC Rules, Art. 32(2); HKIAC Rules, Art. 11.6; ICC Rules, Art.
14(1); ICSID Convention, Art. 57; LCIA Rules, Art. 10.1(iii); SCC Rules, Art. 19(1); SIAC Rules,
Rule 14.1; UNCITRAL Rules, Art. 12(1).
91) SCC Rules, Art. 19(1); SIAC Rules, Rule 14.1.
92) ICC Rules, Art. 14(1) (“A challenge of an arbitrator, whether for an alleged lack of
impartiality or independence or otherwise, …”) (emphasis added).
93) ICSID Convention, Art. 57, referring to arbitrator qualifications set forth in Art. 14(1)
(requiring arbitrators to be “persons of high moral character and recognized
competence in the fields of law, commerce, industry or finance, who may be relied
upon to exercise independent judgment” who are “[c]ompeten[t] in the field of law”)
and Ch. IV, § 2 (imposing limitations on the nationality of the arbitrators).
94) Christoph Schreuer, The ICSID Convention: A Commentary 1202 (2d ed., Cambridge
2009).
95) HKIAC Rules, Art. 11.6; ICC Rules, Art. 14(1); ICSID Rules, Rule 8; LCIA Rules, Art. 10.1(ii);
SIAC Rules, Rule 17.2; UNCITRAL Rules, Art. 12(3).
96) Id.
97) LCIA Rules, Art. 10.2.
98) HKIAC Rules, Art. 11.6; SIAC Rules, Rule 17.2.
99) ICDR Rules, Art. 14(4); CIETAC Rules, Art. 33(1). Most other regimes permit the
institution to act sua sponte to replace an arbitrator for failing to fulfill his or her
functions.
100) See, e.g., ICC Rules, Art. 15(3) (“When, on the basis of information that has come to its
attention, the Court considers applying Art. 15(2) [(replacement of an arbitrator for not
fulfilling his or her functions)], it shall decide on the matter …”) (emphasis added).
101) ICDR Rules, Art. 14(1); CIETAC Rules, Art. 32(3); HKIAC Rules, Art. 11.7; ICC Rules, Art. 14(2);
ICSID Rules, Rule 9(1); LCIA Rules, Art. 10.3; SCC Rules, Art. 19(3); SIAC Rules, Rule 15.1;
UNCITRAL Rules, Art. 13(1).
102) ICDR Rules, Art. 14(1); CIETAC Rules, Art. 32(2); HKIAC Rules, Art. 11.8; ICC Rules, Art.
14(1); ICSID Rules, Rule 9(1); LCIA Rules, Art. 10.3; SCC Rules, Art. 19(3); SIAC Rules, Rule
15.2; UNCITRAL Rules, Art. 13(2).
103) ICC Rules, Art. 14(1); ICSID Rules, Rule 9(1); SCC Rules, Art. 19(3).
104) CIETAC Rules, Art. 32(4); HKIAC Rules, Art. 11.8; LCIA Rules, Art. 10.3; SIAC Rules, Rule
15.2; UNCITRAL Rules, Art. 13(2).

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 105) ICDR Rules, Art. 14(2).
106) ICDR Rules, Art. 14(2); CIETAC Rules, Art. 32(5); HKIAC Rules, Art. 11.10; LCIA Rules, Art.
10.5; SCC Rules, Art. 19(5); SIAC Rules, Rule 15.5; UNCITRAL Rules, Art. 13(3).
107) ICDR Rules, Art. 15(1); CIETAC Rules, Art. 33(1); HKIAC Rules, Art. 11.9; LCIA Rules, Art. 10.1;
SIAC Rules, Rule 15.5; UNCITRAL Rules, Art. 13(3).
108) See SCC Rules, Arts. 19(5), 20(1)(i); ICC Rules, Art. 15(1).
109) Fry, supran. 20, at 182.
110) Id.
111) ICDR Rules, Art. 14(3); CIETAC Rules, Art. 32(6); HKIAC Rules, Art. 11.9; ICC Rules, Art.
14(3); LCIA Rules, Art. 10.6; SCC Rules, Art. 19(5); SIAC Rules, Rule 16.1; UNCITRAL Rules,
Art. 13(4).
112) LCIA Rules, Art. 10.6; SIAC Rules, Rule 16.4.
113) SIAC Rules, Rule 16.4. See Ch. 1 of this book (Overview of Arbitral Institutions and
Regimes).
114) ICDR Rules, Art. 14(2); CIETAC Rules, Art. 32(5); HKIAC Rules, Art. 11.10; LCIA Rules, Art.
10.6; SIAC Rules, Rule 15.5; UNCITRAL Rules, Art. 13(3).
115) ICSID Convention, Art. 58.
116) ICSID Convention, Art. 58. ICSID Synopsis, para. 35.
117) See Karen Daele, Challenge and Disqualification of Arbitrators in International
Arbitration 120 (Kluwer Law International 2012) (explaining that “[t]hroughout the
drafting process of the Convention, the assumption was that a challenge could be
made at any time.”).
118) See id.
119) ICSID Synopsis, para. 35.
120) See Daele, supran. 117, at 68. For an analysis of cases of challenge decisions issued by
the LCIA Court, see Thomas W. Walsh & Ruth Teitelbaum, The LCIA Court Decisions on
Challenges to Arbitrators: An Introduction, 27(3) Arb. Int’l, 283 (2011).
121) See Daele, supran. 117, at 67 (Kluwer Law International 2012). According to the author,
challenges were made in roughly 3.5% of the arbitrations but “[t]his number is not
100% accurate as the SCC statistics do not indicate how many of the challenges
originated from the same arbitration.”
122) Chiara Georgetti, Challenges and Recusals of Judges and Arbitrators, in International
Courts and Tribunals (Georgetti ed., Brill 2015).
123) Id.
124) See Michael McIlwrath & John Savage, International Arbitration and Mediation: A
Practical Guide 260 (Kluwer Law International 2010).
125) ICDR Rules, Art. 15(1); CIETAC Rules, Art. 33(3); HKIAC Rules, Art. 12.1; ICC Rules, Art. 15(1);
ICSID Convention, Art. 56(1); ICSID Rules, Rule 8(1); LCIA Rules, Art. 11.1; SCC Rules, Art.
21(1); SIAC Rules, Rules 15.6 and 17.1; UNCITRAL Rules, Art. 14(1).
126) ICDR Rules, Art. 15(1); CIETAC Rules, Art. 33(1); HKIAC Rules, Art. 12.1; ICC Rules, Art. 15(2);
LCIA Rules, Arts. 10.1 and 10.2; SCC Rules, Art. 20(1)(iii); SIAC Rules, Rule 17.3.
127) ICDR Rules, Art. 15(1); CIETAC Rules, Art. 34; HKIAC Rules, Art. 12.1; ICC Rules, Art. 15(1);
ICSID Convention, Art. 56(1); ICSID Rules, Rule 8; LCIA Rules, Art. 10.1; SCC Rules, Rule
21(1); SIAC Rules, Rule 17.1.
128) ICDR Rules, Art. 15(1); ICSID Rules, Rule 11(1). The ICSID Rules further provide that the
Chairman of the Administrative Council will make the appointment in the case of the
resignation of a party-appointed arbitrator without the consent of the tribunal, or, if
the parties are to appoint a replacement arbitrator and have not done so within 45
days of the Secretary-General’s notification of the vacancy. ICSID Rules, Rule 11(2). See
section §4.04 (Appointment of Arbitrators), supra.
129) CIETAC Rules, Art. 33(3); HKIAC Rules, Art. 12.1; SIAC Rules, Rule 15.6.
130) ICC Rules, Art. 15(4); LCIA Rules, Art. 11.1; SCC Rules, Art. 21(1); UNCITRAL Rules, Art.
14(1).
131) ICDR Rules, Art. 15(2); CIETAC Rules, Art. 33(4); SCC Rules, Art. 21(3).
132) HKIAC Rules, Art. 12.3; UNCITRAL Rules, Art. 15.
133) ICSID Rules, Rule 12.
134) SIAC Rules, Rule 18.
135) ICDR Rules, Art. 15(3); CIETAC Rules, Art. 34; HKIAC Rules, Art. 12.2; ICC Rules, Art. 15(5);
LCIA Rules, Art. 12; SCC Rules, Art. 21(2); UNCITRAL Rules, Art. 14(2). The ICSD Rules
make clear that proceedings may not continue in the absence of an arbitrator: upon
notification of a vacancy, “the proceeding shall be or remain suspended until the
vacancy has been filled.” ICSID Rules, Rule 10.
136) ICDR Rules, Art. 15(3); LCIA Rules, Art. 12.1.
137) HKIAC Rules, Art. 12.2; LCIA Rules, Art. 12.1; UNCITRAL Rules, Art. 14(2).
138) ICDR Rules, Art. 15(3); CIETAC Rules, Art. 34; HKIAC Rules, Art. 12.2; ICC Rules, Art. 15(5);
LCIA Rules, Art. 12; SCC Rules, Art. 21(2); UNCITRAL Rules, Art. 14(2).
139) CIETAC Rules, Art. 34; UNCITRAL Rules, Art. 14(2).
140) ICC Rules, Art. 15(5).
141) ICDR Rules, Art. 15(3); LCIA Rules, Art. 12.2; SCC Rules 21(2).
142) LCIA Rules, Art. 12.2.
143) ICDR Rules, Art. 15(3); LCIA Rules, Art. 12.2.
144) ICC Rules, Art. 15(5); SCC Rules, Art. 21(2).
145) Id.
146) ICDR Rules, Art. 15(3); ICC Rules, Art. 15(5); LCIA Rules, Art. 12.2.

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 147) ICDR Rules, Art. 38; HKIAC Rules, Art. 46.1; ICC Rules, Art. 41; ICSID Convention, Art. 21;
LCIA Rules, Art. 31; SCC Rules, Art. 52; SIAC Rules, Rule 38.1; UNCITRAL Rules, Art. 16.
148) UNCITRAL Rules, Art. 16.
149) ICDR Rules, Art. 38; LCIA Rules, Art. 31; SCC Rules, Art. 52.
150) HKIAC Rules, Art. 46.1; ICC Rules, Art. 41. The ICSID Convention also does not indicate
precisely who is subject to the waiver of claims against the arbitrators. However,
unlike the other regimes under consideration, the Convention forms part of the
national law of Member States and therefore binds its nationals. ICSID Convention,
Art. 21.
151) ICDR Rules, Art. 38; ICC Rules, Art. 41.
152) ICSID Convention, Art. 21. Neither the ICSID Convention nor the relevant regulations
offer guidance concerning the circumstances under which the Centre should make
such a waiver. Schreuer, supran. 94, at 63.
153) LCIA rules, Art. 31.1; UNCITRAL Rules, Art. 16.
154) HKIAC Rules, Art. 46.1.
155) SCC Rules, Art. 52.
156) SIAC Rules, Rule 38.1.
157) ICDR Rules, Art. 38; ICC Rules, Art. 41; UNCITRAL Rules, Art. 16.
158) See, e.g., 1996 English Arbitration Act (s. 25) (“the parties are free to agree with an
arbitrator as to the consequences of his resignation as regards … any liability thereby
incurred by him” and in the absence of any such agreement, the resigning arbitrator
may request the court “to grant him relief from any liability thereby incurred by
him”); Austrian Arbitration Act 2006, Art. 594(4) (“An arbitrator who does not fulfil his
obligation resulting from the acceptance of his appointment at all or in a timely
manner, shall be liable to the parties for all damages caused by his wrongful refusal
or delay.”); Portuguese Voluntary Arbitration Law 2011, Art. 12.3 (“The arbitrator who,
having accepted his mandate, unjustifiably withdraws from exercising his or her office
shall be liable for the damages caused.”), Art. 9.4 (“Arbitrators may not be held liable
for damages resulting from their decisions, save for those situations in which judges
[may order damages].”), and Art. 9.5; Legislative Decree of Feb. 2, 2006, No. 40
amending the Italian Code of Civil Procedure as to … arbitration, Art. 813-ter (“The
arbitrator shall be liable for damages caused to the parties if he or she: (1) has
fraudulently (dolo) or with gross negligence (colpa grave) omitted or delayed acts that
he or she was bound to carry out and has been removed for this reason, or has
renounced the office without a justified reason; (2) has fraudulently or with gross
negligence omitted or prevented the rendering of the award within the [legally
prescribed] time limit … . If the liability is not due to the arbitrator’s fraud, the
amount of damages may not exceed a sum equal to three times the agreed fee or,
failing an agreed determination, three times the fee established by the applicable
tariff … . Each arbitrator shall be liable only for his or her own actions.”); Lebanese
Code of Civil Procedure 1983, Art. 769, para. 3 (“After the acceptance of his task, the
arbitrator may not resign from his duties except for a serious reason, failing which, he
may be liable in damages to the party who sustained damage.”).
159) ICDR Rules, Art. 38; HKIAC Rules, Art. 46.1; ICC Rules, Art. 41; ICSID Convention, Art. 21;
LCIA Rules, Art. 31.1; SCC Rules, Art. 52; SIAC Rules, Rule 38.1; UNCITRAL Rules, Art. 16.
160) ICSID Convention, Art. 22.
161) ICDR Rules, Art. 38; HKIAC Rules, Art. 46.2; LCIA Rules, Art. 31.2; SIAC Rules, Rule 38.2.
162) Arbitrators may nevertheless be called as witnesses if permitted by national
procedural laws.

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Document information
Chapter 5: Initial Procedural Conference
Publication All of the arbitral regimes under consideration provide for an initial procedural conference
or other communications among the parties and the tribunal to address procedural issues
The International Arbitration at the outset of arbitration. As a practical matter, such communications (in the form of a
Rulebook: A Guide to Arbitral conference or otherwise) will be necessary in virtually every arbitration to address the
Regimes procedural schedule and framework that are appropriate for the dispute at hand.
While overlooked by some as an administrative formality, the importance of the initial
procedural conference should not be underestimated. The initial procedural conference is
Organization often the first opportunity for counsel to introduce their clients, their case, and themselves
International Centre for to the tribunal through means other than the initial written submissions. As in every form of
Dispute Resolution advocacy, first impressions can be lasting ones. The initial procedural conference also
allows the parties—who may come from diverse legal backgrounds or may have varying
levels of experience with international arbitration—to come to an understanding of the
basic ground rules for the international arbitration, which may be very different from the
Organization litigation proceedings to which they are accustomed in their home county (and, for that
China International matter, which may vary based on the particular set of rules chosen for the arbitration and
Economic and Trade even on the particular arbitrator or arbitrators sitting on the tribunal).
Arbitration Commission Further, as is so often said, one of the principal advantages of arbitration is the ability to
craft a procedure that is specifically designed for a particular dispute. The arbitration
agreement—as well as the arbitral rules—requires a level of generality to accommodate a
Organization range of potential disputes. The initial procedural conference presents an important
opportunity for the parties and the tribunal to specify procedures that are best suited to a
Hong Kong International particular dispute—taking into account factors such as the complexity of the case and the
Arbitration Centre stakes at issue. For some cases, the parties and the tribunal may agree that a speedy and
relatively simple procedure is both desirable and appropriate. They might decide, for
example, to limit written submissions to a single round per side, or to limit or even
Organization P 351 dispense with witness testimony, or perhaps even to forgo an oral hearing altogether.
International Court of P 352 However, for cases that are especially complex and/or where the stakes are especially
Arbitration of the high, the parties and the tribunal may determine that more elaborate procedures are
International Chamber of required—which might include, for example, separate phases for jurisdiction, merits,
Commerce and/or quantum; posthearing submissions; separate hearings for opening and/or closing
arguments; document (and perhaps even other forms of) discovery; site-visits; etc.
To be sure, experienced counsel will have carefully considered the procedures that will
Organization best advance their clients’ goals in the arbitration, and will advocate for such procedures
at the outset of the case. At the same time, parties are often able to approach procedural
International Centre for issues in a more neutral and objective manner at the first procedural conference than at
Settlement of Investment later stages of the arbitration. As the case proceeds, the parties are likely to take more
Disputes extreme positions in the context of specific procedural disputes. (By way of a simple
example, it may be easier to agree on a standard for the submission of new exhibits after
the deadline for submitting exhibits has passed, if neither party has a specific exhibit or a
Organization specific context in mind.)
London Court of For these reasons, the first procedural conference is often the best opportunity to craft a
International Arbitration fair and reasonable procedure that is especially suited for the particular dispute. (Even so,
it should be recognized that the parties can always advocate to alter the schedule and
other aspects of the procedural framework of the arbitration based on changed
Organization circumstances, unforeseen events, or for other good cause shown. Arbitral tribunals
typically show flexibility in such circumstances.)
Arbitration Institute of the In this chapter we look at (i) the arbitral regimes’ provisions concerning the scope and
Stockholm Chamber of format of the initial procedural conference; (ii) suggested procedures that the parties and
Commerce the tribunal may establish to maximize the efficiency, economy, and quality of the
arbitration; and (iii) the use of Terms of Reference to establish the substantive issues and
any procedures agreed by the parties.
Organization
Singapore International §5.01 SCOPE AND FORMAT OF THE CONFERENCE
Arbitration Centre As noted above, all of the arbitral regimes addressed in this book contemplate an initial
procedural conference or other communication among the parties and the tribunal to
address procedural issues. (1) The ICDR, CIETAC, ICC, ICSID, SCC, and SIAC Rules refer to an
Organization initial meeting or conference. (2) However, only the ICC, SCC, and SIAC Rules require it. (3)
United Nations Commission The LCIA Rules do not use such terminology, but do encourage the tribunal and the parties
on International Trade Law P 352 to make contact and for the parties to submit joint proposals to the tribunal. (4) The HKIAC
P 353 and UNCITRAL Rules only require the tribunal to establish the procedural timetable
after inviting the parties to express their views. (5) However, the 2016 UNCITRAL Notes on
Organizing Arbitral Proceedings specifically contemplate an initial procedural conference
Bibliographic reference to address a range of issues. (6) As a general matter, it would be highly unusual for any
'Chapter 5: Initial Procedural arbitral tribunal not to hold an initial procedural conference, or otherwise communicate
Conference', in Arif Hyder Ali with the parties on procedural issues, at the outset of the case.
, Jane Wessel , et al., The All of the arbitral regimes under consideration variously suggest the following topics for

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International Arbitration the parties and the tribunal to address: considering the possibility of settlement;
Rulebook: A Guide to Arbitral establishing the procedural timetable; adopting methods to increase efficiency or
Regimes, (© Kluwer Law economy in the proceedings, including through the use of technology; focusing the issues in
International; Kluwer Law dispute, whether through the tribunal’s use of question lists or the parties’ stipulation of
International 2019) pp. 351 - uncontested facts; the tribunal making any preliminary determinations and orders;
368 deciding whether to separate the proceedings into different phases (e.g., on jurisdiction,
merits, and/or quantum); confirming the seat of the arbitration and location of
proceedings; determining the method of allocating fees and costs; confirming the language
of the proceedings; establishing the number and sequence of written submissions; electing
whether to dispense with the written or oral proceedings; fixing evidentiary procedures,
including rules for document production and witness and expert testimony; deciding
whether to admit submissions by amicus curiae; and establishing rules concerning
confidentiality (or transparency) of the proceedings. (7) Each one of these items can
potentially and significantly affect a party’s position in the arbitration. Counsel will do well
to identify those which are important to their client’s case and prepare to advocate for
their client’s position on those items at the initial procedural conference.
For a complex dispute, it may be necessary and indeed advisable for the parties and the
tribunal to meet in person for the initial procedural conference to address any or all of
these issues. For disputes of a relatively modest amount in controversy, or when only a few
issues remain outstanding, it may be appropriate to hold the initial procedural conference
via videoconference or telephone. The ICC, LCIA, SCC, and SIAC Rules expressly allow the
initial procedural conference to be held in person, over the phone, via videoconference, or
any other means of communication. (8) The form in which the meeting occurs is not
P 353 mentioned in the ICDR, ICSID, CIETAC, or UNCITRAL Rules, but as a practical matter, the
P 354 tribunal has broad discretion on such matters. (9) As stated above, the HKIAC and
UNCITRAL Rules only require the tribunal to establish the procedural timetable after
inviting the parties to express their views. The tribunal, of course, may do so through or
after holding a procedural conference.
In most cases, there are good reasons to set the procedural schedule and framework for
the arbitration through an oral conference with the tribunal (whether in person, by
videoconference, or by telephone), rather than simply through written communications. As
discussed above, it is often useful for counsel to be able to introduce their clients and
their case to the tribunal early on through means other the initial written submissions, and
oral communications typically help to ensure that the parties and the tribunal understand
the case and the ground rules by which the arbitration will proceed.

§5.02 CONSIDERATIONS OF EFFICIENCY, ECONOMY, AND QUALITY OF THE

ARBITRATION
The primary goal of international arbitration is to provide a neutral forum for the
resolution of international disputes and to enable each party to avoid the unfamiliar (and
potentially biased) domestic courts of the party or parties to the dispute. (10) In addition,
many advocates of international arbitration have traditionally asserted that arbitration is
usually faster and more cost-effective than proceedings in many domestic courts. Yet in
recent years, international arbitration has come under increasing criticism for being
unduly costly and time-consuming. In response, arbitrators, counsel, and arbitral
institutions have looked for appropriate ways to streamline and expedite arbitration
procedures. Some of the arbitral regimes under consideration explicitly state a general
mandate to the tribunal to promote efficient and cost-effective procedures. The ICDR
Rules suggest that the initial procedural conference should be used to address “process
efficiencies” and encourage “expediting the resolution of the dispute” by considering “how
… to increase the efficiency and economy of the proceedings.” (11) The HKIAC Rules likewise
contemplate that the tribunal will adopt suitable procedures to avoid unnecessary delay
or expense. (12) The ICC Rules provide that “[t]he arbitral tribunal and the parties shall
make every effort to conduct the arbitration in an expeditious and cost-effective manner,
having regard to the complexity and value of the dispute.” (13) And the SIAC Rules require
the tribunal, based on its consultations with the parties, “to ensure the fair, expeditious,
economical and final resolution of the dispute.” (14)
P 354
P 355
There are a number of points that the parties and the tribunal might establish at the initial
procedural conference to streamline the proceedings. (15) First, the parties and the
tribunal will do well simply to define the issues with as much precision as possible at the
outset of the case. This may involve specifying the contested issues of law and fact,
determining the order of deciding the issues, and defining the relief or remedy sought. (16)
Defining the issues during this early stage of the arbitration proceeding is helpful because
it allows the parties to select the most sensible and effective way for them to present their
arguments and evidence. Some issues may even be decided simply on the basis of
documents rather than at a hearing. (17) And, the ICSID Rules urge the parties to use the
initial procedural conference as a way to reach “an amicable settlement” of perhaps the
entire dispute. (18) For more discussion of summary decision and settlement, see sections
§10.06 (Summary Decision) and §10.08 (Consent Award).
Next, the parties and the tribunal can create a number of efficiencies through a well-

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 designed procedural timetable. For example, the timetable may set the number of days
for a hearing, fix deadlines for written submissions, and set a deadline for the tribunal to
issue its the award. (19) The parties and the tribunal also should endeavor to fix the date of
the hearing to prevent the arbitration from becoming drawn out; set short but realistic
deadlines; and consider whether to bifurcate proceedings for an early partial award. (20)
Additionally, they may decide in advance whether to pause the proceedings at a certain
point, for example, after the first round of written submissions, to explore settlement
options including through the use of mediation. (21) For further discussion on the use of
mediation in conjunction with arbitration, see section §10.02 (Mediation-Arbitration).
Regarding written submissions, the parties and the tribunal should establish that the first
P 355 round of written submissions should set out the parties’ cases in full, and possibly
P 356 dispense with further rounds of submissions, or, establish that subsequent rounds
cannot be used to reiterate earlier arguments or raise new issues. (22) The ICSID Arbitration
Rules explicitly invite the tribunal to seek the parties’ views on, for example, the number
and sequence of pleadings, and whether to dispense with written submissions or the oral
hearing. (23)
Parties can also create a more efficient and economic arbitration by imposing page limits
for written submissions. (24) Arbitrations today typically have extended written phases
before the oral hearings during which the parties might produce hundreds or thousands of
pages of submissions for the tribunal. By imposing page limits, parties can cut back on the
costs of drafting submissions, as well as the time and costs required for arbitrators to read
them. Additionally, shorter written submissions require the parties to practice effective
advocacy by focusing on their strongest and best arguments. Lastly, with fewer pages to
read, the arbitrators are likely to be more engaged in the dispute and have a better
understanding of the issues and arguments. Further discussion of written proceedings can
be found in section §7.01 (Additional Written Submissions).
With respect to evidence, the parties and the tribunal might establish at the initial
procedural conference such provisions as: a requirement for the parties to submit
documents on which they rely; (25) a unified system for numbering exhibits; an orderly
system for document requests with set time limits and clear standards for the scope of
requests (26) (possibly by reference to the IBA Rules of Evidence); the use of searchable
electronic files for exhibits and the presentation to the tribunal of only the most important
documentary evidence; (27) and the use of certified translations only if there is a dispute
P 356 concerning an unofficial translation. (28) The parties and the tribunal can also agree to
P 357 limit the number of witnesses; use written witness statements as their direct testimony;
and limit the number of rounds of witness statements. (29) The parties and the tribunal
might also determine the specific subject matter and scope of any expert reports; limit the
number of experts and reports; arrange for a meeting of the experts to separate issues on
which they coincide from those on which they disagree; (30) and consider agreeing upon a
single expert appointed by the tribunal or jointly by the parties. (31) Further discussion of
procedures for evidence can be found in Chapter 6 (Evidentiary Procedure).
Considering the substantial time and expense associated with hearings, the parties and
the tribunal might agree to limit the number and length of hearings. (32) Or, the parties
and the tribunal may establish a location for the hearing other than the seat of arbitration
that is more convenient and cost-effective for the tribunal and the parties (including their
counsel and witnesses) to meet. They might also agree on the use of videoconference or
teleconference, such as for witness testimony or discrete procedural issues that arise in
the course of the arbitration. (33) The parties and the tribunal should fix a deadline for
presenting written submissions and core documents to the tribunal well in advance of the
hearing in order to allow the tribunal sufficient time to familiarize itself with the issues
and arguments of the parties, which will make the hearing more efficient and productive.
Another strategy is to hold a prehearing conference so the tribunal can invite the parties to
focus on particular issues at the hearing. (34) The parties and the tribunal can also
establish an agenda and time limits for the various phases of the hearing; limit the time for
cross-examination, and consider dispensing with posthearing closing submissions, or
agreeing on either written or oral post-hearing submissions rather than both. Further
discussion of oral proceedings can be found section §7.03 (Hearings).
One way to shorten the proceedings for a smaller dispute might be to commit to an
institution’s expedited procedures. The ICDR, CIETAC, HKIAC, ICC, SCC and SIAC Rules offer
expedited procedures that apply by default to smaller claims, but parties can also use
their procedural timetable to apply these procedures to larger claims or even to create
P 357 their own bespoke expedited procedures to fit the circumstances of their dispute. ICSID is
P 358 considering adding a chapter on expedited procedures. Further discussion of
procedures for expedited proceedings can be found in section §10.01 (Expedited
Procedures).
It should always be kept in mind that the arbitral rules are typically stated in general
terms, and provide for considerable flexibility, specifically so that the parties and the
tribunal can tailor the procedures to fit the needs of the particular case. In a smaller case
or less complex case, that might mean dispensing with certain procedural steps that have
traditionally been included in most arbitrations (e.g., witness testimony or the oral hearing
itself). In larger cases, that might mean adding procedural steps that have not been
traditionally included in most arbitrations. For example, one prominent arbitrator has

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 advocated for the parties to give opening arguments at a hearing to be held at a relatively
early stage of the case—and separate from the main merits hearing. (35) The so-called
Kaplan Opening might take place after the submission of the first round of memorials but
before the submission of the second round (i.e., the reply and rejoinder). (36) In a
particularly complex case, in which the tribunal may have thousands of pages to read and
digest in advance of a multi-week merits hearing, the Kaplan Opening can provide a
number of advantages, including: ensuring that the tribunal will read the material and
understand the case from an early stage; allowing the tribunal to put questions before the
parties early on that can be addressed at a later stage; enabling the tribunal and the
parties to understand the critical issues and points of contention; assisting in speeding up
the award process; and bringing the parties together in advance of the hearing, thus
allowing points of dispute to be minimized and potentially allowing for settlement. (37)
While the Kaplan Opening and similar procedural mechanisms may mean that the
proceedings include an additional hearing, they can add efficiencies to the overall
conduct of the case and enhance the quality of the adjudication of the dispute.
Lastly, the parties and the tribunal may agree that the tribunal should allocate costs to
induce parties to refrain or desist from unreasonable behavior, specifically including
excessive document requests, legal argument, or cross-examination; delay tactics;
exaggerated claims; failure to comply with procedural orders; unjustified requests;
persistent correspondence directed at the opposing party; and unjustified failures to meet
deadlines. (38) Further discussion of costs can be found in Chapter 8 (Costs and Fees).

§5.03 TERMS OF REFERENCE

Another consideration for the initial procedural conference is the preparation of Terms of
P 358 Reference, which can define in writing the substantive issues and procedural rules from the
P 359 outset of a case. The ICC Rules are unique in requiring the parties and tribunal draft
terms of reference while the CIETAC Rules merely suggest them. (39) Tribunals proceeding
under other arbitral regimes generally have the authority to order “Terms of Reference” (or
similar submissions) at the request of the parties or sua sponte.
The Terms of Reference under the ICC Rules must contain information regarding:
(i) the identity of the parties and their representatives;
(ii) addresses for notifications and communications arising in the course of the
arbitration;
(iii) a summary of the parties’ respective claims and the relief sought by each party;
(iv) a list of the issues to be determined (unless the tribunal considers such a list to be
“inappropriate”);
(v) the identity of the arbitrators;
(vi) the place of arbitration; and
(vii) any particulars of the applicable procedural rules and, where relevant, reference to
powers conferred upon the arbitral tribunal to act as amiable compositeur or to
decide ex aequo et bono. (40)
With respect to the last item, particulars of the applicable procedural rules, the Terms of
Reference may contain any elections on the points discussed further above. Among these,
some of the most common terms established in the Terms of Reference include the
language of the proceedings, rules or principles concerning document production (such as
the IBA Rules of Evidence), the presentation of witness testimony in written form, the
ability of the chairman or president of the tribunal to make procedural rulings, the
possibility of interim awards, and the ability of the tribunal to meet and hold hearings
outside the seat of arbitration. (41)
Another critical element of the Terms of Reference is the parties’ summary of their
respective claims and requests for relief. Under Article 23(4), a party is generally
prohibited from making claims that fall outside the Terms of Reference (subject to certain
exceptions discussed below, which the tribunal has considerable discretion to apply). (42)
Requiring the parties to specify all claims in the Terms of Reference emphasizes that the
procedural schedule and rules are to be based upon the description of the claims as set
forth in the Terms of Reference. The requirement is designed, among other things, to limit
procedural delays at later stages caused, for example, by a party that feels the arbitration
is not going its way and attempts to introduce an additional claim that could have been
asserted at the beginning of the arbitration. Further, it is often useful for both the tribunal
and the parties to see side-by-side summaries of their respective claims at the outset of
the case.
P 359
P 360
Once the Terms of Reference are signed and approved by the ICC Court, a party can assert
a new claim only if expressly authorized to do so by the tribunal. (43) When deciding
whether to authorize a claim that was not originally incorporated into the Terms of
Reference, the tribunal considers the nature of the new claims, the stage of the arbitration
“and other relevant factors.” (44) According to the ICC Secretariat, a claim that is related to
the existing dispute and raises similar questions of fact and law “will be more acceptable
to an arbitral tribunal than a claim that requires the proceedings to take a significantly

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 different direction.” (45) ICC tribunals “have only rarely authorized” the introduction of new
claims based on entirely new facts arising out of a different contract. (46)
As stated above, the ICC Rules require the arbitral tribunal to draw up a document defining
its Terms of Reference, (47) while the CIETAC Rules only suggest them. Nonetheless,
tribunals operating under other institutional and ad hoc rules may adopt a similar
procedure, even where the applicable arbitration rules do not contain any specific
requirement to do so. (48)
The rules relating to initial procedural conferences are set out in Table 5.1.
P 360
P 361 Table 5.1 Initial Procedural Conference
AAA/ICDR
P 365
362
363
364
361 Article 4. Administrative The Administrator may conduct an administrative
P 366
362 Conference
363
364
365 conference before the arbitral tribunal is constituted to
facilitate party discussion and agreement on issues such as
arbitrator selection, mediating the dispute, process
efficiencies, and any other administrative matters.
Article 20. Conduct of 1. Subject to these Rules, the arbitral tribunal may conduct
Proceedings the arbitration in whatever manner it considers
appropriate, provided that the parties are treated with
equality and that each party has the right to be heard and
is given a fair opportunity to present its case.
2. The tribunal shall conduct the proceedings with a view to
expediting the resolution of the dispute. The tribunal may,
promptly after being constituted, conduct a preparatory
conference with the parties for the purpose of organizing,
scheduling, and agreeing to procedures, including the
setting of deadlines for any submissions by the parties. In
establishing procedures for the case, the tribunal and the
parties may consider how technology, including electronic
communications, could be used to increase the efficiency
and economy of the proceedings.
3. The tribunal may decide preliminary issues, bifurcate
proceedings, direct the order of proof, exclude cumulative
or irrelevant testimony or other evidence, and direct the
parties to focus their presentations on issues whose
resolution could dispose of all or part of the case.

CIETAC
Article 35. Conduct of Hearing 5. Unless otherwise agreed by the parties, the arbitral
tribunal may, if it considers it necessary, issue procedural
orders or question lists, produce terms of reference, or hold
pre-hearing conferences, etc. With the authorization of the
other members of the arbitral tribunal, the presiding
arbitrator may decide on the procedural arrangements for
the arbitral proceedings at his/her own discretion.
HKIAC
Article 13. General Provisions 13.1. Subject to these Rules, the arbitral tribunal shall
adopt suitable procedures for the conduct of the
arbitration in order to avoid unnecessary delay or expense,
having regard to the complexity of the issues, the amount
in dispute and the effective use of technology, and
provided that such procedures ensure equal treatment of
the parties and afford the parties a reasonable opportunity
to present their case.
13.2. At an early stage of the arbitration and in
consultation with the parties, the arbitral tribunal shall
prepare a provisional timetable for the arbitration, which
shall be provided to the parties and HKIAC. […]
13.5. The arbitral tribunal and the parties shall do
everything necessary to ensure the fair and efficient
conduct of the arbitration.

ICC

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 Article 22. Conduct of the 1. The arbitral tribunal and the parties shall make every
Arbitration effort to conduct the arbitration in an expeditious and
cost-effective manner, having regard to the complexity
and value of the dispute.
2. In order to ensure effective case management, the
arbitral tribunal, after consulting the parties, may adopt
such procedural measures as it considers appropriate,
provided that they are not contrary to any agreement of
the parties.

Article 23. Terms of Reference 1) As soon as it has received the file from the Secretariat,
the arbitral tribunal shall draw up, on the basis of
documents or in the presence of the parties and in the light
of their most recent submissions, a document defining its
Terms of Reference. This document shall include the
following particulars:
(a) the names in full, description, address and other
contact details of each of the parties and of any
person(s) representing a party in the arbitration;
(b) the addresses to which notifications and
communications arising in the course of the
arbitration may be made;
(c) a summary of the parties’ respective claims and of
the relief sought by each party, together with the
amounts of any quantified claims and, to the extent
possible, an estimate of the monetary value of any
other claims;
(d) unless the arbitral tribunal considers it inappropriate,
a list of issues to be determined;
(e) the names in full, address and other contact details
of each of the arbitrators;
(f) the place of the arbitration; and
(g) particulars of the applicable procedural rules and, if
such is the case, reference to the power conferred
upon the arbitral tribunal to act as amiable
compositeur or to decide ex aequo et bono.
2) The Terms of Reference shall be signed by the parties
and the arbitral tribunal.
Within 30 days of the date on which the file has been
transmitted to it, the arbitral tribunal shall transmit to the
Court the Terms of Reference signed by it and by the
parties. The Court may extend this time limit pursuant to a
reasoned request from the arbitral tribunal or on its own
initiative if it decides it is necessary to do so.
3) If any of the parties refuses to take part in the drawing
up of the Terms of Reference or to sign the same, they shall
be submitted to the Court for approval. When the Terms of
Reference have been signed in accordance with Article
23(2) or approved by the Court, the arbitration shall
proceed.
4) After the Terms of Reference have been signed or
approved by the Court, no party shall make new claims
which fall outside the limits of the Terms of Reference
unless it has been authorized to do so by the arbitral
tribunal, which shall consider the nature of such new
claims, the stage of the arbitration and other relevant
circumstances.

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 Article 24. Case Management 1) When drawing up the Terms of Reference or as soon as
Conference and Procedural possible thereafter, the arbitral tribunal shall convene a
Timetable case management conference to consult the parties on
procedural measures that may be adopted pursuant to
Article 22(2). Such measures may include one or more of
the case management techniques described in Appendix IV.
2) During or following such conference, the arbitral
tribunal shall establish the procedural timetable that it
intends to follow for the conduct of the arbitration. The
procedural timetable and any modifications thereto shall
be communicated to the Court and the parties.
3) To ensure continued effective case management, the
arbitral tribunal, after consulting the parties by means of a
further case management conference or otherwise, may
adopt further procedural measures or modify the
procedural timetable.
4) Case management conferences may be conducted
through a meeting in person, by video conference,
telephone or similar means of communication. In the
absence of an agreement of the parties, the arbitral
tribunal shall determine the means by which the
conference will be conducted. The arbitral tribunal may
request the parties to submit case management proposals
in advance of a case management conference and may
request the attendance at any case management
conference of the parties in person or through an internal
representative.

Appendix IV. Case The following are examples of case management

Management Techniques techniques that can be used by the arbitral tribunal and
the parties for controlling time and cost. Appropriate
control of time and cost is important in all cases. In cases
of low complexity and low value, it is particularly
important to ensure that time and costs are proportionate
to what is at stake in the dispute.
(a) Bifurcating the proceedings or rendering one or more
partial awards on key issues, when doing so may
genuinely be expected to result in a more efficient
resolution of the case.
(b) Identifying issues that can be resolved by agreement
between the parties or their experts.
(c) Identifying issues to be decided solely on the basis of
documents rather than through oral evidence or
legal argument at a hearing.
(d) Production of documentary evidence:
(i) requiring the parties to produce with their
submissions the documents on which they rely;
(ii) avoiding requests for document production
when appropriate in order to control time and
cost;

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 (iii) in those cases where requests for document
production are considered appropriate, limiting
such requests to documents or categories of
documents that are relevant and material to
the outcome of the case;
(iv) establishing reasonable time limits for the
production of documents;
(v) using a schedule of document production to
facilitate the resolution of issues in relation to
the production of documents.
(e) Limiting the length and scope of written submissions
and written and oral witness evidence (both fact
witnesses and experts) so as to avoid repetition and
maintain a focus on key issues.
(f) Using telephone or video conferencing for procedural
and other hearings where attendance in person is not
essential and use of IT that enables online
communication among the parties, the arbitral
tribunal and the Secretariat of the Court.
(g) Organizing a pre-hearing conference with the arbitral
tribunal at which arrangements for a hearing can be
discussed and agreed and the arbitral tribunal can
indicate to the parties issues on which it would like
the parties to focus at the hearing.
(h) Settlement of disputes:
(i) informing the parties that they are free to settle all or
part of the dispute either by negotiation or through
any form of amicable dispute resolution methods
such as, for example, mediation under the ICC
Mediation Rules; (ii) where agreed between the
parties and the arbitral tribunal, the arbitral tribunal
may take steps to facilitate settlement of the dispute,
provided that every effort is made to ensure that any
subsequent award is enforceable at law.
Additional techniques are described in the ICC publication
entitled “Controlling Time and Costs in Arbitration.”

ICSID
Arbitration Rules, Rule 19. The Tribunal shall make the orders required for the
Procedural Orders conduct of the proceeding.
Arbitration Rules, Rule 20. (1) As early as possible after the constitution of a Tribunal,
Preliminary Procedural its President shall endeavor to ascertain the views of the
Consultation parties regarding questions of procedure. For this purpose
he may request the parties to meet him. He shall, in
particular, seek their views on the following matters:

(a) the number of members of the Tribunal required to

constitute a quorum at its sittings;
(b) the language or languages to be used in the
proceeding;
(c) the number and sequence of the pleadings and the
time limits within which they are to be filed;
(d) the number of copies desired by each party of
instruments filed by the other;
(e) dispensing with the written or the oral procedure;
(f) the manner in which the cost of the proceeding is to
be apportioned; and
(g) the manner in which the record of the hearings shall
be kept.
(2) In the conduct of the proceeding the Tribunal shall
apply any agreement between the parties on procedural
matters, except as otherwise provided in the Convention or
the Administrative and Financial Regulations.

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 Arbitration Rules, Rule 21. (1) At the request of the Secretary-General or at the
Pre-hearing Conference discretion of the President of the Tribunal, a pre-hearing
conference between the Tribunal and the parties may be
held to arrange for an exchange of information and the
stipulation of uncontested facts in order to expedite the
proceeding.
(2) At the request of the parties, a pre-hearing conference
between the Tribunal and the parties, duly represented by
their authorized representatives, may be held to consider
the issues in dispute with a view to reaching an amicable
settlement.

LCIA
Article 14. Conduct of 14.1. The parties and the Arbitral Tribunal are encouraged to make
Proceedings contact (whether by a hearing in person, telephone conference-call,
video conference or exchange of correspondence) as soon as
practicable but no later than 21 days from receipt of the Registrar’s
written notification of the formation of the Arbitral Tribunal.
14.2. The parties may agree on joint proposals for the conduct of
their arbitration for consideration by the Arbitral Tribunal. They are
encouraged to do so in consultation with the Arbitral Tribunal and
consistent with the Arbitral Tribunal’s general duties under the
Arbitration Agreement.14.3. Such agreed proposals shall be made by
the parties in writing or recorded in writing by the Arbitral Tribunal
at the parties’ request and with their authority.
[…]
14.6. In the case of an Arbitral Tribunal other than a sole arbitrator,
the presiding arbitrator, with the prior agreement of its other
members and all parties, may make procedural orders alone.

SCC
Article 28. Case Management (1) After the referral of the case to the Arbitral Tribunal, the
Conference and Timetable Arbitral Tribunal shall promptly hold a case management
conference with the parties to organise, schedule and
establish procedures for the conduct of the arbitration.
(2) The case management conference may be conducted in
person or by any other means.
[…]
(4) During or immediately following the case management
conference, the Arbitral Tribunal shall establish a
provisional timetable for the conduct of the arbitration,
including the date for making the award.
(5) The Arbitral Tribunal may, after consulting the parties,
hold further case management conferences and issue
revised timetables as it deems appropriate. The Arbitral
Tribunal shall send a copy of the provisional timetable and
any subsequent modifications to the parties and to the
Secretariat.

SIAC
Rule 19. Conduct of the 19.3. As soon as practicable after the constitution of the
Proceedings Tribunal, the Tribunal shall conduct a preliminary meeting
with the parties, in person or by any other means, to
discuss the procedures that will be most appropriate and
efficient for the case.
19.4. The Tribunal may, in its discretion, direct the order of
proceedings, bifurcate proceedings, exclude cumulative or
irrelevant testimony or other evidence and direct the
parties to focus their presentations on issues the decision
of which could dispose of all or part of the case.
19.7. The President may, at any stage of the proceedings,
request the parties and the Tribunal to convene a meeting
to discuss the procedures that will be most appropriate
and efficient for the case. Such meeting may be conducted
in person or by any other means.

UNCITRAL

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 Article 17. General Provisions 2. As soon as practicable after its constitution and after
inviting the parties to express their views, the arbitral
tribunal shall establish the provisional timetable of the
arbitration. The arbitral tribunal may, at any time, after
inviting the parties to express their views, extend or abridge
any period of time prescribed under these Rules or agreed
by the parties.

FURTHER READING
Nael G. Bunni, Value of Pre-hearing Conferences and Items to Be Covered, in Arbitration
Process (Dennis Campbell ed., Kluwer Law International 2002).
P 366
P 367
Gary B. Born, Chapter Fifteen: Procedures in International Arbitration, in International
Commercial Arbitration (2d ed., Kluwer Law International 2014).
John Choong, et al., Chapter Nine: The Conduct of Proceedings, in A Guide to the SIAC
Arbitration Rules (2d. ed., Oxford University Press 2018).
Jeffrey Commission & Rahim Moloo, Chapter Two: The First Procedural Order, in Procedural
Issues in International Investment Arbitration (Oxford University Press 2018).
W. Laurence Craig et al., Chapter Fifteen: Terms of Reference, in International Chamber of
Commerce Arbitration (3d ed., Oxford University Press 2000).
Alexandre de Gramont, Open and Shut: The Innovative Use of Opening Argument in
International Arbitration, 10 NY Disp. Res. Lawyer 1 (2017).
Ugo Draetta, Cooperation among Arbitrators in International Arbitration, 5 Indian J. Arb. L. 1
(July 2016).
Jason Fry et al., The Secretariat’s Guide to ICC Arbitration (ICC 2012).
Gerald W. Ghikas, The First Procedural Conference in Commercial Arbitration: The First
Chance to Win?, 71 Advocate 1 (January 2013).
Neil Kaplan, If It Ain’t Broke, Don’t Change It, 80 Arb. 2, 174 (2014).
Paolo Michele Patocchi, Party Autonomy v. Case Management in International Arbitration, 29
Tanka Huk. Dergisi 127 (2013).
Klaus Reichert, The Organizational Meeting, in Leading Arbitrators’ Guide to International
Arbitration (Lawrence W. Newman & Richard D. Hill eds., Juris 2004).
Eric A. Schwartz, The Resolution of International Commercial Disputes under the Auspices of
the ICC International Court of Arbitration, 18 Hastings Int’l & Comp. L. Rev. 719 (1995).
Andrew Tweeddale & Keren Tweeddale, Chapter 8: Preliminary Proceedings, in Arbitration of
Commercial Disputes (Oxford University Press 2007).
UNCITRAL, Notes on Organizing Arbitral Proceedings (July 2016).
P 367

References
1) Procedural conferences may also be held as needed at any other stage of the
proceedings. See, e.g., SIAC Rules, Rule 19.7.
2) ICDR Rules, Art. 20(2); CIETAC Rules, Art. 35(5); ICC Rules, Art. 24; ICSID Rules, Rule 20;
SCC Rules, Art. 28; SIAC Rules, Rule 19.3.
3) ICC Rules, Art. 24; SCC Rules, Art. 28; SIAC Rules, Rule 19.3.
4) Article 14.2 of the LCIA Rules provides that the parties may agree on joint proposals for
the conduct of the arbitration in consultation with the tribunal. Though not expressly
indicated, a procedural conference would be an appropriate format for this exercise.
5) HKIAC Rules, Art. 13.2. Similarly, Art. 17(2) of the UNCITRAL Rules indicates that the
tribunal will establish the provisional timetable for the arbitration “after inviting the
parties to express their views.” UNCITRAL Rules. Again, a procedural conference would
be an appropriate means for fulfilling this requirement.
6) UNCITRAL, Notes on Organizing Arbitral Proceedings (July 2016), 3, 5-7,
http://www.uncitral.org/pdf/english /texts/arbitration/arb-notes/arb-notes-2016-
e.pdf (UNCITRAL Notes).
7) ICDR Rules, Art. 20(2)-(3); CIETAC Rules, Art. 35; HKIAC Rules, Art. 13.1; ICC Rules, Art. 24
and Appx. IV; ICSID Rules, Rules 20 and 21; LCIA Rules, Arts. 14.1-14.14.3; SCC Rules, Art.
28(1), (2) and (4); SIAC Rules, Rule 19.4; UNCITRAL Rules, Art. 17(2).
8) ICC Rules, Art. 24(4); LCIA Rules, Art. 14.1; SCC Rules, Art. 28(2); SIAC Rules, Rule 19.3.

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 9) ICSID is considering a proposed amendment to its Rules that would encourage the
tribunal to hold case management conferences to identify uncontested facts, and to
narrow and resolve procedural or substantive issues as the case proceeds. See
Proposals for Amendment of the ICSID Rules—Synopsis, para. 24. ICSID, World Bank
Group, 2018.
https://icsid.worldbank.org/en/amendments/Documents/Homepage/Synopsis_Englis
h.pdf.
10) See, e.g., Jan Paulsson, International Arbitration Is Not Arbitration, 2 Stockholm Int’l Arb.
Rev., 1-20 (2008).
11) ICDR Rules, Arts. 4, 20(2).
12) HKIAC Rules, Art. 13.1.
13) ICC Rules, Art. 22(1).
14) SIAC Rules, Rule 19.1.
15) See generally ICC Commission Report: Controlling Time and Costs in Arbitration (2018);
UNCITRAL Notes, supran. 6.
16) UNCITRAL Notes, supran. 6, at 16-17; see also CIETAC Rules, Art. 35(5) (“Unless otherwise
agreed by the parties, the arbitral tribunal may, if it considers it necessary, issue
question lists … .”); ICSID Rules, Art. 21 (suggesting that the parties should stipulate
“uncontested facts in order to expedite the proceedings”); SIAC Rules, Rule 19.4
(suggesting that the tribunal may “direct the parties to focus their presentations on
issues the decision of which could dispose of all or part of the case”).
17) See ICC Rules, Appx. IV(c) (suggesting “[i]dentifying issues to be decided solely on the
basis of documents rather than through oral evidence or legal argument at a hearing”).
18) ICSID Rules, Art. 21; see also ICC Rules, Appx. IV(h) (suggesting that the tribunal should
“inform[] the parties that they are free to settle all or part of the dispute either by
negotiation or through any form of amicable dispute resolution methods such as, for
example, mediation under the ICC Mediation Rules” and that “where agreed between
the parties and the arbitral tribunal, the arbitral tribunal may take steps to facilitate
settlement of the dispute, provided that every effort is made to ensure that any
subsequent award is enforceable at law”).
19) See ICC Rules, Art. 24(2); ICDR Rules, Art. 20(2); SCC Rules, Art. 28(4); UNCITRAL Rules, Art.
17(2); ICC Commission Report, supran. 15, at Arts. 83-84.
20) See ICC Commission Report, supran. 15, at Arts. 34-40; see also ICDR Rules, Art. 20(3)
(“The tribunal may … bifurcate proceedings … .”); ICC Rules, Appx. IV(a) (suggesting
“[b]ifurcating the proceedings …, when doing so may genuinely be expected to result in
a more efficient resolution of the case”).
21) See ICC Commission Report, supran. 15, at Arts. 41-42.
22) See id., at Arts. 43-48.
23) ICSID Rules, Rule 20(1)(c) and (e). The other regimes do not make such an express
provision, but all regimes would generally permit the tribunal to do so through its
general power to conduct the proceedings, and the possibility of the parties to do so
by agreement.
24) See ICC Rules, Appx. IV(e) (suggesting “[l]imiting the length and scope of written
submissions … so as to avoid repetition and maintain a focus on key issues”); see also
Constantine Partasides, A Few Words on Prolixity in International Arbitration, in
International Arbitration under Review: Essays in Honour of John Beechey (International
Chamber of Commerce 2015).
25) See ICC Rules, Appx. IV(d)(i) (suggesting “requiring the parties to produce with their
submissions the documents on which they rely”).
26) See ICDR Rules, Art. 20(3) (“The tribunal may direct the order of proof [and] exclude
cumulative or irrelevant testimony or other evidence.”); ICC Rules, Appx. IV(d)(ii)-(v)
(suggesting “avoiding requests for document production when appropriate in order to
control time and cost; in those cases where requests for document production are
considered appropriate, limiting such requests to documents or categories of
documents that are relevant and material to the outcome of the case; establishing
reasonable time limits for the production of documents; and using a schedule of
document production to facilitate the resolution of issues in relation to the production
of documents”).
27) See ICDR Rules, Art. 20(2) (“In establishing procedures for the case, the tribunal and the
parties may consider how technology, including electronic communications, could be
used to increase the efficiency and economy of the proceedings.”).
28) See ICC Commission Report, supran. 15, at Art. 56.
29) See id., at Arts. 60-61; see also ICC Rules, Appx. IV(e) (suggesting “[l]imiting the length
and scope of … written and oral witness evidence (both fact witnesses and experts) so
as to avoid repetition and maintain a focus on key issues”).
30) See ICC Rules, Appx. IV(b) (suggesting “[i]dentifying issues that can be resolved by
agreement between … [the parties’] experts”).
31) See ICC Commission Report, supran. 15, at Arts. 62-68.
32) See generally id., at Arts. 69-81.

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 33) See ICDR Rules, Art. 20(2) (“In establishing procedures for the case, the tribunal and the
parties may consider how technology, including electronic communications, could be
used to increase the efficiency and economy of the proceedings.”); ICC Rules, Appx.
IV(f) (suggesting “[u]sing telephone or video conferencing for procedural and other
hearings where attendance in person is not essential and use of IT that enables online
communication among the parties, the arbitral tribunal and the Secretariat of the
Court”).
34) ICC Rules, Appx. IV(g) (suggesting “[o]rganizing a pre-hearing conference with the
arbitral tribunal at which arrangements for a hearing can be discussed and agreed and
the arbitral tribunal can indicate to the parties issues on which it would like the
parties to focus at the hearing”).
35) Neil Kaplan, If It Ain’t Broke, Don’t Change It, 80 Arb. 2, 174 (2014).
36) Id.
37) Id. See also Alexandre de Gramont, Open and Shut: The Innovative Use of Opening
Argument in International Arbitration, 10 NY Dispute Res. Lawyer (2017).
38) See ICC Commission Report, supran. 15, at Arts. 58 and 82; see also ICSID Rules, Rule
20(1)(f) (suggesting as a topic for the initial procedural conference “the manner in
which the cost of the proceeding is to be apportioned”).
39) ICC Rules, Art. 23; CIETAC Rules, Art. 35.
40) ICC Rules, Art. 23(1)(a)-(g).
41) W. Laurence Craig et al., International Chamber of Commerce Arbitration, 281 (3d. ed.,
Oceana 2000).
42) ICC Rules, Art. 23(4).
43) Id., at Art. 23(4).
44) Id.
45) Jason Fry, et al., The Secretariat’s Guide to ICC Arbitration, 258 (ICC 2012).
46) Id.
47) See ICC Rules, Art. 23. The ICC Rules also include examples of effective case
management techniques that can be utilized by arbitral tribunals and parties to
control time and costs. See ICC Rules, Appx. IV.
48) See, LCIA Rules, Art. 14; SCC Rules, Art. 28; UNCITRAL Rules, Art. 17.

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Document information
Chapter 6: Evidentiary Procedure
Publication In every international arbitration, each party must present evidence in support of its case.
This principle is expressed in the Latin maxim, semper necessitas probandi incumbit ei qui
The International Arbitration agit. (1) Yet most international arbitration rules provide only basic guidance with respect
Rulebook: A Guide to Arbitral to the gathering and presentation of evidence, leaving the details of evidentiary procedure
Regimes to the broad discretion of the arbitral tribunal (subject to any limitations in the parties’
arbitration agreement or mandatory law at the place of arbitration). (2) To some extent,
this approach to gathering and testing evidence—tribunal-directed and inquisitorial in
Organization nature—reflects the long-standing civil-law tradition of continental Europe. (3) At the same
time, the tribunal may in its discretion permit aspects of the advocate-directed and
International Centre for adversarial approach developed in common-law jurisdictions such as the United Kingdom
Dispute Resolution and the United States, e.g., party-directed “discovery” of documents and cross-
P 369 examination of witnesses. (4) Indeed, such procedures have become relatively
P 370 commonplace in international arbitration. (5) To achieve the appropriate balance
Organization between these two approaches, many tribunals turn to the IBA Rules of Evidence, either
pursuant to the agreement of the parties or on their own initiative. (6) The IBA Rules of
China International Evidence are a restatement of broadly accepted evidence procedures, meant to guide
Economic and Trade tribunals in the exercise of their discretion by filling lacunae in the applicable arbitration
Arbitration Commission rules. (7) In this chapter, we set out the arbitration rules, along with the relevant IBA Rules
of Evidence, concerning evidentiary procedures in the following areas: (i) documentary
evidence; (ii) written witness testimony; (iii) witness testimony in evidentiary hearings; (iv)
Organization inspection/site visits; and (v) the admissibility of evidence.
Hong Kong International
Arbitration Centre §6.01 DOCUMENTARY EVIDENCE
In international arbitration, documentary evidence initially consists of each party’s
submission of documents upon which it intends to rely in making its case. The tribunal then
Organization has the authority to order the parties to produce additional documents and other
evidence, subject to certain criteria. Under some regimes, and often in practice, the
International Court of tribunal will exercise this power further to requests by each party for the other party to
Arbitration of the produce specific documents or categories of documents.
International Chamber of
Commerce [A] Documents upon Which the Parties Rely
All of the arbitration rules under consideration contemplate that the parties will begin to
Organization discharge their burden of proof by submitting documents upon which they rely in support
of their case. Most rules mandate the submission of such documents, using the word
International Centre for
P 370 “shall.” (8) Though, ICSID includes a qualifier: “ordinarily shall.” (9) The UNCITRAL Rules
Settlement of Investment P 371 encourage the practice, using the word “should.” (10) The ICC Rules merely suggest the
Disputes practice through the use of the word “may” and consider the practice to be an optional
case management technique. (11)
Typically, documents on which a party intends to rely must be submitted to the tribunal,
Organization the administering institution and the other party at a relatively early stage of the
London Court of arbitration—and well before the evidentiary hearing. (12) Normally, parties must submit
International Arbitration their supporting documentary evidence with the parties’ statement of claim and
statement of defense. (13) Although this requirement can make these initial exchanges
fairly costly, it has the benefit of forcing parties to “show their hands” early in the
proceedings. Disclosure of the evidence at a relatively early stage of the proceedings
Organization avoids “ambush tactics” and instead allows the parties to assess the relative strengths and
Arbitration Institute of the weaknesses of their positions, which, among other benefits, may promote settlement. In
Stockholm Chamber of case the parties agree upon a documents-only arbitration, the documents disclosed by the
Commerce parties with their written submissions might well be the main, or even the only, evidence in
support of their claims and defenses. (14)
P 371
P 372 Table 6.1 Documents on Which the Parties Rely
Organization AAA-ICDR
Singapore International P 373
372 Article 21. Exchange 3. The parties shall exchange all documents upon which each
Arbitration Centre P 374
373 of Information intends to rely on a schedule set by the tribunal.
CIETAC
Organization Article 12. A party applying for arbitration under these Rules shall:
Application for
United Nations Commission Arbitration […]
on International Trade Law
2. Attach to the Request for Arbitration the relevant documentary
and other evidence on which the Claimant’s claim is based.
Bibliographic reference
'Chapter 6: Evidentiary
Procedure', in Arif Hyder Ali ,
Jane Wessel , et al., The

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International Arbitration Article 15. Statement 2. The Statement of Defense … shall, inter alia, include the following
Rulebook: A Guide to Arbitral of Defense contents and attachments:
Regimes, (© Kluwer Law
International; Kluwer Law […]
International 2019) pp. 369 - (c) the relevant documentary and other evidence on which the
414 defense is based.

Article 16. 2. When filing the counterclaim, the Respondent shall specify the
Counterclaim counterclaim in its Statement of Counterclaim and state the facts
and grounds on which the counterclaim is based with the relevant
documentary and other evidence attached thereto.
Article 35. Conduct 3. Unless otherwise agreed by the parties, the arbitral tribunal may
of Hearing adopt an inquisitorial or adversarial approach in hearing the case
having regard to the circumstances of the case.
Article 41. Evidence 1. Each party shall bear the burden of proving the facts on which it
relies to support its claim, defense or counterclaim and provide the
basis for its opinions, arguments and counter-arguments.
HKIAC
Article 13. General 13.3. Subject to Article 11.5, all written communications between any
Provisions party and the arbitral tribunal shall be communicated to all other
parties and HKIAC.
Article 16. Statement 16.3. The Claimant shall annex to its Statement of Claim all
of Claim documents on which it relies.
Article 17. Statement 17.4. The Respondent shall annex to its Statement of Defence all
of Defence supporting materials on which it relies.
Article 22. Evidence 22.1. Each party shall have the burden of proving the facts relied on
and Hearings to support its claim or defence.
ICC
Article 3. Written 1) All pleadings and other written communications submitted by any
Notifications or party, as well as all documents annexed thereto, shall be supplied in
Communications; a number of copies sufficient to provide one copy for each party,
Time Limits plus one for each arbitrator, and one for the Secretariat. A copy of
any notification or communication from the arbitral tribunal to the
parties shall be sent to the Secretariat.
Article 4. Request for 3. […] The claimant may submit such other documents or
Arbitration information with the Request as it considers appropriate or as may
contribute to the efficient resolution of the dispute.
Article 5. Answer to 1. […] The respondent may submit such other documents or
the Request; information with the Answer as it considers appropriate or as may
Counterclaims contribute to the efficient resolution of the dispute.
5. […] The respondent may submit such other documents or
information with the counterclaims as it considers appropriate or as
may contribute to the efficient resolution of the dispute.

Article 25. 2. [The tribunal will] study[] the written submissions of the parties
Establishing the and all documents relied upon […].
Facts of the Case
Appendix IV. Case [E]xamples of case management techniques that can be used by the
Management arbitral tribunal and the parties for controlling time and cost.[…]
Techniques
d) Production of documentary evidence:
(i) requiring the parties to produce with their submissions the
documents on which they rely […].

ICSID
Arbitration Rules, Except as otherwise provided by the Tribunal after consultation with
Rule 23. Copies of the parties and the Secretary-General, every request, pleading,
Instruments application, written observation, supporting documentation, if any,
or other instrument shall be filed in the form of a signed original
accompanied by the following number of additional copies: (a)
before the number of members of the Tribunal has been determined:
five; (b) after the number of members of the Tribunal has been
determined: two more than the number of its members.
Arbitration Rules, Supporting documentation shall ordinarily be filed together with the
Rule 24. Supporting instrument to which it relates, and in any case within the time limit
Documentation fixed for the filing of such instrument.

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 Arbitration Rules, As soon as the Tribunal is constituted, the Secretary-General shall
Rule 30. transmit to each member a copy of the request by which the
Transmission of the proceeding was initiated [and] of the supporting documentation […].
Request
Arbitration Rules, (3) A memorial shall contain: a statement of the relevant facts; a
Rule 31. The Written statement of law; and the submissions. A counter-memorial, reply or
Procedure rejoinder shall contain an admission or denial of the facts stated in
the last previous pleading; any additional facts, if necessary;
observations concerning the statement of law in the last previous
pleading; a statement of law in answer thereto; and the submissions.
LCIA
Article 13. 13.3. Where any party delivers to the Arbitral Tribunal any
Communications communication (including statements and documents under Article
Between Parties and 15), whether by electronic means or otherwise, it shall deliver a copy
Arbitral Tribunal to each arbitrator, all other parties and the Registrar; and it shall
confirm to the Arbitral Tribunal in writing that it has done or is doing
so.
Article 15. Written 15.2., 15.4. […] The Claimant shall deliver to the Arbitral Tribunal and
Statements all other parties [with each written submission] all essential
documents.
15.3., 15.5. […] The Respondent shall deliver to the Arbitral Tribunal
and all other parties [with each written submission] all essential
documents.

SCC
Article 29. Written 1. […] [T]he Claimant shall submit a Statement of Claim which shall
Submissions include, unless previously submitted: […] (iii) any evidence the
Claimant relies on.
2. […] [T]he Respondent shall submit a Statement of Defence which
shall include, unless previously submitted: […] (v) any evidence the
Respondent relies on.

Article 31. Evidence 2. The Arbitral Tribunal may order a party to identify the
documentary evidence it intends to rely on and specify the
circumstances intended to be proven by such evidence.
SIAC
Rule 19. Conduct of 19.6. All statements, documents or other information supplied to the
the Proceedings Tribunal and/or the Registrar by a party shall simultaneously be
communicated to the other party.
Rule 20. 20.1. Unless the Tribunal determines otherwise, the submission of
Submissions by the written statements shall proceed as set out in this Rule.
Parties
[…]
20.7 All submissions referred to in this Rule shall be accompanied by
copies of all supporting documents which have not previously been
submitted by any party.

UNCITRAL
Article 17. General 4. All communication to the arbitral tribunal by one party shall be
Provisions communicated by that party to all other parties. Such
communications shall be made at the same time, except as
otherwise permitted by the arbitral tribunal if it may do so under
applicable law.
Article 20. Statement 4. The statement of claim should, as far as possible, be accompanied
of Claim by all documents and other evidence relied upon by the claimant, or
contain references to them.
Article 21. Statement 2. […] The statement of defence should, as far as possible, be
of Defence accompanied by all documents and other evidence relied upon by
the respondent, or contain references to them.
Article 27. Evidence 1. Each party shall have the burden of proving the facts relied on to
support its claim or defence.
IBA Rules of Evidence

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 Article 3. Documents 1. Within the time ordered by the Arbitral Tribunal, each Party shall
submit to the Arbitral Tribunal and to the other Parties all
Documents available to it on which it relies, including public
Documents and those in the public domain, except for any
Documents that have already been submitted by another Party.

[B] The Tribunal’s Power to Obtain Documentary Evidence

Should the evidence provided by a party leave questions unanswered or prompt new
questions, the tribunal holds the power to require further production of documentary
evidence, or in some cases to obtain documentary evidence on its own. Most regimes
restrict the scope of documents and other evidence that may be sought from the parties by
P 374 the tribunal to that which is “relevant to the case and material to its outcome.” (15) The
P 375 LCIA Rules omit the materiality requirement, which may permit a wider scope of
evidence. (16) The ICDR Rules define the scope differently as that which the tribunal deems
“necessary or appropriate.” (17)
Additionally, the CIETAC, LCIA, and SIAC Rules make express provision for the tribunal itself
to undertake investigations and collect evidence. (18) The ICC Rules seem to go even
farther, granting the tribunal sweeping authority to establish the facts of the case “by all
appropriate means.” (19)
Subject to the relevance and materiality requirement, the IBA Rules contemplate that the
tribunal may order a party to use best efforts to obtain documents from a third party
(person or organization), unless doing so would be unduly burdensome. (20) By contrast,
the LCIA and SIAC Rules expressly limit the scope of documents that the tribunal may order
a party to produce to those which are in that party’s possession or control. (21)
P 375
P 376 Table 6.2 The Tribunal’s Authority to Obtain Documentary Evidence
AAA-ICDR
P 376 Article 20. Conduct 4. At any time during the proceedings, the tribunal may order the
P 377 of Proceedings parties to produce documents, exhibits, or other evidence it deems
necessary or appropriate.
CIETAC
Article 43. 1. The arbitral tribunal may undertake investigations and collect
Investigation and evidence as it considers necessary.
Evidence Collection
by the Arbitral 2. When investigating and collecting evidence, the arbitral tribunal
Tribunal may notify the parties to be present. In the event that one or both
parties fail to be present after being notified, the investigation and
collection of evidence shall proceed without being affected.
3. Evidence collected by the arbitral tribunal through its
investigation shall be forwarded to the parties for their comments.

HKIAC
Article 22. Evidence 22.3. At any time during the arbitration, the arbitral tribunal may
and Hearings allow or require a party to produce documents, exhibits or other
evidence that the arbitral tribunal determines to be relevant to the
case and material to its outcome. The arbitral tribunal shall have
the power to admit or exclude any documents, exhibits or other
evidence.
ICC
Article 25. 1. The arbitral tribunal shall proceed within as short a time as
Establishing the possible to establish the facts of the case by all appropriate means.
Facts of the Case
[…]
5. At any time during the proceedings, the arbitral tribunal may
summon any party to provide additional evidence.

ICSID
ICSID Convention, Except as the parties otherwise agree, the Tribunal may, if it deems it
Article 43. Powers necessary at any stage of the proceedings,
and Functions of the
Tribunal (a) call upon the parties to produce documents or other evidence,
[…].

Arbitration Rules, (2) The Tribunal may, if it deems it necessary at any stage of the
Rule 34. Evidence: proceeding:
General Principles
(a) call upon the parties to produce documents […]

LCIA

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 Article 22. Additional 22.1. The Arbitral Tribunal shall have the power, upon the application
Powers of any party or (save for sub-paragraphs (viii), (ix) and (x) below)
upon its own initiative, but in either case only after giving the parties
a reasonable opportunity to state their views and upon such terms
(as to costs and otherwise) as the Arbitral Tribunal may decide:
[…]
(iii) to conduct such enquiries as may appear to the Arbitral
Tribunal to be necessary or expedient, including whether and
to what extent the Arbitral Tribunal should itself take the
initiative in identifying relevant issues and ascertaining
relevant facts and the law(s) or rules of law applicable to the
Arbitration Agreement, the arbitration and the merits of the
parties’ dispute;
(iv) to order any party to make any documents […] under its
control available for inspection by the Arbitral Tribunal, any
other party, any expert to such party and any expert to the
Tribunal;
(v) to order any party to produce to the Arbitral Tribunal and to
other parties documents or copies of documents in their
possession, custody or power which the Arbitral Tribunal
decides to be relevant;

SCC
Article 31. Evidence (2) The Arbitral Tribunal may order a party to identify the
documentary evidence it intends to rely on and specify the
circumstances intended to be proved by such evidence.
(3) At the request of a party, or exceptionally on its own motion, the
Arbitral Tribunal may order a party to produce any documents […]
that may be relevant to the case and material to its outcome.

SIAC
Rule 27. Additional Unless otherwise agreed by the parties, in addition to the other
Powers of the powers specified in these Rules, and except as prohibited by the
Tribunal mandatory rules of law applicable to the arbitration, the Tribunal
shall have the power to:
[…]
(c) conduct such enquiries as may appear to the Tribunal to be
necessary or expedient;
[…]
(f) order any party to produce to the Tribunal and to the other
parties for inspection, and to supply copies of, any document
in their possession or control which the Tribunal considers
relevant to the case and material to its outcome;

UNCITRAL
Article 27. Evidence 3. At any time during the arbitral proceedings the arbitral tribunal
may require the parties to produce documents, exhibits or other
evidence within such a period of time as the arbitral tribunal shall
determine.
IBA Rules of Evidence
Article 3. Documents 10. At any time before the arbitration is concluded, the Arbitral
Tribunal may (i) request any Party to produce Documents, (ii)
request any Party to use its best efforts to take or (iii) itself take, any
step that it considers appropriate to obtain Documents from any
person or organisation. A Party to whom such a request for
Documents is addressed may object to the request for any of the
reasons set forth in Article 9.2. In such cases, Article 3.4 to Article 3.8
shall apply correspondingly.

[C] Party Requests for Document Production

Only the ICDR, ICSID and SCC Rules expressly allow the parties to submit to the tribunal a
request for the other party to produce documents—but even then the tribunal retains the
P 377 discretion to accept or reject such a request. (22) The ICC Rules only suggest, in their
P 378 optional case management techniques, that the tribunal may allow the parties to
submit requests for documents to one another, while limiting the scope of such requests
and using a document production schedule to control time and costs. (23) The CIETAC,
HKIAC, LCIA, SIAC and UNCITRAL make no express provision for document requests by a
party.

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 The IBA Rules of Evidence contemplate that the tribunal will typically order a party to
produce documents in response to the counter-party’s request whenever specified criteria
are satisfied. (24) Only the ICDR Rules adopt much of the language from the IBA Rules of
Evidence. (25) However, since all of the rules give the parties the ability to agree on rules of
procedure, and for the tribunal to establish such rules in the absence of such an
agreement, the IBA Rules of Evidence concerning document production are often applied
under all of the regimes under consideration. As a practical matter, in many international
arbitration cases, the tribunal will authorize the parties to serve requests for production of
documents on the other party or parties by a certain date in the procedural calendar. The
tribunal will then resolve objections to the requests and/or assertions of non-compliance
with the requests.
The ICC Rules, in Appendix IV “Case Management Techniques” suggest using a “schedule of
document production to facilitate the resolution of issues in relation to the production of
documents.” In practice, parties in most international arbitrations employ the so-called
Redfern Schedule to manage the process of document production. Named for Alan Redfern
(the English barrister and arbitrator who originally proposed the procedure), the Redfern
Schedule consists of a table with the parties’ description of requested documents in the
first column. In the second column, the requesting party gives a brief explanation of the
relevance and materiality of the document to the issues in dispute. In the third column,
the counter-party may indicate any objection to the request. In the fourth and fifth
columns the parties may elaborate their respective positions, and in the sixth column the
tribunal indicates its decision whether to grant or reject the request. The Redfern Schedule
provides an organized and efficient means of implementing the IBA Rules concerning
document production, which are included in the table below. The Redfern Schedule is
P 378 regularly used in international arbitration, regardless of the particular rules under which
P 379 the case is proceeding.
P 379
P 380 Table 6.3 Requests for Documents
AAA-ICDR
P 380 Article 21. Exchange 2. The parties may provide the tribunal with their views on the
P 381 of Information appropriate level of information exchange for each case, but the
tribunal retains final authority. To the extent that the parties wish to
depart from this Article, they may do so only by written agreement
and in consultation with the tribunal.
[…]
4. The tribunal may, upon application, require a party to make
available to another party documents in that party’s possession not
otherwise available to the party seeking the documents, that are
reasonably believed to exist and to be relevant and material to the
outcome of the case. Requests for documents shall contain a
description of specific documents or classes of documents, along
with an explanation of their relevance and materiality to the
outcome of the case.
[…]

CIETAC
Not specifically addressed.
HKIAC
Not specifically addressed.
ICC
Appendix IV. Case [E]xamples of case management techniques that can be used by the
Management arbitral tribunal and the parties for controlling time and cost. […]
Techniques
d) Production of documentary evidence:
[…]
(ii) avoiding requests for document production when appropriate
in order to control time and cost;
(iii) in those cases where requests for document production are
considered appropriate, limiting such requests to documents
or categories of documents that are relevant and material to
the outcome of the case;
(iv) establishing reasonable time limits for the production of
documents;
(v) using a schedule of document production to facilitate the
resolution of issues in relation to the production of documents.

ICSID

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 Arbitration Rules, Without prejudice to the rules concerning the production of
Rule 33. Marshalling documents, each party shall, within time limits fixed by the Tribunal,
of Evidence communicate to the Secretary-General, for transmission to the
Tribunal and the other party, precise information regarding the
evidence which it intends to produce and that which it intends to
request the Tribunal to call for, together with an indication of the
points to which such evidence will be directed.
LCIA
Not specifically addressed.
SCC
Article 31. Evidence 3. At the request of a party, […] the Arbitral Tribunal may order a
party to produce any documents or other evidence that may be
relevant to the case and material to its outcome.
SIAC
Not specifically addressed.
UNCITRAL
Not specifically addressed.
IBA Rules of Evidence
Article 3. Documents 3.2. Within the time ordered by the Arbitral Tribunal, any Party may
submit to the Arbitral Tribunal and to the other Parties a Request to
Produce.
3.3 A Request to Produce shall contain:
(a) (i) a description of each requested Document sufficient to
identify it, or (ii) a description in sufficient detail (including
subject matter) of a narrow and specific requested category of
Documents that are reasonably believed to exist; in the case of
Documents maintained in electronic form, the requesting Party
may, or the Arbitral Tribunal may order that it shall be
required to, identify specific files, search terms, individuals or
other means of searching for such Documents in an efficient
and economical manner;
(b) a statement as to how the Documents requested are relevant
to the case and material to its outcome; and
(c) (i) a statement that the Documents requested are not in the
possession, custody or control of the requesting Party or a
statement of the reasons why it would be unreasonably
burdensome for the requesting Party to produce such
Documents, and (ii) a statement of the reasons why the
requesting Party assumes the Documents requested are in the
possession, custody or control of another Party.
3.4. Within the time ordered by the Arbitral Tribunal, the Party to
whom the Request to Produce is addressed shall produce to the
other Parties and, if the Arbitral Tribunal so orders, to it, all the
Documents requested in its possession, custody or control as to
which it makes no objection.

3.5. If the Party to whom the Request to Produce is addressed has an

objection to some or all of the 8 Documents requested, it shall state
the objection in writing to the Arbitral Tribunal and the other Parties
within the time ordered by the Arbitral Tribunal. The reasons for such
objection shall be any of those set forth in Article 9.2 or a failure to
satisfy any of the requirements of Article 3.3.
[…]
3.7. Either Party may, within the time ordered by the Arbitral
Tribunal, request the Arbitral Tribunal to rule on the objection.

§6.02 WRITTEN WITNESS TESTIMONY

In many international arbitrations, the testimony of witnesses provides an important
source of facts and information to enable the tribunal to resolve the parties’ dispute. The
parties may each appoint their own fact- and expert witnesses, and the tribunal may
appoint its own expert witness. These witnesses will present their account of the facts in
the form of written statements or reports to be filed with their parties’ written submissions.
Thereafter, as discussed in section §6.03, they may be called to a hearing to answer
questions about their written testimony.

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 [A] Party-Appointed Witnesses
Although contemporaneous documents are generally considered to be the most reliable
source of evidence in international arbitration, parties often submit written (and oral)
testimony of witnesses to support their cases. (26) The IBA Rules of Evidence, as well as the
ICDR, LCIA, SCC, SIAC and UNCITRAL Rules, make express provision for written witness
testimony. (27) Even while not explicitly mentioned by the ICC Rules, written witness
testimony is commonly used in ICC arbitration; (28) the same can be said of CIETAC, HKIAC
and ICSID arbitration. Although some regimes expressly provide for oral testimony only, in
our experience it is relatively rare for witnesses to testify at hearings when they have not
previously submitted written statements. Indeed, it is often the case that the written
witness testimony serves as the main direct testimony of the witness, while oral testimony
is largely reserved for cross-examination and redirect examination.
P 381
P 382
Witnesses presented by a party include both fact witnesses and expert witnesses. (29) The
written statement of a fact witness usually consists of, inter alia, a detailed description of
relevant events and the source of the witness’s information. (30) An expert report contains,
among other things, the expert’s opinions and conclusions on technical matters (e.g.,
industry practices, applicable foreign or international law, or quantification of damages),
as well as a description of the methods, evidence and information used in arriving at those
conclusions. (31)
The parties to an international arbitration are free to choose their fact witnesses, and,
where the parties are natural persons (rather than legal entities), they may appear as fact
witnesses themselves. This is clear in the IBA Rules of Evidence and the LCIA and UNCITRAL
Rules; the LCIA Rules provide that “any individual intending to testify to the Arbitral
Tribunal may be treated as a witness notwithstanding that the individual is a party to the
arbitration or was, remains or has become an officer, employee, owner or shareholder of
any party or is otherwise identified with any party.” (32)
Counsel are generally permitted to assist a witness in the preparation of his or her written
statement. (33) The LCIA Rules state this principle expressly, since barristers are generally
not so permitted in litigation under the laws of England and Wales. (34) In international
arbitration, however, the rules tend to recognize that counsel will be in a position to assess
the relevance of a fact witness’s knowledge to the issues in the case, and to help organize
and present that knowledge in a manner that will be most useful to the tribunal.
That said, counsel must not become overly involved in the preparation of a witness
statement. The IBA Guidelines on Party Representation in International Arbitration state
that “a party representative should seek to ensure that a witness statement reflects the
witness’s own account of relevant facts, events and circumstances.” (35) Similar principles
apply to expert witnesses, as their expert opinion cannot be misguided by counsel’s desire
to support a specific legal position. The IBA Guidelines on Party Representation
recommend that “[a] Party Representative should seek to ensure that an Expert Report
reflects the Expert’s own analysis and Opinion.” (36) Similarly, under the IBA Rules of
Evidence, an expert should provide a statement of his or her independence from the
P 382 parties, their legal advisors and the tribunal, as well as an affirmation of his or her genuine
P 383 belief in the opinions expressed in the Expert Report. (37) Counsel should limit their
involvement in the preparation of fact and expert witness statements in accordance with
these principles.
The IBA Rules of Evidence further provide that a party’s witnesses may submit additional
written testimony in response to the written statement or report of the counter-party’s
witnesses on common issues. (38) Typically, witnesses submit their written testimony and
any added testimony (or new testimony) along with each round of their party’s written
submissions. In preparing each written submission, the parties’ counsel will cite to the
corresponding written testimony as they would to any other external source or authority.
Thus, the ability of counsel to communicate with the witness in the preparation of the
written testimony helps to focus the witness on the key facts or legal issues underlying
counsel’s presentation of the case.
Lastly, the ICSID Rules are alone among the arbitral regimes under consideration in
specifically stating that the tribunal may “admit evidence by a witness or expert in a
written deposition.” (39) In a deposition, a witness is examined under oath (or similar
affirmation) by the parties in a proceeding that is separate from the main evidentiary
hearing—typically without the judge or arbitrator in attendance. Depositions may be taken
in order to preserve the testimony of a witness (e.g., if the witness is ill or for other reasons
will be unable to attend the evidentiary hearing). Depositions may also be taken for
discovery purposes (and indeed, depositions are commonplace in U.S. discovery).
Notwithstanding the specific reference to deposition in the ICSID Rules, depositions as
defined above are quite rare in ICSID arbitration. (40) Depositions are not provided for by
the other rules under consideration. They are expressly discouraged by ICDR Rules, which
make clear that “[d]epositions, interrogatories, and requests to admit as developed for use
in U.S. court procedures generally are not appropriate procedures for obtaining
information in an arbitration under these Rules.” (41) Nevertheless, depositions are
sometimes taken under these other arbitral regimes, though it would be unusual for a
tribunal to allow them without the consent of the parties.
P 383

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 P 383
P 384 Table 6.4 Written Witness Testimony
ICDR
P 386
384 Article 21. Exchange
385 10. Depositions, interrogatories, and requests to admit as developed
P 386
385
387 of Information for use in U.S. court procedures generally are not appropriate
procedures for obtaining information in an arbitration under these
Rules.
Article 23. Hearing 4. Unless otherwise agreed by the parties or directed by the tribunal,
evidence of witnesses may be presented in the form of written
statements signed by them. […]
CIETAC
Not specifically addressed.
HKIAC
Not specifically addressed.
ICC
Not specifically addressed.
ICSID
Arbitration Rules, Notwithstanding Rule 35 the Tribunal may:
Rule 36. Witnesses
and Experts: Special (a) admit evidence given by a witness or expert in a written
Rules deposition; […]

LCIA
Article 20. 20.2 Subject to any order otherwise by the Arbitral Tribunal, the
Witness(es) testimony of a witness may be presented by a party in written form,
either as a signed statement or like document.
20.3 The Arbitral Tribunal may decide the time, manner and form in
which these written materials shall be exchanged between the
parties and presented to the Arbitral Tribunal; and it may allow,
refuse or limit the written and oral testimony of witnesses (whether
witnesses of fact or expert witnesses).[…]
20.5 Subject to the mandatory provisions of any applicable law,
rules of law and any order of the Arbitral Tribunal otherwise, it shall
not be improper for any party or its legal representatives to
interview any potential witness for the purpose of presenting his or
her testimony in written form to the Arbitral Tribunal […]
20.6 Subject to any order by the Arbitral Tribunal otherwise, any
individual intending to testify to the Arbitral Tribunal may be treated
as a witness notwithstanding that the individual is a party to the
arbitration or was, remains or has become an officer, employee,
owner or shareholder of any party or is otherwise identified with any
party.

SCC
Article 33. Witnesses (2) The testimony of witnesses or party-appointed experts may be
submitted in the form of signed statements.
SIAC
Rule 25. Witnesses 25.4 The Tribunal may direct the testimony of witnesses to be
presented in written form, either as signed statements or sworn
affidavits or any other form of recording. […]
Rule 27. Additional Unless otherwise agreed by the parties, in addition to the other
Powers of the powers specified in these Rules, and except as prohibited by the
Tribunal mandatory rules of law applicable to the arbitration, the Tribunal
shall have the power to:
[…]
h. direct any party or person to give evidence by affidavit or in any
other form;

UNCITRAL

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 Article 27. Evidence 2. Witnesses, including expert witnesses, who are presented by the
parties to testify to the arbitral tribunal on any issue of fact or
expertise may be any individual, notwithstanding that the individual
is a party to the arbitration or in any way related to a party. Unless
otherwise directed by the arbitral tribunal, statements by witnesses,
including expert witnesses, may be presented in writing and signed
by them.
IBA Rules of Evidence
Article 4. Witnesses 2. Any person may present evidence as a witness, including a Party
of Fact or a Party’s officer, employee or other representative.
3. It shall not be improper for a Party, its officers, employees, legal
advisors or other representatives to interview its witnesses or
potential witnesses and to discuss their prospective testimony with
them.
4. The Arbitral Tribunal may order each Party to submit within a
specified time to the Arbitral Tribunal and to the other Parties
Witness Statements by each witness on whose testimony it intends
to rely, except for those witnesses whose testimony is sought
pursuant to Articles 4.9 or 4.10. If Evidentiary Hearings are organised
into separate issues or phases (such as jurisdiction, preliminary
determinations, liability or damages), the Arbitral Tribunal or the
Parties by agreement may schedule the submission of Witness
Statements separately for each issue or phase.
5. Each Witness Statement shall contain:
(a) the full name and address of the witness, a statement
regarding his or her present and past relationship (if any) with
any of the Parties, and a description of his or her background,
qualifications, training and experience, if such a description
may be relevant to the dispute or to the contents of the
statement;
(b) a full and detailed description of the facts, and the source of
the witness’s information as to those facts, sufficient to serve
as that witness’s evidence in the matter in dispute. Documents
on which the witness relies that have not already been
submitted shall be provided;

(c) a statement as to the language in which the Witness

Statement was originally prepared and the language in which
the witness anticipates giving testimony at the Evidentiary
Hearing;
(d) an affirmation of the truth of the Witness Statement; and
(e) the signature of the witness and its date and place.
6. If Witness Statements are submitted, any Party may, within the
time ordered by the Arbitral Tribunal, submit to the Arbitral Tribunal
and to the other Parties revised or additional Witness Statements,
including statements from persons not previously named as
witnesses, so long as any such revisions or additions respond only to
matters contained in another Party’s Witness Statements, Expert
Reports or other submissions that have not been previously
presented in the arbitration.

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 Article 5. Party- 1. […] (ii) the Party-Appointed Expert shall submit an Expert Report.
Appointed Experts
2. The Expert Report shall contain:
(a) the full name and address of the Party-Appointed Expert, a
statement regarding his or her present and past relationship (if
any) with any of the Parties, their legal advisors and the
Arbitral Tribunal, and a description of his or her background,
qualifications, training and experience;
(b) a description of the instructions pursuant to which he or she is
providing his or her opinions and conclusions;
(c) a statement of his or her independence from the Parties, their
legal advisors and the Arbitral Tribunal;
(d) a statement of the facts on which he or she is basing his or her
expert opinions and conclusions;
(e) his or her expert opinions and conclusions, including a
description of the methods, evidence and information used in
arriving at the conclusions. Documents on which the Party-
Appointed Expert relies that have not already been submitted
shall be provided;
(f) if the Expert Report has been translated, a statement as to the
language in which it was originally prepared, and the language
in which the Party-Appointed Expert anticipates giving
testimony at the Evidentiary Hearing;
(g) an affirmation of his or her genuine belief in the opinions
expressed in the Expert Report;
(h) the signature of the Party-Appointed Expert and its date and
place; and
(i) if the Expert Report has been signed by more than one person,
an attribution of the entirety or specific parts of the Expert
Report to each author.

3. If Expert Reports are submitted, any Party may, within the time
ordered by the Arbitral Tribunal, submit to the Arbitral Tribunal and
to the other Parties revised or additional Expert Reports, including
reports or statements from persons not previously identified as
Party-Appointed Experts, so long as any such revisions or additions
respond only to matters contained in another Party’s Witness
Statements, Expert Reports or other submissions that have not been
previously presented in the arbitration.
[…]

IBA Guidelines on Party Representation in International Arbitration

Rule 20 A Party Representative may assist Witnesses in the preparation of
Witness Statements and Experts in the preparation of Expert
Reports.
Rule 21 A Party Representative should seek to ensure that a Witness
Statement reflects the Witness’s own account of relevant facts,
events and circumstances.
Rule 22 A Party Representative should seek to ensure that an Expert Report
reflects the Expert’s own analysis and opinion.

[B] Tribunal-Appointed Experts

Consistent with the tribunal-directed approach to evidence in international arbitration
(and most national arbitration laws, (42) ) all of the rules under consideration except ICSID
expressly empower the tribunal to appoint its own expert witness to give evidence on
technical matters. (43) In practice, ICSID tribunals, too, may appoint an expert. (44) The
contents of the written report of a tribunal-appointed expert are the same as the report of
a party-appointed expert. (45)
As is true for any expert appointed by the parties, an expert appointed by the tribunal
P 387 must be impartial to the issues in dispute and independent from the parties and the
P 388 tribunal. (46) The IBA Rules of Evidence, as well as the LCIA Rules and UNCITRAL Rules,
require the tribunal-appointed expert to submit a written declaration of impartiality and
independence. (47) Both the IBA Rules of Evidence and UNCITRAL Rules further require (in
nearly identical terms) the tribunal-appointed expert to submit a statement of his or her
qualifications, and permit the parties to raise any objections to the expert’s qualifications
or independence or impartiality. (48) In practice, arbitral tribunals will usually require
such a statement even where the relevant arbitration rules are silent on these issues. (49)
Under the IBA Rules of Evidence, and all arbitration rules under consideration except the

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 ICC Rules and the SCC Rules, the parties are specifically obligated to comply with the
request of the tribunal-appointed expert to furnish documents or other evidence that he or
she may require to prepare his or her report and which are relevant to the report. (50) The
IBA Rules of Evidence circumscribe the scope of evidence that the expert may require from
the parties to that which is both relevant to an issue in dispute and material to the
outcome of the case. (51) This standard is consistent with the IBA Rules of Evidence’s scope
of permissible document production (discussed above).
The tribunal must take care to ensure that the parties have a sufficient opportunity to
comment on the tribunal-appointed expert’s opinion. Failure of the tribunal to do so could
result in an award being subject to challenge under Article V of the New York Convention.
(52) The ICDR, HKIAC, SCC, SIAC and UNCITRAL Rules require the tribunal to allow the parties
to comment on the expert’s report in writing. (53) All of the arbitration rules provide that
the parties must have an opportunity to question the expert at an oral hearing (discussed
further below).
In addition to the relevant arbitration rules excerpted below, other useful sources
P 388 regarding tribunal-appointed experts include the Chartered Institute of Arbitrators’
P 389 Practice Guideline No. 10 on the Use of Tribunal-Appointed Experts.
P 389
P 390 Table 6.5 Tribunal-Appointed Experts and Reports
AAA-ICDR
PP 390
391 Article 25. Tribunal- 1. The arbitral tribunal, after consultation with the parties, may
P 392
391 Appointed Expert appoint one or more independent experts to report to it, in writing,
on issues designated by the tribunal and communicated to the
parties.
2. The parties shall provide such an expert with any relevant
information or produce for inspection any relevant documents or
goods that the expert may require.
3. Upon receipt of an expert’s report, the tribunal shall send a copy
of the report to all parties and shall give the parties an opportunity
to express, in writing, their opinion of the report. A party may
examine any document on which the expert has relied in such a
report.
[…]

CIETAC
Article 44. Expert’s 1. The arbitral tribunal may consult experts or appoint appraisers for
Report and clarification on specific issues of the case. Such an expert or
Appraiser’s Report appraiser may be a Chinese or foreign institution or natural person.
2. The arbitral tribunal has the power to request the parties, and the
parties are also obliged, to deliver or produce to the expert or
appraiser any relevant materials, documents, property, or physical
objects for examination, inspection or appraisal by the expert or
appraiser.
[…]

HKIAC
Article 25. Tribunal- 25.1. To assist it in the assessment of evidence, the arbitral tribunal,
Appointed Experts after consulting with the parties, may appoint one or more experts.
Such expert shall report to the arbitral tribunal, in writing, on
specific issues to be determined by the arbitral tribunal. After
consulting with the parties, the arbitral tribunal shall establish
terms of reference for the expert, and shall communicate a copy of
the expert’s terms of reference to the parties and HKIAC.
25.2. The parties shall give the expert any relevant information or
produce for his or her inspection any relevant documents or goods
that he or she may require of them. Any dispute between a party and
such expert as to the relevance of the required information or
production shall be referred to the arbitral tribunal for decision.

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 25.3. Upon receipt of the expert’s report, the arbitral tribunal shall
send a copy of the report to the parties who shall be given the
opportunity to express their opinions on the report. The parties shall
be entitled to examine any document on which the expert has relied
in his or her report.
25.4. At the request of either party, the expert, after delivering the
report, shall attend a hearing at which the parties shall have the
opportunity to be present and to examine the expert. At this hearing
either party may present experts in order to testify on the points at
issue. The provisions of Articles 22.2 to 22.7 shall be applicable to
such proceedings.
25.5. The provisions of Article 11 shall apply by analogy to any expert
appointed by the arbitral tribunal.

ICC
Article 25. 4. The arbitral tribunal, after having consulted the parties, may
Establishing the appoint one or more experts, define their terms of reference and
Facts of the Case receive their reports. […]
ICSID
Not specifically addressed.
LCIA
Article 21. Expert(s) 21.1. The Arbitral Tribunal, after consultation with the parties, may
to Arbitral Tribunal appoint one or more experts to report in writing to the Arbitral
Tribunal and the parties on specific issues in the arbitration, as
identified by the Arbitral Tribunal.
21.2. Any such expert shall be and remain impartial and independent
of the parties; and he or she shall sign a written declaration to such
effect, delivered to the Arbitral Tribunal and copied to all parties.
21.3. The Arbitral Tribunal may require any party at any time to give
to such expert any relevant information or to provide access to any
relevant documents, goods, samples, property, site or thing for
inspection under that party’s control on such terms as the Arbitral
Tribunal thinks appropriate in the circumstances.
[…]
21.5. The fees and expenses of any expert appointed by the Arbitral
Tribunal under this Article 21 may be paid out of the deposits
payable by the parties under Article 24 and shall form part of the
Arbitration Costs under Article 28.

SCC
Article 34. Experts (1) After consulting the parties, the Arbitral Tribunal may appoint
Appointed by the one or more experts to report to it on specific issues set out by the
Arbitral Tribunal Arbitral Tribunal in writing.
(2) Upon receipt of a report from an expert it has appointed, the
Arbitral Tribunal shall send a copy of the report to the parties and
shall give the parties an opportunity to submit written comments on
the report.
[…]

SIAC
Rule 26: Tribunal- 26.1. Unless otherwise agreed by the parties, the Tribunal may:
Appointed Experts
(a) following consultation with the parties, appoint an expert to
report on specific issues; and
(b) require a party to give any expert appointed under Rule 26.1(a)
any relevant information, or to produce or provide access to
any relevant documents, goods or property for inspection.
26.2. Any expert appointed under Rule 26.1(a) shall submit a report in
writing to the Tribunal. Upon receipt of such written report, the
Tribunal shall deliver a copy of the report to the parties and invite
the parties to submit written comments on the report.

UNCITRAL

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 Article 29. Experts 1. After consultation with the parties, the arbitral tribunal may
Appointed by the appoint one or more independent experts to report to it, in writing,
Arbitral Tribunal on specific issues to be determined by the arbitral tribunal. A copy of
the expert’s terms of reference, established by the arbitral tribunal,
shall be communicated to the parties.
2. The expert shall, in principle before accepting appointment,
submit to the arbitral tribunal and to the parties a description of his
or her qualifications and a statement of his or her impartiality and
independence. Within the time ordered by the arbitral tribunal, the
parties shall inform the arbitral tribunal whether they have any
objections as to the expert’s qualifications, impartiality or
independence. The arbitral tribunal shall decide promptly whether
to accept any such objections. After an expert’s appointment, a
party may object to the expert’s qualifications, impartiality or
independence only if the objection is for reasons of which the party
becomes aware after the appointment has been made. The arbitral
tribunal shall decide promptly what, if any, action to take.
3. The parties shall give the expert any relevant information or
produce for his or her inspection any relevant documents or goods
that he or she may require of them. […]
4. Upon receipt of the expert’s report, the arbitral tribunal shall
communicate a copy of the report to the parties, which shall be
given the opportunity to express, in writing, their opinion on the
report. […]

IBA Rules of Evidence

Article 6. Tribunal 1. The Arbitral Tribunal, after consulting with the Parties, may
Appointed Experts appoint one or more independent Tribunal-Appointed Experts to
report to it on specific issues designated by the Arbitral Tribunal. The
Arbitral Tribunal shall establish the terms of reference for any
Tribunal-Appointed Expert Report after consulting with the Parties. A
copy of the final terms of reference shall be sent by the Arbitral
Tribunal to the Parties.
2. The Tribunal-Appointed Expert shall, before accepting
appointment, submit to the Arbitral Tribunal and to the Parties a
description of his or her qualifications and a statement of his or her
independence from the Parties, their legal advisors and the Arbitral
Tribunal. Within the time ordered by the Arbitral Tribunal, the Parties
shall inform the Arbitral Tribunal whether they have any objections
as to the Tribunal-Appointed Expert’s qualifications and
independence. The Arbitral Tribunal shall decide promptly whether
to accept any such objection. After the appointment of a Tribunal-
Appointed Expert, a Party may object to the expert’s qualifications
or independence only if the objection is for reasons of which the
Party becomes aware after the appointment has been made. The
Arbitral Tribunal shall decide promptly what, if any, action to take.
3. Subject to the provisions of Article 9.2, the Tribunal-Appointed
Expert may request a Party to provide any information or to provide
access to any Documents, goods, samples, property, machinery,
systems, processes or site for inspection, to the extent relevant to
the case and material to its outcome. The authority of a Tribunal-
Appointed Expert to request such information or access shall be the
same as the authority of the Arbitral Tribunal. The Parties and their
representatives shall have the right to receive any such information
and to attend any such inspection […]
[…]
8. The fees and expenses of a Tribunal-Appointed Expert, to be
funded in a manner determined by the Arbitral Tribunal, shall form
part of the costs of the arbitration.

§6.03 WITNESS TESTIMONY AT THE EVIDENTIARY HEARING

Following the submission of any written witness statements and expert reports, the witness
may be called to answer questions at a hearing. Depending on the applicable arbitration
rules, the tribunal and/or a party may call the witness of the other party to appear for
questioning. The tribunal and/or the parties may then pose questions to the witness
P 392 concerning the witness’s written statement or report. Oral witness testimony typically
P 393 proceeds through successive phases of direct examination, cross-examination, and
redirect examination (as in common-law trial practice), subject to the control of the
tribunal and any agreement of the parties.

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 [A] The Power to Call Witnesses
A witness upon whose testimony a party seeks to rely may be required to attend an
evidentiary hearing for questioning. The language of the different regimes under
consideration varies as to who may call witnesses. In deference to the inquisitorial
approach, the ICC, ICSID, and UNCITRAL Rules provide that only the tribunal may decide to
call witnesses. (54) The ICDR and SIAC Rules additionally provide that a party may request
the tribunal to call certain witnesses to the hearing, but that the tribunal may (or may not)
extend the request or permit those witnesses to testify. (55) By contrast, and reflecting the
adversarial approach, the IBA Rules of Evidence and LCIA Rules grant the parties, in
addition to the tribunal, the power to call a witness to appear at the hearing. (56) The SCC
Rules provide that any witness on whose testimony a party seeks to rely is automatically
obligated to attend a hearing, unless otherwise agreed by the parties. (57) Neither the
CIETAC nor the HKIAC Rules expressly provide for the power to call a witness to give oral
testimony, though it seems that the parties may make such provision by agreement, and, in
the absence of such agreement, the tribunal may do so. (58) A tribunal’s authority to call or
compel a witness to testify will be conditioned by the rules stated in the law of the place
of the arbitration.
As a practical matter, in most international arbitration cases, the tribunal will allow for a
party to request the examination of any witness for whom the opposing party has
submitted a written witness statement or expert report, and will require the opposing
party to arrange for such witness or expert appear for examination or else face certain
consequences (as discussed below). Of course, the tribunal can generally request to
examine any witness or expert who has submitted written testimony (regardless of whether
a party requests their examination), and indeed, can request to examine witnesses under
the parties’ control even if such witnesses have not submitted written testimony.
If a witness is called and fails to appear, the ICDR, LCIA and SIAC Rules indicate that the
tribunal may disregard that witness’s written statement. (59) The LCIA Rules further provide
P 393 that the tribunal may, alternatively, disregard a portion of the witness’s statement or
P 394 reduce the probative value of the statement. (60) The SIAC Rules provide further still
that the tribunal may “exclude such written testimony altogether.” (61) The ICSID Rules are
somewhat more ambiguous on the point, providing that the tribunal “shall take formal
note” if a party fails to present a witness. (62) Even where the rules do not specifically so
provide, it is generally within the tribunal’s inherent authority to disregard or give less
weight to the statement of a witness who has failed to appear for examination when called
to do so. In our experience, the tribunal may also draw adverse inferences against the
party who submitted the statement of a witness who then declined a request or order to
appear for examination on his or her statement.
Lastly, the tribunal may be able to seek the testimony of even a non-party-appointed
witness. Under the IBA Rules of Evidence, the tribunal may order a party to use its best
efforts to provide the appearance of any person (subject to the limitations of admissibility
in Article 9.2, discussed further below). (63) Also under the IBA Rules, a party may ask the
tribunal to take whatever steps are legally available to obtain the testimony of someone
who has relevant and material information about the case. (64) The tribunal may even be
able to exercise this power sua sponte, as expressly indicated by the SIAC Rules; under the
tribunal’s authority to conduct inquiries as under the CIETAC and LCIA Rules; or pursuant to
the tribunal’s broad authority to obtain evidence “by all appropriate means” under ICC
Rules. (65)
In this regard, many jurisdictions provide for the tribunal and/or the parties to the
arbitration to seek the assistance of domestic courts (at the seat of arbitration) and foreign
courts in ordering persons within the jurisdiction of such courts to appear before the
tribunal and provide evidence. (66) For example, the U.S. Federal Arbitration Act provides:
The arbitrators selected either as prescribed in this title or otherwise, or a
majority of them, may summon in writing any person to attend before them or
any of them as a witness and in a proper case to bring with him or them any
book, record, document, or paper which may be deemed material as evidence
in the case. The fees for such attendance shall be the same as the fees of
witnesses before masters of the United States courts. Said summons shall issue
in the name of the arbitrator or arbitrators, or a majority of them, and shall be
signed by the arbitrators, or a majority of them, and shall be directed to the
said person and shall be served in the same manner as subpoenas to appear
and testify before the court; if any person or persons so summoned to testify
shall refuse or neglect to obey said summons, upon petition the United States
district court for the district in which such arbitrators, or a majority of them, are
P 394 sitting may compel the attendance of such person or persons before said
P 395 arbitrator or arbitrators, or punish said person or persons for contempt in the
same manner provided by law for securing the attendance of witnesses or their
punishment for neglect or refusal to attend in the courts of the United States.
(67)
Such mechanisms may prove immensely helpful for bringing a third party with important
knowledge about the case out of the shadows.

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 P 395 Table 6.6 Power of the Tribunal and/or the Parties to Call Witnesses to Appear at a Hearing for
P 396 Questioning
AAA-ICDR
P 396
397 Article 23. Hearing 4. […] In accordance with a schedule set by the tribunal, each party
PP 398
397 shall notify the tribunal and the other parties of the names of any
witnesses who have presented a witness statement whom it requests
to examine. The tribunal may require any witness to appear at a
hearing. If a witness whose appearance has been requested fails to
appear without valid excuse as determined by the tribunal, the
tribunal may disregard any written statement by that witness.
CIETAC
Article 43. 1. The arbitral tribunal may undertake investigations and collect
Investigation and evidence as it considers necessary.
Evidence Collection
by the Arbitral
Tribunal
Article 35. Conduct 1. The arbitral tribunal shall examine the case in any way it deems
of Hearing appropriate unless otherwise agreed by the parties.
HKIAC
Article 22. Evidence 22.5. The arbitral tribunal may determine the manner in which a
and Hearings witness or expert is examined.
ICC
Article 25. 1. The arbitral tribunal shall proceed within as short a time as
Establishing the possible to establish the facts of the case by all appropriate means.
Facts of the Case
[…]
3. The arbitral tribunal may decide to hear witnesses, experts
appointed by the parties or any other person, in the presence of the
parties, or in their absence provided they have been duly summoned.

ICSID
Arbitration Rules, 2. The Tribunal, may, if it deems necessary at any stage of the
Rule 34. Evidence: proceeding:
General Principles
(a) call upon the parties to produce […] witnesses and experts […].
[…]
3. The parties shall cooperate with the Tribunal in the production of
the evidence and in the other measures provided for in paragraph
(2). The Tribunal shall take formal note of the failure of a party to
comply with its obligations under this paragraph and of any reasons
given for such failure.

LCIA
Article 20. 4. The Arbitral Tribunal and any party may request that a witness, on
Witness(es) whose written testimony another party relies, should attend for oral
questioning at a hearing before the Arbitral Tribunal. If the Arbitral
Tribunal orders that other party to secure the attendance of that
witness and the witness refuses or fails to attend the hearing without
good cause, the Arbitral Tribunal may place such weight on the
written testimony or exclude all or any part thereof altogether as it
considers appropriate in the circumstances.
Article 22. Additional 22.1. The Arbitral Tribunal shall have the power, upon the application
Powers of any party or (save for sub-paragraphs (viii), (ix) and (x) below)
upon its own initiative, but in either case only after giving the parties
a reasonable opportunity to state their views and upon such terms
(as to costs and otherwise) as the Arbitral Tribunal may decide:
[…]
(iii) to conduct such enquiries as may appear to the Arbitral
Tribunal to be necessary or expedient, including whether and
to what extent the Arbitral Tribunal should itself take the
initiative in identifying relevant issues and ascertaining
relevant facts and the law(s) or rules of law applicable to the
Arbitration Agreement, the arbitration and the merits of the
parties’ dispute;

SCC

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 Article 33. Witnesses 3. Any witness or expert, on whose testimony a party seeks to rely,
shall attend a hearing for examination, unless otherwise agreed by
the parties.
SIAC
Rule 25. Witnesses 25.1. Before any hearing, the Tribunal may require the parties to give
notice of the identity of witnesses, including expert witnesses, whom
the parties intend to produce, the subject matter of their testimony
and its relevance to the issues.
25.2. The Tribunal may allow, refuse or limit the appearance of
witnesses to give oral evidence at any hearing.
[…]
25.4. The Tribunal may direct the testimony of witnesses to be
presented in written form, either as signed statements or sworn
affidavits or any other form of recording. Subject to Rule 25.2, any
party may request that such a witness should attend for oral
examination. If the witness fails to attend for oral examination, the
Tribunal may place such weight on the written testimony as it thinks
fit, disregard such written testimony, or exclude such written
testimony altogether.

Rule 26. Tribunal- 26.3. Unless otherwise agreed by the parties, if the Tribunal considers
Appointed Experts it necessary or at the request of any party, an expert appointed
under Rule 26.1(a) shall, after delivery of his written report,
participate in a hearing. At the hearing, the parties shall have the
opportunity to examine such expert.
Rule 27. Additional Unless otherwise agreed by the parties, in addition to the other
Powers of the powers specified in these Rules, and except as prohibited by the
Tribunal mandatory rules of law applicable to the arbitration, the Tribunal
shall have the power to:
[…]
(c) conduct such enquiries as may appear to the Tribunal to be
necessary or expedient;
[…]
(h) direct any party or person to give evidence by affidavit or in
any other form;

UNCITRAL
Article 28. Hearings 2. Witnesses, including expert witnesses, may be heard under the
conditions and examined in the manner set by the arbitral tribunal.
IBA Rules of Evidence
Article 8. Evidentiary 1. Within the time ordered by the Arbitral Tribunal, each Party shall
Hearing inform the Arbitral Tribunal and the other Parties of the witnesses
whose appearance it requests. Each witness (which term includes, for
the purposes of this Article, witnesses of fact and any experts) shall,
subject to Article 8.2, appear for testimony at the Evidentiary
Hearing if such person’s appearance has been requested by any
Party or by the Arbitral Tribunal. […]
Article 4. Witnesses 9. If a Party wishes to present evidence from a person who will not
of Fact appear voluntarily at its request, the Party may, within the time
ordered by the Arbitral Tribunal, ask it to take whatever steps are
legally available to obtain the testimony of that person, or seek
leave from the Arbitral Tribunal to take such steps itself. In the case
of a request to the Arbitral Tribunal, the Party shall identify the
intended witness, shall describe the subjects on which the witness’s
testimony is sought and shall state why such subjects are relevant
to the case and material to its outcome. The Arbitral Tribunal shall
decide on this request and shall take, authorize the requesting Party
to take or order any other Party to take, such steps as the Arbitral
Tribunal considers appropriate if, in its discretion, it determines that
the testimony of that witness would be relevant to the case and
material to its outcome.
10. At any time before the arbitration is concluded, the Arbitral
Tribunal may order any Party to provide for, or to use its best efforts
to provide for, the appearance for testimony at an Evidentiary
Hearing of any person, including one whose testimony has not yet
been offered. A Party to whom such a request is addressed may
object for any of the reasons set forth in Article 9.2.

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 [B] The Power to Question Witnesses
Once a witness is present for examination at the hearing (or via videoconference (68) ), the
ability of the parties and/or the tribunal to question the witness helps to raise, and
possibly resolve, any questions about the witness’s written testimony and any doubts
about his or her credibility. All of the rules under consideration except CIETAC make
express provision for the parties to question a tribunal-appointed expert at the hearing.
(69)
However, there is significant variation among the rules as to whether the tribunal or the
parties, or both, may question fact witnesses and party-appointed experts. The IBA Rules
of Evidence, and the ICSID, LCIA and SIAC Rules, expressly grant both the tribunal and the
parties the power to question fact witnesses and party-appointed experts at a hearing. (70)
Taking a slightly different tack, the ICDR, HKIAC and UNCITRAL Rules give the tribunal
P 398 discretion to decide on the manner in which witnesses are examined (including whether by
P 399 the tribunal or by the parties, or both). (71) The CIETAC Rules permit the parties to agree
on whether to use an “inquisitorial or adversarial approach” at the hearing, and, in the
absence of any agreement, it is for the tribunal to decide. (72) The ICC Rules could be read
to indicate that it is only for the tribunal to question fact witnesses and party-appointed
experts, since it may do so even in the absence of the parties, and because the tribunal
“shall be in full charge of the hearings.” (73) Nonetheless, examination of witnesses by the
parties is common in ICC arbitration, per the parties’ agreement or the tribunal’s
discretion, which may include application of the IBA Rules of Evidence. (It should be noted
that the ICC Commission Report indicates that the tribunal should consider limiting the
time available for cross-examination. (74) ) The SCC contemplates that witnesses will be
examined but does not indicate who will conduct the examination. (75) Some of the rules
additionally provide that witnesses must take an oath. (76)
Many of the regimes indicate that any questioning of witnesses by the parties is subject to
the control of the tribunal. (77) However, the rules do not give any guidance as to how the
tribunal should order the presentation and questioning of witnesses. On this critical issue
of evidentiary procedure, the IBA Rules of Evidence provide important guidance. First, the
IBA Rules of Evidence provide for the parties to engage, first, in a sequence of direct
examination, cross-examination, and redirect examination of fact witnesses. (78) The
questions raised in each successive stage should be limited to the subject matter covered
in the previous stage. (79) Next, the same procedure is applied to expert witnesses. (80) In
each instance the claimant’s witnesses are presented before the respondent’s witnesses.
(81) The tribunal may organize the presentation of witnesses in relation to the various
stages of the arbitration and/or in relation to particular issues in dispute, and in
P 399 confrontation with each other. (82) Lastly, the IBA Rules of Evidence indicate that leading
P 400 questions should be used on cross-examination only (consistent with US practice). (83)
P 400 Table 6.7 Power of the Tribunal and/or the Parties to Question Fact Witnesses, Party-
P 401 Appointed Experts, and Tribunal-Appointed Experts
AAA-ICDR
P 401 Article 23. Hearing 3. The tribunal shall determine the manner in which witnesses are
P 402 examined and who shall be present during witness examination.
[…]
5. The tribunal may direct that witnesses be examined through
means that do not require their physical presence.

Article 25. Tribunal- 4. At the request of any party, the tribunal shall give the parties an
Appointed Expert opportunity to question the [tribunal-appointed] expert at a hearing.
At this hearing, parties may present expert witnesses to testify on the
points at issue.
CIETAC
Article 35. Conduct 3. Unless otherwise agreed by the parties, the arbitral tribunal may
of Hearing adopt an inquisitorial or adversarial approach in hearing the case
having regard to the circumstances of the case.
Article 44. Expert’s 3. Copies of the [tribunal-appointed] expert’s report and the
Report and appraiser’s report shall be forwarded to the parties for their
Appraiser’s Report comments. At the request of either party and with the approval of
the arbitral tribunal, the expert or appraiser shall participate in an
oral hearing and give explanations on the report when the arbitral
tribunal considers it necessary.
HKIAC
Article 22. Evidence 22.5. The arbitral tribunal may determine the manner in which a
and Hearings witness or expert is examined.

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 Article 25. Tribunal- 25.4. At the request of either party the expert, after delivery of the
Appointed Witness report, shall attend a hearing at which the parties shall have the
opportunity to be present and to examine the expert. At this hearing
either party may present experts in order to testify on the points at
issue. The provisions of Articles 22.2 to 22.7 shall be applicable to
such proceedings.
ICC
Article 25. 3. The arbitral tribunal may decide to hear witnesses, experts
Establishing the appointed by the parties or any other person, in the presence of the
Facts of the Case parties, or in their absence provided they have been duly summoned.
4. At the request of a party, the parties shall be given the
opportunity to question at a hearing any [tribunal-appointed]
expert.

Article 26. Hearings 3. The arbitral tribunal shall be in full charge of the hearings, at
which all the parties shall be entitled to be present. […]
Appendix IV. Case The following are examples of case management techniques that
Management can be used by the arbitral tribunal and the parties for controlling
Techniques time and cost. […]
(f) Using telephone or video conferencing for procedural and other
hearings where attendance in person is not essential and use of IT
that enables online communication among the parties, the arbitral
tribunal and the Secretariat of the Court.

ICC Commission ¶ 80. If there is to be cross-examination of witnesses, the arbitral

Report, ¶ 80. tribunal, after hearing the parties, should consider limiting the time
Limiting Cross- available to each party for such cross-examination.
Examination
ICSID
Arbitration Rules, 1. Witnesses and experts shall be examined before the Tribunal by
Rule 35. Examination the parties under the control of its President. Questions may also be
of Witnesses and put to them by any member of the Tribunal.
Experts
2. Each witness shall make the following declaration before giving
his evidence:
“I solemnly declare upon my honour and conscience that I
shall speak the truth, the whole truth and nothing but the
truth.”
3. Each expert shall make the following declaration before making
his statement:
“I solemnly declare upon my honour and conscience that my
statement will be in accordance with my sincere belief.”

LCIA
Article 19. Oral 2. […] [A] hearing may take place by video or telephone conference
Hearing(s) or in person (or a combination of all three).
Article 20. 7. Subject to the mandatory provisions of any applicable law, the
Witness(es) Arbitral Tribunal shall be entitled (but not required) to administer
any appropriate oath to any witness at any hearing, prior to the oral
testimony of that witness.
8. Any witness who gives oral testimony at a hearing before the
Arbitral Tribunal may be questioned by each of the parties under the
control of the Arbitral Tribunal. The Arbitral Tribunal may put
questions at any stage of such testimony.

Article 21. Expert(s) 4. If any party so requests or the Arbitral Tribunal considers it
to Arbitral Tribunal necessary, the Arbitral Tribunal may order the [Tribunal-appointed]
expert, after delivery of the expert’s written report, to participate in
a hearing at which the parties shall have a reasonable opportunity
to question the expert on the report and to present witnesses in
order to testify on relevant issues arising from the report.
SCC
Article 33. Witnesses 3. Any witness or expert, on whose testimony a party seeks to rely,
shall attend a hearing for examination, unless otherwise agreed by
the parties.

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 Article 34. Experts 3. Upon the request of a party, the parties shall be given an
Appointed by the opportunity to examine any expert appointed by the Arbitral
Arbitral Tribunal Tribunal at a hearing.
SIAC
Rule 25. Witnesses 25.3. Any witness who gives oral evidence may be questioned by each
of the parties, their representatives and the Tribunal in such manner
as the Tribunal may determine.
Rule 26. Tribunal- 26.3. Unless otherwise agreed by the parties, if the Tribunal considers
Appointed Experts it necessary or at the request of any party, an expert appointed
under Rule 26.1(a) shall, after delivery of his written report,
participate in a hearing. At the hearing, the parties shall have the
opportunity to examine such expert.
UNCITRAL
Article 28. Hearings 2. Witnesses, including expert witnesses, may be heard under the
conditions and examined in the manner set by the arbitral tribunal.
[…]
4. The arbitral tribunal may direct that witnesses, including expert
witnesses, be examined through means of telecommunication that
do not require their physical presence at the hearing (such as
videoconference).

Article 29. Experts 5. At the request of any party, the expert, after delivery of the report,
Appointed by the may be heard at a hearing where the parties shall have the
Arbitral Tribunal opportunity to be present and to interrogate the expert. At this
hearing, any party may present expert witnesses in order to testify
on the points at issue. The provisions of article 28 shall be applicable
to such proceedings.
IBA Rules of Evidence
Article 8. Evidentiary 1. […] Each witness shall appear in person unless the Arbitral
Hearing Tribunal allows the use of videoconference or similar technology
with respect to a particular witness.
3(b) “[F]ollowing direct testimony, any other Party may question
such witness […].”
[…]
3(d) [T]he Arbitral Tribunal may question a Tribunal-Appointed
Expert, and he or she may be questioned by the Parties or by any
Party-Appointed Expert, on issues raised in the Tribunal-Appointed
Expert Report, in the Parties’ submissions or in the Expert Reports
made by the Party-Appointed Experts.
[…]
3(g) [T]he Arbitral Tribunal may ask questions to a witness at any
time.
P 402
P 403

§6.04 INSPECTION/SITE VISITS

It is often useful for the tribunal to visit the site of a property that is the subject of the
dispute between the parties. This may aid the arbitrators’ understanding of any technical
processes involved and put into context the parties’ presentations of the facts. The IBA
Rules of Evidence and the ICDR, HKIAC, ICSID, LCIA and SIAC Rules make specific provisions
for site visits, and usually provide for the parties to take part. (84) The HKIAC’s provision on
inspection and site visits is contained within its provision permitting the tribunal to hold
meetings at any location outside the seat of arbitration. (85) The analogous provisions of
the ICC, SCC and UNCITRAL Rules concerning meetings might be read to encompass
inspections and site visits, as well. (86) The CIETAC Rules allow the arbitral tribunal to
conduct its own investigations without the participation of the parties after giving notice,
with the evidence collected then being provided to the parties after the visit. (87) The ICDR
Rules also allow the tribunal to collect evidence without the participation of the parties,
but omit the notice requirement. (88)
P 403
P 404 Table 6.8 Inspection/Site Visits
AAA-ICDR
P 404 Article 17. Place of 2. The tribunal may meet at any place it deems appropriate for any
P 405 Arbitration purpose, including to […] inspect property […].
CIETAC

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 Article 43. 1. The arbitral tribunal may undertake investigations and collect
Investigation and evidence as it considers necessary.
Evidence Collection
by the Arbitral 2. When investigating and collecting evidence, the arbitral tribunal
Tribunal may notify the parties to be present. In the event that one or both
parties fail to be present after being notified, the investigation and
collection of evidence shall proceed without being affected.
3. Evidence collected by the arbitral tribunal through its
investigation shall be forwarded to the parties for their comments.

HKIAC
Article 14. Seat and 14.2. Unless the parties have agreed otherwise, the arbitral tribunal
Venue of Arbitration may meet at any location outside of the seat of arbitration which it
considers appropriate for consultation among its members, hearing
witnesses, experts or the parties, or the inspection of goods, other
property or documents. The arbitration shall nonetheless be treated
for all purposes as an arbitration conducted at the seat.
ICC
Article 18. Place of 2. The arbitral tribunal may, after consultation with the parties,
the Arbitration conduct hearings and meetings at any location it considers
appropriate, unless otherwise agreed by the parties.
ICSID
ICSID Convention, Except as the parties otherwise agree, the Tribunal may, if it deems it
Article 43. Powers necessary at any stage of the proceedings,
and Functions of the
Tribunal […]
(b) visit the scene connected with the dispute, and conduct such
inquiries there as it may deem appropriate.

Arbitration Rules, (1) If the Tribunal considers it necessary to visit any place connected
Rule 37. Visits and with the dispute or to conduct an inquiry there, it shall make an
Inquiries; order to this effect. The order shall define the scope of the visit or the
Submissions of Non- subject of the inquiry, the time limit, the procedure to be followed
disputing Parties and other particulars. The parties may participate in any visit or
inquiry.
LCIA
Article 22. Additional 22.1. The Arbitral Tribunal shall have the power, upon the application
Powers of any party or (save for sub-paragraphs (viii), (ix) and (x) below)
upon its own initiative, but in either case only after giving the parties
a reasonable opportunity to state their views and upon such terms
(as to costs and otherwise) as the Arbitral Tribunal may decide:
[…]
(iv) to order any party to make any documents, goods, samples,
property, site or thing under its control available for inspection
by the Arbitral Tribunal, any other party, any expert to such
party and any expert to the Tribunal[.]

SCC
Article 25. Seat of 2. The Arbitral Tribunal may, after consulting the parties, conduct
Arbitration hearings at any place it considers appropriate. The Arbitral Tribunal
may meet and deliberate at any place it considers appropriate. The
arbitration shall be deemed to have taken place at the seat of
arbitration regardless of any hearing, meeting, or deliberation held
elsewhere.
SIAC
Rule 27. Additional Unless otherwise agreed by the parties, in addition to the other
Powers of the powers specified in these Rules, and except as prohibited by the
Tribunal mandatory rules of law applicable to the arbitration, the Tribunal
shall have the power to:
[…]
d. order the parties to make any property or item in their
possession or control available for inspection;

Rule 21. Seat of 21.2. The Tribunal may hold hearings and meetings by any means it
Arbitration considers expedient or appropriate and at any location it considers
convenient or appropriate.

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 UNCITRAL
Article 18. Place of 2. The arbitral tribunal may meet at any location it considers
Arbitration appropriate for deliberations. Unless otherwise agreed by the
parties, the arbitral tribunal may also meet at any location it
considers appropriate for any other purpose, including hearings.
IBA Rules of Evidence
Article 7. Inspection Subject to the provisions of Article 9.2, the Arbitral Tribunal may, at
the request of a Party or on its own motion, inspect or require the
inspection by a Tribunal-Appointed Expert or a Party-Appointed
Expert of any site, property, machinery or any other goods, samples,
systems, processes or Documents, as it deems appropriate. The
Arbitral Tribunal shall, in consultation with the Parties, determine
the timing and arrangement for the inspection. The Parties and their
representatives shall have the right to attend any such inspection.

§6.05 ADMISSIBILITY OF EVIDENCE

In international arbitration, the tribunal has broad discretion to determine the
admissibility and the weight of evidence. As a threshold matter, the tribunal may
determine that certain evidence is not sufficiently relevant to the case or material to its
outcome. Next, even evidence which is relevant and material may be excluded on the
grounds that the evidence is privileged or unduly burdensome for a party to produce.
Finally, even when evidence is admitted, the tribunal may determine in its discretion the
probative value, or weight, to ascribe to such evidence, considering the reliability of the
source of the information or other factors. As in other areas of evidentiary procedure, the
arbitral regimes do not provide specific criteria or standards for the tribunal to make
these determinations, though the IBA Rules of Evidence may provide useful guidance. In
case the tribunal orders a party to produce admissible evidence, the arbitral regimes
under consideration indicate a range of consequences should that party fail to comply with
the order.
P 405
P 406
[A] Scope of Admissible Evidence
Most of the arbitral regimes and the IBA Rules of Evidence authorize the tribunal to
exercise its discretion in determining the admissibility of evidence that is presented or
sought by a party, particularly with respect to the “relevance and materiality” of that
evidence. (89) Under the IBA Rules, these two criteria are a dual requirement: for evidence
to be admitted, it must be both sufficiently relevant to the case and material to its
outcome. (90) This double-requirement results, at least in theory, in a narrower scope of
evidence to be admitted in most international arbitrations compared to the singular
“relevance” requirement found in common-law litigation and the LCIA Rules. (91) In most
international arbitrations, irrelevant evidence most certainly will be excluded, (92) but
even relevant evidence may be excluded if it is not also material to the outcome of the
case. This approach seeks to strike a balance between, on the one hand, little or no
evidence to be produced by an opposing party in the civil-law tradition and, on the other
hand, lots of evidence to be produced by an opposing party in the common-law tradition.
Even if the tribunal determines that certain evidence is both relevant and material, it may
nevertheless find that the evidence is inadmissible. (93) However, most of the rules do not
prescribe any criteria or standards for the tribunal to make such a determination. Indeed,
the LCIA Rules, as well as the SIAC Rules, make clear that the tribunal has the power “to
decide whether or not to apply any strict rules of evidence (or other rules) as to the
admissibility … of any material tendered by a party on any issue of fact or expert opinion.”
(94)
Despite the lack of guidance under the various international arbitration rules, tribunals
generally consider the issue of admissibility of evidence with great care. Excluding too
much of the evidence tendered by a party might undermine the enforceability of the
award under Article V(1)(b) of the New York Convention on the ground that the tribunal did
not afford a party a reasonable opportunity to present its case. But then excluding too
little evidence can result in inefficiencies as the tribunal attempts to deal with thousands
of pages of potentially irrelevant documents and witness testimony.
P 406 Here, again, the IBA Rules of Evidence provide a helpful supplement to the arbitration
P 407 rules by indicating criteria for a tribunal to admit or exclude documentary evidence as
well as to sustain an objection to witness testimony within the requirements of the New
York Convention. (95) The tribunal may determine that relevant and material evidence in
the possession, custody or control of a party is nevertheless inadmissible on the specific
grounds that it is: unreasonably burdensome to provide; lost or destroyed; duplicative of
other evidence already submitted; protected by a legal privilege; particularly
commercially or technically confidential; especially politically or institutionally sensitive
(e.g., a classified government secret); or that production of the evidence would simply not
be in keeping with principles of procedural economy, proportionality, fairness, or equality

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 of the parties. (96)
Elaborating on the ground of privilege, the IBA Rules of Evidence guide the tribunal to take
into account two typical grounds for asserting privilege to exclude evidence. (97) The first is
communication between counsel and client for the purpose of obtaining legal advice, the
so-called “attorney-client privilege.” This privilege requires that the client and counsel had
an expectation that such communication would be protected and that they did not waive
the privilege by disclosing the communications to a third party. The second is
communication made for the purpose of settlement negotiations. Such communications
are privileged in order to encourage parties to make disclosures to one another in case
they can reach an amicable settlement, without fearing that those disclosures will be used
against them in a subsequent litigation or arbitration should the negotiations ultimately
fail.
It is important to note that these grounds are well-known to common-law lawyers, though
not necessarily to civil-law lawyers. Perhaps for this reason the ICDR and SIAC Rules are the
only arbitration rules that expressly recognize the power of the tribunal to decide a claim
of privilege, including the attorney-client privilege. (98) Therefore the IBA Rules suggest,
and the ICDR Rules mandate, that the tribunal should apply any privilege standard equally
to all parties. (99)
The IBA Rules of Evidence also recognize that certain confidential information, while
admissible as evidence, should be accorded special protection. (100) Certain commercial
information, such as trade secrets or contracts with third parties, or especially politically
sensitive information, such as government classified documents, that does not present a
“compelling” case for exclusion from evidence may nevertheless be admitted subject to a
confidentiality agreement among the parties for use only in the proceedings. (101) A further
measure of protection would be for the tribunal to order certain information in the
requested documents to be redacted. Yet a further measure would be for the tribunal to
P 407 order the documents or testimony to be produced for “attorneys’ eyes only.” The ICDR, ICC,
P 408 and ICSID Rules specifically recognize the tribunal’s ability to adopt appropriate
procedures to admit and protect especially confidential information as evidence in the
arbitration. (102)
Finally, even when the evidence has cleared the foregoing hurdles, most arbitral regimes
permit the tribunal to exercise its discretion in assigning the appropriate probative value,
or weight, to such evidence. (103) Once again, the regimes make no express indication as to
any criteria or standards for the tribunal to make this assessment; the LCIA Rules again
state that the tribunal has the power “to decide whether or not to apply any strict rules of
evidence (or other rules) as to the … weight of any material tendered by a party on any
issue of fact or expert opinion.” (104) Even the IBA Rules do not provide guidance on this
front. Instead the preference would seem to be for the arbitrators to rely on their own
knowledge of rules concerning probative value from their home jurisdiction and/or at the
seat of arbitration and their common-sense appreciation for the reliability of the
evidence.
P 408
P 409 Table 6.9 Admissibility and Weight of Evidence
AAA-ICDR
P 409 Article 20. Conduct 3. The tribunal may […] exclude cumulative or irrelevant testimony
P 410 of Proceedings or other evidence […].
6. The tribunal shall determine the admissibility, relevance,
materiality, and weight of the evidence.

Article 21. Exchange 5. The tribunal may condition any exchange of information subject
of Information to claims of commercial or technical confidentiality on appropriate
measures to protect such confidentiality.
Article 22. Privilege The arbitral tribunal shall take into account applicable principles of
privilege, such as those involving the confidentiality of
communications between a lawyer and client. When the parties,
their counsel, or their documents would be subject under applicable
law to different rules, the tribunal should, to the extent possible,
apply the same rule to all parties, giving preference to the rule that
provides the highest level of protection.
CIETAC
Not specifically addressed.
HKIAC
Article 22. Evidence 22.2. The arbitral tribunal shall determine the admissibility,
and Hearings relevance, materiality and weight of the evidence, including whether
to apply strict rules of evidence.
ICC

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 Article 22. Conduct of 3. Upon the request of any party, the arbitral tribunal may make
the Arbitration orders concerning the confidentiality of the arbitration proceedings
or of any other matters in connection with the arbitration and may
take measures for protecting trade secrets and confidential
information.
ICSID
Arbitration Rules, (2) Unless either party objects, the Tribunal, after consultation with
Rule 32. The Oral the Secretary-General, may allow other persons, besides the parties,
Procedure their agents, counsel and advocates, witnesses and experts during
their testimony, and officers of the Tribunal, to attend or observe all
or part of the hearings, subject to appropriate logistical
arrangements. The Tribunal shall for such cases establish
procedures for the protection of proprietary or privileged
information.
Arbitration Rules, (1) The Tribunal shall be the judge of the admissibility of any
Rule 34. Evidence: evidence adduced and of its probative value.
General Principles
LCIA
Article 22. Additional 22.1. The Arbitral Tribunal shall have the power, […]
Powers
(vi) to decide whether or not to apply any strict rules of evidence
(or any other rules) as to the admissibility, relevance or weight
of any material tendered by a party on any issue of fact or
expert opinion […]

SCC
Article 31. Evidence 1. The admissibility, relevance, materiality and weight of evidence
shall be for the Arbitral Tribunal to determine.
SIAC
Article 19. Conduct of 19.2. The Tribunal shall determine the relevance, materiality and
the Proceedings admissibility of all evidence. The Tribunal is not required to apply
the rules of evidence of any applicable law in making such
determination.
19.4. The Tribunal may, in its discretion, […] exclude cumulative or
irrelevant testimony or other evidence […].

Article 27. Additional Unless otherwise agreed by the parties, in addition to the other
Powers of the powers specified in these Rules, and except as prohibited by the
Tribunal mandatory rules of law applicable to the arbitration, the Tribunal
shall have the power to:
[…]
o. determine any claim of legal or other privilege.

UNCITRAL
Article 27. Evidence 4. The arbitral tribunal shall determine the admissibility, relevance,
materiality and weight of the evidence offered.
IBA Rules of Evidence

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 Article 9 1. The Arbitral Tribunal shall determine the admissibility, relevance,
materiality and weight of evidence.
2. The Arbitral Tribunal shall, at the request of a Party or on its own
motion, exclude from evidence or production any Document,
statement, oral testimony or inspection for any of the following
reasons: (a) lack of sufficient relevance to the case or materiality to
its outcome; (b) legal impediment or privilege under the legal or
ethical rules determined by the Arbitral Tribunal to be applicable; (c)
unreasonable burden to produce the requested evidence; (d) loss or
destruction of the Document that has been shown with reasonable
likelihood to have occurred; (e) grounds of commercial or technical
confidentiality that the Arbitral Tribunal determines to be
compelling; (f) grounds of special political or institutional sensitivity
(including evidence that has been classified as secret by a
government or a public international institution) that the Arbitral
Tribunal determines to be compelling; or (g) considerations of
procedural economy, proportionality, fairness or equality of the
Parties that the Arbitral Tribunal determines to be compelling.
3. In considering issues of legal impediment or privilege under Article
9.2(b), and insofar as permitted by any mandatory legal or ethical
rules that are determined by it to be applicable, the Arbitral Tribunal
may take into account: (a) any need to protect the confidentiality of
a Document created or statement or oral communication made in
connection with and for the purpose of providing or obtaining legal
advice; (b) any need to protect the confidentiality of a Document
created or statement or oral communication made in connection
with and for the purpose of settlement negotiations; (c) the
expectations of the Parties and their advisors at the time the legal
impediment or privilege is said to have arisen; (d) any possible
waiver of any applicable legal impediment or privilege by virtue of
consent, earlier disclosure, affirmative use of the Document,
statement, oral communication or advice contained therein, or
otherwise; and (e) the need to maintain fairness and equality as
between the Parties, particularly if they are subject to different legal
or ethical rules.
[…]

[B] Failure to Produce Evidence

Where the tribunal determines that evidence is admissible and orders its production, a
party’s failure to comply with such an order on time and without a valid excuse may result
in the tribunal assigning no weight to that party’s argument, or even assuming that the
P 410 missing evidence would support the counter-party’s argument. The IBA Rules of Evidence,
P 411 as well as the ICDR Rules, expressly authorize the tribunal to draw so-called “adverse
inferences” from a party’s failure to produce evidence. (105) The IBA and ICDR Rules also
provide that the tribunal may allocate a greater share of the costs of the arbitration to a
party who fails to act in good faith to produce admissible evidence. (106)
Assuming the truth and full evidentiary weight of an unproven fact in response to a party’s
failure to produce evidence to the contrary may not always be appropriate. A study of
several awards concluded that in order for the tribunal to draw an adverse inference
several requirements must be met: “(1) the inference opponent must know, or have reason
to know, of its obligation to produce evidence rebutting the adverse inference sought; (2)
the requested evidence must be accessible to the inference opponent; (3) the party
seeking the adverse inference must produce prima facie evidence and all available
evidence corroborating evidence; and (4) the inference sought must be reasonable,
consistent with the facts in the record and logically related to the likely nature of the
evidence withheld.” (107)
Since these criteria may not always be satisfied, the other rules employ less explicit terms
concerning the consequences of a party’s failure to produce evidence, suggesting that the
tribunal may either draw adverse inferences or simply consider that that party has failed
to carry its burden of proof or to rebut the counter-party’s evidence. Taking this approach,
the ICDR, HKIAC, and UNCITRAL Rules authorize the tribunal ultimately to “make the award
on the evidence before it.” (108) CIETAC Rules indicate that if a party fails to produce
evidence it “shall bear the consequences thereof.” (109) ICSID instructs only that the
tribunal “shall take formal note” of the failure. (110) The SCC Rules authorize the tribunal to
“draw such inferences as it considers appropriate.” (111) The SIAC Rules generally permit
the tribunal to respond to a party’s failure to comply with an order by proceeding with the
P 411 arbitration and imposing appropriate sanctions. (112) The ICC Rules and the LCIA Rules are
P 412 silent on the consequences of a party’s failure to produce admissible evidence.
P 412
P 413 Table 6.10 Consequences of Failure to Produce Evidence
AAA-ICDR

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 Article 20. Conduct 7. The parties shall make every effort to avoid unnecessary delay
of the Proceedings and expense in the arbitration. The arbitral tribunal may allocate
costs, draw adverse inferences, and take such additional steps as are
necessary to protect the efficiency and integrity of the arbitration.
Article 21. Exchange 9. In the event a party fails to comply with an order for information
of Information exchange, the tribunal may draw adverse inferences […].
Article 26. Default 3. If a party, duly invited to produce evidence or take any other steps
in the proceedings, fails to do so within the time established by the
tribunal without showing sufficient cause for such failure, the
tribunal may make the award on the evidence before it.
CIETAC
Article 41. Evidence 3. If a party bearing the burden of proof fails to produce evidence
within the specified time period, or if the produced evidence is not
sufficient to support its claim or counterclaim, it shall bear the
consequences thereof.
HKIAC
Article 26. Default 26.3 If one of the parties, duly notified under these Rules, fails to
present its case in accordance with these Rules including as directed
by the arbitral tribunal, without showing sufficient cause for such
failure, the arbitral tribunal may proceed with the arbitration and
make an award on the basis of the evidence before it.
ICC
Not specifically addressed.
ICSID
Arbitration Rules, 3. The parties shall cooperate with the Tribunal in the production of
Rule 34. Evidence: the evidence and in the other measures provided for in paragraph
General Principles (2). The Tribunal shall take formal note of the failure of a party to
comply with its obligations under this paragraph and of any reasons
given for such failure.
LCIA
Not specifically addressed.
SCC
Article 35. Default 3. If a party, without good cause, fails to comply with any provision
of, or requirement under, these Rules or any procedural order given
by the Arbitral Tribunal, the Arbitral Tribunal may draw such
inferences as it considers appropriate.
SIAC
Rule 27. Additional Unless otherwise agreed by the parties, in addition to the other
Powers of the powers specified in these Rules, and except as prohibited by the
Tribunal mandatory rules of law applicable to the arbitration, the Tribunal
shall have the power to:
[…]
l. proceed with the arbitration notwithstanding the failure or refusal
of any party to comply with these Rules or with the Tribunal’s orders
or directions or any partial Award or to attend any meeting or
hearing, and to impose such sanctions as the Tribunal deems
appropriate in relation to such failure or refusal;

UNCITRAL
Article 30. Default 3. If a party, duly invited by the arbitral tribunal to produce
documents, exhibits or other evidence, fails to do so within the
established period of time, without showing sufficient cause for such
failure, the arbitral tribunal may make the award on the evidence
before it.
IBA Rules of Evidence

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 Article 9. 5. If a Party fails without satisfactory explanation to produce any
Admissibility and Document requested in a Request to Produce to which it has not
Assessment of objected in due time or fails to produce any Document ordered to be
Evidence produced by the Arbitral Tribunal, the Arbitral Tribunal may infer
that such document would be adverse to the interests of that party.
6. If a Party fails without satisfactory explanation to make available
any other relevant evidence, including testimony, sought by one
Party to which the Party to whom the request was addressed has not
objected in due time or fails to make available any evidence,
including testimony, ordered by the Arbitral Tribunal to be produced,
the Arbitral Tribunal may infer that such document would be
adverse to the interests of that party.

FURTHER READING
Peter Ashford, The IBA Rules of Evidence on the Taking of Evidence in International
Arbitration: A Guide (Cambridge University Press 2013).
Nigel Blackaby & Alexander Wilbraham, Practical Issues Relating to the Use of Expert
Evidence in Investment Treaty Arbitration, 31(1) ICSID Rev.—Foreign Invest. L.J., 655-669
(October 1, 2016).
Jeffrey Commission & Rahim Moloo, Procedural Issues in International Investment
Arbitration (Oxford University Press 2018).
Yves & and Eric A. Schwartz, A Guide to the ICC Rules of Arbitration (2d ed., Kluwer Law
International 2005).
P 413
P 414
Peter V. Eijsvoogel, Evidence in International Arbitration Proceedings (Kluwer Law
International 2001).
Jason Fry et al., The Secretariat’s Guide to ICC Arbitration (ICC 2012).
Teresa Giovannini & Alexis Mourre, Written Evidence and Discovery in International
Arbitration (Teresa Giovannini & Alexis Mourre eds., Kluwer Law International 2009).
Ragnar Harbst, A Counsel’s Guide to Examining and Preparing Witnesses in International
Arbitration (Kluwer Law International 2015).
Ragnar Harbst, Chapter Seven: Witness Statements, in A Counsel’s Guide to Examining and
Preparing Witnesses in International Arbitration (Kluwer Law International 2015).
Michael Hwang & Andrew Chin, The Role of Witness Statements in International Commercial
Arbitration, in International Arbitration 2006: Back to Basics?, ICCA Congress Series (Albert
Jan van den Berg ed., Kluwer Law International 2007).
Laurent Levy & V.V. Veeder, Arbitration and Oral Evidence (Kluwer Law International 2006).
Reto Marghitola, Document Production in International Arbitration (Kluwer Law
International 2015).
Nathan D. O’Malley, Rules of Evidence in International Arbitration: An Annotated Guide
(Informa Law 2012).
Jeffrey Pinsler, Is Discovery Available Prior to the Commencement of Arbitration Proceedings,
2005 Sing. J. Legal Stud. 64 (2005).
Jeremy K. Sharpe, Drawing Adverse Inferences from the Non-production of Evidence, 22 Arb.
Int’l (Kluwer Law International 2006).
Frederic G. Sourgens et al., Evidence in International Investment Arbitration (Oxford
University Press 2018).
Jeffrey Waincymer, Procedure and Evidence in International Arbitration (Kluwer Law
International 2012).
P 414

References
1) “The necessity of proof always lies with the person who lays charges.” See CIETAC
Rules, Art. 41; HKIAC Rules, Art. 22(1); UNCITRAL Rules, Art. 27(1).

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 2) Substantive issues of evidence such as standards of proof, presumptions, inferences,
probative value, privilege, hearsay exceptions, etc. are also left to the discretion of
the tribunal, subject to the law of the seat of arbitration. Many of these substantive
issues are not specifically addressed in the rules under consideration and are outside
the scope of this book. More information on the substantive and procedural issues
related to evidentiary matters in international arbitration is available in the
recommended readings at the end of this chapter.
3) In an inquisitorial system, the court is actively involved in investigating the facts of
the case. See Julian D. M. Lew, et al., Comparative International Commercial Arbitration
(Kluwer Law International 2003), 533.
4) Id. Note that the CIETAC Rules expressly provide that, “[u]nless otherwise agreed by
the parties, the arbitral tribunal may adopt an inquisitorial or adversarial approach
in hearing the case having regard to the circumstances of the case.” CIETAC Rules, Art.
35(3).
5) In our experience, international arbitration increasingly resembles common-law
litigation in some respects. Evidentiary hearings in international arbitration often
look very much like common-law trials, with extensive examination of the witnesses
by counsel and few (if any) questions from the tribunal. Document discovery, while
still under the control of the tribunal, is usually party-driven. We have also observed
a trend toward broader document discovery than in the past (if still not on the scale
of a typical U.S. litigation). Even depositions—while still uncommon—are no longer
entirely unheard of in international arbitration. Consequently, the production of
evidence has the potential to increase dramatically the costs of an arbitration if not
appropriately regulated.
6) Other helpful guidelines can be found in the draft Rules on the Efficient Conduct of
Proceedings in International Arbitration (Prague Rules), the CIETAC Guidelines on
Evidence, and the International Institute for Conflict Prevention and Resolution
Protocol on Disclosure of Documents and Presentation of Witness Testimony in
Commercial Arbitration, and the ICDR Guidelines for Arbitrators Concerning
Exchanges of Information, among others.
7) See IBA Rules of Evidence, Foreword (2010) (“The Rules are designed to be used in
conjunction with, and adopted together with, institutional, ad hoc or other rules or
procedures governing international arbitrations. The IBA Rules of Evidence of
Evidence reflect procedures in use in many different legal systems, and they may be
particularly useful when parties come from different legal cultures. […] [P]arties [may]
adopt the IBA Rules of Evidence of Evidence in their arbitration clause […]. In
addition, parties and Arbitral Tribunals may adopt the IBA Rules of Evidence of
Evidence, in whole or in part, at the commencement of the arbitration, or at any time
thereafter. They may also vary them or use them as guidelines in developing their
own procedures.”).
8) ICDR Rules, Art. 21(3); CIETAC Rules, Arts. 12, 15 and 16; ICSID Rules, Rule 24; LCIA Rules;
SCC Rules, Arts. 29(1) and 29(2); SIAC Rules, Rule 20(7).
9) ICSID Rules, Rule 24.
10) UNCITRAL Rules, Arts. 20(4), 21(2).
11) ICC Rules, Arts. 4(3) and 5(5); Appx. IV(d)(i).
12) ICDR Rules, Art. 21(3); HKIAC Rules, Art. 13.3; ICC Rules, Art. 3(1); LCIA Rules, Art. 13.3;
SIAC Rules, Rule 19.6; UNCITRAL Rules, Art. 17(4).
13) See section §7.01 (Additional Written Submissions). The CIETAC Rules uniquely require
parties to submit the evidence supporting their claims and defenses at the outset of
the arbitration with their request for arbitration, answer and any counterclaims.
CIETAC Rules, Arts. 12, 15, 16. See Ch. 3 (Commencement of the Arbitration).
14) In our experience, documents-only proceedings are rare in international arbitration.
A tribunal’s denial of an oral hearing, if requested by any of the parties, could well be
grounds for non-recognition of the resulting award. See Gary Born, International
Commercial Arbitration, 3515-3516 (2d. ed., 2014)
15) HKIAC Rules, Art. 22.3; SCC Rules, Art. 31(3); SIAC Rules, Rule 27(f); IBA Rules of
Evidence, Art. 3(10).
16) LCIA Rules, Art. 22.1(v).
17) ICDR Rules, Art. 20(4).
18) CIETAC Rules, Art. 43(1); LCIA Rules, Art. 22.1(iii); SIAC Rules, Rule 27(c).
19) ICC Rules, Art. 25(1) and (5).
20) IBA Rules, Art. 3(10).
21) LCIA Rules, Art. 22.1(v); SIAC Rules, Rule 27(f).
22) ICDR Rules, Art. 21(4); ICSID Rules, Rule 33; SCC Rules, Art. 31(3).
23) ICC Rules, Appx. IV(d).
24) IBA Rules of Evidence, Art. 3(7) (“The Arbitral Tribunal may order the Party to whom
such Request is addressed to produce any requested Document in its possession
custody or control as to which the Arbitral Tribunal determines that (i) the issues that
the requesting Party wishes to prove are relevant to the case and material to its
outcome; (ii) none of the reasons for objection set forth in Art. 9(2) applies; and (iii) the
requirements of Art. 3(3) have been satisfied.”).
25) ICDR Rules, Art. 21.
26) Nathan D. O’Malley, Rules of Evidence in International Arbitration: An Annotated Guide,
¶ 3.01 (Informa Law 2012).

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 27) ICDR Rules, Art. 23(4); LCIA Rules, Art. 20; SCC Rules, Art. 33(2); SIAC Rules, Rules 25.4
and 27(h); UNCITRAL Rules, Art. 27(2).
28) See Yves Derains & Eric A. Schwartz, A Guide to the ICC Rules of Arbitration, 276-277 (2d
ed., Kluwer Law International 2005).
29) See, e.g., LCIA Rules, Art. 20.3 (defining “witnesses” as including both “witnesses of
fact” and “expert witnesses”); SCC Rules, Art. 33 (defining “witnesses” as including
“experts”), UNCITRAL Rules, Art. 27(2) (defining “witnesses” as “including expert
witnesses”).
30) See IBA Rules of Evidence, Art. 4(5)(b).
31) See id., Art. 5(2)(e).
32) IBA Rules of Evidence, Art. 4(2); LCIA Rules, Art. 20.6; UNCITRAL Rules, Art. 27(2).
33) See, IBA Rules of Evidence, Art. 4(3) (“It shall not be improper for a [Party’s] … legal
advisors … to interview its witnesses or potential witnesses and to discuss their
prospective testimony with them.”); see also IBA Guidelines on Party Representation
in International Arbitration, Rule 20 (“a Party Representative may assist Witnesses in
the preparation of Witness Statements and Experts in the preparation of Expert
Reports.”)
34) LCIA Rules, Art. 20.5.
35) IBA Guidelines on Party Representation in International Arbitration, Rule 21.
36) Id., at Rule 22.
37) IBA Rules of Evidence, Art. 5(2).
38) Id., Art. 4(6).
39) ICSID Rules, Rule 36.
40) Lucy Reed et al., Guide to ICSID Arbitration 142 (Kluwer Law International 2004).
41) ICDR Rules, Art. 21(10).
42) See, e.g., UNCITRAL Model Law, Art. 26; English Arbitration Act 1996, § 37.
43) ICDR Rules, Art. 25(1); CIETAC Rules, Art. 44(1); HKIAC Rules, Art. 25.1; ICC Rules, Art.
25(4); LCIA Rules, Art. 21.1; SCC Rules, Art. 34(1); SIAC Rules, Rule 26.1(a); UNCITRAL
Rules, Art. 29(1). Here too, however, it is within the inherent power of an ICSID tribunal
to appoint its own expert. The proposed ICSID amendments maintain this power of
tribunal. See Proposals for Amendment of the ICSID Rules—Synopsis, para. 42, ICSID,
World Bank Group, 2018 (thereafter “ICSID Synopsis”).
https://icsid.worldbank.org/en/amendments/
Documents/Homepage/Synopsis_English.pdf.
44) See generally N. Blackaby & A. Wilbraham, Practical Issues Relating to the Use of
Expert Evidence in Investment Treaty Arbitration, 31(1) ICSID Rev.—Foreign Invest. L.J.,
655-669 (Oct. 1, 2016).
45) Compare IBA Rules of Evidence, Art. 5(2) with IBA Rules of Evidence, Art. 6(4).
46) Jason Fry, et al., The Secretariat’s Guide to ICC Arbitration, 275 (ICC 2012).
47) IBA Rules of Evidence, Art. 6(2); LCIA Rules, Art. 21.2; UNCITRAL Rules, Art. 29(2).
48) Compare IBA Rules of Evidence, Art. 6(2) with UNCITRAL Rules, Art. 29(2).
49) Fry, supran. 46, at 275.
50) IBA Rules of Evidence, Art. 6(3); ICDR Rules, Art. 25(2); CIETAC Rules, Art. 44(2); HKIAC
Rules, Art. 25.2; LCIA Rules, Art. 21.3; SIAC Rules, Rule 26.1(b); UNCITRAL Rules, Art. 29(3).
51) IBA Rules of Evidence, Art. 6(3).
52) See, e.g., Paklito Investment Limited v. Klockner East Asia Limited, Supreme Court of
Hong Kong, High Court, MP 2219, ¶ 34 (Jan. 15, 1993).
53) ICDR Rules, Art. 25(3); HKIAC Rules, Art. 25.3; SCC Rules, Art. 34(2); SIAC Rules, Rule 26.2;
UNCITRAL Rules, Art. 29(4).
54) ICC Rules, Art. 25(3); ICSID Rules, Rule 34; UNCITRAL Rules, Art. 28(2).
55) ICDR Rules, Art. 23(4); SIAC Rules, Rules 25.2 and 25.4.
56) IBA Rules of Evidence, Art. 8(1); LCIA Rules, Art. 20.4.
57) SCC Rules, Art. 33(3).
58) CIETAC Rules, Art. 35(1); HKIAC Rules, Art. 22.5 (omitting language from the 2013 Rules
that expressly provided for the parties and the tribunal to call witnesses, and instead
indicating only that “[t]he arbitral tribunal may determine the manner in which a
witness or expert is examined”).
59) ICDR Rules, Art. 23(4); LCIA Rules, Art. 20.4; SIAC Rules, Rule 25.4.
60) LCIA Rules, Art. 20.4.
61) SIAC Rules, Rule 25.4.
62) ICSID Rules, Rule 34(3).
63) IBA Rules of Evidence, Art. 4(10).
64) Id., Art. 4(9).
65) CIETAC Rules, Art. 43(1); ICC Rules, Art. 25(1); SIAC Rules, Rule 27(h).
66) See UNCITRAL Model Law in International Commercial Arbitration (2006), Art. 27; 28
U.S. Code § 1782—Assistance to foreign and international tribunals and to litigants
before such tribunals; English Arbitration Act, 1996 §§ 38, 42-43; Swiss Law on Private
International Law, Art. 184(2). See also Julian D. M. Lew, et al., Comparative
International Commercial Arbitration (Kluwer Law International 2003), 579-583; G. Born,
International Commercial Arbitration, 2343 (2d ed., Kluwer Law International 2014). The
standards and procedures for obtaining evidence from non-parties may vary
considerably from one jurisdiction to another; many jurisdictions do not provide for
such assistance.

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 67) U.S. Federal Arbitration Act, 9 U.S. Code § 7—Witnesses before arbitrators; fees;
compelling attendance.
68) See IBA Rules of Evidence, Art. 8(1); ICDR Rules, Art. 23(5); ICC Rules, Appx. IV(f); LCIA
Rules, Art. 19.2; UNCITRAL Rules, Art. 28(4) (permitting witness oral testimony and
questioning via videoconference).
69) IBA Rules of Evidence, Art. 8(3)(d); ICDR Rules, Art. 25(4); HKIAC Rules, Art. 25.4; ICC
Rules, Art. 25(4); LCIA Rules, Art. 21.4; SCC Rules, Art. 34(3); SIAC Rules, Rule 26.3;
UNCITRAL Rules, Art. 29(5). CIETAC Rules do not make any express provisions for the
parties to question the tribunal-appointed expert (or appraiser) at the hearing. See
CIETAC Rules, Art. 44(3).
70) IBA Rules, Art. 8(3)(b) and (g); ICSID Rule 35(1); LCIA Rules, Art. 20.8; SIAC Rules, Rule
25.3.
71) ICDR Rules, Art. 23(3); HKIAC Rules, Art. 22.5; UNCITRAL Rules, Art. 28(2).
72) CIETAC Rules, Art. 35(3).
73) ICC Rules, Arts. 25(3) and 26(3).
74) ICC Commission Report: Controlling Time and Costs in Arbitration (2018), ¶ 80.
75) SCC Rules, Art. 33(3).
76) IBA Rules of Evidence, Art. 8(4); ICSID Rules 35(2) and 35(3); LCIA Rules, Art. 20.7.
77) ICDR Rules, Art. 23(3); CIETAC Rules, Art. 35(3); HKIAC Rules, Art. 22.5; ICC Rules, Art.
26(3); ICSID Rules, Rule 35(1); LCIA Rules, Art. 20.8; SIAC Rules, Rule 25.3; UNCITRAL
Rules, Art. 28(2).
78) IBA Rules of Evidence, Art. 8(3)(a)-(b).
79) Id., at Art. 8(3)(b).
80) Id., at Art. 8(3)(c).
81) Id., at Art. 8(3)(a) and (c).
82) Id., at Art. 8(3)(e)-(f).
83) Id., at Art. 8(2).
84) IBA Rules of Evidence, Art. 7; ICDR Rules, Art. 17(2); CIETAC Rules, Art. 43; ICSID
Convention, Art. 43(b); ICSID Rules, Rule 37(1); LCIA Rules, Art. 22.1(iv); SIAC Rules, Rule
27(d).
85) HKIAC Rules, Art. 14.2.
86) ICC Rules, Art. 18(2); SCC Rules, Art. 25(2); UNCITRAL Rules, Art. 18(2).
87) CIETAC Rules, Art. 43.
88) The 2009 version of ICDR rules required the Tribunal to provide parties with sufficient
written notice to enable them to attend any proceedings in which the tribunal would
inspect property or documents. ICDR Rules 2009, Art. 13(2). The 2014 version omits the
requirement.
89) ICDR Rules, Art. 20(6); HKIAC Rules, Art. 22.2; SCC Rules, Art. 31(1); SIAC Rules, Rule 19.2;
UNCITRAL Rules, Art. 27(4). The LCIA Rules indicate relevance but not materiality. LCIA
Rules, Art. 22.1(vi). The ICSID Rules authorize the tribunal to determine the
admissibility of evidence, but do not mention relevance or materiality. ICSID Rules,
Rule 34(1). The CIETAC and ICC Rules are silent on this issue.
90) IBA Rules of Evidence, Arts. 3(3)(b) and 9(2).
91) LCIA Rules, Art. 22.1.
92) See ICDR Rules, Art. 20(3); SIAC Rules, Rule 19.4.
93) ICDR Rules, Art. 20(6); HKIAC Rules, Art. 22.2; ICSID Rules, Rule 34(1); LCIA Rules, Art.
22.1(vi); SCC Rules, Art. 31(1); SIAC Rules, Rule 19.2; UNCITRAL Rules, Art. 27(4); IBA Rules
of Evidence, Art. 9(1).
94) LCIA Rules, Art. 22.1(vi); SIAC Rules, Rule 19.2.
95) IBA Rules of Evidence, Arts. 3(3), 8(2) and Art. 9(2).
96) Id., Art. 9(2).
97) Id., Art. 9(3).
98) ICDR Rules, Art. 22; SIAC Rules, Rule 27(o). The ICSID Rules only acknowledge the
ability of the tribunal to establish procedures for the protection of privileged or
proprietary information at a hearing when non-parties are present. ICSID Rules, Rule
32(2).
99) IBA Rules of Evidence, Art. 9(3)(e); ICDR Rules, Art. 22.
100) IBA Rules of Evidence, Art. 9(4).
101) IBA Rules of Evidence, Art. 9(2)(e) and (f).
102) ICDR Rules, Art. 21(5); ICC Rules, Art. 22(3); ICSID Rules, Rule 33(2).
103) ICDR Rules, Art. 20(6); HKIAC Rules, Art. 22.2; ICSID Rules, Rule 34(1); LCIA Rules, Art.
22.1(vi); SCC Rules, Art. 31(1); UNCITRAL Rules, Art. 27(4); IBA Rules of Evidence, Art. 9(1).
The CIETAC, ICC and SIAC Rules do not make express provision for the tribunal to
assess the weight of the evidence.
104) LCIA Rules, Art. 22.1(vi).
105) IBA Rules of Evidence, Art. 9(5) (concerning documentary evidence) and Art. 9(6)
(concerning witness testimony and other evidence); ICDR Rules, Art. 21(9).
106) IBA Rules of Evidence, Art. 9(7); ICDR Rules, Art. 21(9).
107) Nathan D. O’Malley, Rules of Evidence in International Arbitration: An Annotated Guide,
¶¶ 7.42-7.43 (Informa Law 2012), citing Jeremy K. Sharpe, “Drawing Adverse Inferences
from the Non-production of Evidence,” Arbitration International, 549-571, at 551 (Kluwer
2006).
108) ICDR Rules, Art. 26(3); HKIAC Rules, Art. 26.3; UNCITRAL Rules, Art. 30(3).
109) CIETAC Rules, Art. 41(3).

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 110) ICSID Rules, Rule 34(3). Notably, ICSID is considering a proposed amendment that
would require a notice to be sent to the defaulting party after 150 days of inactivity,
and a further 30 days for that party to act, failing which the proceeding will be
deemed discontinued. See ICSID Synopsis, para. 53.
111) SCC Rules, Art. 35(3).
112) SIAC Rules, Rule 27.1.

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Document information
Chapter 7: Written and Oral Proceedings
Publication The written and oral proceedings are the heart of an arbitration. All of the considerations
in the preceding chapters provide the foundation for the presentation of the parties’ cases.
The International Arbitration The written proceedings comprise the additional written submissions of the parties,
Rulebook: A Guide to Arbitral beyond their initial Request for Arbitration and Answer, which elaborate the facts, law, and
Regimes evidence in support of the parties’ claims, defenses, and any counterclaims. Subject to
certain limitations, parties generally may amend or supplement their claims, defenses,
and counterclaims in their written submissions. The oral proceedings consist of hearings
Organization for the presentation of the parties’ arguments and evidence, including any witness
testimony. If an arbitration is bifurcated (into jurisdiction and merits, or merits and
International Centre for damages phases) or trifurcated (into jurisdiction, merits, and damages phases), then
Dispute Resolution written and oral proceedings can apply to each of these phases, according to the
applicable arbitration rules and any agreement of the parties. Following the written and
oral submissions, the tribunal will generally declare the closure of the proceedings.
Organization
China International §7.01 ADDITIONAL WRITTEN SUBMISSIONS
Economic and Trade Most international arbitrations entail a series of exchanges of written memorials between
Arbitration Commission the parties, in addition to the initial Request for Arbitration and Answer. The rules under
consideration indicate whether additional written submissions are suggested or required;
in some cases, they are not contemplated at all. For the rules that do contemplate
Organization exchanges of written submissions, they may prescribe: their contents, attachments, and
any limitations; the number of rounds of submissions; time periods for submissions; the
Hong Kong International possibility to amend submissions; and the consequences of a failure to make a submission.
Arbitration Centre As in other areas of arbitral procedure, even when the rules do not make express provision
for written submissions, the parties may agree, or the tribunal may order the parties, to
present memorials.
Organization P 415
P 416
International Court of The SCC and UNCITRAL Rules indicate that the parties shall submit a Statement of Claim
Arbitration of the and a Statement of Defense. (1) The ICSID Rules also mandate a written procedure: “In
International Chamber of addition to the request for arbitration, the written proceedings shall consist of the
Commerce following pleadings …” (emphasis added). (2) The LCIA Rules likewise make detailed
provision for “the written stage of the arbitration,” subject to any alternative agreement of
the parties or decision of the tribunal. (3) As mentioned in Chapter 3 (Commencement of
Organization the Arbitration), the HKIAC, LCIA, SCC, SIAC, and UNCITRAL Rules allow the parties to rely on
International Centre for their initial Request for Arbitration and Answer as their Statement of Claim and Statement
Settlement of Investment of Defense, so long as the requirements for the latter are satisfied by the former. (4) Also
Disputes under these rules, the tribunal is expressly empowered to order the parties to make
further written submissions. (5) By contrast, the ICDR, CIETAC, and ICC Rules do not
expressly contemplate any written proceedings, but such proceedings are possible (and
indeed common), so long as the parties or the tribunal provide for them. The ICC
Organization Commission Report: Controlling Time and Costs in Arbitration, referenced in Appendix IV of
London Court of the ICC Rules, contemplates written proceedings and gives guidance for streamlining the
International Arbitration process. (6)
The written proceedings usually begin soon after the commencement of the arbitration
and initial procedural conference. (7) The purpose of the written submissions is to
Organization elaborate the parties’ positions beyond their initial Request and Answer with a more
detailed account of the facts, more complete legal arguments, and all pertinent fact and
Arbitration Institute of the expert evidence. (8) The ICSID Rules contemplate a first round of submissions, comprising
Stockholm Chamber of the claimant’s memorial followed by the respondent’s counter-memorial; and then, if the
Commerce parties agree or the tribunal orders, a second round, comprising the claimant’s reply,
followed by the respondent’s rejoinder. (9) The LCIA Rules require a similar sequence, but,
unlike ICSID, the second round is required, not optional. The first round entails the
Organization claimant’s Statement of Case, followed by the respondent’s Statement of Defence (and any
Cross-Claim). The second round entails the claimant’s Statement of Reply (and Statement
Singapore International of Defence to Cross-claim), followed by the respondent’s Statement of Reply to the Defense
Arbitration Centre to Cross-claim if applicable. Note that under the LCIA Rules, if the respondent does not
raise a cross-claim, the respondent will not make a second submission (unlike the ICSID
Rules). The HKIAC, SCC, SIAC and UNCITRAL Rules only provide for one round of written
Organization submissions but authorize the tribunal to order further submissions. (10)
P 416
United Nations Commission P 417
on International Trade Law
All of the rules that provide for a written proceeding set forth the required elements for
each submission. For the claimant’s submissions, these elements always include the
relevant facts, the legal arguments, the request for relief, and all supporting evidence. For
Bibliographic reference all subsequent submissions, the rules require the parties to include the same elements
'Chapter 7: Written and Oral and to respond to the prior submission. For example, the ICSID Rules mandate that “[a]
Proceedings', in Arif Hyder counter-memorial, reply or rejoinder shall contain an admission or denial of the facts
Ali , Jane Wessel , et al., The stated in the last previous pleading; and additional facts, if necessary; observations
concerning the statement of law in the last previous pleading; a statement of law in answer

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International Arbitration thereto; and the submissions.” (11) This iterative process is intended to focus and narrow
Rulebook: A Guide to Arbitral the parties’ written submissions, and ensure that all relevant facts and arguments are
Regimes, (© Kluwer Law exhausted. To this end, all of the rules that address written submissions contemplate back-
International; Kluwer Law and-forth submissions, rather than simultaneous submissions. As noted by the ICC
International 2019) pp. 415 - Commission Report, simultaneous submissions may seem more expeditious, but they may
446 actually generate the need for yet more submissions to allow the parties to address
disputed facts or law; indeed, simultaneous submissions can have the effect of two ships
passing in the night. (12)
In addition to the content of the additional written submissions, the various arbitration
rules contemplate time limits for submissions. The LCIA Rules prescribe a time limit of 28
days from one submission to the next, adding that any party who fails to make a timely
submission loses such an opportunity; in that case, the arbitral tribunal is authorized to
proceed with the arbitration and make awards as necessary. (13) All other rules that make
provision for additional written submission indicate that the tribunal will set any time
limitations, though such time period under the HKIAC and UNCITRAL Rules may not exceed
45 days. (14) In practice, it is possible for parties to request extensions of time, but these
requests are typically granted only for extenuating circumstances. The tribunal may order,
or the parties may agree upon, further written submissions following a hearing to address,
for example, the consequences of the evidence elicited at the hearing, or the factual and
legal submissions made by an opposing party, or specific legal questions or factual issues
of interest to the tribunal. (15) These posthearing submissions can be made by the parties
simultaneously or sequentially, in either one round or two.
The consequences of a party’s failure to make a written submission within the established
time period and without a valid excuse vary widely. Under all of the rules under
P 417 consideration, the tribunal may grant an extension of time for extenuating circumstances.
P 418 In all other circumstances, under the ICDR, HKIAC, and the LCIA Rules, the tribunal may
proceed with the arbitration in the absence of the defaulting party’s written submission.
(16) The SCC Rules permit the tribunal to “draw such inferences as it considers
appropriate.” (17) The ICSID Rules permit the tribunal to proceed to render an award
further to a request from the nondefaulting party; however, the tribunal must first notify
the defaulting party of the request and grant a grace period of up to 60 days. In any event,
an ICSID tribunal is not permitted to deem the defaulting party’s failure to make a written
submission an admission of the counter-party’s assertions. (18) By contrast, the SIAC and
UNCITRAL Rules are less forgiving. They provide that if the claimant fails to submit its
Statement of Claim, the tribunal shall terminate the proceedings. (19) If the respondent
fails to submit its Answer or Statement of Defense, or if the claimant fails to submit a
defense to a counterclaim, the tribunal will proceed with the arbitration without treating
the failure as an admission of the counter-party’s assertions. (20)
The rules relating to written procedures are set out in Table 7.1.
P 418
P 419 Table 7.1 Written Proceedings
AAA-ICDR
PP 420
422
423
424
425
426
419 Article 9.
421 Any party may amend or supplement its claim, counterclaim, setoff,
PP 420
422
423
424
425
426
421 Amendment or
427 or defense unless the arbitral tribunal considers it inappropriate to
Supplement of allow such amendment or supplement because of the party’s delay
Claim, Counterclaim, in making it, prejudice to the other parties, or any other
or Defense circumstances. A party may not amend or supplement a claim or
counterclaim if the amendment or supplement would fall outside
the scope of the agreement to arbitrate. The tribunal may permit an
amendment or supplement subject to an award of costs and/or the
payment of filing fees as determined by the Administrator.
Article 26. Default 3. If a party, duly invited to produce evidence or take any other steps
in the proceedings, fails to do so within the time established by the
tribunal without showing sufficient cause for such failure, the
tribunal may make the award on the evidence before it.
CIETAC
Article 17. The Claimant may apply to amend its claim and the Respondent
Amendment to Claim may apply to amend its counterclaim. However, the arbitral tribunal
or Counterclaim may refuse any such amendment if it considers that the amendment
is too late and may delay the arbitral proceedings.
HKIAC
Article 4. Notice of 4.5 Notice of Arbitration may include the Statement of Claim.
Arbitration

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 Article 16. Statement 16.1. Unless the Statement of Claim was contained in the Notice of
of Claim Arbitration (or the Claimant elects to treat the Notice of Arbitration
as the Statement of Claim), the Claimant shall communicate its
Statement of Claim to all other parties and to the arbitral tribunal
within a time limit to be determined by the arbitral tribunal.
16.2. The Statement of Claim shall include the following particulars:
(a) a statement of the facts supporting the claim;
(b) the points at issue;
(c) the legal arguments supporting the claim; and
(d) the relief or remedy sought.
16.3. The Claimant shall annex to its Statement of Claim all
supporting materials on which it relies.
16.4. The arbitral tribunal may vary any of the requirements in
Article 16 as it deems appropriate.

Article 17. Statement 17.1. Unless the Statement of Defence was contained in the Answer to
of Defence the Notice of Arbitration (or the Respondent elects to treat the
Answer to the Notice of Arbitration as the Statement of Defence), the
Respondent shall communicate its Statement of Defence to all other
parties and to the arbitral tribunal within a time limit to be
determined by the arbitral tribunal.
17.2 The Statement of Defence shall reply to the particulars of the
Statement of Claim (set out in Article 16.2(a) to (c)). If the
Respondent has raised an objection to the jurisdiction or to the
proper constitution of the arbitral tribunal, the Statement of
Defence shall contain the factual and legal basis of such objection.
17.3. Where there is a counterclaim, set-off defence or cross-claim,
the Statement of Defence shall also include the following
particulars:
(a) a statement of the facts supporting the counterclaim, set-off
defence or cross-claim;
(b) the points at issue;
(c) the legal arguments supporting the counterclaim, set-off
defence or cross-claim; and
(d) the relief or remedy sought.
17.4. The Respondent shall annex to its Statement of Defence all
supporting materials on which it relies.
17.5. The arbitral tribunal may vary any of the requirements in Article
17 as it deems appropriate.

Article 18. 18.1. During the course of the arbitration, a party may amend or
Amendments to the supplement its claim or defence, unless the arbitral tribunal
Claim or Defence considers it inappropriate to allow such amendment having regard
to the circumstances of the case. However, a claim or defence may
not be amended in such a manner that the amended claim or
defence falls outside the jurisdiction of the arbitral tribunal.
Article 20. Further The arbitral tribunal shall decide which further written statements, if
Written Statements any, in addition to the Statement of Claim and the Statement of
Defence, shall be required from the parties and shall set the time
limits for communicating such statements.
Article 21. Time 21.1 The time limits set by the arbitral tribunal for the
Limits communication of written statements should not exceed 45 days,
unless the arbitral tribunal considers otherwise.

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 Article 26. Default 26.1. If, within the time limit set by the arbitral tribunal, the Claimant
has failed to communicate its written statement without showing
sufficient cause for such failure, the arbitral tribunal may terminate
the arbitration unless another party has brought a claim and wishes
the arbitration to continue, in which case the tribunal may proceed
with the arbitration in respect of the other party’s claim.
26.2. If, within the time limit set by the arbitral tribunal, the
Respondent has failed to communicate its written statement without
showing sufficient cause for such failure, the arbitral tribunal may
proceed with the arbitration.
26.3. If one of the parties, duly notified under these Rules, fails to
present its case in accordance with these Rules including as directed
by the arbitral tribunal, without showing sufficient cause for such
failure, the arbitral tribunal may proceed with the arbitration and
make an award on the basis of the evidence before it.

ICC
Not specifically addressed.
ICSID
Arbitration Rules, Except if the parties otherwise agree, the proceeding shall comprise
Rule 29. Normal two distinct phases: a written procedure followed by an oral one.
Procedures
Arbitration Rules, (1) In addition to the request for arbitration, the written procedure
Rule 31. The Written shall consist of the following pleadings, filed within time limits set
Procedure by the Tribunal:
(a) a memorial by the requesting party;
(b) a counter-memorial by the other party; and, if the parties so
agree or the Tribunal deems it necessary:
(c) a reply by the requesting party; and
(d) a rejoinder by the other party.
(2) If the request was made jointly, each party shall, within the same
time limit determined by the Tribunal, file its memorial and, if the
parties so agree or the Tribunal deems it necessary, its reply;
however, the parties may instead agree that one of them shall, for
the purposes of paragraph (1), be considered as the requesting party.
(3) A memorial shall contain: a statement of the relevant facts; a
statement of law; and the submissions. A counter-memorial, reply or
rejoinder shall contain an admission or denial of the facts stated in
the last previous pleading; any additional facts, if necessary;
observations concerning the statement of law in the last previous
pleading; a statement of law in answer thereto; and the submissions.

Rule 40. Ancillary 1) Except as the parties otherwise agree, a party may present an
Claims incidental or additional claim or counter-claim arising directly out
of the subject-matter of the dispute, provided that such ancillary
claim is within the scope of the consent of the parties and is
otherwise within the jurisdiction of the Centre.
(2) An incidental or additional claim shall be presented not later
than in the reply and a counter-claim no later than in the counter-
memorial, unless the Tribunal, upon justification by the party
presenting the ancillary claim and upon considering any objection of
the other party, authorizes the presentation of the claim at a later
stage in the proceeding.
(3) The Tribunal shall fix a time limit within which the party against
which an ancillary claim is presented may file its observations
thereon.

Rule 42. Default (1) If a party (in this Rule called the “defaulting party”) fails […] to
present its case at any stage of the proceeding, the other party may,
at any time prior to the discontinuance of the proceeding, request
the Tribunal to deal with the questions submitted to it and to render
an award.
(2) The Tribunal shall promptly notify the defaulting party of such a
request. Unless it is satisfied that that party does not intend […] to
present its case in the proceeding, it shall, at the same time, grant a
period of grace and to this end:

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 (a) if that party had failed to file a pleading or any other
instrument within the time limit fixed therefor, fix a new time
limit for its filing[.]
The period of grace shall not, without the consent of the other party,
exceed 60 days.
(3) After the expiration of the period of grace or when, in accordance
with paragraph (2), no such period is granted, the Tribunal shall
resume the consideration of the dispute. Failure of the defaulting
party […] to present its case shall not be deemed an admission of the
assertions made by the other party.

LCIA
Article 15. Written 15.1. Unless the parties have agreed or jointly proposed in writing
Statements otherwise or the Arbitral Tribunal should decide differently, the
written stage of the arbitration and its procedural time-table shall
be as set out in this Article 15.
15.2. Within 28 days of receipt of the Registrar’s written notification
of the Arbitral Tribunal’s formation, the Claimant shall deliver to the
Arbitral Tribunal and all other parties either: (i) its written election to
have its Request treated as its Statement of Case complying with
this Article 15.2; or (ii) its written Statement of Case setting out in
sufficient detail the relevant facts and legal submissions on which it
relies, together with the relief claimed against all other parties, and
all essential documents.
15.3. Within 28 days of receipt of the Claimant’s Statement of Case or
the Claimant’s election to treat the Request as its Statement of
Case, the Respondent shall deliver to the Arbitral Tribunal and all
other parties either: (i) its written election to have its Response
treated as its Statement of Defence and (if applicable) Cross-claim
complying with this Article 15.3; or (ii) its written Statement of
Defence and (if applicable) Statement of Cross-claim setting out in
sufficient detail the relevant facts and legal submissions on which it
relies, together with the relief claimed against all other parties, and
all essential documents.
15.4. Within 28 days of receipt of the Respondent’s Statement of
Defence and (if applicable) Statement of Cross-claim or the
Respondent’s election to treat the Response as its Statement of
Defence and (if applicable) Cross-claim, the Claimant shall deliver to
the Arbitral Tribunal and all other parties a written Statement of
Reply which, where there are any cross-claims, shall also include a
Statement of Defence to Cross-claim in the same manner required
for a Statement of Defence, together with all essential documents.

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 15.5. If the Statement of Reply contains a Statement of Defence to
Cross-claim, within 28 days of its receipt the Respondent shall
deliver to the Arbitral Tribunal and all other parties its written
Statement of Reply to the Defence to Cross-claim, together with all
essential documents.
15.6. The Arbitral Tribunal may provide additional directions as to
any part of the written stage of the arbitration (including witness
statements, submissions and evidence), particularly where there are
multiple claimants, multiple respondents or any cross-claim
between two or more respondents or between two or more
claimants.
15.7. No party may submit any further written statement following
the last of these Statements, unless otherwise ordered by the
Arbitral Tribunal.
15.8. If the Respondent fails to submit a Statement of Defence or the
Claimant a Statement of Defence to Cross-claim, or if at any time
any party fails to avail itself of the opportunity to present its written
case in the manner required under this Article 15 or otherwise by
order of the Arbitral Tribunal, the Arbitral Tribunal may nevertheless
proceed with the arbitration (with or without a hearing) and make
one or more awards.
15.9. As soon as practicable following this written stage of the
arbitration, the Arbitral Tribunal shall proceed in such manner as
has been agreed in writing by the parties or pursuant to its authority
under the Arbitration Agreement.
15.10. In any event, the Arbitral Tribunal shall seek to make its final
award as soon as reasonably possible following the last submission
from the parties (whether made orally or in writing), in accordance
with a timetable notified to the parties and the Registrar as soon as
practicable (if necessary, as revised and re-notified from time to
time). When the Arbitral Tribunal (not being a sole arbitrator)
establishes a time for what it contemplates shall be the last
submission from the parties (whether written or oral), it shall set
aside adequate time for deliberations as soon as possible after that
last submission and notify the parties of the time it has set aside.

Article 22. Additional The Arbitral Tribunal shall have the power, upon the application of
Powers any party or […] upon its own initiative, but in either case only after
giving the parties a reasonable opportunity to state their views and
upon such terms (as to costs and otherwise) as the Arbitral Tribunal
may decide: (i) to allow a party to supplement, modify or amend any
claim, defence, cross-claim, defence to cross-claim and reply,
including a Request, Response and any other written statement,
submitted by such party[…].
SCC
Article 29. Written (1) Within the period determined by the Arbitral Tribunal, the
Submissions Claimant shall submit a Statement of Claim which shall include,
unless previously submitted:
(i) the specific relief sought;
(ii) the factual and legal basis the Claimant relies on; and
(iii) any evidence the Claimant relies on.
(2) Within the period determined by the Arbitral Tribunal, the
Respondent shall submit a Statement of Defence which shall
include, unless previously submitted:
(i) any objections concerning the existence, validity or
applicability of the arbitration agreement;
(ii) a statement whether, and to what extent, the Respondent
admits or denies the relief sought by the Claimant;
(iii) the factual and legal basis the Respondent relies on;
(iv) any counterclaim or set-off and the grounds on which it is
based; and
(v) any evidence the Respondent relies on.
(3) The Arbitral Tribunal may order the parties to submit additional
written submissions.

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 Article 30. At any time prior to the close of proceedings pursuant to Article 40,
Amendments a party may amend or supplement its claim, counterclaim, defence
or set-off provided its case, as amended or supplemented, is still
comprised by the arbitration agreement, unless the Arbitral Tribunal
considers it inappropriate to allow such amendment or supplement
having regard to the delay in making it, the prejudice to the other
party or any other relevant circumstances.
Article 35. Default 3. If a party, without good cause, fails to comply with any provision
of, or requirement under, these Rules or any procedural order given
by the Arbitral Tribunal, the Arbitral Tribunal may draw such
inferences as it considers appropriate.
SIAC
Rule 3. Notice of 3.2. The Notice of Arbitration may also include the Statement of
Arbitration Claim referred to in Rule 20.2.
Rule 20. 20.1. Unless the Tribunal determines otherwise, the submission of
Submissions by the written statements shall proceed as set out in this Rule.
Parties
20.2. Unless already submitted pursuant to Rule 3.2, the Claimant
shall, within a period of time to be determined by the Tribunal, send
to the Respondent and the Tribunal a Statement of Claim setting out
in full detail:

(a) a statement of facts supporting the claim;

(b) the legal grounds or arguments supporting the claim; and
(c) the relief claimed together with the amount of all quantifiable
claims.
20.3. Unless already submitted pursuant to Rule 4.2, the Respondent
shall, within a period of time to be determined by the Tribunal, send
to the Claimant and the Tribunal a Statement of Defence setting out
in full detail:
(a) a statement of facts supporting its defence to the Statement of
Claim;
(b) the legal grounds or arguments supporting such defence; and
(c) the relief claimed.
20.4 If a Statement of Counterclaim is made, the Claimant shall,
within a period of time to be determined by the Tribunal, send to the
Respondent and the Tribunal a Statement of Defence to
Counterclaim setting out in full detail:
(a) a statement of facts supporting its defence to the Statement of
Counterclaim;
(b) the legal grounds or arguments supporting such defence; and
(c) the relief claimed.
20.5. A party may amend its claim, counterclaim or other
submissions unless the Tribunal considers it inappropriate to allow
such amendment having regard to the delay in making it or
prejudice to the other party or any other circumstances. However, a
claim or counterclaim may not be amended in such a manner that
the amended claim or counterclaim falls outside the scope of the
arbitration agreement.
20.6. The Tribunal shall decide which further submissions shall be
required from the parties or may be presented by them. The Tribunal
shall fix the periods of time for communicating such submissions.
20.7. All submissions referred to in this Rule shall be accompanied by
copies of all supporting documents which have not previously been
submitted by any party.
20.8. If the Claimant fails within the time specified to submit its
Statement of Claim, the Tribunal may issue an order for the
termination of the arbitral proceedings or give such other directions
as may be appropriate.

20.9. If the Respondent fails to submit its Statement of Defence, or if

at any point any party fails to avail itself of the opportunity to
present its case in the manner directed by the Tribunal, the Tribunal
may proceed with the arbitration.
UNCITRAL

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 Article 20. Statement 1. The claimant shall communicate its statement of claim in writing
of Claim to the respondent and to each of the arbitrators within a period of
time to be determined by the arbitral tribunal. The claimant may
elect to treat its notice of arbitration referred to in article 3 as a
statement of claim, provided that the notice of arbitration also
complies with the requirements of paragraphs 2 to 4 of this article.
2. The statement of claim shall include the following particulars:
(a) The names and contact details of the parties;
(b) A statement of the facts supporting the claim;
(c) The points at issue;
(d) The relief or remedy sought;
(e) The legal grounds or arguments supporting the claim.
3. A copy of any contract or other legal instrument out of or in
relation to which the dispute arises and of the arbitration agreement
shall be annexed to the statement of claim.
4. The statement of claim should, as far as possible, be accompanied
by all documents and other evidence relied upon by the claimant, or
contain references to them.

Article 21. Statement 1. The respondent shall communicate its statement of defence in
of Defence writing to the claimant and to each of the arbitrators within a period
of time to be determined by the arbitral tribunal. The respondent
may elect to treat its response to the notice of arbitration referred to
in article 4 as a statement of defence, provided that the response to
the notice of arbitration also complies with the requirements of
paragraph 2 of this article.
2. The statement of defence shall reply to the particulars (b) to (e) of
the statement of claim (art. 20, para. 2). The statement of defence
should, as far as possible, be accompanied by all documents and
other evidence relied upon by the respondent, or contain references
to them.
3. In its statement of defence, or at a later stage in the arbitral
proceedings if the arbitral tribunal decides that the delay was
justified under the circumstances, the respondent may make a
counterclaim or rely on a claim for the purpose of a set-off provided
that the arbitral tribunal has jurisdiction over it.
4. The provisions of article 20, paragraphs 2 to 4, shall apply to a
counterclaim, a claim under article 4, paragraph 2 (f), and a claim
relied on for the purpose of a set-off.

Article 22. During the course of the arbitral proceedings, a party may amend or
Amendments to the supplement its claim or defence, including a counterclaim or a
Claim or Defence claim for the purpose of a set-off, unless the arbitral tribunal
considers it inappropriate to allow such amendment or supplement
having regard to the delay in making it or prejudice to other parties
or any other circumstances. However, a claim or defence, including
a counterclaim or a claim for the purpose of a set-off, may not be
amended or supplemented in such a manner that the amended or
supplemented claim or defence falls outside the jurisdiction of the
arbitral tribunal.
Article 24. Further The arbitral tribunal shall decide which further written statements,
Written Statements in addition to the statement of claim and the statement of defence,
shall be required from the parties or may be presented by them and
shall fix the periods of time for communicating such statements.
Article 25. Periods of The periods of time fixed by the arbitral tribunal for the
Time communication of written statements (including the statement of
claim and statement of defence) should not exceed 45 days.
However, the arbitral tribunal may extend the time limits if it
concludes that an extension is justified.

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 Article 30. Default 1. If, within the period of time fixed by these Rules or the arbitral
tribunal, without showing sufficient cause:
(a) The claimant has failed to communicate its statement of
claim, the arbitral tribunal shall issue an order for the
termination of the arbitral proceedings, unless there are
remaining 23 matters that may need to be decided and the
arbitral tribunal considers it appropriate to do so;
(b) The respondent has failed to communicate its response to the
notice of arbitration or its statement of defence, the arbitral
tribunal shall order that the proceedings continue, without
treating such failure in itself as an admission of the claimant’s
allegations; the provisions of this subparagraph also apply to
a claimant’s failure to submit a defence to a counterclaim or
to a claim for the purpose of a set-off.

§7.02 AMENDMENT OF CLAIMS, DEFENSES, AND COUNTERCLAIMS

Parties generally may amend their claims, defenses, or counterclaims in their written
submissions, subject to the tribunal’s approval and certain limitations. The ICDR, SCC, SIAC,
P 427 and UNCITRAL Rules uniformly provide that a party may make an amendment unless the
P 428 tribunal finds that the delay in making the claim or defense will prejudice the other
party or the amended claim falls outside the jurisdiction of the tribunal. (21) Similarly,
CIETAC provides that the tribunal may allow an amendment of claims or defenses unless
the tribunal considers the amendment is “too late” and may delay the proceedings. (22)
HKIAC likewise allows amendments to claims or defenses unless the tribunal finds it
“inappropriate” given the “circumstances of the case” or if the amendment falls outside
the tribunal’s jurisdiction. (23) The LCIA Rules, by contrast, do not provide any criteria, and
instead leave it to the discretion of the tribunal, further to consultation with the parties,
whether to permit an amendment. (24) The ICSID Rules simply provide that the last
opportunity for the claimant to submit “incidental or additional claims” is in the Reply,
while the last opportunity for the respondent to amend his counterclaims is in the Counter-
Memorial. (25) However, an ICSID tribunal may permit an amendment at a later stage,
considering any objection by the counter-party. (26) At ICSID, an incidental or additional
claim or counterclaim must arise directly out of the subject matter of the dispute and must
otherwise satisfy the jurisdictional requirements of the ICSID Convention and the
applicable instrument of consent. (27) Taking a similar approach, but contemplating an
earlier cut-off, the ICC Rules prohibit amendments after the Terms of Reference are
established unless authorized by the Tribunal in light of the circumstances. (28)
The relevant rules are collected in Table 7.2.
P 428
P 429 Table 7.2 Amendment of Claims, Defenses and Counterclaims
AAA-ICDR
P 429 Article 9. Any party may amend or supplement its claim, counterclaim, setoff,
P 430 Amendment or or defense unless the arbitral tribunal considers it inappropriate to
Supplement of allow such amendment or supplement because of the party’s delay
Claim, Counterclaim, in making it, prejudice to the other parties, or any other
or Defense circumstances. A party may not amend or supplement a claim or
counterclaim if the amendment or supplement would fall outside
the scope of the agreement to arbitrate. The tribunal may permit an
amendment or supplement subject to an award of costs and/or the
payment of filing fees as determined by the Administrator.
CIETAC
Article 17. The Claimant may apply to amend its claim and the Respondent
Amendment to the may apply to amend its counterclaim. However, the arbitral tribunal
Claim or may refuse any such amendment if it considers that the amendment
Counterclaim is too late and may delay the arbitral proceedings.
HKIAC
Article 18. 18.1. During the course of the arbitration, a party may amend or
Amendments to the supplement its claim or defence, unless the arbitral tribunal
Claim or Defence considers it inappropriate to allow such amendment having regard
to the circumstances of the case. However, a claim or defence may
not be amended in such a manner that the amended claim or
defence falls outside the jurisdiction of the arbitral tribunal.
ICC

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 Article 23. Terms of 4. After the Terms of Reference have been signed or approved by the
Reference Court, no party shall make new claims which fall outside the limits
of the Terms of Reference unless it has been authorized to do so by
the arbitral tribunal, which shall consider the nature of such new
claims, the stage of the arbitration and other relevant
circumstances.
ICSID
ICSID Convention, Except as the parties otherwise agree, the Tribunal shall, if requested
Article 46. by a party, determine any incidental or additional claims or
counterclaims arising directly out of the subject-matter of the
dispute provided that they are within the scope of the consent of the
parties and are otherwise within the jurisdiction of the Centre.
Arbitration Rules, (1) Except as the parties otherwise agree, a party may present an
Rule 40. Ancillary incidental or additional claim or counter-claim arising directly out
Claims of the subject-matter of the dispute, provided that such ancillary
claim is within the scope of the consent of the parties and is
otherwise within the jurisdiction of the Centre.
(2) An incidental or additional claim shall be presented not later
than in the reply and a counter-claim no later than in the counter-
memorial, unless the Tribunal, upon justification by the party
presenting the ancillary claim and upon considering any objection of
the other party, authorizes the presentation of the claim at a later
stage in the proceeding.
(3) The Tribunal shall fix a time limit within which the party against
which an ancillary claim is presented may file its observations
thereon.

LCIA
Article 22. Additional 1. The Arbitral Tribunal shall have the power, upon the application of
Powers any party or (save for sub-paragraphs (viii), (ix) and (x) below) upon
its own initiative, but in either case only after giving the parties a
reasonable opportunity to state their views and upon such terms (as
to costs and otherwise) as the Arbitral Tribunal may decide:
(i) to allow a party to supplement, modify or amend any claim,
defence, cross-claim, defence to cross-claim and reply,
including a Request, Response and any other written
statement, submitted by such party;

SCC
Article 30. At any time prior to the close of proceedings pursuant to Article 40,
Amendments a party may amend or supplement its claim, counterclaim, defence
or set-off provided its case, as amended or supplemented, is still
comprised by the arbitration agreement, unless the Arbitral Tribunal
considers it inappropriate to allow such amendment or supplement
having regard to the delay in making it, the prejudice to the other
party or any other relevant circumstances
SIAC
Article 20. 20.5. A party may amend its claim, counterclaim or other
Submissions by the submissions unless the Tribunal considers it inappropriate to allow
Parties such amendment having regard to the delay in making it or
prejudice to the other party or any other circumstances. However, a
claim or counterclaim may not be amended in such a manner that
the amended claim or counterclaim falls outside the scope of the
arbitration agreement.
UNCITRAL
Article 22. During the course of the arbitral proceedings, a party may amend or
Amendments to the supplement its claim or defence, including a counterclaim or a
Claim or Defence claim for the purpose of a set-off, unless the arbitral tribunal
considers it inappropriate to allow such amendment or supplement
having regard to the delay in making it or prejudice to other parties
or any other circumstances. However, a claim or defence, including
a counterclaim or a claim for the purpose of a set-off, may not be
amended or supplemented in such a manner that the amended or
supplemented claim or defence falls outside the jurisdiction of the
arbitral tribunal.

§7.03 HEARINGS

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 After the parties have presented their written submissions, the tribunal will usually
P 430 conduct oral hearings for the parties to make presentations on the facts and the law and
P 431 to cross-examine the witnesses and experts of the other parties. All of the rules provide
for the possibility of a hearing for oral argument and witness questioning.
The ICSID Rules require a hearing in all cases unless the parties agree to a documents-only
arbitration. (29) The LCIA Rules require a hearing if a party requests it unless they agree to
a documents-only arbitration. (30) The HKIAC, ICC, SCC, SIAC, and UNCITRAL Rules also
require a hearing if a party requests it, and otherwise authorize the tribunal to call a
hearing. (31) The ICDR Rules contemplate the possibility of a hearing, but do not indicate
whether it is for the parties or the tribunal to call for one. Thus, under all of the rules
except ICSID, a hearing cannot be taken for granted. A party who wishes to present its case
at a hearing should affirmatively request one.
Under all of the rules, except ICSID, the tribunal must give reasonable or adequate
advance notice of the date, time, and location of any hearing. (32) The SCC Rules further
require the tribunal to consult with the parties before scheduling a hearing; CIETAC
specifies 20 days’ notice. (33) If a party, duly notified, fails to appear at a hearing without a
valid excuse, the ICDR, ICC, SIAC, and UNCITRAL Rules permit the tribunal to proceed with
the hearing in its absence. (34) The ICSID Rules are more forgiving, requiring the tribunal to
notify the defaulting party of the consequences of the failure to appear and to reschedule
the hearings. Thereafter, the tribunal may continue with the proceedings and render an
award, but in doing so the tribunal may not treat the defaulting party’s absence as an
admission of the counter-party’s claims. (35) The SCC Rules provide harsher consequences,
providing that the tribunal may draw “such inferences as it considers appropriate.” (36)
CIETAC Rules are the most draconian: the defaulting party forfeits its claims (or
counterclaims). (37)
The hearing need not take place at the seat of the arbitration. The tribunal and the parties
may decide that it would be more convenient or economical to conduct the hearing in
some other country. But wherever the hearing takes place, the laws governing arbitration
at the seat of the arbitration govern the procedural aspects of the hearing, not those of the
place of the hearing. Thus, for example, the ICDR Rules state that the tribunal may meet at
any place it deems appropriate for any purpose, including to conduct hearings and hear
P 431 witnesses. (38) Similar language is provided by the CIETAC, HKIAC, ICC, LCIA, SCC, SIAC, and
P 432 UNCITRAL Rules. (39) ICSID hearings must be held at the Centre in Washington, DC or
other venue agreed by the parties in consultation with the Secretary-General and
approved by the tribunal. (40)
All of the rules under consideration provide that hearings will take place in private unless
the parties agree otherwise. (41) The ICDR Rules acknowledge that the law governing the
proceedings may require open hearings. (42) The HKIAC and UNCITRAL Rules further specify
that the tribunal may ask witnesses who are not parties to the arbitration to step out of the
proceedings when they are not testifying. (43) The ICC Rules and CIETAC Rules require, in
addition to the parties’ agreement, the tribunal’s approval to hold open hearings. (44)
Given the public’s interest in ICSID proceedings, the tribunal is permitted to hold open
hearings subject to further consultation with the Secretary-General and so long as the
parties do not object, but the tribunal must establish procedures to protect any
proprietary or privileged information. (45)
After the parties have submitted any posthearing written submissions, depending on the
complexity of the factual and legal issues and the size of the evidentiary record, a tribunal
may, either on its own motion, or based on a party’s application, hold a final hearing at
which the parties will have an opportunity to make their final submissions, and the
tribunal will have an opportunity to ask questions based on the parties’ posthearing
written submissions. Again, absent exceptional circumstances, the tribunal will not allow a
party to submit any new evidence at the final hearing. Final hearings of this nature give the
parties a final opportunity to leave the arbitrators with a lasting impression of a party’s
case.
The relevant rules are collected in Table 7.3.
P 432
P 433 Table 7.3 Oral Proceedings
AAA-ICDR
PP 438
433
434
435
436
439
437 Article 17. Place of 2. The tribunal may meet at any place it deems appropriate for any
PP 440
438
434
435
436
439
437 Arbitration purpose, including to conduct hearings, hold conferences, hear
witnesses, inspect property or documents, or deliberate, and, if done
elsewhere than the place of arbitration, the arbitration shall be
deemed conducted at the place of arbitration and any award shall
be deemed made at the place of arbitration.

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 Article 23. Hearing 1. The arbitral tribunal shall give the parties reasonable notice of the
date, time, and place of any oral hearing.
2. At least 15 days before the hearings, each party shall give the
tribunal and the other parties the names and addresses of any
witnesses it intends to present, the subject of their testimony, and
the languages in which such witnesses will give their testimony.
[…]6. Hearings are private unless the parties agree otherwise or the
law provides to the contrary.

Article 26. Default 2. If a party, duly notified under these Rules, fails to appear at a
hearing without showing sufficient cause for such failure, the
tribunal may proceed with the hearing.
CIETAC
Article 7. Place of 1. Where the parties have agreed on the place of arbitration, the
Arbitration parties’ agreement shall prevail.
2. Where the parties have not agreed on the place of arbitration or
their agreement is ambiguous, the place of arbitration shall be the
domicile of CIETAC or its sub-commission/arbitration center
administering the case. CIETAC may also determine the place of
arbitration to be another location having regard to the
circumstances of the case.
3. The arbitral award shall be deemed as having been made at the
place of arbitration.

Article 35. Conduct 2. The arbitral tribunal shall hold oral hearings when examining the
of Hearing case. However, the arbitral tribunal may examine the case on the
basis of documents only if the parties so agree and the arbitral
tribunal consents or the arbitral tribunal deems that oral hearings
are unnecessary and the parties so agree.
[…]
4. The arbitral tribunal may hold deliberations at any place or in any
manner that it considers appropriate.
5. Unless otherwise agreed by the parties, the arbitral tribunal may,
if it considers it necessary, issue procedural orders or question lists,
produce terms of reference, or hold pre-hearing conferences, etc.
With the authorization of the other members of the arbitral tribunal,
the presiding arbitrator may decide on the procedural arrangements
for the arbitral proceedings at his/her own discretion.

Article 36. Place of 1. Where the parties have agreed on the place of an oral hearing, the
Oral Hearing case shall be heard at that agreed place except in the circumstances
stipulated in Paragraph 3 of Article 82 of these Rules.
2. Unless otherwise agreed by the parties, the place of oral hearings
shall be in Beijing for a case administered by the Arbitration Court or
at the domicile of the sub-commission/arbitration center
administering the case, or if the arbitral tribunal considers it
necessary and with the approval of the President of the Arbitration
Court, at another location.

Article 37. Notice of 1. Where a case is to be examined by way of an oral hearing, the
Oral Hearing parties shall be notified of the date of the first oral hearing at least
twenty (20) days in advance of the oral hearing. A party having
justified reasons may request a postponement of the oral hearing.
However, such request must be communicated in writing to the
arbitral tribunal within five (5) days of the receipt of the notice of the
oral hearing. The arbitral tribunal shall decide whether or not to
postpone the oral hearing.
2. Where a party has justified reasons for failure to submit a request
for a postponement of the oral hearing within the time period
specified in the preceding Paragraph 1, the arbitral tribunal shall
decide whether or not to accept the request.
3. A notice of a subsequent oral hearing, a notice of a postponed oral
hearing, as well as a request for postponement of such an oral
hearing shall not be subject to the time periods specified in the
preceding Paragraph 1.

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 Article 38. 1. Hearings shall be held in camera. Where both parties request an
Confidentiality open hearing, the arbitral tribunal shall make a decision.
2. For cases heard in camera, the parties and their representatives,
the arbitrators, the witnesses, the interpreters, the experts consulted
by the arbitral tribunal, the appraisers appointed by the arbitral
tribunal and other relevant persons shall not disclose to any
outsider any substantive or procedural matters relating to the case.

Article 39. Default 1. If the Claimant fails to appear at an oral hearing without showing
sufficient cause, or withdraws from an on-going oral hearing without
the permission of the arbitral tribunal, the Claimant may be deemed
to have withdrawn its Request for Arbitration. In such a case, if the
Respondent has filed a counterclaim, the arbitral tribunal shall
proceed with the hearing of the counterclaim and make a default
award.
2. If the Respondent fails to appear at an oral hearing without
showing sufficient cause, or withdraws from an on-going oral
hearing without the permission of the arbitral tribunal, the arbitral
tribunal may proceed with the arbitration and make a default
award. In such a case, if the Respondent has filed a counterclaim,
the Respondent may be deemed to have withdrawn its counterclaim.
Article 40. Record of 1. The arbitral tribunal may arrange for a written and/or an audio-
Oral Hearing visual record to be made of an oral hearing. The arbitral tribunal
may, if it considers it necessary, take minutes of the oral hearing
and request the parties and/or their representatives, witnesses
and/or other persons involved to sign and/or affix their seals to the
written record or the minutes.
2. The written record, the minutes and the audio-visual record of an
oral hearing shall be available for use and reference by the arbitral
tribunal.

3. At the request of a party, the Arbitration Court may, having regard

to the specific circumstances of the arbitration, decide to engage a
stenographer to make a stenographic record of an oral hearing, the
cost of which shall be advanced by the parties.
Article 25. Tribunal- 25.4. At the request of either party the expert, after delivery of the
Appointed Experts report, shall attend a hearing at which the parties shall have the
opportunity to be present and to examine the expert. At this hearing
either party may present experts in order to testify on the points at
issue. The provisions of Articles 22.2 to 22.7 shall be applicable to
such proceedings.
HKIAC
Article 14. Seat and 14.2. Unless the parties have agreed otherwise, the arbitral tribunal
Venue of the may meet at any location outside of the seat of arbitration which it
Arbitration considers appropriate for consultation among its members, hearing
witnesses, experts or the parties, or the inspection of goods, other
property or documents. The arbitration shall nonetheless be treated
for all purposes as an arbitration conducted at the seat.
Article 22. Evidence 22.4. The arbitral tribunal shall decide whether to hold hearings for
and Hearings presenting evidence or for oral arguments, or whether the
arbitration shall be conducted solely on the basis of documents and
other materials. The arbitral tribunal shall hold such hearings at an
appropriate stage of the arbitration, if so requested by a party or if it
considers fit. In the event of a hearing, the arbitral tribunal shall
give the parties adequate advance notice of the relevant date, time
and place.
22.5. The arbitral tribunal may determine the manner in which a
witness or expert is examined.
22.6. The arbitral tribunal may make directions for the translation of
oral statements made at a hearing and for a record of the hearing if
it deems that either is necessary in the circumstances of the case.
22.7. Hearings shall be held in private unless the parties agree
otherwise. The arbitral tribunal may require any witness or expert to
leave the hearing room at any time during the hearing.

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 Article 26. Default 26.3. If one of the parties, duly notified under these Rules, fails to
present its case in accordance with these Rules including as directed
by the arbitral tribunal, without showing sufficient cause for such
failure, the arbitral tribunal may proceed with the arbitration and
make an award on the basis of the evidence before it.
ICC
Article 18. Place of 1. The place of the arbitration shall be fixed by the Court, unless
the Arbitration agreed upon by the parties.
2. The arbitral tribunal may, after consultation with the parties,
conduct hearings and meetings at any location it considers
appropriate, unless otherwise agreed by the parties.
3. The arbitral tribunal may deliberate at any location it considers
appropriate.

Article 25. 2. After studying the written submissions of the parties and all
Establishing the documents relied upon, the arbitral tribunal shall hear the parties
Facts of the Case together in person if any of them so requests or, failing such a
request, it may of its own motion decide to hear them.
[…]
6. The arbitral tribunal may decide the case solely on the documents
submitted by the parties unless any of the parties requests a
hearing.

Article 26. Hearings 1. When a hearing is to be held, the arbitral tribunal, giving
reasonable notice, shall summon the parties to appear before it on
the day and at the place fixed by it.
2. If any of the parties, although duly summoned, fails to appear
without valid excuse, the arbitral tribunal shall have the power to
proceed with the hearing.
3. The arbitral tribunal shall be in full charge of the hearings, at
which all the parties shall be entitled to be present. Save with the
approval of the arbitral tribunal and the parties, persons not
involved in the proceedings shall not be admitted.
4. The parties may appear in person or through duly authorized
representatives. In addition, they may be assisted by advisers.

ICSID
ICSID Convention, (1) Failure of a party to appear or to present his case shall not be
Article 45. Powers deemed an admission of the other party’s assertions.
and Functions of the
Tribunal (2) If a party fails to appear or to present his case at any stage of the
proceedings the other party may request the Tribunal to address the
questions submitted to it and to render an award. Before rendering
an award, the Tribunal shall notify, and grant a period of grace to,
the party failing to appear or to present its case, unless it is satisfied
that that party does not intend to do so.

ICSID Convention, Conciliation and arbitration proceedings shall be held at the seat of
Article 62. Place of the Centre except as hereinafter provided.
Proceedings
ICSID Convention, Conciliation and arbitration proceedings may be held, if the parties
Article 63. Place of so agree,
Proceedings
(a) at the seat of the Permanent Court of Arbitration or of any
other appropriate institution, whether private or public, with
which the Centre may make arrangements for that purpose; or
(b) at any other place approved by the Commission or Tribunal
after consultation with the Secretary-General.

Arbitration Rules, (3) The Tribunal shall meet at the seat of the Centre or at such other
Rule 13. Sessions of place as may have been agreed by the parties in accordance with
the Tribunal Article 63 of the Convention. If the parties agree that the proceeding
shall be held at a place other than the Centre or an institution with
which the Centre has made the necessary arrangements, they shall
consult with the Secretary-General and request the approval of the
Tribunal. Failing such approval, the Tribunal shall meet at the seat
of the Centre.

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 Arbitration Rules, Except if the parties otherwise agree, the proceeding shall comprise
Rule 29. Normal two distinct phases: a written procedure followed by an oral one.
Procedures
Arbitration Rules, (1) The oral procedure shall consist of the hearing by the Tribunal of
Rule 32. The Oral the parties, their agents, counsel and advocates, and of witnesses
Procedure and experts.
(2) Unless either party objects, the Tribunal, after consultation with
the Secretary-General, may allow other persons, besides the parties,
their agents, counsel and advocates, witnesses and experts during
their testimony, and officers of the Tribunal, to attend or observe all
or part of the hearings, subject to appropriate logistical
arrangements. The Tribunal shall for such cases establish
procedures for the protection of proprietary or privileged
information.
(3) The members of the Tribunal may, during the hearings, put
questions to the parties, their agents, counsel and advocates, and
ask them for explanations.

Rule 42. Default (1) If a party (in this Rule called the “defaulting party”) fails to
appear […] at any stage of the proceeding, the other party may, at
any time prior to the discontinuance of the proceeding, request the
Tribunal to deal with the questions submitted to it and to render an
award.
(2) The Tribunal shall promptly notify the defaulting party of such a
request. Unless it is satisfied that that party does not intend to
appear […] in the proceeding, it shall, at the same time, grant a
period of grace and to this end:
[…]
(b) if that party had failed to appear or present its case at a
hearing, fix a new date for the hearing.
The period of grace shall not, without the consent of the other
party, exceed 60 days.
(3) After the expiration of the period of grace or when, in accordance
with paragraph (2), no such period is granted, the Tribunal shall
resume the consideration of the dispute. Failure of the defaulting
party to appear or to present its case shall not be deemed an
admission of the assertions made by the other party.
[…]
LCIA
Article 16. Seat(s) of 16.3. The Arbitral Tribunal may hold any hearing at any convenient
Arbitration and geographical place in consultation with the parties and hold its
Place(s) of Hearing deliberations at any geographical place of its own choice; and if
such place(s) should be elsewhere than the seat of the arbitration,
the arbitration shall nonetheless be treated for all purposes as an
arbitration conducted at the arbitral seat and any order or award as
having been made at that seat.
Article 19. Oral 19.1. Any party has the right to a hearing before the Arbitral Tribunal
Hearing(s) on the parties’ dispute at any appropriate stage of the arbitration
(as decided by the Arbitral Tribunal), unless the parties have agreed
in writing upon a documents-only arbitration. For this purpose, a
hearing may consist of several part-hearings (as decided by the
Arbitral Tribunal).
19.2. The Arbitral Tribunal shall organise the conduct of any hearing
in advance, in consultation with the parties. The Arbitral Tribunal
shall have the fullest authority under the Arbitration Agreement to
establish the conduct of a hearing, including its date, form, content,
procedure, time-limits and geographical place. As to form, a hearing
may take place by video or telephone conference or in person (or a
combination of all three). As to content, the Arbitral Tribunal may
require the parties to address a list of specific questions or issues
arising from the parties’ dispute.
19.3. The Arbitral Tribunal shall give to the parties reasonable notice
in writing of any hearing.
19.4. All hearings shall be held in private, unless the parties agree
otherwise in writing.

SCC

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 Article 25. Seat of (2) The Arbitral Tribunal may, after consulting the parties, conduct
Arbitration hearings at any place it considers appropriate. The Arbitral Tribunal
may meet and deliberate at any place it considers appropriate. The
arbitration shall be deemed to have taken place at the seat of
arbitration regardless of any hearing, meeting, or deliberation held
elsewhere.
Article 32. Hearings (1) A hearing shall be held if requested by a party, or if the Arbitral
Tribunal deems it appropriate.
(2) The Arbitral Tribunal shall, in consultation with the parties,
determine the date, time and location of any hearing and shall
provide the parties with reasonable notice thereof.
(3) Unless otherwise agreed by the parties, hearings will be held in
private.

Article 35. Default (3) If a party, without good cause, fails to comply with any provision
of, or requirement under, these Rules or any procedural order given
by the Arbitral Tribunal, the Arbitral Tribunal may draw such
inferences as it considers appropriate.
SIAC
Rule 21. Seat of the 21.2 The Tribunal may hold hearings and meetings by any means it
Arbitration considers expedient or appropriate and at any location it considers
convenient or appropriate
Rule 24. Hearings 24.1. Unless the parties have agreed on a documents-only
arbitration or as otherwise provided in these Rules, the Tribunal
shall, if either party so requests or the Tribunal so decides, hold a
hearing for the presentation of evidence and/or for oral submissions
on the merits of the dispute, including any issue as to jurisdiction.
24.2. The Tribunal shall, after consultation with the parties, set the
date, time and place of any meeting or hearing and shall give the
parties reasonable notice.

24.3. If any party fails to appear at a meeting or hearing without

showing sufficient cause for such failure, the Tribunal may proceed
with the arbitration and may make the Award based on the
submissions and evidence before it.
24.4. Unless otherwise agreed by the parties, all meetings and
hearings shall be in private, and any recordings, transcripts, or
documents used in relation to the arbitral proceedings shall remain
confidential.

UNCITRAL
Article 17. General 3. If at an appropriate stage of the proceedings any party so
Provisions requests, the arbitral tribunal shall hold hearings for the
presentation of evidence by witnesses, including expert witnesses, or
for oral argument. In the absence of such a request, the arbitral
tribunal shall decide whether to hold such hearings or whether the
proceedings shall be conducted on the basis of documents and other
materials.
Article 18. Place of 1. If the parties have not previously agreed on the place of
Arbitration arbitration, the place of arbitration shall be determined by the
arbitral tribunal having regard to the circumstances of the case. The
award shall be deemed to have been made at the place of
arbitration.
2. The arbitral tribunal may meet at any location it considers
appropriate for deliberations. Unless otherwise agreed by the
parties, the arbitral tribunal may also meet at any location it
considers appropriate for any other purpose, including hearings.

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 Article 28. Hearings 1. In the event of an oral hearing, the arbitral tribunal shall give the
parties adequate advance notice of the date, time and place thereof.
2. Witnesses, including expert witnesses, may be heard under the
conditions and examined in the manner set by the arbitral tribunal.
3. Hearings shall be held in camera unless the parties agree
otherwise. The arbitral tribunal may require the retirement of any
witness or witnesses, including expert witnesses, during the
testimony of such other witnesses, except that a witness, including
an expert witness, who is a party to the arbitration shall not, in
principle, be asked to retire.
[…]

Article 30. Default 2. If a party, duly notified under these Rules, fails to appear at a
hearing, without showing sufficient cause for such failure, the
arbitral tribunal may proceed with the arbitration.
P 440
P 441

§7.04 CLOSURE OF THE PROCEEDINGS

Following the final hearings and posthearing written submissions, the tribunal will typically
declare formally that the proceedings are closed, even if not required by the applicable
rules to do so. The purpose of the notice of closure is to prevent the parties from making
further submissions and requests once each of them has had a reasonable opportunity to
present its case, (46) and to commence the period in which the tribunal must issue the
award.
None of the rules considered in this book contains a specific deadline by which a tribunal
should declare the proceedings closed. The ICC Rules merely require the tribunal to
declare the proceedings closed “[a]s soon as possible after [the later of] the last hearing
concerning matters to be decided in an award or the filing of the last authorized
submissions.” (47) The SIAC Rules similarly require the tribunal to declare the proceedings
closed “as promptly as possible” after consulting with the parties and determining that
they have no further submissions or evidence to offer. (48) The other rules are still less
specific, even if as a practical matter a well-organized, efficient and experienced tribunal
would likely endeavor to apply the standard articulated in the ICC rules. The ICDR, HKIAC,
and UNCITRAL Rules provide that the tribunal may declare the hearings closed once
satisfied that the record is complete or based upon the parties’ confirmation that they
have no further proof, witnesses or submissions to make. (49) The ICSID Rules are similarly
open-ended, stating only that the proceedings may be declared closed when the parties’
presentation of their respective cases is completed. (50) The SCC Rules require the tribunal
to declare the proceedings closed when it is satisfied that the parties have had a
reasonable opportunity to present their cases. (51)
Most of the rule regimes discussed in this book allow the tribunal to reopen the
proceedings at any time prior to issuing the award, either on the basis of a party’s
application or on the tribunal’s own motion (Table 7.4). (52) Under the ICC Rules, after
closure of the proceedings, “no further submissions or argument may be made or evidence
produced,” unless requested or authorized by the tribunal. (53) However, a party seeking to
reopen the proceedings must give strong reasons. The ICSID Rules make it clear that a
P 441 tribunal may only “exceptionally” reopen proceedings. The same standard is set forth in
P 442 the SCC and UNCITRAL Rules, which uses the phrase “exceptional circumstances”—and
only if the new evidence proffered by a party is of “such a nature as to constitute a decisive
factor” or there is a “vital need for clarification on certain specific points.” (54)
P 442
P 443 Table 7.4 Closure of Proceedings
AAA-ICDR
P 443 Article 27. Closure of 1. The arbitral tribunal may ask the parties if they have any further
P 444 Hearing submissions and upon receiving negative replies or if satisfied that
the record is complete, the tribunal may declare the arbitral hearing
closed.
2. The tribunal in its discretion, on its own motion, or upon
application of a party, may reopen the arbitral hearing at any time
before the award is made.

CIETAC
Not specifically addressed.
HKIAC

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 Article 31. Closure of 31.1. When it is satisfied that the parties have had a reasonable
Proceedings opportunity to present their case, whether in relation to the entire
proceedings or a discrete phase of the proceedings, the arbitral
tribunal shall declare the proceedings or the relevant phase of the
proceedings closed. Thereafter, no further submissions or arguments
may be made, or evidence produced in respect of the entire
proceedings or the discrete phase, as applicable, unless the arbitral
tribunal reopens the proceedings or the relevant phase of the
proceedings in accordance with Article 31.4.
31.2. Once the proceedings are declared closed, the arbitral tribunal
shall inform HKIAC and the parties of the anticipated date by which
an award will be communicated to the parties. The date of rendering
the award shall be no later than three months from the date when
the arbitral tribunal declares the entire proceedings or the relevant
phase of the proceedings closed, as applicable. This time limit may
be extended by agreement of the parties or, in appropriate
circumstances, by HKIAC.
31.3. Article 31.2 shall not apply to any arbitration conducted
pursuant to the Expedited Procedure under Article 42.
31.4. The arbitral tribunal may, if it considers it necessary, decide, on
its own initiative or upon application of a party, to reopen the
proceedings at any time before the award is made.

ICC
Article 27. Closing of As soon as possible after the last hearing concerning matters to be
the Proceedings and decided in an award or the filing of the last authorized submissions
Date for Submission concerning such matters, whichever is later, the arbitral tribunal
of Draft Awards shall:
(a) declare the proceedings closed with respect to the matters to
be decided in the award; and
(b) inform the Secretariat and the parties of the date by which it
expects to submit its draft award to the Court for approval
pursuant to Article 34.
After the proceedings are closed, no further submission or argument
may be made, or evidence produced, with respect to the matters to
be decided in the award, unless requested or authorized by the
arbitral tribunal.

ICSID
Arbitration Rules, (1) When the presentation of the case by the parties is completed,
Rule 38. Closure of the proceeding shall be declared closed.
the Proceeding
(2) Exceptionally, the Tribunal may, before the award has been
rendered, reopen the proceeding on the ground that new evidence is
forthcoming of such a nature as to constitute a decisive factor, or
that there is a vital need for clarification on certain specific points.

LCIA
Not specifically addressed.
SCC
Article 40. Close of The Arbitral Tribunal shall declare the proceedings closed when it is
Proceedings satisfied that the parties have had a reasonable opportunity to
present their cases. In exceptional circumstances, prior to the
making of the final award, the Arbitral Tribunal may reopen the
proceedings on its own motion, or on the application of a party.
SIAC
Rule 32. The Award 32.1. The Tribunal shall, as promptly as possible, after consulting
with the parties and upon being satisfied that the parties have no
further relevant and material evidence to produce or submission to
make with respect to the matters to be decided in the Award, declare
the proceedings closed. The Tribunal’s declaration that the
proceedings are closed shall be communicated to the parties and to
the Registrar.

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 32.2. The Tribunal may, on its own motion or upon application of a
party but before any Award is made, re-open the proceedings. The
Tribunal’s decision that the proceedings are to be re-opened shall be
communicated to the parties and to the Registrar. The Tribunal shall
close any re-opened proceedings in accordance with Rule 32.1.
UNCITRAL
Article 31. Closure of 1. The arbitral tribunal may inquire of the parties if they have any
Hearings further proof to offer or witnesses to be heard or submissions to
make and, if there are none, if may declare the hearings closed.
2. The arbitral tribunal may, if it considers it necessary owing to
exceptional circumstances, decide, on its own motion or upon
application of a party, to reopen the hearings at any time before the
award is made.

FURTHER READING
James M. Arnott, Presenting Evidence and Arguments in an International Arbitration, in
Arbitration Process (Dennis Campbell ed., Kluwer Law International 2002).
Jeffery Commission & Rahim Moloo, Procedural Issues in International InvestmentArbitration
(Oxford University Press 2018).
Yves Derains & Eric Schwartz, Guide to the ICC Rules of Arbitration (2d ed., Kluwer Law
International 2005).
Jason Fry et al., The Secretariat’s Guide to ICC Arbitration (ICC 2012).
Bernard Hanotian, The Conduct of the Hearings, in Leading Arbitrators’ Guide to
International Arbitration (Lawrence W. Newman & Richard D. Hill eds., Juris 2004).
Kaj Hober & Howard S. Sussman, Cross-Examination in International Arbitration (Oxford
University Press 2015).
Pierre Karrer, Introduction to International Arbitration Practice (Kluwer Law International
2014).
Frances P. Kao et al., Into the Hot Tub—A Practical Guide to Alternative Expert Witness
Procedures in International Arbitration, 44 Int’l Law. 1035 (Fall 2010).
Gino Lörcher, Improving Procedures for Oral and Written Witness Testimony, in Planning
Efficient Arbitration Proceedings. The Law Applicable in International Arbitration (Albert Jan
van den Berg ed., Kluwer Law International 1996).
Lawrence W. Newman, Cross-Examination in International Arbitration—Opportunities and
Challenges, in Leading Arbitrators’ Guide to International Arbitration (Lawrence W. Newman
& Richard D. Hill eds., Juris 2004).
P 444
P 445
Hilmar Raeschke-Kessler, Witness Conferencing, in Leading Arbitrators’ Guide to
International Arbitration (Lawrence W. Newman & Richard D. Hill eds., Juris 2004).
Mauro Rubino-Sammartano, Chapter Twenty-Five: The Evidence Stage and the Final Stage,
in International Arbitration Law (Kluwer Law and Taxation Publishers 1990).
Jeffery Waincymer, Procedure and Evidence in International Arbitration (Kluwer Law
International 2012).
P 445

References
1) SCC Rules, Arts. 29(1) and 29(2); UNCITRAL Rules, Arts. 20(1) and 21(1).
2) ICSID Rules, Rule 31.
3) LCIA Rules, Art. 15(1).
4) HKIAC Rules, Art. 4.5; LCIA Rules, Art. 15.2; SCC Rules, Art. 29(1); SIAC Rules, Rule 3(2);
UNCITRAL Rules, Art. 20(1).
5) HKIAC Rules, Art. 20; LCIA Rule, 15(7); SCC Rules, Art. 29(3); SIAC Rules, Rule 20.6;
UNCITRAL Rules, Art. 24.
6) ICC Commission Report: Controlling Time and Costs in Arbitration (2018) (ICC
Commission Report), Arts. 43-48.
7) See Chs 3 and 5 on commencement of the arbitration and the initial procedural
conference, respectively.
8) See Ch. 6 concerning procedures for marshalling the evidence.
9) ICSID Rules, Rule 31(1).
10) HKIAC Rules, Art. 20; SCC Rules, Art. 29(3); SIAC Rules, Rule 20.6; UNCITRAL Rules, Art. 24.
11) ICSID Rules, Rule 31(3).

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 12) See ICC Commission Report, supran. 6, at Art. 45.
13) Id., at Art. 15(8); LCIA Rules, Art. 15.8. The 2014 LCIA Rules make the point that the
tribunal may proceed with the arbitration and render an award without holding a
hearing.
14) HKIAC Rules, Art. 21; UNCITRAL Rules, Art. 25.
15) Experienced arbitral tribunals, particularly in large and complex cases, will often
provide the parties with specific questions that the tribunal wishes the parties to focus
on. Even where this is not required by a tribunal, it is good practice for the parties to
request directions from the tribunal regarding the format and content of the
posthearing submissions, including regarding the issues that are of particular interest
to the tribunal in light of the evidence presented and arguments made.
16) See ICDR Rules, Art. 26(1); HKIAC Rules, Art. 26; LCIA Rules, Art. 15.8.
17) SCC Rules, Art. 35(3).
18) ICSID Rules, Rule 42.
19) SIAC Rules, Rule 20.8; UNCITRAL Rules, Art. 30(1)(a).
20) SIAC Rules, Rule 20.9; UNCITRAL Rules, Art. 30(1)(b).
21) ICDR Rules, Art. 9; SCC Rules, Art. 30; SIAC Rules, Rule 20.5; UNCITRAL Rules, Art. 22. For
commentary on Art. 22 of the 2010 UNCITRAL Rules, see David D. Caron & Lee M. Caplan,
The UNCITRAL Arbitration Rules, A Commentary (2d ed., Oxford University Press 2013),
468-489.
22) CIETAC Rules, Art. 17.
23) HKIAC Rules, Art. 18.1.
24) LCIA Rules, Art. 22.1(i).
25) ICSID Rules, Art. 40.
26) Id. For commentary on the Art. 46 of the ICSID Convention and Art. 40 of the ICSID
Rules, Rule 40, see Christoph Schreuer, The ICSID Convention: A Commentary 731-756 (2d
ed., Cambridge 2009).
27) ICSID Rules, Art. 40(1).
28) ICC Rules, Art. 23(4).
29) ICSID Rules, Rule 29.
30) LCIA Rules, Art. 19.1.
31) HKIAC Rules, Art. 22.4; ICC Rules, Arts. 25(2) and 25(6); SCC Rules, Art. 32(1); SIAC Rules,
Rule 24.1; UNCITRAL Rules, Art. 17(3).
32) ICDR Rules, Art. 23(1); HKIAC Rules, Art. 22.4; ICC Rules, Art. 26(1); LCIA Rules, Art. 19.3;
SCC Rules, Arts. 25 and 32(2); SIAC Rules, Rule 24.2; UNCITRAL Rules, Art. 28.
33) SCC Rules, Art. 25; CIETAC Rules, Art. 37(1).
34) ICDR Rules, Art. 26; ICC Rules, Art. 26(2); SIAC Rules, Rule 24.3; UNCITRAL Rules, Art.
30(2).
35) ICSID Rules, Rule 42.
36) SCC Rules, Art. 35(3).
37) CIETAC Rules, Art. 39.
38) ICDR Rules, Art. 17.
39) CIETAC Rules, Arts. 7 and 36; HKIAC Rules, Art. 14.2; ICC Rules, Art. 18; LCIA Rules, Art.
16.3; SCC Rules, Art. 25(2); SIAC Rules, Rule 21.2; UNCITRAL Rules, Art. 18.
40) ICSID Convention, Executive Report, Arts. 62 and 63; ICSID Rules, Rule 13(3).
41) ICDR Rules, Art. 23(6); HKIAC Rules, Art. 22.7; LCIA Rules, Art. 19.4; SCC Rules, Art. 32(3);
SIAC Rules, Rule 24.4; UNCITRAL Rules, Art. 28(3).
42) ICDR Rules, Art. 23(6).
43) HKIAC Rules, Art. 22.7; UNCITRAL Rules, Art. 28(3).
44) ICC Rules, Art. 26(3); CIETAC Rules, Art. 38.
45) ICSID Rules, Rule 32.
46) Yves Derains & Eric Schwartz, Guide to the ICC Rules of Arbitration, 291 (2d ed., Kluwer
Law International 2005).
47) See ICC Rules, Art. 27. The phrase “as soon as possible after” did not appear in the
corollary provision in the 1998 ICC Rules, Art. 22. It was added because tribunals
proceeding under the 1998 Rules often failed to apply Art. 22 or did not apply it
properly. Jason Fry, et al., The Secretariat’s Guide to ICC Arbitration, 286 (ICC 2012)
(“Tardy application of the former Art. 22 defeated the purpose of the provision.”).
48) SIAC Rules, Rule 32.1.
49) ICDR Rules, Art. 27(1); HKIAC Rules, Art. 31.1; UNCITRAL Rules, Art. 31(1).
50) ICSID Rules, Rule 38(1).
51) SCC Rules, Art. 40.
52) ICDR Rules, Art. 27(2); HKIAC Rules, Art. 31.4; ICC Rules, Art. 27; ICSID Rules, Rule 38(2);
SCC Rules, Art. 40; SIAC Rules, Rule 32.2; UNCITRAL Rules, Art. 31(2).
53) ICC Rules, Art. 27.
54) SCC Rules, Art. 40; UNCITRAL Rules, Art. 31(2).

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Document information
Chapter 8: Costs and Fees
Publication For many cases, international arbitration can be a lower-cost alternative to litigation.
International arbitration generally offers more flexibility to tailor dispute resolution
The International Arbitration procedures to suit a given dispute, which can reduce substantially the parties’ costs. (1)
Rulebook: A Guide to Arbitral Also, the lack of any right to appeal an arbitration award can further reduce the costs of
Regimes finally resolving a dispute. (2) However, in international arbitration, the economies gained
through procedural flexibility and the finality of the award can be diminished, or even
wiped out, by the parties’ shared costs to compensate the arbitrators and the
Organization administering institution. These shared costs are in addition to the parties’ own costs of
preparing and presenting their claims and defenses, as in litigation, e.g., fees of attorneys,
International Centre for experts and translators, and costs associated with preparing for trial. In some cases, the
Dispute Resolution tribunal may allocate the winning party’s share of costs to the losing party. Thus, the total
cost to a party in a given arbitration can potentially exceed the cost of litigation,
depending on the applicable arbitration rules. In this chapter, we examine each of the
Organization arbitral regimes’ various approaches to: (i) filing and administrative fees; (ii) arbitrator
fees; (iii) arbitrators’ expenses and disbursements; (iii) advances on costs and non-
China International payment; and (iv) allocation of costs between the parties.
Economic and Trade P 447
Arbitration Commission P 448

§8.01 OVERVIEW OF COSTS AND FEES

Organization The various arbitration rules are generally consistent on costs, but the amounts involved
Hong Kong International differ considerably. The rules are organized around the same general concepts, with some
Arbitration Centre notable variations in their implementation.

[A] Institutional and Arbitrator Fees and Costs

Organization As an initial matter, the arbitral institutions, as well as the arbitrators, will need to be paid
International Court of for their services and reimbursed for any expenses incurred in fulfilling their duties. Where
Arbitration of the an arbitration institution is charged with administering the case, the institution will
International Chamber of routinely collect payments for advances on costs, with each party being required to pay an
Commerce equal proportion of the advance on costs in the first instance, although they are jointly and
severally liable for those costs. If one party fails to pay an advance on costs when required
to do so, the other party or parties will typically be invited to pay that share of the
advance in addition to its own. If the fees are not paid, as a general matter, it is quite
Organization possible that the arbitration will not proceed. In ad hoc arbitration, there are no
International Centre for institutional filing or administrative fees—although a fee will be required where an
Settlement of Investment institution is to serve as a default appointing authority—however, payments will still have
Disputes to be advanced to cover the arbitrators’ fees and costs. Set out below are the principles
that apply to the calculation of these fees and costs.

[B] Filing and Administrative Fees

Organization
All of the arbitral institutions that are covered in this book charge an initial, generally non-
London Court of refundable, filing fee or case registration fee, which is deducted from the claimant’s share
International Arbitration of the administrative fee charged for the case. The claimant must pay this initial fee when
it files the notice of arbitration, and typically the claim is not formally initiated until the
required fee is paid. This can be very important, since failure to pay the required initial fee
Organization may delay the commencement of the claim, and this, in turn, may potentially affect
whether the claim has been brought within the applicable limitations period or other
Arbitration Institute of the contractual time limits. The schedules of fees are summarized in Table 8.1.
Stockholm Chamber of
Commerce In addition to a case filing fee, most arbitral institutions will charge a case administration
fee, typically determined on an ad valorem basis, i.e., the amount of the fees is assessed
based on the value of the dispute. (3) Five of the institutions considered in this book—ICDR,
Organization HKIAC, CIETAC, ICC, SCC, and SIAC—calculate their administrative fees on the basis of the
P 448 value that the parties have placed on the case. The sum in dispute, aggregating the value
Singapore International P 449 of all claims and counterclaims, is considered along with the complexity of the case, to
Arbitration Centre assess an appropriate level of administrative fees. CIETAC, unusually, includes both
administrative fees and arbitrator compensation in a single schedule.
Other institutions adopt different approaches to the calculation of administrative fees.
Organization ICSID charges a flat fee, which is assessed annually during the pendency of the case. By
United Nations Commission contrast, the LCIA charges appropriate hourly rates for the time devoted to the case by
on International Trade Law administrative staff and the LCIA Court. UNCITRAL does not administer arbitrations and so
the question of a charge for general administrative fees does not arise, although parties to
UNCITRAL ad hoc arbitrations may have chosen an arbitral institution to act as the
Bibliographic reference P 449 appointing authority to put the tribunal in place, in which case the arbitral institution
P 450 concerned will charge a fee for this service.
'Chapter 8: Costs and Fees', P 450
in Arif Hyder Ali , Jane Wessel P 451 Table 8.1 Summary of Fees
, et al., The International

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Arbitration Rulebook: A Institution Filing / Administrative Arbitrators’ Appointment Conference
Guide to Arbitral Regimes, Registration Fee Fees of Arbitrators Room Rental
(© Kluwer Law International; Fee (when Acting
Kluwer Law International as Appointing
2019) pp. 447 - 536 Authority Only)
ICDR Based on Based on size Stated by the – Additional
size of of claim arbitrators payment is
claim prior to required,
(minimum selection subject to
USD 600 availability
non-
refundable
filing fee)
CIETAC RMB 10,000 Based on size Based on size – –
of claim of claim plus
special
compensation
negotiated
with
arbitrators
HKIAC HKD 8,000 Based on size Either: a – Additional
of claim maximum payment is
(minimum hourly rate of required,
HKD 19,800 HKD 6,500; or subject to
non- based on size availability
refundable of claim
filing fee)
ICC USD 5,000 Based on size Based on size USD 3,000 for –
of claim of claim UNCITRAL or
Other Ad Hoc
Proceedings
ICSID USD 25,000 USD 42,000 USD 3,000 per USD 10,000 (included in
initial, then day per Administrative
USD 42,000 arbitrator Fees if
annually proceeding is
held at the
Centre)
LCIA GBP 1,750 GBP 150-GBP Not to exceed GBP 1,250 –
250 per hour, GBP 450 per
depending on hour
personnel +
5% of fees of
Tribunal
SCC EUR 3,000 Based on size Based on size – –
of claim of claim
SIAC S$ 2,140 Based on size Based on size Singapore –
(Singapore of claim of claim parties: S$
parties); S$ 3,210 (one
2,000 (non- arbitrator), S$
Singapore 4,280 (two
parties) arbitrators), S$
5,350 (three
arbitrators)
(Singapore
parties); Non-
Singapore
parties: S$
3,000 (one
arbitrator), S$
4,000 (two
arbitrators), S$
5,000 (three
arbitrators)
UNCITRAL – – Negotiated – –
with
arbitrators
P 451
P 452
To illustrate the potential institutional fees that can be incurred under the various rules of
arbitration, the following table (Table 8.2) shows the likely fees that would be incurred in

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 administering arbitrations of three different values, with the resulting fees shown in US
dollars. (4) The LCIA administrative fees are based on the assumption that the
administrators spend the same number of hours on each case at fees ranging from GBP 150
per hour to GBP 250 per hour plus LCIA costs and a fee equal to 5% of the fees of the
arbitral tribunal (excluding expenses). (5)
Table 8.2 Administrative Fees
Institution Value of Claim (USD)
1.5 million 10 million 100 million
ICDR 18,975 18,975 42,250
CIETAC (including arbitrator fees) 35,249 107,747 538,247
HKIAC 14,013 29,853 50,955
ICC 27,275 57,515 100,975
ICSID (annually) (6) 67,000 67,000 67,000
LCIA 67,437 67,437 67,437
SCC 20,466 39,720 63,768
SIAC 15,656 30,992 95,000
UNCITRAL – – –

[C] Arbitrator Fees

Aside from collecting a filing and administrative fee, most arbitral institutions will request
an advance to cover the arbitral tribunal’s fees and costs. While the ad valorem method is
the most common basis for determining administrative fees, of the arbitral institutions
considered in this book, only the ICC, CIETAC, SCC and SIAC determine arbitrators’ fees on
that basis. The ICC and SCC both apply schedules of fees to determine a range of
appropriate remuneration for arbitrators based on the sum in dispute. (7) The ICC Rules
also provide that both the maximum and minimum rates may be varied in appropriate
circumstances. (8)
P 452
P 453
Another variation appears in the SCC Rules, which provide for the presiding arbitrator of a
three-member tribunal to be compensated at a higher rate. (9) In practice, the ICC
generally adopts a similar approach since it is the presiding arbitrator who usually deals
with the majority of procedural issues that arise during the course of the arbitration
proceedings, and will also be the tribunal member with the primary responsibility for
managing the master file or case record and drafting the arbitral award.
The other arbitral rules under consideration provide for arbitrators to be compensated
based on the time they devote to their work on the case. The ICDR, ICSID, and LCIA all
provide for arbitrators’ fees to be assessed on the basis of hourly or daily rates. (10) There
are important differences, however, between the approaches that these institutions take
to setting those rates. ICDR arbitrator fees are based either on an hourly or daily rate set
by the ICDR after consultation with the parties and the arbitrators and taking into account
the rate requested by the arbitrator as well as the size and complexity of the case. (11)
ICSID arbitrator fees are fixed at a current rate of USD 3,000 a day. (12) LCIA arbitrator fees
are also based on an agreed hourly rate, but the fee is capped at GBP 450 per hour, except
in unusual circumstances where a higher charge is warranted. (13)
HKIAC offers a combination of the two methods, allowing the parties to decide whether to
use an ad valorem method or to pay the arbitrators on an hourly basis. (14) If the parties do
not agree on a method for determining fees and expenses of the arbitral tribunal, the
default method is the hourly rate as set out in Schedule 2. (15) If the parties choose to pay
the arbitrators based on the amount in dispute, the arbitrator fee can range from 11% of
the amount in dispute to a maximum of HKD 12,574,000. (16) If the parties choose to pay
the arbitrators an hourly rate, HKIAC will determine the rate, which is capped at HKD 6,500
unless HKIAC deems otherwise. (17)
In addition to arbitration fees under its Fees Schedule, CIETAC reserves the right to charge
P 453 “special remuneration” for arbitrators, and this is usually based on a daily rate agreed
P 454 between CIETAC and the arbitrator, with no formal provision in the rules for this to be
agreed by the parties. (18) Where the parties are involved in nominating arbitrators,
however, the likely level of any additional fees a particular potential arbitrator will
command will inevitably be one of the factors that the parties will consider.
The UNCITRAL Rules provide merely that arbitrator fees should be reasonable, and that the
rates to be paid should be determined at the time of appointment or shortly thereafter.
(19) Unless an appointing authority is involved in selecting the tribunal, the fees in an ad
hoc arbitration will be a matter to be negotiated between the arbitrators and the parties.
An example of potential arbitrator fees appears below (Table 8.3). The fees shown are
based on the assumption that the total time devoted to the arbitration will be 550 hours.

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 This is based on an arbitration to be heard by a three-member tribunal, with a hearing
lasting one week (50 hours of hearing time per arbitrator); approximately 100 hours in
reading, preparation and general administrative time for the case per arbitrator; and a
total of 100 hours preparing the award. We have assumed that LCIA arbitrators will charge
the maximum rate of GBP 450 per hour, and in the case of the ICDR and UNCITRAL, we have
used a rate of USD 600. (20) In the case of the ICC and SCC, where the fee schedules provide
a range of fees, we have used the middle of that range. For CIETAC we followed its ad
valorem method (i.e., based on the amount in dispute) to calculate arbitrator fees, which
are included in the total administrative fees. For HKIAC, we calculated both based on a
rate of HKD 6,500 and separately using its ad valorem method. And for ICSID, we used its
flat rate of USD 3,000 per eight-hour day worked for each arbitrator.
P 454
P 455 Table 8.3 Potential Arbitrator Fees (3 Arbitrator Panel Working 550 Hours)
Institution Value of Claim (USD)
$1.5 million $10 million $100 million
ICDR 330,000 330,000 330,000
CIETAC (including administrative 35,249 107,747 538,247
fees)
HKIAC (Hourly Rate) 455,414 455,414 455,414
HKIAC (Sum in Dispute) 77,517 145,605 314,185
ICC (21) 150,333 339,851 643,751
ICSID 206,250 206,250 206,250
LCIA 307,370 307,370 307,370
SCC 95,575 216,121 405,405
SIAC 201,218 380,253 1,105,540
UNCITRAL 330,000 330,000 330,000
For illustrative purposes, the following table (Table 8.4) shows the likely total
administrative fees and arbitrator fees based on the assumptions set out above.
Table 8.4 Administrative and Arbitrator Fees (3 Arbitrator Panel Working 550 Hours)
Institution Value of Claim (USD)
$1.5 million $10 million $100 million
ICDR 348,975 348,975 372,250
CIETAC (including arbitrator fees) 35,249 107,747 538,247
HKIAC (Hourly Rate) 469,427 485,267 506,370
HKIAC (Sum in Dispute) 91,530 175,458 365,140
ICC 177,608 397,366 744,726
ICSID (plus $42,000 for each year 273,250 273,250 273,250
that the case is pending after the
first year)
LCIA 374,807 374,807 374,807
SCC 116,041 255,840 469,173
SIAC 216,874 411,245 1,200,540
UNCITRAL 330,000 330,000 330,000
A further example demonstrates the effect of the complexity of the case and the time
spent by the arbitrators on the level of administrative fees incurred under some of the
rules. Here, we have used the same amounts in dispute as in the earlier example but have
altered the assumption concerning the aggregate time spent by the three-member arbitral
tribunal to a total of 3,000 hours instead of the 550 hours in the earlier example.
Using these assumptions, the likely level of administrative fees is illustrated in Table 8.5.
P 455
P 456 Table 8.5 Administrative Fees (in a More Complex Case)
Value of Claim (USD)
Institution $1.5 million $10 million $100 million
ICDR 18,975 18,975 42,250
CIETAC (including 35,249 107,747 538,247
arbitrator fees)
HKIAC 14,013 29,853 50,955
ICC 27,275 57,515 100,975

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 Value of Claim (USD)
Institution $1.5 million $10 million $100 million
ICSID (annually) 67,000 67,000 67,000
LCIA (22) 135,897 135,897 135,897
SCC 20,466 39,720 63,768
SIAC 15,656 30,992 95,000
UNCITRAL – – –
The only values in this table that are different from those in Table 8.4 are those for the
LCIA, which includes 5% of the arbitral tribunal’s fees in the administrative fees. The other
institutions base their administrative fee either on the sum in dispute, or in the case of
ICSID, on a flat annual fee. Assuming 3,000 hours of arbitrator time, the comparison
between the arbitrator fees charged under the different arbitral regimes changes
dramatically as seen in Table 8.6.
Table 8.6 Potential Arbitrator Fees (3 Arbitrator Panel Working 3,000 Hours)
Value of Claim (USD)
Institution $1.5 million $10 million $100 million
ICDR 1,800,000 1,800,000 1,800,000
CIETAC (including 35,249 107,747 538,247
administrative fees)
HKIAC (Hourly Rate) 2,484,076 2,484,076 2,484,076
HKIAC (Sum in 77,517 145,605 314,185
Dispute)
ICC (23) 150,333 339,851 643,751
ICSID 1,125,000 1,125,000 1,125,000
LCIA 1,676,565 1,676,565 1,676,565
SCC (24) 95,575 216,121 405,405
SIAC 201,218 380,253 1,105,540
UNCITRAL 1,800,000 1,800,000 1,800,000

P 456 The arbitrators’ fees incurred under the rules of the ICDR, HKIAC (if using the hourly rate
P 457 rather than ad valorem method), ICSID, LCIA, and UNCITRAL are all dramatically
increased as a result of the additional time spent by the tribunal. We set out in the
following table (Table 8.7) the totals of administrative and arbitrator fees for the 3,000-
hour case.
Table 8.7 Administrative and Arbitrator Fees (3 Arbitrator Panel Working 3,000 Hours)
Value of Claim (USD)
Institution $1.5 million $10 million $100 million
ICDR 1,818,975 1,818,975 1,842,250
CIETAC 2015 35,249 107,7472 538,247
HKIAC (Hourly Rate) 2,498,089 2,513,929 2,535,031
HKIAC (Sum in Dispute) 77,517 145,605 314,185
ICC 177,608 397,366 744,726
ICSID (plus $42,000 for each year 1,192,000 1,192,000 1,192,000
that the case is pending after the
first year)
LCIA 1,812,462 1,812,462 1,812,462
SCC 116,041 255,840 469,173
SIAC 216,874 411,245 1,200,540
UNCITRAL 1,800,000 1,800,000 1,800,000
These comparisons demonstrate, at least based on the assumptions that we have used, the
significance of not only the likely value of any potential dispute but also the complexity
and time required to resolve it, as important factors bearing on the cost of arbitration
when deciding the applicable arbitration rules.

[D] Arbitrators’ Expenses

In addition to paying fees to the arbitrators sitting on a tribunal, the arbitration rules also

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 contemplate that the arbitrators will be compensated by the parties for expenses incurred
during the course of their duties, including travel, board, and lodging. Most institutions
take a flexible approach with regard to exactly what expenses are reimbursable, merely
setting out a standard of reasonableness in the circumstances.
There are exceptions to this flexible approach. For example, the ICSID Rules set out in
great detail the expenses for which an arbitrator may be reimbursed, including a
discussion of such specifics as the costs of transportation to and from an airport, the
reimbursable class of transportation, the cost of excess baggage and even the costs of rest
stops. (25) By contrast, the ICDR has established billing guidelines that contain very
P 457 specific instructions regarding those expenses that arbitrators are presumptively not
P 458 entitled to claim, including postage and secretarial services, and require that arbitrators
who expect reimbursement for such expenses to make an appropriate disclosure on their
panel biography. (26)

[E] Advances on Costs and Non-payment

Arbitration rules typically require parties to pay advances on the costs of the arbitration at
the beginning stages of the proceedings, such as when the tribunal is appointed or when
the request for arbitration is filed. Parties are often required to pay advances on those
claims that each asserts, including counterclaims. Generally, however, arbitration rules
order each side to cover half of all advances. If one party is unable to pay its share of
advances, the tribunal or some administrative body will usually invite the other party to
cover the remainder. But if any advances are not paid, the tribunal or the corresponding
administrative body may suspend or terminate the proceedings, usually without prejudice
for another submission at a later date.
Nevertheless, some courts and commentators have examined the issue that advances of
costs and their non-payment might present regarding due process. (27) For example, the
commonly employed requirement of advances on costs might result in a situation where,
through no fault of its own, a party has to bear the advances of an insolvent opposing party
to avoid suspension of the proceedings. Viewed from another perspective, rules on
advances on costs might also prevent parties from being able to file claims or
counterclaims if they are insolvent. This issue arose in the case Pirelli v. Licensing Projects,
(28) in which the Paris Court of Appeals held that the withdrawal of counterclaims by the
ICC due to one party’s insolvency denied that party access to justice. The French Supreme
Court, however, held that the appellate finding would apply only if those counterclaims
were inseparable from the main claim, and in this case, the appellate court did not make
such a finding. (29)
Another issue stemming from non-payment of advances on costs might be whether non-
payment is itself a breach of the arbitration agreement and if so, what type of breach it is
and what is the most appropriate remedy for the non-breaching party. These issues were
considered by the High Court of England and Wales in BDMS v. Rafael, (30) which decided
P 458 that failure to pay advances pursuant to an agreement to arbitrate under the ICC Rules
P 459 constituted a breach of the arbitration agreement but not a repudiatory one. (31) Thus,
the Court concluded that the arbitration agreement was not inoperative and the defendant
was therefore entitled to a stay of litigation under section 9 of the Arbitration Act of 1996.
(32)

[F] Cost Allocation

Unless the parties have made some other agreement, arbitration rules typically give the
power to tribunals to determine in their discretion the proportions of fees and costs of the
arbitration that should be paid and by which party. (33) Such an award of costs will form
part of the final award, although there is no reason why the arbitrators could not issue
interim awards or rulings on costs, even though this is infrequently done. However, any
mandatory provisions of the arbitration law of the seat of the arbitration are also relevant
and may restrict the discretion of the tribunal to make an award of costs as it would wish.
(34) Subject to these exceptions, where parties have reached an agreement that a
particular approach should be followed to the apportionment of costs, this will usually be
respected by the tribunal. (35)
A common approach to the awards of costs is that, subject to other applicable
considerations, the unsuccessful party should pay the reasonable costs of the arbitration
incurred by the successful party. The majority of the arbitration rules, however, leave the
final allocation of costs as a matter for the discretion of the tribunal, with a greater or
lesser emphasis placed on this principle. (36) For example, the CIETAC Rules specifically
P 459 provide that the tribunal may apportion costs so that “the losing party shall compensate
P 460 the winning party for the expenses reasonably incurred by it in pursuing the case.” (37)
The LCIA Rules refer to this as a “general principle,” but permit the tribunal to depart from
this principle if it considers that “in the circumstances the application of such a general
principle would be inappropriate.” (38) Other rules, such as the UNCITRAL Rules, state only
that the costs of the arbitration shall “be borne by the unsuccessful party,” as a general
principle, but vest ultimate discretion with the tribunal. (39) The ICDR and HKIAC Rules
merely require the tribunal to determine a reasonable apportionment of costs. (40)
Similarly, the ICC Rules leave the decision on an award of costs to the discretion of the
tribunal. (41)

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 In exercising its discretion regarding the apportionment of costs, a tribunal may take a
variety of factors into account aside from the outcome. Key amongst these is the conduct of
the parties during the course of the arbitration—whether they have interposed
exaggerated claims or flimsy arguments, and the extent to which they have facilitated or
impeded the arbitration process. (42) The LCIA Rules provide in Article 14 that at “all times
the parties shall do everything necessary in good faith for the fair, efficient and
expeditious conduct of the arbitration, including the Arbitral Tribunal’s discharge of its
general duties,” (43) and as such, set out a standard that a tribunal may take into
consideration in addressing the apportionment of costs and fees. (44)

§8.02 ICDR RULES

[A] Overview
The ICDR Rules charge an initial filing fee and a case administration fee based on the value
of the case. (45) The ICDR has two administrative fee schedules, both of which are based on
the amount in dispute. (46) The model is designed to allow either two standard payments,
or alternatively three payments that allow lower initial filing fees, but potentially higher
P 460 total administrative fees for cases that proceed to a hearing. (47) The ICDR will establish
P 461 the arbitrators’ daily or hourly rate for compensation “as soon as practicable after the
commencement of the arbitration … in consultation with the parties and all arbitrators.”
(48)
An ICDR tribunal has discretion to award or apportion fees and costs in appropriate
circumstances. (49) Such costs may include the fees and expenses of the arbitrators, costs
and assistance required by the tribunal, including tribunal-appointed experts, the fees
and expenses of the ICDR, reasonable costs for legal representation incurred by the
parties, costs incurred in connection with an application for interim or emergency relief,
(50) costs incurred in connection with a request for consolidation, and costs associated
with information exchange. (51) The relevant ICDR Rules are set out in Table 8.8.
P 461
P 462 Table 8.8 ICDR Costs
ICDR
Article 34 Costs The arbitral tribunal shall fix the costs of arbitration in its award(s).
The tribunal may allocate such costs among the parties if it
determines that allocation is reasonable, taking into account the
circumstances of the case.
Such costs may include:
(a) the fees and expenses of the arbitrators;
(b) the costs of assistance required by the tribunal, including its
experts;
(c) the fees and expenses of the Administrator;
(d) the reasonable legal and other costs incurred by the parties;
(e) any costs incurred in connection with a notice for interim or
emergency relief pursuant to Articles 6 or 24;
(f) any costs incurred in connection with a request for
consolidation pursuant to Article 8; and
(g) any costs associated with information exchange pursuant to
Article 21.

Article 35 Fees and 1. The fees and expenses of the arbitrators shall be reasonable in
Expenses of Arbitral amount, taking into account the time spent by the arbitrators, the
Tribunal size and complexity of the case, and any other relevant
circumstances.
2. As soon as practicable after the commencement of the
arbitration, the Administrator shall designate an appropriate daily
or hourly rate of compensation in consultation with the parties and
all arbitrators, taking into account the arbitrators’ stated rate of
compensation and the size and complexity of the case.
3. Any dispute regarding the fees and expenses of the arbitrators
shall be determined by the Administrator.

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 ICDR
Article 36 Deposits 1. The Administrator may request that the parties deposit
appropriate amounts as an advance for the costs referred to in
Article 34.
2. During the course of the arbitration, the Administrator may
request supplementary deposits from the parties.
3. If the deposits requested are not paid promptly and in full, the
Administrator shall so inform the parties in order that one or more
of them may make the required payment. If such payment is not
made, the arbitral tribunal may order the suspension or termination
of the proceedings. If the tribunal has not yet been appointed, the
Administrator may suspend or terminate the proceedings.
4. Failure of a party asserting a claim or counterclaim to pay the
required deposits shall be deemed a withdrawal of the claim or
counterclaim.
5. After the final award has been made, the Administrator shall
render an accounting to the parties of the deposits received and
return any unexpended balance to the parties.

[B] Filing and Administrative Fees

The administrative fees of the ICDR are based on the aggregate sum in dispute, taking into
consideration all claims and counterclaims in the arbitration, using identical fee
schedules. (52) Fees are subject to increase if the amount of a claim is modified after the
initial filing date, and fees are subject to decrease if the amount of a claim or
counterclaim is modified before the first hearing. (53)
Two alternative administrative fee options are available: the parties may choose between
P 462 the Standard Fee Schedule, where the fee is paid in two installments, or the Flexible Fee
P 463 Schedule, under which the fee is spread over three installments. (54) The Flexible Fee
Schedule involves a lower initial filing fee, but the total administrative fees for cases that
proceed to a hearing are potentially greater. (55)
Under both administrative fee schedules, the party filing a claim, counterclaim or
additional claim must pay an initial filing fee. In the case of the Standard Fee Schedule, a
“Final Fee” will be incurred when the case proceeds to its first hearing, and is refundable if
a first hearing does not occur, provided that the case administrator is given at least 24
hours’ notice of the cancellation. (56)
Under the Flexible Fee Schedule, a non-refundable “Proceed Fee” is payable before the
administration of the claim and the appointment of arbitrators can commence, followed
by a “Final Fee” payable in advance when the first hearing is scheduled. (57) The Final Fee
will be refunded at the conclusion of the case if no hearings have occurred, provided that
the case administrator is given at least 24 hours’ notice of the cancellation. (58) Both
schedules also include a charge for filing a “deficient” claim, i.e., a claim that does not
meet the requirements of the rules. (59) The Flexible Fee Schedule is only available for
claims above USD 150,000. (60)
Refunds of the initial filing fee are not available under the Flexible Fee Schedule. (61) But
they are available under the Standard Fee Schedule, on a sliding scale for sums above a
non-refundable minimum filing fee. (62) For all cases, the minimum non-refundable filing
fee is USD 600. (63) Subject to the minimum fee requirements, refunds are calculated as
follows: (1) 100% of the filing fee, above the minimum fee, is refunded if the case is settled
or withdrawn within five calendar days of filing; (2) 50% of the filing fee, above the
minimum fee, is refunded if the case is settled or withdrawn between six and thirty
calendar days of filing; (3) 25% of the filing fee, above the minimum fee, is refunded if the
case is settled or withdrawn between thirty-one and sixty calendar days of filing. There is
no refund once an arbitrator is appointed—regardless of whether the arbitrator is the only
P 463 arbitrator on the case. (64) And no refunds are granted on awarded cases. (65) The relevant
P 464 ICDR provisions are set out in Tables 8.9 and 8.10.
Table 8.9 ICDR Standard Fee Schedule(66)
Amount of Claim (USD) Initial Filing Fee Final Fee (USD)
(USD)
Up to $75,000 $1,000 $1,000
Above $75,000 to $150,000 $2,025 $1,450
Above $150,000 to $300,000 $3,050 $2,300
Above $300,000 to $500,000 $4,600 $4,025
Above $500,000 to $1,000,000 $5,750 $7,125
Above $1,000,000 to $10,000,000 $8,625 $10,350

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 Amount of Claim (USD) Initial Filing Fee Final Fee (USD)
(USD)
Above $10,000,000 Base fee of $12,650 $16,100
plus .015% of the
amount of claim
above $10,000,000
up to $100,000

Undetermined Monetary Claims $8,625 $10,350

Nonmonetary Claims $3,750 $2,875
Deficient Filing Fee $600
Additional Services An additional 10% of each fee for each
separately represented additional party
beyond 2, not to exceed 50% of the base fee
schedule unless there are more than 10
separately represented parties.
P 464
P 465 Table 8.10 ICDR Flexible Fee Schedule(67)
Amount of Claim (USD) Initial Filing Fee Proceed Fee (USD) Final Fee (USD)
(USD)
Above $150,000 to $1,900 $1,950 $2,300
$300,000
Above $300,000 to $2,300 $3,450 $4,025
$500,000
Above $500,000 to $2,875 $4,950 $7,125
$1,000,000
Above $1,000,000 to $4,600 $8,050 $10,350
$10,000,000
Above $10,000,000 $6,900 $11,500 plus .015% of $16,100
claim amount above
$10,000,000 up to
$100,000
Undetermined Monetary $4,600 $8,050 $10,350
Claims
Nonmonetary Claims $2,300 $2,600 $2,875
Deficient Filing Fee $600
Additional Party Fees An additional 10% of each fee for each separately
represented additional party beyond 2, not to exceed 50% of
the base fee schedule unless there are more than 10
separately represented parties.

[C] Arbitrator Fees

Under the ICDR Rules, the administrator is responsible for establishing an appropriate
daily or hourly rate for arbitrator compensation, based on consultations with the parties
and with each of the arbitrators, as soon as practicable after the commencement of the
arbitration. (68) In practice, this usually occurs as part of the process of the appointment
of an arbitrator. A potential arbitrator is advised to indicate on his or her resume the
hourly rate that he or she will charge. (69)
Arbitrator fees should be all-inclusive, with per diem fees to include a full day’s hearing of
7 hours. (70) Moreover, arbitrators are advised to state separately their charges for the
following activities: non-hearing time, time spent discussing the case with ICDR staff,
writing, telephoning, faxing, or emailing case management staff, and time spent by
personal administrative assistants; the ICDR recommends against billing for these items.
(71) Cancellation fees may be charged where less than 72 hours’ notice is provided of a
cancellation, but only in unusual circumstances. (72) If the arbitrator requires a
cancellation fee, it should be listed as a separate fee on the arbitrator’s panel biography.
(73)
ICDR arbitrators are not permitted to seek additional compensation for straightforward
post-award work, such as a request to modify an award to correct an arbitrator’s error in
the award. (74) Arbitrators, however, do receive additional compensation for any more
complex post-award work that is not the result of the arbitrator’s error. (75) The ICDR
advises arbitrators to complete all billing prior to issuance of the final award, to submit
periodic invoices throughout the arbitration, and to include clear and complete detailed
billing descriptions for services rendered. (76) Arbitrators’ fees are usually paid in
installments in advance.
P 465

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 P 465
P 466
[D] Arbitrators’ Expenses and Disbursements
The ICDR Billing Guidelines for Arbitrators include detailed provisions on expenses and
disbursements. Arbitrators are required to state specifically and separately if they wish to
be reimbursed for local telephone calls, local travel, stamps, and copying of materials or
other incidental expenses; the ICDR takes the position that such expenses are not
“typically” reimbursed. (77) In terms of expenses, the ICDR encourages arbitrators to submit
periodic invoices instead of a single final invoice at the end of a case. (78) Parties may be
required to pay advance deposits and, throughout the course of the arbitration, various
supplementary deposits for arbitrator expenses at the request of the ICDR, and these
deposits must be made “promptly” after requested by the ICDR. (79) Under the 2009 ICDR
Rules, parties are given 30 days to furnish payment on any advance or supplementary
deposits requested. (80) Under both versions of the rules, the tribunal may suspend or
terminate the proceedings for non-payment, and under the 2014 ICDR Rules, the ICDR may
do so if a tribunal has not yet been appointed. (81) The 2014 ICDR Rules also establish that
the failure of a party asserting a claim or a counterclaim to make the requested payment
“shall be deemed a withdrawal of the claim or counterclaim.” (82)

[E] Advances on Costs and Non-payment

Under the 2009 ICDR Rules, at the outset of the arbitration, in addition to the filing and
administrative fees described above, the ICDR may request the filing party to submit a
deposit to cover the fees and expenses of the arbitrators, the costs of assistance required
by the tribunal, and the fees and expenses of the administrator. (83) Subsequently, the
responding party, whether it has filed a counterclaim or not, may also be asked to share in
this advance on costs. (84) The 2014 ICDR Rules make no mention of the timing of requests
by the ICDR for advances to cover such expenses. (85)
If at any stage a party fails to pay its share of the requested advance, the other party will
be invited to pay the entire amount. If payment in full is not made, the arbitral tribunal
has the discretion to close the proceedings. (86) The 2014 revision to the Rules makes clear
P 466 that if a tribunal has not yet been appointed, the ICDR may suspend the proceedings.
P 467 (87) Parties that are financially unable to make these payments may apply for a hardship
deferral that is tied to United States poverty guidelines, or they may inquire about pro
bono arbitrator services. (88) In principle, a party who has paid the other party’s share may
sue to recover that share of the advance from the non-paying party. (89)

[F] Cost Allocation

Unlike many other arbitration rules, the ICDR Rules do not include a presumption that the
losing party should pay the costs of the successful party, although in practice arbitrators
often follow this approach unless the parties have reached some other agreement. Instead,
the ICDR Rules merely provide that the tribunal may apportion the costs of the arbitration
(including legal fees) among the parties if it determines that this would be reasonable in
the circumstances of the case. (90)
The ICDR Rules enumerate the costs of arbitration that may be subject to apportionment.
They are (i) the fees and expenses of the arbitrators, which will be provided by the case
administrator; (ii) the costs of assistance required by the arbitrators, including of any
experts; (iii) the fees and expenses of the administrator; (iv) the reasonable costs of legal
representation of the party deemed by the tribunal to be the prevailing party; (v) any costs
that may have been incurred in connection with an application for emergency or interim
relief; (91) (vi) any costs incurred in connection with a request for consolidation; and (vii)
any costs associated with information exchange. (92)

§8.03 CIETAC RULES

[A] Overview
CIETAC follows the ad valorem method for calculation of the administrative fee. An initial
case registration fee based on the amount of the claim, but in no case less than RMB
10,000 must be paid by the claimant. (93) CIETAC’s fee schedule includes both
P 467 administrative fees and arbitrator fees in a single schedule, but CIETAC also reserves the
P 468 right to charge “special remuneration” for arbitrators over and above that included in
the fee schedule. (94) Arbitrators may charge their reasonable expenses. (95) The Rules
contemplate that CIETAC may also charge the parties for “any other extra and reasonable
costs, including but not limited to … expenses of experts, appraisers, or interpreters
appointed by the arbitral tribunal.” (96) CIETAC tribunals follow the “loser pays” principle
in relation to awards of costs. (97)
CIETAC’s administrative fees and arbitrator fees are determined according to a single fee
schedule based on the amount in dispute. (98) CIETAC, however, reserves the right to
impose “special remuneration” for any non-Chinese arbitrator, and this is payable by the
party who made the appointment. (99) CIETAC employs an unusual sanction in
circumstances where a party fails to pay an advance on costs when required to do so, by
replacing the arbitrator appointed by that party with a substitute arbitrator chosen by the

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 Chairman of CIETAC. (100)
Where the parties have agreed to hold a hearing outside China, the parties must also pay
in advance any extra expenses involved, including travel and accommodation. If they fail
P 468 to do so, the hearing will be held in China instead. (101) The relevant CIETAC Rules are set
P 469 out in Table 8.11.
P 469
P 470 Table 8.11 CIETAC Costs
CIETAC
Article 49. Making of 3. The arbitral tribunal shall state in the award the claims, the facts
Award of the dispute, the reasons on which the award is based, the result of
the award, the allocation of the arbitration costs, and the date on
which and the place at which the award is made. The facts of the
dispute and the reasons on which the award is based may not be
stated in the award if the parties have so agreed, or if the award is
made in accordance with the terms of a settlement agreement
between the parties. The arbitral tribunal has the power to fix in the
award the specific time period for the parties to perform the award
and the liabilities for failure to do so within the specified time period.
Article 52. Allocation 1. The arbitral tribunal has the power to determine in the arbitral
of Fees award the arbitration fees and other expenses to be paid by the
parties to CIETAC.
2. The arbitral tribunal has the power to decide in the arbitral award,
having regard to the circumstances of the case, that the losing party
shall compensate the winning party for the expenses reasonably
incurred by it in pursuing the case. In deciding whether or not the
winning party’s expenses incurred in pursuing the case are
reasonable, the arbitral tribunal shall take into consideration
various factors such as the outcome and complexity of the case, the
workload of the winning party and/or its representative(s), the
amount in dispute, etc.

Article 82. 1. Apart from the arbitration fees charged in accordance with its
Arbitration Fees and Arbitration Fee Schedule, CIETAC may charge the parties for any
Costs other additional and reasonable actual costs, including but not
limited to arbitrators’ special remuneration, their travel and
accommodation expenses incurred in dealing with the case,
engagement fees of stenographers, as well as the costs and
expenses of experts, appraisers or interpreters appointed by the
arbitral tribunal. The Arbitration Court shall, after hearing from the
arbitrator and the party concerned, determine the arbitrator’s
special remuneration with reference to the standards of arbitrators’
fees and expenses set forth in the CIETAC Arbitration Fee Schedule III
(Appendix II).
2. Where a party has nominated an arbitrator but fails to advance a
deposit for such actual costs as the special remuneration, travel and
accommodation expenses of the nominated arbitrator within the
time period specified by CIETAC, the party shall be deemed not to
have nominated the arbitrator.

3. Where the parties have agreed to hold an oral hearing at a place

other than the domicile of CIETAC or its relevant sub-
commission/arbitration center, they shall advance a deposit for the
actual costs such as travel and accommodation expenses incurred
thereby. In the event that the parties fail to do so within the time
period specified by CIETAC, the oral hearing shall be held at the
domicile of CIETAC or its relevant sub-commission/arbitration
center.
4. Where the parties have agreed to use two or more than two
languages as the languages of arbitration, or where the parties have
agreed on a three-arbitrator tribunal in a case where the Summary
Procedure shall apply in accordance with Article 56 of these Rules,
CIETAC may charge the parties for any additional and reasonable
costs.

[B] Administrative Fees

CIETAC has an administrative fee schedule specifically dealing with international or
foreign-related disputes and disputes related to the Hong Kong and Macao Special
Administrative Regions and Taiwan. (102) A different fee schedule, which we do not discuss
in this book, applies to Chinese domestic arbitrations. (103) The fees raised in accordance
with this schedule dealing with international arbitration cases are intended to cover both

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 the administrative costs of the arbitration and the arbitrators’ fees. (104) Under this
schedule, a minimum registration fee of RMB 10,000, depending on the amount in dispute,
must be paid upon the filing of the claim, and this includes “the expenses for examining
the application for arbitration, initiating the arbitration proceedings, computerizing
management and filing the documents.” (105) The arbitration fee schedule for international
arbitration cases at CIETAC is as follows (Table 8.12).
P 470
P 471 Table 8.12 CIETAC Fee Schedule
Amount of Claim (RMB) Amount of Fee (RMB)
1,000,000 Yuan or less 4% of the Claimed Amount, minimum 10,000
Yuan
1,000,001 Yuan to 2,000,000 Yuan 40,000 Yuan plus 3.5% of the amount above
1,000,000 Yuan
2,000,001 Yuan to 5,000,000 Yuan 75,000 Yuan plus 2.5% of the amount above
2,000,000 Yuan
5,000,001 Yuan to 10,000,000 Yuan 150,000 Yuan plus 1.5% of the amount above
5,000,000 Yuan.
10,000,001 Yuan to 50,000,000 Yuan 225,000 Yuan plus 1% of the amount above
10,000,000 Yuan.
50,000,001 Yuan to 100,000,000 Yuan 625,000 Yuan plus 0.5% of the amount
above 50,000,000 Yuan.
100,000,001 Yuan to 500,000,000 Yuan 875,000 Yuan plus 0.48% of the amount
above 100,000,000 Yuan.
500,000,001 Yuan to 1,000,000,000 Yuan 2,795,000 Yuan plus 0.47% of the amount
above 500,000,000 Yuan.
1,000,000,001 Yuan to 2,000,000,000 Yuan 5,145,000 Yuan plus 0.46% of the amount
above 1,000,000,000 Yuan.
2,000,000,001 Yuan or more 9,745,000 Yuan plus 0.45% of the amount
above 2,000,000,000 Yuan, maximum
15,000,000 Yuan.

[C] Arbitrator Fees

CIETAC does not have a separate schedule of arbitrators’ fees. (106) Instead, as stated
above, the administrative fee is designed to include those fees. CIETAC, however, retains
the power to assess “arbitrators’ special remuneration” in addition to those fees. (107) This
power is exercised in particular in circumstances where non-Chinese arbitrators are
appointed, as their fees are frequently greater than their Chinese counterparts. This system
essentially leaves control of the extent of arbitrators’ fees in the hands of the parties, since
it will be their choice whether to appoint a more costly non-Chinese arbitrator to the case.

[D] Arbitrators’ Costs and Disbursements

CIETAC reserves the power to charge to the parties the reasonable expenses incurred by
the arbitrators and by CIETAC, including travel and accommodation expenses incurred in
dealing with a case and the costs and expenses of any experts, appraisers, and
interpreters appointed by the arbitral tribunal. (108) As noted in the next section, CIETAC
requires the parties to pay an advance deposit for arbitrators’ expenses and
disbursements, (109) and the CIETAC Rules include a unique provision dealing with non-
payment of the advance.
P 471
P 472
Furthermore, if the parties to a CIETAC arbitration wish to hold a hearing outside China,
they must pay the extra expenses involved, including travel and accommodation, as a
deposit in advance. If they fail to pay the advance deposit when required to do so, the
hearing outside China will not be permitted to go ahead; instead, the hearing will be held
at “the domicile of CIETAC or its relevant sub-commission/center.” (110) Lastly, where the
parties have agreed to use two or more languages as the languages of arbitration, or where
the parties have agreed on a three-arbitrator tribunal in certain types of cases, CIETAC may
charge the parties for extra and reasonable costs. (111)

[E] Advances on Costs and Non-payment

When submitting a Request for Arbitration, the requesting party must pay CIETAC in
advance the applicable arbitration fee specified in its Arbitration Fee Schedule. (112) If the
claimant fails to pay such an advance, it will be deemed not to have submitted a Request
for Arbitration and the Request for Arbitration will not be kept on file. (113) The same is
true for respondents who wish to file a counterclaim, and they must do so “within a
specified time period,” otherwise the respondent is deemed not to have filed a
counterclaim. (114)

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 Furthermore, CIETAC requires the parties to pay an advance deposit for any arbitrators’
expenses such as travel and accommodation and disbursements. (115) In circumstances
where a party fails to pay an advance deposit of an arbitrator’s expenses when it is due,
“the party shall be deemed not to have appointed the arbitrator.” (116) In such a case, the
Chairman of the CIETAC may appoint an alternative arbitrator. (117)

[F] Cost Allocation

A CIETAC arbitral tribunal has the discretion to apportion costs in the final arbitral award,
applying the general principle that the loser will pay the prevailing party’s costs, adapted
according to the circumstances of the case. (118) The costs to be awarded in a CIETAC final
P 472 award may include “expenses reasonably incurred” by the parties. In deciding upon this,
P 473 the arbitral tribunal must consider such factors as the outcome or complexity of the
case, the workload of the winning party, and the amount in dispute. (119)

§8.04 HKIAC RULES

[A] Overview
The HKIAC Rules provide parties with flexibility regarding costs and fees for their
arbitration. The Claimant must pay a Registration Fee of HKD 8,000 simultaneously with the
submission of the Notice of Arbitration. (120) Failure to pay this non-refundable fee will
lead to the Notice of Arbitration not having been validly submitted and the arbitration will
be deemed to have not commenced without prejudice to the Claimant’s right to submit the
same claim at a later date. (121)
The costs of an HKIAC arbitration include: the administrative fees, the costs, fees, and
expenses of the tribunal; costs of experts advice, reasonable costs of witness and expert
travel; as well as the potential cost of a tribunal secretary, should the parties and the
tribunal decide one is needed. (122) If the tribunal appoints a secretary, the secretary’s
fees and expenses are to be charged separately with an hourly rate capped at HKD 2,500.
(123) The relevant HKIAC Rules are reproduced in Table 8.13.
P 473
P 474 Table 8.13 HKIAC Costs
HKIAC
PPP480
478
481
474
475
476
479
477 Article 4. Notice 4.4. The Notice of Arbitration shall be accompanied by payment to HKIAC
PPP480
482
478
481
475
476
479
477 of Arbitration of the Registration Fee as required by Schedule 1. […]
4.6. If the Notice of Arbitration does not comply with these Rules or if the
Registration Fee is not paid, HKIAC may request the Claimant to remedy
the defect within an appropriate time limit. If the Claimant complies with
such directions within the applicable time limit, the arbitration shall be
deemed to have commenced under Article 4.2 on the date the initial
version was received by HKIAC. If the Claimant fails to comply, the
arbitration shall be deemed not to have commenced under Article 4.2
without prejudice to the Claimant’s right to submit the same claim at a
later date in a subsequent Notice of Arbitration.

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 HKIAC
Article 10. Fees 10.1. The fees and expenses of the arbitral tribunal shall be determined
and Expenses of according to either:
the Arbitral
Tribunal (a) an hourly rate in accordance with Schedule 2; or
(b) the schedule of fees based on the sum in dispute in accordance with
Schedule 3.
The parties shall agree the method for determining the fees and expenses
of the arbitral tribunal, and shall inform HKIAC of the applicable method
within 30 days of the date on which the Respondent receives the Notice of
Arbitration. If the parties fail to agree on the applicable method, the
arbitral tribunal’s fees and expenses shall be determined in accordance
with Schedule 2.
10.2. Where the fees of the arbitral tribunal are to be determined in
accordance with Schedule 2,
(a) the applicable rate for each co-arbitrator shall be the rate agreed
between that co-arbitrator and the designating party;
(b) the applicable rate for a sole or presiding arbitrator designated by
the parties or the co-arbitrators, as applicable, shall be the rate
agreed between that arbitrator and the parties, subject to
paragraphs 9.3 to 9.5 of Schedule 2. Where the rate of an arbitrator
is not agreed in accordance with Article 10.2(a) or (b), or where
HKIAC appoints an arbitrator, HKIAC shall determine the rate of
that arbitrator.
10.3. Where the fees of the arbitral tribunal are determined in accordance
with Schedule 3, HKIAC shall fix the fees in accordance with that
Schedule and the following rules:
(a) the fees of the arbitral tribunal shall be reasonable in amount,
taking into account the amount in dispute, the complexity of the
subject-matter, the time spent by the arbitral tribunal and any
secretary appointed under Article 13.4, and any other
circumstances of the case, including, but not limited to, the
discontinuation of the arbitration in case of settlement or for any
other reason;
(b) where a case is referred to three arbitrators, HKIAC, at its discretion,
shall have the right to increase the total fees up to a maximum
which shall normally not exceed three times the fees of a sole
arbitrator;
(c) the arbitral tribunal’s fees may exceed the amounts calculated in
accordance with Schedule 3 where, in the opinion of HKIAC, there
are exceptional circumstances, which include, but are not limited
to, the parties conducting the arbitration in a manner not
reasonably contemplated at the time when the arbitral tribunal
was constituted.

Article 13. 13.4 The arbitral tribunal may, after consulting with the parties, appoint a
General secretary. The secretary shall remain at all times impartial and
Provisions independent of the parties and shall disclose any circumstances likely to
give rise to justifiable doubts as to his or her impartiality or
independence prior to his or her appointment. A secretary, once
appointed and throughout the arbitration, shall disclose without delay
any such circumstances to the parties unless they have already been
informed by him or her of these circumstances.
Article 18. 18.2. HKIAC may adjust its Administrative Fees and the arbitral tribunal’s
Amendments to fees (where appropriate) if a party amends its claim or defence.
the Claim or
Defence
Article 27. 27.14 The revocation of the confirmation or appointment of an arbitrator
Joinder of pursuant to Article 27.13 is without prejudice to:
Additional
Parties […]
(b) his or her entitlement to be paid his or her fees and expenses
subject to Schedule 2 or 3 as applicable; and
[…]

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 HKIAC
Article 28. 28.9 The revocation of the confirmation or appointment of an arbitrator
Consolidation of pursuant to Article 28.8 is without prejudice to:
Arbitrations
[…]
(b) his or her entitlement to be paid his or her fees and expenses
subject to Schedule 2 or 3 as applicable; and
[…]

Article 34. Costs 34.1. The arbitral tribunal shall determine the costs of the arbitration in
of the one or more orders or awards. The term “costs of the arbitration”
Arbitration includes only:
(a) the fees of the arbitral tribunal, as determined in accordance with
Article 10;
(b) the reasonable travel and other expenses incurred by the arbitral
tribunal;
(c) the reasonable costs of expert advice and of other assistance
required by the arbitral tribunal, including fees and expenses of any
tribunal secretary;
(d) the reasonable costs for legal representation and other assistance,
including fees and expenses of any witnesses and experts, if such
costs were claimed during the arbitration; and
(e) the Registration Fee and Administrative Fees payable to HKIAC in
accordance with Schedule 1, and any expenses payable to HKIAC.

34.2. With respect to the costs of legal representation and other

assistance referred to in Article 34.1(d), the arbitral tribunal, taking into
account the circumstances of the case, may direct that the recoverable
costs of the arbitration, or any part of the arbitration, shall be limited to
a specified amount.
34.3. The arbitral tribunal may apportion all or part of the costs of the
arbitration referred to in Article 34.1 between the parties if it determines
that apportionment is reasonable, taking into account the circumstances
of the case.
34.4. The arbitral tribunal may take into account any third party funding
arrangement in determining all or part of the costs of the arbitration
referred to in Article 34.1.
34.5. Where arbitrations are consolidated pursuant to Article 28, the
arbitral tribunal in the consolidated arbitration shall determine the costs
of the arbitration in accordance with Articles 34.2 to 34.4. Such costs
include, but are not limited to, the fees of any arbitrator designated,
confirmed or appointed and any other costs incurred in an arbitration
that was subsequently consolidated into another arbitration.
34.6. When the arbitral tribunal issues an order for the termination of the
arbitration or makes an award on agreed terms, it shall determine the
costs of the arbitration referred to in Article 34.1 (to the extent not
already determined) and may apportion all or part of such costs, in the
text of that order or award.

Article 41. 41.1. As soon as practicable after receipt of the Notice of Arbitration by
Deposits for the Respondent, HKIAC shall, in principle, request the Claimant and the
Costs Respondent each to deposit with HKIAC an equal amount as an advance
for the costs referred to in Article 34.1(a), (b), (c) and (e). HKIAC shall
provide a copy of such request to the arbitral tribunal.
41.2. Where the Respondent submits a counterclaim or cross-claim, or it
otherwise appears appropriate in the circumstances, HKIAC may request
separate deposits.
41.3. During the course of the arbitration, HKIAC may request the parties
to make supplementary deposits with HKIAC. HKIAC shall provide a copy
of such request to the arbitral tribunal.
41.4. If the required deposits are not paid in full to HKIAC within 30 days
after receipt of the request, HKIAC shall so inform the parties in order
that one or another of them may make the required payment. If such
payment is not made, the arbitral tribunal may order the suspension or
termination of the arbitration or continue with the arbitration on such
basis and in respect of such claim or counterclaim as the arbitral
tribunal considers fit.

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 HKIAC
41.5. If a party pays the required deposits on behalf of another party, the
arbitral tribunal may, at the request of the paying party, make an award
for reimbursement of the payment.
41.6. When releasing the final award, HKIAC shall render an account to
the parties of the deposits received by HKIAC. Any unexpended balance
shall be returned to the parties in the shares in which it was paid by the
parties to HKIAC, or as otherwise instructed by the arbitral tribunal.
41.7. HKIAC shall place the deposits made by the parties in an account at
a reputable licensed deposit-taking institution. In selecting the account,
HKIAC shall have due regard to the possible need to make the deposited
funds available immediately.

Schedule 1. 1. Registration Fee

Registration
and 1.1. When submitting a Notice of Arbitration, the Claimant shall pay a
Administrative Registration Fee in the amount set by HKIAC, as stated on HKIAC’s
Fees website on the date the Notice of Arbitration is submitted.
1.2. If the Claimant fails to pay the Registration Fee, HKIAC shall not
proceed with the arbitration subject to Article 4.6 of the Rules.
1.3. The Registration Fee is not refundable save in exceptional
circumstances as determined by HKIAC in its sole discretion.
2. HKIAC’s Administrative Fees
[…]
2.2. Claims and counterclaims are added for the determination of the
amount in dispute. The same rule applies to any set-off defence or
cross-claim, unless the arbitral tribunal, after consulting with the
parties, concludes that such set-off defence or cross-claim will not
require significant additional work.
2.3. An interest claim shall not be taken into account for the
calculation of the amount in dispute, except where HKIAC
determines that doing so would be appropriate.
2.4. Where there are alternative claims, only the principal claim shall
be taken into account for the calculation of the amount in dispute,
except where HKIAC considers it appropriate to take into account
the amount of any alternative claim.
2.5. Pursuant to Articles 18.2, 27.15, 28.10 or 30.2 or where in the opinion
of HKIAC there are exceptional circumstances, HKIAC may depart
from the table in paragraph 2.1 when calculating its Administrative
Fees.
2.6. If the amount in dispute is not quantified, HKIAC’s Administrative
Fees shall be fixed by HKIAC, taking into account the circumstances
of the case.

2.7. Amounts in currencies other than Hong Kong Dollars shall be

converted into Hong Kong Dollars at the rate of exchange
published by HSBC Bank on the date the Notice of Arbitration is
submitted or at the time any new claim, set-off defence, cross-
claim or amendment to a claim or defence is filed.
2.8. The parties are jointly and severally liable for HKIAC’s
Administrative Fees.

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 HKIAC
Schedule 2. 1. Scope of Application and Interpretation
Arbitral
Tribunal’s Fees, 1.1. Subject to any variations agreed by all parties or changes HKIAC
Expenses, considers appropriate, this Schedule shall apply to arbitrations in
Terms and which the arbitral tribunal’s fees and expenses are to be determined
Conditions— in accordance with Article 10.1(a) of the Rules and to the
Based on Hourly appointment of an emergency arbitrator under Schedule 4.
Rates 1.2. HKIAC may interpret the terms of this Schedule as well as the scope
of application of the Schedule as it considers appropriate.
1.3. This Schedule is supplemented by the Practice Note on Costs of
Arbitration Based on Schedule 2 and Hourly Rates in force on the
date the Notice of Arbitration is submitted.
2. Payments to Arbitral Tribunal
2.1. Payments to the arbitral tribunal shall generally be made by HKIAC
from funds deposited by the parties in accordance with Article 41 of
the Rules. HKIAC may direct the parties, in such proportions as it
considers appropriate, to make one or more interim or final
payments to the arbitral tribunal.
2.2. If insufficient funds are held at the time a payment is required, the
invoice for the payment may be submitted to the parties for
settlement by them direct.
2.3. Payments to the arbitral tribunal shall be made in Hong Kong
Dollars unless the tribunal directs otherwise.
2.4. The parties are jointly and severally liable for the fees and expenses
of an arbitrator, irrespective of which party appointed the
arbitrator.
3. Arbitral Tribunal’s Expenses
3.1. The arbitral tribunal shall be reimbursed for its reasonable
expenses in accordance with the Practice Note referred to at
paragraph 1.3.
3.2. The expenses of the arbitral tribunal shall not be included in the
arbitral tribunal’s fees charged by reference to hourly rates under
paragraph 9 of this Schedule.

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 HKIAC
4. Administrative Expenses
The parties shall be responsible for expenses reasonably incurred and
relating to administrative and support services engaged for the purposes
of the arbitration, including, but not limited to, the cost of hearing
rooms, interpreters and transcription services. Such expenses may be
paid directly from the deposits referred to in Article 41 of the Rules as and
when they are incurred.
5. Fees and Expenses Payable to Replaced Arbitrators
Where an arbitrator is replaced pursuant to Articles 12, 27, 28 or 42.3 of
the Rules, HKIAC shall decide the amount of fees and expenses to be paid
for the replaced arbitrator’s services (if any), having taken into account
the circumstances of the case, including, but not limited to, the
applicable method for determining the arbitrator’s fees, work done by
the arbitrator in connection with the arbitration, and the complexity of
the subject-matter.
6. Fees and Expenses of Tribunal Secretary
Where the arbitral tribunal appoints a secretary in accordance with
Article 13.4 of the Rules, such secretary shall be remunerated at a rate
which shall not exceed the rate set by HKIAC, as stated on HKIAC’s
website on the date the Notice of Arbitration is submitted. The secretary’s
fees and expenses shall be charged separately. The arbitral tribunal shall
determine the total fees and expenses of a secretary under Article 34.1(c)
of the Rules.
7. Lien on Award
HKIAC and the arbitral tribunal shall have a lien over any awards issued
by the arbitral tribunal to secure the payment of their outstanding fees
and expenses, and may accordingly refuse to communicate any such
awards to the parties until all such fees and expenses have been paid in
full, whether jointly or by one or other of the parties.
8. Governing Law
The terms of this Schedule and any non-contractual obligation arising
out of or in connection with them shall be governed by and construed in
accordance with Hong Kong law.
9. Arbitral Tribunal’s Fee Rates
9.1. An arbitrator shall be remunerated at an hourly rate for all work
reasonably carried out in connection with the arbitration.
9.2. Subject to paragraphs 9.3 to 9.5 of this Schedule, the rate referred
to in paragraph 9.1 is to be agreed in accordance with Article 10.2 of
the Rules. An arbitrator shall agree upon fee rates in accordance
with paragraph 9 of this Schedule prior to his or her confirmation or
appointment by HKIAC.
9.3. An arbitrator’s agreed hourly rate shall not exceed a rate set by
HKIAC, as stated on HKIAC’s website on the date the Notice of
Arbitration is submitted.

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 HKIAC

9.4. Subject to paragraph 9.3, an arbitrator may review and increase his
or her agreed hourly rate by no more than 10% on each anniversary
of his or her confirmation or appointment.
9.5. Higher rates may be charged if expressly agreed by all parties to
the arbitration or if HKIAC so determines in exceptional
circumstances.
9.6. If an arbitrator is required to travel for the purposes of fulfilling
obligations as an arbitrator, the arbitrator shall be entitled to
charge and to be reimbursed for:
(a) time spent travelling but not working at a rate of 50% of the
agreed hourly rate; or
(b) time spent working whilst travelling at the full agreed hourly
rate.
10. Cancellation Fees
10.1. All hearings booked shall be paid for, subject to the following
conditions:
(a) if a booking is cancelled at the request of the arbitral
tribunal, it will not be charged;
(b) if a booking is cancelled at the request of any party less than
30 days before the first day booked it shall be paid at a daily
rate of 75% of eight times the applicable hourly rate;
(c) if a booking is cancelled at the request of any party less than
60 days but more than 30 days before the first day booked it
shall be paid at a daily rate of 50% of eight times the
applicable hourly rate;
(d) if a booking is cancelled at the request of any party more
than 60 days before the first day booked it will not be
charged; and
(e) in all cases referred to above, if an arbitrator has spent time
on the case during the day(s) booked, he or she shall be paid
based on (i) the hourly rate pursuant to paragraph 9; or (ii)
the cancellation fee pursuant to paragraph 10.1(b) to (d),
whichever is higher.
10.2. Where hearing days are cancelled or postponed other than by
agreement of all parties or request of the arbitral tribunal, this may
be taken into account when considering any subsequent
apportionment of costs.

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 HKIAC
Schedule 3. 1. Scope of Application and Interpretation
Arbitral
Tribunal’s Fees, 1.1. Subject to paragraph 1.2 below and any variations agreed by all
Expenses, parties or changes HKIAC considers appropriate, this Schedule
Terms and applies to arbitrations in which the arbitral tribunal’s fees and
Conditions— expenses are to be determined in accordance with Article 10.1(b) of
Based on Sum in the Rules.
Dispute 1.2. This Schedule shall not apply to the appointment of an emergency
arbitrator under Schedule 4.
1.3. HKIAC may interpret the terms of this Schedule as well as the scope
of application of the Schedule as it considers appropriate.
1.4. This Schedule is supplemented by the Practice Note on Costs of
Arbitration Based on Schedule 3 and the Sum in Dispute in force on
the date the Notice of Arbitration is submitted.
2. Payments to Arbitral Tribunal
2.1. Payments to the arbitral tribunal shall generally be made by HKIAC
from funds deposited by the parties in accordance with Article 41 of
the Rules. HKIAC may direct the parties, in such proportions as it
considers appropriate, to make one or more interim or final
payments to the arbitral tribunal.
2.2. If insufficient funds are held at the time a payment is required, the
invoice for the payment may be submitted to the parties for
settlement by them direct.
2.3. Payments to the arbitral tribunal shall be made in Hong Kong
Dollars unless the tribunal directs otherwise.
2.4. The parties are jointly and severally liable for the fees and expenses
of an arbitrator, irrespective of which party appointed the
arbitrator.
3. Arbitral Tribunal’s Expenses
3.1. The arbitral tribunal shall be reimbursed for its reasonable
expenses in accordance with the Practice Note referred to at
paragraph 1.4.
3.2. The expenses of the arbitral tribunal shall not be included in the
determination of fees charged in accordance with paragraph 6 of
this Schedule.
4. Administrative Expenses
The parties shall be responsible for expenses reasonably incurred and
relating to administrative and support services engaged for the purposes
of the arbitration, including, but not limited to, the cost of hearing
rooms, interpreters and transcription services. Such expenses may be
paid directly from the deposits referred to in Article 41 of the Rules as and
when they are incurred.

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 HKIAC
5. Fees and Expenses Payable to Replaced Arbitrators
Where an arbitrator is replaced pursuant to Articles 12, 27, 28 or 42.3 of
the Rules, HKIAC shall decide the amount of fees and expenses to be paid
for the replaced arbitrator’s services (if any), having taken into account
the circumstances of the case, including, but not limited to, the
applicable method for determining the arbitrator’s fees, work done by
the arbitrator in connection with the arbitration, and the complexity of
the subject-matter.
6. Determination of Arbitral Tribunal’s Fees
[…]
6.2. The arbitral tribunal’s fees shall cover the activities of an arbitrator
from the time of his or her confirmation or appointment until the
last award.
6.3. Claims and counterclaims are added for the determination of the
amount in dispute. The same rule applies to any set-off defence or
cross-claim, unless the arbitral tribunal, after consulting with the
parties, concludes that such set-off defence or cross-claim will not
require significant additional work.
6.4. An interest claim shall not be taken into account for the
calculation of the amount in dispute, except where HKIAC
determines that doing so would be appropriate.
6.5. Where there are alternative claims, only the principal claim shall
be taken into account for the calculation of the amount in dispute,
except where HKIAC considers it appropriate to take into account
the amount of any alternative claim.
6.6. Pursuant to Articles 10.3(c), 18.2, 27.15, 28.10 or 30.2 or where in the
opinion of HKIAC there are exceptional circumstances, the arbitral
tribunal’s fees may depart from exceed the amounts calculated in
accordance with paragraph 6.1.
6.7. If the amount in dispute is not quantified, the arbitral tribunal’s
fees shall be fixed by HKIAC, taking into account the circumstances
of the case.
7. Lien on Award
HKIAC and the arbitral tribunal shall have a lien over any awards issued
by the arbitral tribunal to secure the payment of their outstanding fees
and expenses, and may accordingly refuse to communicate any such
awards to the parties until all such fees and expenses have been paid in
full, whether jointly or by one or other of the parties.
8. Governing Law
The terms of this Schedule and any non-contractual obligation arising
out of or in connection with it shall be governed by and construed in
accordance with Hong Kong law.
[…]

P 482
P 483
[B] Administrative Fees
The HKIAC has updated its Administrative and Arbitrator Fee Schedules a few times since
the 2013 update to the Rules. In order to commence an HKIAC arbitration, the Claimant
must pay a non-refundable registration fee that does not count toward the administrative
costs of the arbitration. (124) At the time of writing, the most recent update to the HKIAC
administrative fee schedule became effective on November 1, 2018. (125) The schedule sets
out the administrative fees due according to the sum in dispute between the parties with
the minimum administrative fee of HKD 19,800 for disputes of up to HKD 400,000 and the
maximum fee of HKD 400,000 for disputes over HKD 400,000,000. (126) The HKIAC reserves
the right to charge an administrative fee different from that listed in the Schedule
depending on the circumstances of the case. (127)
The HKIAC Administrative Fee Schedule is set out in Table 8.14. The amount in dispute used
to calculate the administrative fee includes both claims and counterclaims, including any
set-off defense, unless otherwise determined by the tribunal. (128) If the parties have not
determined the amount in dispute, the HKIAC will determine the fee, taking the
circumstances of the case into account. (129) The sum in dispute used for calculating the
administrative fee does not include interest claimed, except if the interest claimed
exceeds the amount in dispute in which case the interest claim alone will be used as the
amount in dispute. (130)

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 Table 8.14 HKIAC Administrative Fee Schedule(131)
Sum in Dispute (in HKD) Administrative Fees (in HKD)
Up to 400,000 19,800
From 400,001 to 800,000 19,800 + 1.300% of & over 400,000
From 800,001 to 4,000,000 25,000 + 1.000% of & over 800,000
From 4,000,001 to 8,000,000 57,000 + 0.545% of & over 4,000,000
From 8,000,001 to 16,000,000 78,800 + 0.265% of & over 8,000,000
From 16,000,001 to 40,000,000 100,000 + 0.200% of & over 16,000,000
From 40,000,001 to 80,000,000 148,000 + 0.110% of & over 40,000,000
From 80,000,001 to 240,000,000 192,000 + 0.071% of & over 80,000,000
From 240,000,001 to 400,000,000 305,600 + 0.059% of & over 240,000,000
Over 400,000,000 400,000
P 483
P 484
[C] Arbitrator Fees
Uniquely among the rules considered, under the HKIAC Rules, the parties are able to
choose whether to calculate the fees and expenses of the arbitral tribunal through an ad
valorem method or an hourly rate. (132) If not specified in the Notice of Arbitration, the
parties have 30 days from when the Respondent receives the Notice of Arbitration to
decide which method they will use to determine the fees and expenses of the arbitral
tribunal. (133) This allows the parties great flexibility in controlling the costs of their
arbitration. As can be seen by Tables 8.4 and 8.7 above, it is significantly more economical
for parties to choose the ad valorem method, particularly when faced with a complex
dispute; however, HKIAC statistics show that the hourly rate is the preferred method for
calculating costs and fees. (134)
If the parties have chosen the hourly rate method to determine costs and fees, an
arbitrator will be paid an hourly rate for all work “reasonably carried out in connection
with the arbitration.” (135) The designating party will determine the rate to be paid by its
nominated arbitrator while both parties will determine the rate for the sole or presiding
arbitrator. (136) If the parties do not designate a rate, the HKIAC can do so. (137) Whatever
the parties and arbitrators agree on, the hourly rate cannot exceed the rate set by the
HKIAC, unless expressly agreed in writing by all parties or so determined by the HKIAC;
(138) at the time of writing, the fee was capped at HKID 6,500. (139) The arbitrators may
review and increase the hourly rate every year by at most 10%. (140) If the arbitration
proceeds to the hearings phase but the hearings are canceled, under the hourly rate
method, parties will be held accountable for cancellation fees. (141)
Alternatively, the parties can decide to use the ad valorem method to determine the costs
and fees of the arbitral tribunal. In this case, the fees are determined using the sum in
dispute and the fee schedule created by the HKIAC (Table 8.15). This arbitrator fee
schedule is meant to take into account the sum in dispute, the complexity of the case, the
time that the arbitral tribunal and any secretary they might appoint will spend on the
P 484 case, and any other circumstances that need to be taken into consideration. (142) The most
P 485 recent arbitrator fee schedules came into effect on November 1, 2018, but the most
recent practice notes on both Schedule 2 (hourly rates) and Schedule 3(the sum in
disputes) were effective June 1, 2016: (143)
Table 8.15 HKIAC Arbitrator Fee Schedule
Sum in Dispute (in HKD) Arbitrator’s Fees (in HKD)
Up to 400,000 11.000% of amount in dispute
From 400,001 to 800,000 44,000 + 10.000% of & over 400,000
From 800,001 to 4,000,000 84,000 + 5.300% of & over 800,000
From 4,000,001 to 8,000,000 253,600 + 3.780% of & over 4,000,000
From 8,000,001 to 16,000,000 404,800 + 1.730% of & over 8,000,000
From 16,000,001 to 40,000,000 543,200 + 1.060% of & over 16,000,000
From 40,000,001 to 80,000,000 797,600 + 0.440% of & over 40,000,000
From 80,000,001 to 240,000,000 973,600 + 0.250% of & over 80,000,000
From 240,000,001 to 400,000,000 1,373,600 + 0.228% of & over 240,000,000
From 400,000,001 to 600,000,000 1,738,400 + 0.101% of & over 400,000,000
From 600,000,001 to 800,000,000 1,940,400 + 0.067% of & over 600,000,000
From 800,000,001 to 4,000,000,00 2,074,400 + 0.044% of & over 800,000,000

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 Sum in Dispute (in HKD) Arbitrator’s Fees (in HKD)
Over 4,000,000,000 3,482,400 + 0.025% of & over 4,000,000,000
Maximum of 12,574,000
As in the case of the determination of administrative fees, the amount in dispute for
arbitrator fees includes both claims and counterclaims, as well as any set-off defenses.
(144) Also as in the administrative fee calculations, interest claims are not taken into
account for the calculation of the amount in dispute unless “where HKIAC determines that
doing so would be appropriate.” (145) The HKIAC has some additional control over the
setting of arbitrator fees when using this method. If the amount in dispute is not
quantified, the HKIAC will fix the arbitral tribunal’s fees taking the circumstances of the
case into account. (146) Additionally, the HKIAC may allow the fees to exceed the maximum
permitted by the schedule in exceptional circumstances. (147) Lastly, if the case is
overseen by three arbitrators rather than a sole arbitrator, the HKIAC may increase the fees
but this increase cannot exceed three times what the fees of a sole arbitrator would have
been; (148) the presiding arbitrator will generally receive 40% of the total fees while the
co-arbitrators will receive 30% each respectively. (149)
P 485
P 486
[D] Arbitrator Expenses and Disbursements
Under both methods of fee calculation, the arbitral tribunal will be reimbursed for its
“reasonable expenses,” which are separate from its fees. (150) If an arbitrator is required to
travel outside of the usual place of residence or business, the arbitrator will be
reimbursed for travel costs as well as being allotted a per diem of HKD 5,500 if overnight
accommodation is required or HKD 1,500 if overnight accommodation is not required. (151)
This per diem is to cover: hotel accommodation if required; meals and beverages; laundry,
dry cleaning, and other housekeeping services; inner-city transportation, including
transport to and from airports and train stations; communications costs; and gratuities.
(152) If an arbitrator does not need to travel outside the usual place of residence or
business, the arbitrator will be reimbursed for inner-city transport to and from the
arbitration as well as meals and beverages. (153) Other reasonable expenses not explicitly
listed in the Practice Notes might also be covered based on receipt and verification by
HKIAC. (154)
If the parties and tribunal decide to hire a tribunal secretary under Article 13.4 of the
Rules, the expenses incurred will be folded into the tribunal expenses. The secretary has
the same reimbursement rights as the arbitrators except that the per diem when required
to travel outside the usual place of residence or business is HKD 4,500 when overnight
accommodation is required and HKD 500 when overnight accommodation is not required.
(155)

[E] Advances on Costs and Non-payment

The HKIAC requires the parties to provide an advance on costs for the arbitration. The
HKIAC will request this as soon as practicable but usually within 15 days of receiving the
Notice of Arbitration. (156) The HKIAC considers advances on costs to be “deposits,” to be
paid to the HKIAC in equal shares by the parties and to be applied against the Registration
P 486 and Administrative Fees, the arbitral fees and expenses, and the costs of experts and
P 487 other tribunal required assistance. (157) The HKIAC reserves the right to request a separate
advance of costs if the respondent submits a counterclaim or cross-claim as well as the
right to request supplementary advances during the course of arbitration. (158)
Two situations may arise in circumstances where one of the parties fails to pay an advance
on costs. First, if the claimant fails to pay the Registration Fee upon submitting the Notice
of Arbitration and does not remedy this within an appropriate period of time, the Notice of
Arbitration shall be deemed not to have been validly submitted and the arbitration will
not commence. (159) Second, if the HKIAC does not receive the required deposits within 30
days of its request, the HKIAC will request them again. (160) Either party may make the
required payment but if no payment is made, the arbitral tribunal can order the
suspension or termination of the arbitration. The tribunal might also allow the arbitration
to continue as it sees fit. (161) If one party puts forward the deposit on behalf of another,
the tribunal may make a separate award for reimbursement of that payment. (162)
The arbitral tribunal, and secretary if appointed, will be paid from this advance on costs.
Thus, in the final award, the arbitral tribunal will render an account of the deposits
received by the HKIAC. If there is an unexpected balance after the award is issued, it will
be returned to parties by the HKIAC. (163) However, the HKIAC and the tribunal will have a
lien on any awards issued in order to secure payment of any outstanding fees and
expenses and may refuse to issue the awards until all fees and expenses are paid in full.
(164)

[F] Cost Allocation

Under the HKIAC Rules, the arbitral tribunal may determine how to apportion the costs of
the arbitration as it sees fit based on the circumstances of the case. (165) If the tribunal

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 chooses not to allocate costs, or if the arbitration is terminated, the tribunal will
determine the costs of the arbitration in an order or an award. (166) The HKIAC Rules
specifically list the elements to be included in costs: the fees of the arbitral tribunal; the
reasonable travel and other expenses of the tribunal; reasonable costs of experts and
P 487 other assistance required by the tribunal; reasonable travel and other expenses of
P 488
witnesses and experts “if such costs were claimed during the arbitration;” reasonable
costs for legal fees “if such costs were claimed during the arbitration;” and the Registration
Fee and Administrative Fees. (167) While the Rules provide that the tribunal can divide “all
or part of the costs” between the parties, they offer no guidance on how to divide these
costs. (168)
Interestingly, the Rules do advise the tribunal, if it awards a party the right to recover legal
fees, to limit those recoverable costs to a specific amount. (169) In the case of consolidated
arbitrations, the tribunal of the consolidated arbitration may award costs including fees
from any designated or confirmed tribunal from the previous arbitration as well as any
other costs incurred during that arbitration prior to consolidation. (170)

§8.05 ICC
[A] Overview
Any request for arbitration under the ICC Rules must be accompanied by a payment of USD
5,000. This payment is non-refundable and will be considered as partial payment of the
advance on costs by a claimant. (171)
The costs of an ICC arbitration include the fees and expenses of any expert appointed by
the tribunal and of the arbitrators themselves; the administrative costs to the ICC, as fixed
by the Court, according to the applicable fee scale; and the reasonable legal and other
costs incurred by the parties for the arbitration. (172) The ICC’s fee scale is based on the
sum in dispute. (173) The arbitral tribunal has discretion in the final award to determine
how the costs of the arbitration should be apportioned between the parties. (174)
The ICC follows the ad valorem method for both administrative fees and arbitrator
compensation, both being based on the sum in dispute, and applying a sharply regressive
scale. (175) The Court can deviate from the fee scale in “exceptional circumstances.” (176)
The ICC Rules allow the tribunal to allocate costs on a case by case basis and make no
P 488 specific provision for the loser necessarily to pay the costs of the successful party (Table
P 489 8.16). (177)
P 489
P 490 Table 8.16 ICC Costs
ICC
PP 490
492
493
491 Article 16. The Secretariat shall transmit the file to the arbitral tribunal as soon as
P 494
492
493
491 Transmission of it has been constituted, provided the advance on costs requested by the
the File to the Secretariat at this stage has been paid.
Arbitral Tribunal

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 ICC
Article 37. 1. After receipt of the Request, the Secretary General may request the
Advance to claimant to pay a provisional advance in an amount intended to cover
Cover the Costs the costs of the arbitration
of the
Arbitration a) until the Terms of Reference have been drawn up; or
b) when the Expedited Procedure Provisions apply, until the case
management conference. Any provisional advance paid will be
considered as a partial payment by the claimant of any advance on
costs fixed by the Court pursuant to this Article 37.
2. As soon as practicable, the Court shall fix the advance on costs in an
amount likely to cover the fees and expenses of the arbitrators and the
ICC administrative expenses for the claims which have been referred to it
by the parties, unless any claims are made under Article 7 or 8 in which
case Article 37(4) shall apply. The advance on costs fixed by the Court
pursuant to this Article 37(2) shall be payable in equal shares by the
claimant and the respondent.
3. Where counterclaims are submitted by the respondent under Article 5
or otherwise, the Court may fix separate advances on costs for the claims
and the counterclaims. When the Court has fixed separate advances on
costs, each of the parties shall pay the advance on costs corresponding
to its claims.
4. Where claims are made under Article 7 or 8, the Court shall fix one or
more advances on costs that shall be payable by the parties as decided
by the Court. Where the Court has previously fixed any advance on costs
pursuant to this Article 36, any such advance shall be replaced by the
advance(s) fixed pursuant to this Article 37(4), and the amount of any
advance previously paid by any party will be considered as a partial
payment by such party of its share of the advance(s) on costs as fixed by
the Court pursuant to this Article 37(4).
5. The amount of any advance on costs fixed by the Court pursuant to
this Article 36 may be subject to readjustment at any time during the
arbitration. In all cases, any party shall be free to pay any other party’s
share of any advance on costs should such other party fail to pay its
share.

6. When a request for an advance on costs has not been complied with,
and after consultation with the arbitral tribunal, the Secretary General
may direct the arbitral tribunal to suspend its work and set a time limit,
which must be not less than 15 days, on the expiry of which the relevant
claims shall be considered as withdrawn. Should the party in question
wish to object to this measure, it must make a request within the
aforementioned period for the matter to be decided by the Court. Such
party shall not be prevented, on the ground of such withdrawal, from
reintroducing the same claims at a later date in another proceeding.
7. If one of the parties claims a right to a set-off with regard to any claim,
such set-off shall be taken into account in determining the advance to
cover the costs of the arbitration in the same way as a separate claim
insofar as it may require the arbitral tribunal to consider additional
matters.

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 ICC
Article 38. 1. The costs of the arbitration shall include the fees and expenses of the
Decision as to arbitrators and the ICC administrative expenses fixed by the Court, in
the Costs of the accordance with the scale in force at the time of the commencement of
Arbitration the arbitration, as well as the fees and expenses of any experts appointed
by the arbitral tribunal and the reasonable legal and other costs incurred
by the parties for the arbitration.
2. The Court may fix the fees of the arbitrators at a figure higher or lower
than that which would result from the application of the relevant scale
should this be deemed necessary due to the exceptional circumstances of
the case.
3. At any time during the arbitral proceedings, the arbitral tribunal may
make decisions on costs, other than those to be fixed by the Court, and
order payment.
4. The final award shall fix the costs of the arbitration and decide which
of the parties shall bear them or in what proportion they shall be borne
by the parties.
5. In making decisions as to costs, the arbitral tribunal may take into
account such circumstances as it considers relevant, including the extent
to which each party has conducted the arbitration in an expeditious and
cost-effective manner.
6. In the event of the withdrawal of all claims or the termination of the
arbitration before the rendering of a final award, the Court shall fix the
fees and expenses of the arbitrators and the ICC administrative expenses.
If the parties have not agreed upon the allocation of the costs of the
arbitration or other relevant issues with respect to costs, such matters
shall be decided by the arbitral tribunal. If the arbitral tribunal has not
been constituted at the time of such withdrawal or termination, any
party may request the Court to proceed with the constitution of the
arbitral tribunal in accordance with the Rules so that the arbitral
tribunal may make decisions as to costs.

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 ICC
Appendix III 1. Each request to commence an arbitration pursuant to the Rules must
be accompanied by a filing fee of US$ 5,000. Such payment is non-
Arbitration refundable and shall be credited to the claimant’s portion of the advance
Costs and Fees on costs.
—Article 1.
Advance on 2. The provisional advance fixed by the Secretary General according to
Costs Article 37(1) of the Rules shall normally not exceed the amount obtained
by adding together the ICC administrative expenses, the minimum of the
fees (as set out in the scale hereinafter) based upon the amount of the
claim and the expected reimbursable expenses of the arbitral tribunal
incurred with respect to the drafting of the Terms of Reference. If such
amount is not quantified, the provisional advance shall be fixed at the
discretion of the Secretary General. Payment by the claimant shall be
credited to its share of the advance on costs fixed by the Court.
3. In general, the arbitral tribunal shall, in accordance with Article 37(6)
of the Rules, proceed only with respect to those claims or counterclaims
in regard to which the whole of the advance on costs has been paid.
4. The advance on costs fixed by the Court according to Articles 37(2) or
37(4) of the Rules comprises the fees of the arbitrator or arbitrators
(hereinafter referred to as “arbitrator”), any arbitration-related expenses
of the arbitrator and the ICC administrative expenses.
5. Each party shall pay its share of the total advance on costs in cash.
However, if a party’s share of the advance on costs is greater than US$
500,000 (the “Threshold Amount”), such party may post a bank
guarantee for any amount above the Threshold Amount. The Court may
modify the Threshold Amount at any time at its discretion.
6. The Court may authorize the payment of advances on costs, or any
party’s share thereof, in instalments, subject to such conditions as the
Court thinks fit, including the payment of additional ICC administrative
expenses.
7. A party that has already paid in full its share of the advance on costs
fixed by the Court may, in accordance with Article 37(5) of the Rules, pay
the unpaid portion of the advance owed by the defaulting party by
posting a bank guarantee.
8. When the Court has fixed separate advances on costs pursuant to
Article 37(3) of the Rules, the Secretariat shall invite each party to pay
the amount of the advance corresponding to its respective claim(s).
9. When, as a result of the fixing of separate advances on costs, the
separate advance fixed for the claim of either party exceeds one half of
such global advance as was previously fixed (in respect of the same
claims and counterclaims that are the subject of separate advances), a
bank guarantee may be posted to cover any such excess amount. In the
event that the amount of the separate advance is subsequently
increased, at least one half of the increase shall be paid in cash.
10. The Secretariat shall establish the terms governing all bank
guarantees which the parties may post pursuant to the above provisions.

11. As provided in Article 37(5) of the Rules, the advance on costs may be
subject to readjustment at any time during the arbitration, in particular
to take into account fluctuations in the amount in dispute, changes in
the amount of the estimated expenses of the arbitrator, or the evolving
difficulty or complexity of arbitration proceedings.
12. Before any expertise ordered by the arbitral tribunal can be
commenced, the parties, or one of them, shall pay an advance on costs
fixed by the arbitral tribunal sufficient to cover the expected fees and
expenses of the expert as determined by the arbitral tribunal. The arbitral
tribunal shall be responsible for ensuring the payment by the parties of
such fees and expenses.
13. The amounts paid as advances on costs do not yield interest for the
parties or the arbitrator.

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 ICC
Appendix III 1. Subject to Article 38(2) of the Rules, the Court shall fix the fees of the
arbitrator in accordance with the scale hereinafter set out or, where the
Arbitration amount in dispute is not stated, at its discretion.
Costs and Fees
—Article 2. Costs 2. In setting the arbitrator’s fees, the Court shall take into consideration
and Fees the diligence and efficiency of the arbitrator, the time spent, the rapidity
of the proceedings, the complexity of the dispute and the timeliness of
the submission of the draft award, so as to arrive at a figure within the
limits specified or, in exceptional circumstances (Article 38(2) of the
Rules), at a figure higher or lower than those limits.
3. When a case is submitted to more than one arbitrator, the Court, at its
discretion, shall have the right to increase the total fees up to a
maximum which shall normally not exceed three times the fees of one
arbitrator.
4. The arbitrator’s fees and expenses shall be fixed exclusively by the
Court as required by the Rules. Separate fee arrangements between the
parties and the arbitrator are contrary to the Rules.
5. The Court shall fix the ICC administrative expenses of each arbitration
in accordance with the scale hereinafter set out or, where the amount in
dispute is not stated, at its discretion. Where the parties have agreed
upon additional services, or in exceptional circumstances, the Court may
fix the ICC administrative expenses at a lower or higher figure than that
which would result from the application of such scale, provided that such
expenses shall normally not exceed the maximum amount of the scale.
6. At any time during the arbitration, the Court may fix as payable a
portion of the ICC administrative expenses corresponding to services that
have already been performed by the Court and the Secretariat.

7. The Court may require the payment of administrative expenses in

addition to those provided in the scale of administrative expenses as a
condition for holding an arbitration in abeyance at the request of the
parties or of one of them with the acquiescence of the other.
8. If an arbitration terminates before the rendering of a final award, the
Court shall fix the fees and expenses of the arbitrators and the ICC
administrative expenses at its discretion, taking into account the stage
attained by the arbitral proceedings and any other relevant
circumstances.
9. Any amount paid by the parties as an advance on costs exceeding the
costs of the arbitration fixed by the Court shall be reimbursed to the
parties having regard to the amounts paid.
10. In the case of an application under Article 36(2) of the Rules or of a
remission pursuant to Article 36(4) of the Rules, the Court may fix an
advance to cover additional fees and expenses of the arbitral tribunal
and additional ICC administrative expenses and may make the
transmission of such application to the arbitral tribunal subject to the
prior cash payment in full to the ICC of such advance. The Court shall fix
at its discretion the costs of the procedure following an application or a
remission, which shall include any possible fees of the arbitrator and ICC
administrative expenses, when approving the decision of the arbitral
tribunal.
11. The Secretariat may require the payment of administrative expenses
in addition to those provided in the scale of administrative expenses for
any expenses arising in relation to a request pursuant to Article 35(5) of
the Rules.
12. When an arbitration is preceded by proceedings under the ICC
Mediation Rules, one half of the ICC administrative expenses paid for
such proceedings shall be credited to the ICC administrative expenses of
the arbitration.
13. Amounts paid to the arbitrator do not include any possible value
added tax (VAT) or other taxes or charges and imposts applicable to the
arbitrator’s fees. Parties have a duty to pay any such taxes or charges;
however, the recovery of any such charges or taxes is a matter solely
between the arbitrator and the parties.
14. Any ICC administrative expenses may be subject to value added tax
(VAT) or charges of a similar nature at the prevailing rate.

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 ICC
Appendix III Any request received for an authority of the ICC to act as appointing
authority will be treated in accordance with the Rules of ICC as
Arbitration Appointing Authority in UNCITRAL or Other Ad Hoc Arbitration
Costs and Fees Proceedings and shall be accompanied by a non-refundable filing fee of
—Article 3. ICC US$ 3,000. No request shall be processed unless accompanied by the said
as Appointing filing fee. For additional services, the ICC may at its discretion fix ICC
Authority administrative expenses, which shall be commensurate with the services
provided and shall normally not exceed the maximum amount of US$
10,000.
Appendix III 1. The scales of administrative expenses and arbitrator’s fees set forth
below shall be effective as of 1 January 2017 in respect of all arbitrations
Arbitration commenced on or after such date, irrespective of the version of the Rules
Costs and Fees applying to such arbitrations.
—Article 3.
Scales of 2. To calculate the ICC administrative expenses and the arbitrator’s fees,
Administrative the amounts calculated for each successive tranche of the amount in
Expenses and dispute must be added together, except that where the amount in dispute
Arbitrator’s Fees is over US$ 500 million, a flat amount of US$ 150,000 shall constitute the
entirety of the ICC administrative expenses.
3. The scales of administrative expenses and arbitrator’s fees for the
expedited procedure set forth below shall be effective as of 1 March 2017
in respect of all arbitrations commenced on or after such date,
irrespective of the version of the Rules applying to such arbitrations.
When parties have agreed to the expedited procedure pursuant to Article
30(2), subparagraph b), the scales for the expedited procedure will apply.
4. All amounts fixed by the Court or pursuant to any of the appendices to
the Rules are payable in US$ except where prohibited by law, in which
case the ICC may apply a different scale and fee arrangement in another
currency.

The 2012 and 2017 revisions to the ICC Rules effected only very minor amendments to the
rules relating to costs. New rules are included to permit the Court to determine the
allocation of advances on costs in claims involving multiple parties under Articles 7 and 8
of the 2017 ICC Rules. (178) Tribunals’ practice of taking into account the conduct of the
parties in making decisions as to costs is now incorporated into the rules. (179) In addition,
a new rule provides for the arbitral tribunal to make any decision that may be required as
to the costs of the arbitration in the event of an early termination of the arbitration. (180)

[B] Administrative Fees

The ICC revises its Scales of Administrative Expenses and Arbitrator’s Fees on a regular
basis. At the time of writing, the most recent versions of these schedules went into effect on
January 1, 2017. (181) This is set out in Table 8.17. The schedule sets the administrative fee
due according to the amount of the sum in dispute between the parties. Where the parties
P 494 do not state the sum in dispute, the ICC fixes the administrative expenses at its discretion.
P 495 (182) The ICC reserves the right to deviate from the schedule in exceptional
circumstances, although the fees will not normally be more than the maximum amount of
the scale. (183)
The advance payment of USD 5,000 which is set against the ICC’s administrative fees. In the
2017 revisions, this is referred to as a “filing fee.” This “payment is non-refundable, and
shall be credited to the claimant’s portion of the advance on costs.” (184) Under the 2017
scale, where the amount in dispute exceeds USD 500 million, the maximum allowable
administrative expenses are fixed to a flat amount of USD 150,000. (185)
Table 8.17 ICC Administrative Fee Schedule(186)
A. Administrative Expenses
Amount in Administrative
Dispute (in US Expenses(*)
Dollars)
up to 50,000 $5,000
from 50,001 To 100,000 1.53%
from 100,001 To 200,000 2.72%
from 200,001 To 500,000 2.25%
from 500,001 To 1,000,000 1.62%
from 1,000,001 To 2,000,000 0.788%
from 2,000,001 To 5,000,000 0.46%
from 5,000,001 To 10,000,000 0.25%

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 from 10,000,001 To 30,000,000 0.10%
from 30,000,001 To 50,000,000 0.09%
from 50,000,001 To 80,000,000 0.01%
from 80,000,001 To 500,000,000 0.0123%
over 500,000,000 $150,000

[C] Arbitrator Fees

As it does with the administrative fees, the ICC determines arbitrator fees based on the
amount of the sum in dispute. (187) “In setting the arbitrator’s fees, the Court takes into
consideration the diligence and efficiency of the arbitrator, the time spent, the rapidity of
the proceedings, … [and] the complexity of the dispute …, so as to arrive at a figure within
P 495 the limits specified or, in exceptional circumstances … at a figure higher or lower than
P 496 those limits.” (188) In the 2017 revisions to these rules, the Court is also required to
consider the efficiency of the arbitration and the timeliness of the submission of the draft
award. (189) When more than one arbitrator is appointed to the tribunal, the ICC has the
power to increase the total arbitrators’ fees up to an amount not to exceed three times the
applicable amount of the scale fees for a sole arbitrator (Table 8.18). (190) Typically, the
presiding arbitrator of the tribunal will receive a slightly higher fee than the co-arbitrators
to compensate him or her for the additional responsibilities of that appointment. The ICC’s
scale of fees is mandatory, and any alternative arrangement between the parties and the
arbitrators is not permitted under the Rules. (191)
Table 8.18 ICC Arbitrator Fee Schedule(192)
B. Arbitrator’s Fees
Amount in Fees (**)
Dispute (in US
Dollars)
Minimum Maximum
up to 50,000 $3,000 18.0200%
from 50,001 to 100,000 2.6500% 13.5680%
from 100,001 to 200,000 1.4310% 7.6850%
from 200,001 to 500,000 1.3670% 6.8370%
From 500,001 to 1,000,000 0.9540% 4.0280%
from 1,000,001 to 2,000,000 0.6890% 3.6040%
from 2,000,001 to 5,000,000 0.3750% 1.3910%
from 5,000,001 to 10,000,000 0.1280% 0.9100%
from 10,000,001 to 30,000,000 0.0640% 0.2410%
from 30,000,001 to 50,000,000 0.0590% 0.2280%
from 50,000,001 to 80,000,000 0.0330% 0.1570%
from 80,000,001 to 100,000,000 0.0210% 0.1150%
from 100,000,001 to 500,000,000 0.0110% 0.0580%
over 500,000,000 0.0100% 0.0400%

P 496 Appendix III to the ICC 2017 Rules includes a table for illustrative purposes showing the
P 497 administrative and arbitrator’s fees (based on a sole arbitrator) that will be charged.
P 497
P 498 Table 8.19 ICC Administrative and Sole Arbitrator Fee Schedule
Amount in A. B.
Dispute (in Administrative Arbitrator's
US Dollars) Expenses (in US Fees (in US
Dollars) Dollars)
Minimum Maximum
up to 50,000 5,000 2,400 14.4160% of
amount in
dispute
from 50,001 to 100,000 5,000 +1.53% of 2,400 + 2.1200% 7,208 + 10.8544%
amt. over of amt. of amt.
50,000 over 50,000 over 50,000
from to 200,000 5,765 +2.72% of 3,460 + 1.1448% 12,635 + 6.1480%
100,001 amt. over of amt. of amt.
100,000 over over
100,000 100,000

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 Amount in A. B.
Dispute (in Administrative Arbitrator's
US Dollars) Expenses (in US Fees (in US
Dollars) Dollars)
Minimum Maximum
from to 500,000 8,485 +2.25% of 4,605 + 1.0936% 18,783 + 5.4696%
200,001 amt. over of amt. of amt.
200,000 over over
200,000 200,000
from to 15,235 +1.62% of 7,886 + 0.7632% 35,192 + 3.2224%
500,001 1,000,000 amt. over of amt. of amt.
500,000 over over
500,000 500,000
from to 23,335 +0.788% of 11,702 + 0.5512% 51,304 + 2.8832%
1,000,001 2,000,000 amt. over of amt. of amt.
1,000,000 over over
1,000,000 1,000,000
from to 31,215 +0.46% of 17,241 + 0.3000% 80,136 + 1.1128%
2,000,001 5,000,000 amt. over of amt. of amt.
2,000,000 over over
2,000,000 2,000,000
from to 45,015 +0.25% of 26,241 + 0.1024% 113,520 + 0.7280%
5,000,001 10,000,000 amt. over of amt. of amt.
5,000,000 over over
5,000,000 5,000,000
from to 57,515 +0.10% of 31,334 + 0.0512% 149,920 + 0.1928%
10,000,000 30,000,000 amt. over of amt. of amt.
10,000,000 over over
10,000,000 10,000,000
from to 77,515 +0.09% of 41,574 + 0.0472% 188,480 + 0.1824%
30,000,001 50,000,000 amt. over of amt. of amt.
30,000,000 over over
30,000,000 30,000,000
from to 95,515 +0.01% of 51,014 + 0.0264% 224,960 + 0.1256%
50,000,001 80,000,000 amt. over of amt. of amt.
50,000,000 over over
50,000,000 50,000,000
from to 98,515 +0.0123% of 58,934 + 0.0168% 262,640 + 0.0920%
80,000,001 100,000,000 amt. over of amt. of amt.
80,000,000 over over
80,000,000 80,000,000
from to 100,975 +0.0123% of 62,294 + 0.0088% 281,040 + 0.0464%
100,000,001 500,000,000 amt. over of amt. of amt.
100,000,000 over over
100,000,000 100,000,000
over 150,000 97,494 + 0.0088% of 466,640 + 0.0320%
500,000,000 amt. over of amt.
500,000,000 over
500,000,000
P 498
P 499
If an arbitration ends before the rendering of a final award, the Court fixes the costs of the
arbitration at its discretion, taking into account the stage attained by the arbitral
proceedings and any other relevant circumstances. (193)

[D] Arbitrators’ Costs and Disbursements

The Secretariat of the ICC International Court of Arbitration provides very detailed
information to arbitrators concerning their allowable expenses and disbursements,
including per diem allowances for travel expenses, courier charges, and some office
expenses. (194) The touchstone is that the expenses charged must be reasonable.
Arbitrators are entitled to travel expenses incurred in connection with the arbitration,
including business-class airfares and first-class train travel. (195) Arbitrators are also
entitled to a per diem allowance of USD 400, or USD 1,200 where they are required to stay
overnight. (196) The ICC takes care to verify arbitrators’ expense claims, which must be
substantiated with detailed supporting documentation, including original receipts. (197)

[E] Advances on Costs and Non-payment

The ICC routinely requires the parties to an arbitration to pay advances on the costs of the
arbitration. An “advance on costs” is required for the file to be transmitted to the arbitral
tribunal. (198) The Court determines the advance of costs. It has to do so “in an amount
likely to cover the fees and expenses of the arbitrators and the ICC administrative
expenses for the claims which have been referred to it by the parties.” (199) Typically, the
initial provisional advance on costs will be set shortly after the claim has been initiated,
and further advances will be requested as the case progresses, (200) with the final tranche
typically due shortly before the final hearing on the merits. The parties are required to
make equal contributions to the advance on costs unless they have reached an agreement
otherwise. (201)

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 If one party fails to pay an advance on costs, the other party is free to satisfy the shortfall.
P 499 (202) If a request for an advance on costs is not fully satisfied, the Secretary-General of the
P 500 ICC may direct the tribunal to suspend its work and set a time limit—of no fewer than 15
days—for payment to be made. (203) If payment is not made by the expiry of that period,
the ICC deems the claims withdrawn. (204) If the party not making the advance payment
objects to the suspension of the arbitration, it must object within this time period to the
ICC Court of Arbitration. (205) In the event payment is not made and the ICC treats the
claims as withdrawn, the party will not be prevented from reintroducing the same claims
at a later date in another proceeding. (206) If one of the parties claims a right to a set-off
with regard to either claims or counterclaims, such set-off will “be taken into account in
determining the advance to cover the costs of the arbitration in the same way as a
separate claim insofar as it may require the arbitral tribunal to consider additional
matters.” (207)

[F] Cost Allocation

The ICC Rules state that “[t]he final award shall fix the costs of the arbitration and decide
which of the parties shall bear them or in what proportion they shall be borne by the
parties.” (208) The 1998 ICC Rules provide no guidance to arbitrators as to the calculation,
apportionment and allocation of arbitration costs, and the tribunal is therefore free to
apportion costs as it sees fit. The 2012 revisions introduced a provision permitting the
tribunal to “take into account such circumstances as it considers relevant, including the
extent to which each party has conducted the arbitration in an expeditious and cost-
effective manner,” (209) which is reflected in the 2017 Rules. None of the versions of the ICC
Rules contains a provision requiring the tribunal to adopt a “loser pays” approach,
although in practice the outcome of the case will be one of the factors considered by the
tribunal in fixing an award of costs. The approach taken by a particular tribunal to the
award of costs will be greatly influenced by the legal traditions of each of the arbitrators
as well as their views on the conduct of the parties and any mandatory provisions of the
applicable arbitration law of the situs. (210)

§8.06 ICSID RULES

[A] Overview
P 500 The administrative fees for use of the facilities at ICSID are determined by the Secretary-
P 501 General in accordance with the regulations adopted by the Administrative Council of
ICSID. (211) Parties may agree in advance on the fees and expenses of arbitrators. (212)
Where there is no such agreement, the arbitral tribunal determines the fees and expenses
of the arbitrators, within limits that may be established by the Administrative Council and
consultation with the Secretary-General. (213) The arbitral tribunal also assesses the
expenses incurred by the parties throughout the arbitration proceedings and decides who
shall pay for those expenses in the award. (214)
Under the ICSID Arbitration (Additional Facility) Rules, the tribunal will decide by whom
the fees and expenses of tribunal members are to be paid, as well as the allocation of the
expenses and charges of the Secretariat and the expenses incurred by the parties in
connection with the proceedings unless the parties agree otherwise. (215)
ICSID charges a flat fee for its services in administering arbitrations. The initial costs,
however, are considerably higher than those of the other arbitral institutions under
consideration. ICSID requires both a USD 25,000 initial filing fee and a USD 42,000
administrative charge, payable annually, in addition to any charges for organizational
expenses. (216) In addition, ICSID charges a flat amount of USD 3,000 per day per
arbitrator, (217) as well as a per diem rate for its arbitrators based on the city in which the
arbitration takes place or a mixed rate including actual charges and half the per diem
rate. (218) Under the ICSID Rules, the tribunal may assess the final costs of the arbitration
P 501 and decide upon the cost allocation between the parties as part of the award. (219) The
P 502 relevant ICSID Rules are set out in Table 8.20.
P 502
P 503 Table 8.20 ICSID Costs
ICSID
P 504
503 CONVENTION ON THE SETTLEMENT OF INVESTMENT DISPUTES BETWEEN STATES AND
P 505
504 NATIONALS OF OTHER STATES

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 Chapter VI Article 59
Cost of Proceedings The charges payable by the parties for the use of the facilities of the
Centre shall be determined by the Secretary-General in accordance
with the regulations adopted by the Administrative Council.
Article 60
1. Each Commission and each Tribunal shall determine the fees and
expenses of its members within limits established from time to time
by the Administrative Council and after consultation with the
Secretary-General.
2. Nothing in paragraph (1) of this Article shall preclude the parties
from agreeing in advance with the Commission or Tribunal
concerned upon the fees and expenses of its members.
Article 61
1. In the case of conciliation proceedings the fees and expenses of
members of the Commission as well as the charges for the use of the
facilities of the Centre, shall be borne equally by the parties. Each
party shall bear any other expenses it incurs in connection with the
proceedings.
2. In the case of arbitration proceedings the Tribunal shall, except as
the parties otherwise agree, assess the expenses incurred by the
parties in connection with the proceedings, and shall decide how and
by whom those expenses, the fees and expenses of the members of
the Tribunal and the charges for the use of the facilities of the Centre
shall be paid. Such decision shall form part of the award.

ADMINISTRATIVE AND FINANCIAL REGULATIONS

Chapter III 1. Unless otherwise agreed pursuant to Article 60(2) of the
Convention, and in addition to receiving reimbursement for any
Financial Provisions direct expenses reasonably incurred, each member of a Commission,
Regulation 14. Direct a Tribunal or an ad hoc Committee appointed from the Panel of
Costs of Individual Arbitrators pursuant to Article 52(3) of the Convention (hereinafter
Proceedings referred to as “Committee”) shall receive:
(a) a fee for each day on which he participates in meetings of the
body of which he is a member;
(b) a fee for the equivalent of each eight-hour day of other work
performed in connection with the proceedings;
(c) in lieu of reimbursement of subsistence expenses when away
from his normal place of residence, a per diem allowance
based on the allowance established from time to time for the
Executive Directors of the Bank;

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 (d) travel expenses in connection with meetings of the body of
which he is a member based on the norms established from
time to time for the Executive Directors of the Bank.
The amounts of the fees referred to in paragraphs (a) and (b)
above shall be determined from time to time by the Secretary-
General, with the approval of the Chairman. Any request for a
higher amount shall be made through the Secretary-General.
2. All payments, including reimbursement of expenses, to the
following shall in all cases be made by the Centre and not by or
through either party to the proceeding:
(a) members of Commissions, Tribunals and Committees;
(b) witnesses and experts summoned at the initiative of a
Commission, Tribunal or Committee, and not of one of the
parties;
(c) members of the Secretariat of the Centre, including persons
(such as interpreters, translators, reporters or secretaries)
especially engaged by the Centre for a particular proceeding;
(d) the host of any proceeding held away from the seat of the
Centre pursuant to Article 63 of the Convention.
3. In order to enable the Centre to make the payments provided for
in paragraph (2), as well as to incur other direct expenses in
connection with a proceeding (other than expenses covered by
Regulation 15):
(a) the parties shall make advance payments to the Centre as
follows:
(i) initially as soon as a Commission or Tribunal has been
constituted, the Secretary-General shall, after
consultation with the President of the body in question
and, as far as possible, the parties, estimate the expenses
that will be incurred by the Centre during the next three
to six months and request the parties to make an
advance payment of this amount;
(ii) if at any time the Secretary-General determines, after
consultation with the President of the body in question
and as far as possible the parties, that the advances
made by the parties will not cover a revised estimate of
expenses for the period or any subsequent period, he
shall request the parties to make supplementary
advance payments.

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 (b) the Centre shall not be required to provide any service in
connection with a proceeding or to pay the fees, allowances or
expenses of the members of any Commission, Tribunal or
Committee, unless sufficient advance payments shall
previously have been made;
(c) if the initial advance payments are insufficient to cover
estimated future expenses, prior to requesting the parties to
make additional advance payments, the Secretary-General
shall ascertain the actual expenses incurred and commitments
entered into by the Centre with regard to each proceeding and
shall appropriately charge or credit the parties;
(d) in connection with every conciliation proceeding, and in
connection with every arbitration proceeding unless a different
division is provided for in the Arbitration Rules or is decided by
the parties or the Tribunal, each party shall pay one half of
each advance or supplemental charge, without prejudice to
the final decision on the payment of the cost of an arbitration
proceeding to be made by the Tribunal pursuant to Article 61(2)
of the Convention. All advances and charges shall be payable,
at the place and in the currencies specified by the Secretary-
General, as soon as a request for payment is made by him. If
the amounts requested are not paid in full within 30 days, then
the Secretary-General shall inform both parties of the default
and give an opportunity to either of them to make the required
payment. At any time 15 days after such information is sent by
the Secretary-General, he may move that the Commission or
Tribunal stay the proceeding, if by the date of such motion any
part of the required payment is still outstanding. If any
proceeding is stayed for non-payment for a consecutive period
in excess of six months, the Secretary-General may, after
notice to and as far as possible in consultation with the
parties, move that the competent body discontinue the
proceeding;
(e) in the event that an application for annulment of an award is
registered, the above provisions of this Rule shall apply
mutatis mutandis, except that the applicant shall be solely
responsible for making the advance payments requested by
the Secretary-General to cover expenses following the
constitution of the Committee, and without prejudice to the
right of the Committee in accordance with Article 52(4) of the
Convention to decide how and by whom expenses incurred in
connection with the annulment proceeding shall be paid.

RULES OF PROCEDURE FOR ARBITRATION PROCEEDINGS (ARBITRATION RULES)

Rule 28 1. Without prejudice to the final decision on the payment of the cost
of the proceeding, the Tribunal may, unless otherwise agreed by the
Cost of Proceeding parties, decide:
(a) at any stage of the proceeding, the portion which each party
shall pay, pursuant to Administrative and Financial Regulation
14, of the fees and expenses of the Tribunal and the charges for
the use of the facilities of the Centre;
(b) with respect to any part of the proceeding, that the related
costs (as determined by the Secretary-General) shall be borne
entirely or in a particular share by one of the parties.
2. Promptly after the closure of the proceeding, each party shall
submit to the Tribunal a statement of costs reasonably incurred or
borne by it in the proceeding and the Secretary-General shall submit
to the Tribunal an account of all amounts paid by each party to the
Centre and of all costs incurred by the Centre for the proceeding. The
Tribunal may, before the award has been rendered, request the
parties and the Secretary-General to provide additional information
concerning the cost of the proceeding.

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 Rule 47 1. The award shall be in writing and shall contain:
The Award (a) a precise designation of each party;
(b) a statement that the Tribunal was established under the
Convention, and a description of the method of its constitution;
(c) the name of each member of the Tribunal, and an
identification of the appointing authority of each;
(d) the names of the agents, counsel and advocates of the parties;
(e) the dates and place of the sittings of the Tribunal;
(f) a summary of the proceeding;
(g) a statement of the facts as found by the Tribunal;
(h) the submissions of the parties;
(i) the decision of the Tribunal on every question submitted to it,
together with the reasons upon which the decision is based;
and
(j) any decision of the Tribunal regarding the cost of the
proceeding.
P 505
P 506
[B] Administrative Fees
The claimant is required to pay an initial filing fee of USD 25,000 upon filing an ICSID
arbitration request, and a further administrative fee of USD 42,000 is levied upon the
registration of a request for arbitration and annually thereafter. (220) In addition, the
parties are required to reimburse ICSID for any administrative expenses such as
interpreters, reporters, and secretaries. (221) It is the practice of ICSID to ask the parties to
pay periodic advances on costs. (222) The administrative fees charged by ICSID, therefore,
tend to be substantially greater than those charged by the commercial arbitration centers.
Following the making of the award, an administrative fee of USD 10,000 is payable upon
any request for a supplementary decision, rectification, interpretation, revision, or
annulment of an arbitral award rendered pursuant to the ICSID Convention or the
resubmission of the case to a new tribunal following a decision of annulments. (223) The
ICSID Fee Schedules are set out in Table 8.21.
P 506
P 507 Table 8.21 ICSID Fee Schedule
ICSID—Schedule of Fees (effective 1 July 2017)
Fee for Lodging Requests
1. Subject to paragraph 2 below, the fee prescribed pursuant to Administrative and Financial
Regulation 16 is US$25,000. This non-refundable fee is payable to the Centre by a party: (a)
requesting the institution of conciliation or arbitration proceedings under the Convention or
the Additional Facility Rules; (b) applying for annulment of an arbitral award rendered
pursuant to the Convention; or (c) requesting the institution of fact-finding proceedings
under the Additional Facility Rules.
2. A non-refundable fee of US$10,000 is payable to the Centre by any party: (a) requesting a
supplementary decision to, or the rectification, interpretation or revision of, an arbitral
award rendered pursuant to the Convention; (b) requesting a supplementary decision to, or
the correction or interpretation of, an arbitral award rendered pursuant to the Additional
Facility Rules; or (c) requesting the resubmission of a dispute to a new Tribunal after the
annulment of an arbitral award rendered pursuant to the Convention.
Fees and Expenses of Conciliators, Arbitrators, Commissioners and ad hoc Committee
Members
3. In addition to receiving reimbursement for any direct expenses reasonably incurred,
conciliators, arbitrators, commissioners and ad hoc Committee members are entitled to
receive a fee of US$3,000 per day of meetings or other work performed in connection with
the proceedings, as well as subsistence allowances and reimbursement of travel expenses
within limits set forth in Administrative and Financial Regulation 14. Any request for a higher
amount shall be made through the Secretary-General.

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 ICSID—Schedule of Fees (effective 1 July 2017)
Appointment and Challenge of Arbitrators in Proceedings Not Conducted under the
Convention or Additional Facility Rules
4. A non-refundable fee of US$10,000 is payable to the Centre by a party requesting that the
Secretary-General appoint an arbitrator, or decide the challenge to an arbitrator, in
proceedings not conducted under the Convention or Additional Facility Rules.
Administrative Charges
5. An administrative charge of US$42,000 is levied by the Centre upon the registration of a
request for arbitration, conciliation or post award proceeding, and annually thereafter. For
cases registered before July 1, 2016, the annual administrative charge is levied by the Centre
on the date of the constitution of the Conciliation Commission, Arbitral Tribunal, Fact-
Finding Committee or ad hoc Committee concerned. The same annual charge applies to
proceedings administered by the Centre under rules other than the ICSID Convention or
Additional Facility Rules.
6. The administrative charge, the direct expenses incurred in connection with the
proceedings, and the fees and expenses of the Commission, Tribunal or Committee, are met
from advance payments that the parties are periodically requested to make to the Centre
under Administrative and Financial Regulation 14.
Charges for Special Services
7. Under Administrative and Financial Regulation 15, a party asking the Centre to perform a
special service must deposit in advance an amount sufficient to cover the resulting charges.
The charges for such services are determined on the basis of rates established by the World
Bank under its normal administrative procedures.

[C] Arbitrator Fees

The ICSID Secretary-General, with the approval of the presiding arbitrator of the tribunal,
determines a fee for each day on which … “[an arbitrator] participates in meetings of the
body of which he is a member … [and] a fee for the equivalent of each eight-hour day of
other work performed in connection with the [arbitration] proceedings.” (224) Days of
participation in meetings include days of travel to and from the meetings. The current
standard rate is USD 3,000 per meeting day or eight-hour day of other work in accordance
with the fee schedule reproduced above. (225)

[D] Arbitrator’s Costs and Disbursements

The ICSID Rules include far more detail on arbitrators’ costs and disbursements than other
rules under consideration. Arbitrators are entitled to reimbursement of expenses when
they are away from their normal place of residence, based on per diem allowances
P 507 established by Executive Directors of the World Bank to cover lodging and expenses.
P 508
(226) The current rates range between USD 115 and USD 185 per day, depending upon the
city where the hearing is to be held. (227) It is open to arbitrators, however, to choose to
charge the full hotel rate for their lodgings plus half the appropriate per diem rate for the
host city. (228) For day or overnight trips by air, rail, or other public transport, a per diem
allowance of half the standard rate of USD 115 rounded to the nearest dollar (USD 58) may
be claimed. (229) All claims for travel reimbursements must be submitted with proper
documentation and approved by the ICSID Secretariat. (230)

[E] Advances on Costs and Non-payment

As soon as a tribunal is constituted, the ICSID Secretary-General will estimate the expenses
that will be incurred by ICSID for the next three to six months, after consulting with the
presiding arbitrator of the tribunal and, to the extent possible, the parties. (231) Each party
will be required to pay one-half of such advances, without prejudice to the final decision of
the tribunal regarding cost allocation. (232) If a party is unable to pay its share of the
advances within 30 days of the day on which payment was requested, the Secretary-
General will inform the other party and give both parties an opportunity to make the
required payment. (233) If such advance payments are not made, ICSID will not be required
to provide any service. (234)

[F] Cost Allocation

An ICSID arbitral tribunal has discretion to apportion costs to the parties in the final
P 508 arbitral award. (235) The parties or the arbitral tribunal may request the Secretary-General
P 509 of ICSID to provide excerpts of legal rulings or legal reasoning in prior ICSID cases to
assist in determining cost apportionment. The tribunal assesses the fees and expenses
incurred by the parties in connection with the proceedings and decides which party will
pay those expenses, and the other costs of the arbitration, including the fees and expenses
of the tribunal. (236) The tribunal also may decide at any stage of the proceeding the
apportionment of the costs of any portion of the proceedings. (237) An ICSID arbitral
tribunal enjoys wide discretion in apportioning costs in the final award, although in
practice it is less common for ICSID tribunals to make substantial awards of costs than is

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 the case with commercial international arbitration tribunals. (238)

§8.07 LCIA RULES

Unlike the majority of the arbitral institutions around the world, the LCIA bases its
administrative fees on hourly rates rather than on the sum in dispute. In the view of the
LCIA, a high-value case is not necessarily complex, and hourly rates are therefore
considered to better reflect the costs of the administration of an arbitration. (239)
The claimant in an LCIA arbitration is required to pay a fixed, non-refundable registration
fee upon filing the Notice of Arbitration. (240) Thereafter, all services provided by the
Court, the Registrar, and the Secretariat are charged on an hourly basis, depending on the
seniority and function of the person concerned, plus a percentage of the fees charged by
the tribunal. (241) Similarly, members of the arbitral tribunal are compensated on the
basis of an agreed hourly rate, based on the complexity of the dispute and qualifications
of the arbitrators, not to exceed GBP 450. (242)
The LCIA Rules provide that the LCIA Court is responsible for determining the costs of the
arbitration in accordance with the Schedule of Costs. (243) In its final award, an LCIA
arbitral tribunal will specify the total costs of the arbitration and how they should be
apportioned between the parties, and make any award of legal costs and fees. (244) Under
P 509 the LCIA Rules, there is a presumption that the English rule on costs will apply, i.e., that the
P 510 losing party will pay the costs incurred by the successful party. The 2014 LCIA Rules also
now expressly authorize the arbitral tribunal to take into consideration the parties’
conduct in the arbitration in its cost decision. (245)

[A] Overview
The LCIA’s fee structure is largely informed by the legal tradition of cost shifting that
prevails in the English legal system. (246) It differs from other institutions under
consideration in that the sum in dispute is not taken into account in setting the
administrative or arbitrators’ fees. It charges an initial registration fee, and an hourly rate
for LCIA personnel designated to administer the arbitration. (247) Arbitrator fees are also
based upon an hourly rate subject to a maximum of GBP 450, based on the complexity of
the case and the particular qualifications and expertise of the arbitrator. (248) The
relevant LCIA Rules are reproduced in Table 8.22.
P 510
P 511 Table 8.22 LCIA Costs
LCIA
P 511 Article 24. Deposits 24.1 The LCIA Court may direct the parties, in such proportions and
P 512 at such times as it thinks appropriate, to make one or more
payments to the LCIA on account of the Arbitration Costs. Such
payments deposited by the parties may be applied by the LCIA Court
to pay any item of such Arbitration Costs (including the LCIA’s own
fees and expenses) in accordance with the LCIA Rules.
24.2 All payments made by parties on account of the Arbitration
Costs shall be held by the LCIA in trust under English law in England,
to be disbursed or otherwise applied by the LCIA in accordance with
the LCIA Rules and invested having regard also to the interests of the
LCIA. Each payment made by a party shall be credited by the LCIA
with interest at the rate from time to time credited to an overnight
deposit of that amount with the bank(s) engaged by the LCIA to
manage deposits from time to time; and any surplus income (beyond
such interest) shall accrue for the sole benefit of the LCIA. In the
event that payments (with such interest) exceed the total amount of
the Arbitration Costs at the conclusion of the arbitration, the excess
amount shall be returned by the LCIA to the parties as the ultimate
default beneficiaries of the trust.

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 LCIA
24.3 Save for exceptional circumstances, the Arbitral Tribunal should
not proceed with the arbitration without having ascertained from
the Registrar that the LCIA is or will be in requisite funds as regards
outstanding and future Arbitration Costs.
24.4 In the event that a party fails or refuses to make any payment
on account of the Arbitration Costs as directed by the LCIA Court, the
LCIA Court may direct the other party or parties to effect a substitute
payment to allow the arbitration to proceed (subject to any order or
award on Arbitration Costs).
24.5 In such circumstances, the party effecting the substitute
payment may request the Arbitral Tribunal to make an order or
award in order to recover that amount as a debt immediately due
and payable to that party by the defaulting party, together with any
interest.
24.6 Failure by a claiming or cross-claiming party to make promptly
and in full any required payment on account of Arbitration Costs
may be treated by the Arbitral Tribunal as a withdrawal from the
arbitration of the claim or cross-claim respectively, thereby
removing such claim or cross-claim (as the case may be) from the
scope of the Arbitral Tribunal’s jurisdiction under the Arbitration
Agreement, subject to any terms decided by the Arbitral Tribunal as
to the reinstatement of the claim or cross-claim in the event of
subsequent payment by the claiming or cross-claiming party. Such a
withdrawal shall not preclude the claiming or cross-claiming party
from defending as a respondent any claim or cross-claim made by
another party.

Article 28. 28.1. The costs of the arbitration other than the legal or other
Arbitration and expenses incurred by the parties themselves (the “Arbitration Costs”)
Legal Costs shall be determined by the LCIA Court in accordance with the
Schedule of Costs. The parties shall be jointly and severally liable to
the LCIA and the Arbitral Tribunal for such Arbitration Costs.
28.2. The Arbitral Tribunal shall specify by an award the amount of
the Arbitration Costs determined by the LCIA Court (in the absence of
a final settlement of the parties’ dispute regarding liability for such
costs). The Arbitral Tribunal shall decide the proportions in which the
parties shall bear such Arbitration Costs. If the Arbitral Tribunal has
decided that all or any part of the Arbitration Costs shall be borne
by a party other than a party which has already covered such costs
by way of a payment to the LCIA under Article 24, the latter party
shall have the right to recover the appropriate amount of Arbitration
Costs from the former party.

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 LCIA
28.3. The Arbitral Tribunal shall also have the power to decide by an
award that all or part of the legal or other expenses incurred by a
party (the “Legal Costs”) be paid by another party. The Arbitral
Tribunal shall decide the amount of such Legal Costs on such
reasonable basis as it thinks appropriate. The Arbitral Tribunal shall
not be required to apply the rates or procedures for assessing such
costs practised by any state court or other legal authority.
28.4. The Arbitral Tribunal shall make its decisions on both
Arbitration Costs and Legal Costs on the general principle that costs
should reflect the parties’ relative success and failure in the award
or arbitration or under different issues, except where it appears to
the Arbitral Tribunal that in the circumstances the application of
such a general principle would be inappropriate under the
Arbitration Agreement or otherwise. The Arbitral Tribunal may also
take into account the parties’ conduct in the arbitration, including
any co-operation in facilitating the proceedings as to time and cost
and any non-co-operation resulting in undue delay and unnecessary
expense. Any decision on costs by the Arbitral Tribunal shall be
made with reasons in the award containing such decision.
28.5. In the event that the parties have howsoever agreed before
their dispute that one or more parties shall pay the whole or any
part of the Arbitration Costs or Legal Costs whatever the result of
any dispute, arbitration or award, such agreement (in order to be
effective) shall be confirmed by the parties in writing after the
Commencement Date.
28.6. If the arbitration is abandoned, suspended, withdrawn or
concluded, by agreement or otherwise, before the final award is
made, the parties shall remain jointly and severally liable to pay to
the LCIA and the Arbitral Tribunal the Arbitration Costs determined
by the LCIA Court.
28.7. In the event that the Arbitration Costs are less than the
deposits received by the LCIA under Article 24, there shall be a refund
by the LCIA to the parties in such proportion as the parties may
agree in writing, or failing such agreement, in the same proportions
and to the same payers as the deposits were paid to the LCIA.

[B] Administrative Fees

The LCIA charges a GBP 1,750 registration fee, and this must accompany a Request for
P 512 Arbitration. (249) Time spent on the case by the Registrar and Deputy Registrar is charged
P 513 at GBP 250 per hour, time spent by LCIA Counsel is charged at GBP 225 per hour. (250)
Charges for other personnel within the LCIA Secretariat range from GBP 150 to GBP 175. (251)
The members of the LCIA Court also charge an hourly rate for their time. (252) In cases
where the LCIA is asked to act as the appointing authority without administering the
arbitration itself, it charges a non-refundable fee of GBP 1,250. (253)
In addition to these hourly rates, the LCIA charges a general overhead fee equivalent to 5%
of the arbitrator fees charged by the tribunal, including costs and travels, as well as the
costs of any administrative services provided by the LCIA. (254) These charges may be
payable in advance, or included in the final arbitral award. (255) The LCIA’s Administrative
Fee Schedule appears in Table 8.23.
P 513
P 514 Table 8.23 LCIA Administrative Fee Schedule

P 514
P 515

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 LCIA—Schedule of Costs, LCIA Arbitration (effective 1 October 2014)
For arbitrations conducted under the LCIA arbitration rules (the Rules).
1. Administrative charges
1(i) Registration Fee (payable in advance with the Request for Arbitration: non-refundable).
Registration Fee£1,750
1(ii) Time spent* by the Secretariat of the LCIA in the administration of the arbitration.**
Registrar / Deputy Registrar £250 per hour
Counsel £225 per hour
Case administrators £175 per hour
Casework accounting functions £150 per hour
1(iii) Time spent by members of the LCIA Court in carrying out their functions in deciding any
challenge brought under the Rules.**
at hourly rates advised by members of the LCIA Court
1(iv) A sum equivalent to 5% of the fees of the Tribunal (excluding expenses) in respect of the
LCIA’s general overhead.**
1(v) Expenses incurred by the Secretariat and by members of the LCIA Court, in connection
with the arbitration (such as postage, telephone, facsimile, travel etc.), and additional
arbitration support services, whether provided by the Secretariat or by the members of the
LCIA Court from their own resources or otherwise.**
1(vi) The LCIA’s charges will be invoiced in sterling, but may be paid in other convertible
currencies, at rates prevailing at the time of payment.
1(vii) Charges may be subject to Value Added Tax at the prevailing rate.

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 LCIA—Schedule of Costs, LCIA Arbitration (effective 1 October 2014)
2. Fees and expenses of the Tribunal*
2(i) The tribunal’s fees will be calculated by reference to work done by its members in
connection with the arbitration and will be charged at rates appropriate to the particular
circumstances of the case, including its complexity and the special qualifications of the
arbitrators. The Tribunal shall agree in writing upon fee rates conforming to the Schedule
prior to its appointment by the LCIA Court. The rates will be advised by the Registrar to the
parties at the time of the appointment of the Tribunal, but may be reviewed if the duration
or a change in the circumstances of the arbitration requires.
Fees shall be at hourly ratesnot exceeding£450.
However, in exceptional cases, the rate may be higher, provided that, in such cases, (i) the
fees of the Tribunal shall be fixed by the LCIA Court on the recommendation of the Registrar,
following consultations with the arbitrator(s), and (ii) the fees shall be agreed expressly by
all parties.
2(ii) The Tribunal’s fees may include a charge for time spent travelling.
2(iii) The Tribunal’s fees may also include a charge for time reserved but not used as a result
of late postponement or cancellation of hearings, provided that the basis for such charge
shall be advised in writing to, and approved by, the LCIA Court and that the parties have
been informed in advance.
2(iv) The Tribunal may also recover such expenses as are reasonably incurred in connection
with the arbitration, and as are reasonable in amount, provided that claims for expenses
should be supported by invoices or receipts.
2(v) The Tribunal’s fees shall be invoiced in the currency of account between the Tribunal
and the parties.
2(vi) In the event of the revocation of the appointment of any arbitrator, pursuant to the
provisions of Article 10 of the Rules, the LCIA Court shall, in accordance with Article 10.7,
determine the amount of fees and expenses (if any) to be paid for the former arbitrator’s
services as it may consider appropriate in all the circumstances.
2(vii) Charges may be subject to Value Added Tax at the prevailing rate.
3. Deposits
3(i) The LCIA Court may direct the parties, in such proportions and at such times as it thinks
appropriate, to make one or more payments to the LCIA on account of the costs of the
arbitration, other than the legal or other expenses incurred by the parties themselves (the
Arbitration Costs). Such payments deposited by the parties may be applied by the LCIA
Court to pay any item of such Arbitration Costs (including the LCIA’s own fees and expenses)
in accordance with the LCIA Rules.
3(ii) All payments made by parties on account of the Arbitration Costs shall be held by the
LCIA in trust under English law in England, to be disbursed or otherwise applied by the LCIA
in accordance with the LCIA Rules and invested having regard also to the interests of the
LCIA. Each payment made by a party shall be credited by the LCIA with interest at the rate
from time to time credited to an overnight deposit of that amount with the bank(s) engaged
by the LCIA to manage deposits from time to time; and any surplus income (beyond such
interest) shall accrue for the sole benefit of the LCIA. In the event that payments (with such
interest) exceed the total amount of the Arbitration Costs at the conclusion of the
arbitration, the excess amount shall be returned by the LCIA to the parties as the ultimate
default beneficiaries of the trust.
3(iii) The Arbitral Tribunal shall not proceed with the arbitration without having ascertained
from the Registrar that the LCIA is in requisite funds as regards outstanding and future
Arbitration Costs.

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 LCIA—Schedule of Costs, LCIA Arbitration (effective 1 October 2014)
3(iv) In the event that a party fails or refuses to make any payment on account of the
Arbitration Costs as directed by the LCIA Court, the LCIA Court may direct the other party or
parties to effect a substitute payment to allow the arbitration to proceed (subject to any
order or award on Arbitration Costs).
3(v) In such circumstances, the party effecting the substitute payment may request the
Arbitral Tribunal to make an order or award in order to recover that amount as a debt
immediately due and payable to that party by the defaulting party, together with any
interest.
4. Interim payments
When interim payments are required to cover any part of the Arbitration Costs, including the
LCIA’s administrative charges; the fees or expenses of members of the LCIA Court, the
Tribunal’s fees or expenses, including the fees or expenses of any expert appointed by the
Tribunal, the fees or expenses of any Secretary to the Tribunal; or charges for hearing rooms
and other support services, such payments may be made against the invoices for any of the
above from funds held on deposit. If no or insufficient funds are held at the time the interim
payment is required, the invoices for any of the above may be submitted for payment direct
by the parties.
5. Registrar’s authority
5(i) For the purposes of sections 3(i) and 3(iv) above, and of Articles 24.1 and 24.4 of the
Rules, the Registrar has the authority of the LCIA Court to make the directions referred to,
under the supervision of the Court.
5(ii) For the purposes of section 4 above, and of Article 24.1 of the Rules, the Registrar has
the authority of the LCIA Court to approve the payments referred to.
5(iii) Any request by an arbitrator for payment on account of his fees shall be supported by a
fee note, which shall include, or be accompanied by, a detailed breakdown of the time spent
at the rates that have been advised to the parties by the LCIA, and the fee note will be
forwarded to the parties prior to settlement of the account.
5(iv) Any dispute regarding the LCIA’s administrative charges, or the fees and expenses of
the Tribunal shall be determined by the LCIA Court.
6. Arbitration costs
6(i) The parties shall be jointly and severally liable to the Tribunal and the LCIA for the costs
of the arbitration (other than the legal or other costs incurred by the parties themselves).
6(ii) Any bank charges incurred on any transfer of funds by the parties to the LCIA shall be
borne exclusively by the party or parties transferring the funds.
6(iii) In accordance with Article 26.7 of the Rules, the Tribunal’s Award(s) shall be
transmitted to the parties by the LCIA Court provided that the costs of the arbitration have
been paid to the LCIA in accordance with Article 28 of the Rules.
* Minimum unit of time in all cases: 15 minutes.
** Items 1(ii), 1(iii), 1(iv) and 1(v) above, are payable on interim invoice; with the award, or as
directed by the LCIA Court under Article 24.1 of the Rules.
P 515
P 516
[C] Arbitrator Fees
LCIA arbitrators set their own fee rates in negotiation with the LCIA Registrar. (256) These
are based on an hourly rate, which is capped at GBP 450 in most cases. (257) In exceptional
circumstances, however, a higher hourly rate may be approved by the LCIA Court upon the
recommendation of the Registrar if all of the parties expressly agree to such rate. (258)
Table 8.24 reproduces the relevant Rules.
Table 8.24 LCIA Fee Schedule

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 LCIA—Schedule of Costs (effective 1 October 2014)
2. Fees and expenses of the Tribunal*
2(i) The tribunal’s fees and expenses will be calculated by reference to work done by its
members in connection with the arbitration and will be charged at rates appropriate to the
particular circumstances of the case, including its complexity and the special qualifications
of the arbitrators. The Tribunal shall agree in writing upon fee rates conforming to the
Schedule prior to its appointment by the LCIA Court. The rates will be advised by the
Registrar to the parties at the time of the appointment of the Tribunal but may be reviewed
if the duration or a change in the circumstances of the arbitration requires.
Fees shall be at hourly rates not exceeding £450.
However, in exceptional cases, the rate may be higher, provided that, in such cases, (a) the
fees of the Tribunal shall be fixed by the LCIA Court on the recommendation of the Registrar,
following consultations with the arbitrator(s), and (b) the fees shall be agreed expressly by
all parties.
2(ii) The Tribunal’s fees may include a charge for time spent travelling.
2(iii) The Tribunal’s fees may also include a charge for time reserved but not used as a result
of late postponement or cancellation of hearings, provided that the basis for such charge
shall be advised in writing to, and approved by, the LCIA Court and that the parties have
been informed in advance.
2(iv) The Tribunal may also recover such expenses as are reasonably incurred in connection
with the arbitration, and as are reasonable in amount, provided that claims for expenses
should be supported by invoices or receipts.
2(v) The Tribunal’s fees shall be invoiced in the currency of account between the Tribunal
and the parties.
2(vi) In the event of the revocation of the appointment of any arbitrator, pursuant to the
provisions of Article 10 of the Rules, the LCIA Court shall, in accordance with Article 10.7,
determine the amount of fees and expenses (if any) to be paid for the former arbitrator’s
services as it may consider appropriate in all the circumstances.
2(vii) Charges may be subject to Value Added Tax at the prevailing rate.

P 516
P 517
[D] Arbitrators’ Costs and Disbursements
The LCIA Rules provide very little guidance on the expenses that may be claimed by the
tribunal, merely stating in paragraph 2(iv) in the Schedule of Arbitration Costs that the
tribunal may recover costs “reasonably incurred in connection with the arbitration, and as
are reasonable in amount, provided that claims for expenses should be supported by
invoices or receipts.” (259) This provision mirrors the English Arbitration Act 1996, in which
issues of costs are always subject to the touchstone of reasonableness. (260)

[E] Advances on Costs and Non-payment

The LCIA Court may direct the parties to pay advances on the costs of the arbitration “in
such proportions and at such times as it thinks appropriate … .” (261) Before proceeding
with the arbitration, the tribunal must ascertain from the Registrar that the LCIA Court has,
or will have, a sufficient amount on deposit to cover outstanding and future arbitration
costs. (262)

[F] Cost Allocation

If one party fails to make a required payment as directed, the LCIA Court may direct any
other party to make the payment. (263) The 1998 LCIA Rules provide that “the party paying
the substitute payment shall be entitled to recover that amount as a debt immediately
due from the defaulting party.” (264) The 2014 Rules go one step further and authorize the
tribunal to make an order or award to that effect, which can include any interest earned.
(265) Failure by a party asserting a claim or counterclaim to make prompt and full
payment of any advance requested by the LCIA Court may be treated as a withdrawal of
their claim or counterclaim. (266) The 2014 LCIA Rules provide that the tribunal may
reinstate any claim or counterclaim that has been deemed withdraw in the event of
subsequent payment by the defaulting party. (267)
The arbitral tribunal determines the proportions in which the parties bear the costs of the
arbitration. (268) This includes the power to decide that all or part of the legal or other
P 517 expenses incurred by a party be paid by another party. (269) The LCIA Rules provide that
P 518 the parties may limit the tribunal’s authority to allocate the costs of the arbitration, and
the 2014 Rules require the parties to confirm any such agreement in writing after the
commencement of the arbitration. (270) This revision was likely implemented to account
for the fact that if the arbitration has its seat in England, an agreement between the
parties on the allocation of the costs of the arbitration is only enforceable if reached after

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 the dispute has arisen. (271)
Like many other institutions, the LCIA’s Rules provide for an award of costs to be based
upon the principle that the losing party should pay the successful party’s costs. (272)
Following the English cost-shifting principle, this general rule is followed far more closely
in LCIA arbitrations than in those under other institutional rules. Exceptions may be made
where the tribunal considers that “in the circumstances the application of such a general
principle would be inappropriate … .” (273)

§8.08 SCC RULES

[A] Overview
The costs and fees of SCC arbitration proceedings include the fees of the arbitrators,
administrative fees, and other expenses of the tribunal and the SCC, calculated on the
basis of the amount in dispute. (274) The amount in dispute means the total value of all
claims, counterclaims and set offs. (275) This helpfully allows parties to predict the costs of
an SCC arbitration. The SCC website provides a calculator to enable parties to estimate the
costs they face for bringing or defending SCC proceedings. (276)
Like the ICC, the SCC follows the ad valorem method both for administrative fees and
arbitrator fees. (277) Its charges, however, are generally thought to be considerably lower
than those of the ICC. The SCC Rules are unusual in that they explicitly set out the rule that
the fees of the party arbitrators will be lower than those of the presiding arbitrator,
although in reality most other institutions follow a similar practice. (278)
The SCC charges an initial registration fee of €3,000 and, like other institutions, requires
the parties to pay periodic advances on the costs of the arbitration, which are payable in
equal shares by the parties. (279) The SCC requires an initial advance on costs to be paid
before the case is referred to the arbitral tribunal. (280) Advances on costs are a matter for
P 518 the SCC Board to decide upon. (281) The tribunal is required to apportion the costs of the
P 519 arbitration between the parties if asked to do so by one of the parties, and in doing so
the tribunal should have regard to “the outcome of the case, each party’s contribution to
the efficiency and expeditiousness of the arbitration and any other relevant
circumstances.” (282) The tribunal has discretion to apportion the costs of the arbitration
and make an award of legal fees between the parties based on the outcome of the case or
any other circumstances. (283) The relevant SCC Rules are in Table 8.25.
P 519
P 520 Table 8.25 SCC Costs
SCC
P 520 Article 11. The Board takes decisions as provided under these Rules, including
P 521 Decisions by the deciding:
Board
[…]
(ix) on the Advance on Costs pursuant to Article 51.

Article 12. The Board shall dismiss a case, in whole or in part, if:
Dismissal
[…]
(ii) the Advance on Costs is not paid pursuant to Article 51.

Article 22. When the Arbitral Tribunal has been appointed and the Advance on Costs
Referral to the has been paid, the Secretariat shall refer the case to the Arbitral
Arbitral Tribunal Tribunal.
Article 49. Costs 1. The Costs of the Arbitration consist of:
of the
Arbitration (i) the Fees of the Arbitral Tribunal;
(ii) the Administrative Fee; and
(iii) the expenses of the Arbitral Tribunal and the SCC.
2. Before making the final award, the Arbitral Tribunal shall request that
the Board finally determine the Costs of the Arbitration. The Board shall
finally determine the Costs of the Arbitration in accordance with the
Schedule of Costs (Appendix IV) in force on the date of commencement of
the arbitration pursuant to Article 8.
3. In finally determining the Costs of the Arbitration, the Board shall have
regard to the extent to which the Arbitral Tribunal has acted in an
efficient and expeditious manner, the complexity of the dispute and any
other relevant circumstances.
4. If the arbitration is terminated before the final award is made pursuant
to Article 45, the Board shall finally determine the Costs of the
Arbitration having regard to the stage of the arbitration, the work
performed by the Arbitral Tribunal and any other relevant circumstances.

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 SCC
5. The Arbitral Tribunal shall include in the final award the Costs of the
Arbitration as finally determined by the Board and specify the individual
fees and expenses of each member of the Arbitral Tribunal and the SCC.
6. Unless otherwise agreed by the parties, the Arbitral Tribunal shall, at
the request of a party, apportion the Costs of the Arbitration between the
parties, having regard to the outcome of the case, each party’s
contribution to the efficiency and expeditiousness of the arbitration and
any other relevant circumstances.
7. The parties are jointly and severally liable to the arbitrator(s) and to
the SCC for the Costs of the Arbitration.

Article 50. Costs Unless otherwise agreed by the parties, the Arbitral Tribunal may in the
Incurred by a final award upon the request of a party, order one party to pay any
Party reasonable costs incurred by another party, including costs for legal
representation, having regard to the outcome of the case, each party’s
contribution to the efficiency and expeditiousness of the arbitration and
any other relevant circumstances.
Article 51. 1. The Board shall determine an amount to be paid by the parties as an
Advance on Advance on Costs.
Costs
2. The Advance on Costs shall correspond to the estimated amount of the
Costs of Arbitration pursuant to Article 49 (1).
3. Each party shall pay half of the Advance on Costs, unless separate
advances are determined. Where counterclaims or set-offs are submitted,
the Board may decide that each of the parties shall pay the advances on
costs corresponding to its claim.
4. At the request of the Arbitral Tribunal, or if otherwise deemed
necessary, the Board may order parties to pay additional advances
during the course of the arbitration.
5. If a party fails to make a required payment, the Secretariat shall give
the other party an opportunity to do so within a specified period of time.
If the payment is not made within that time, the Board shall dismiss the
case in whole or in part. If the other party makes the required payment,
the Arbitral Tribunal may, at the re quest of such party, make a separate
award for reimbursement of the payment.
6. At any stage during the arbitration or after the Award has been made,
the Board may draw on the Advance on Costs to cover the Costs of the
Arbitration.
7. The Board may decide that part of the Advance on Costs may be
provided in the form of a bank guarantee or other form of security.

Appendix IV. Article 1 Registration Fee

Schedule of
Costs— 1. The Registration Fee referred to in Article 7 of the Arbitration Rules is
Arbitration EUR 3,000.
Costs 2. The Registration Fee is non-refundable and constitutes a part of the
Administrative Fee in Article 3 below. The Registration Fee shall be
credited to the Advance on Costs to be paid by the Claimant pursuant to
Article 51 of the Arbitration Rules.

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 SCC
Article 2 Fees of the Arbitral Tribunal
1. The Board shall determine the fee of a Chairperson or sole arbitrator
based on the amount in dispute in accordance with the table below.
2. Co-arbitrators shall each receive 60 per cent of the fee of the
Chairperson. After consultation with the Arbitral Tribunal, the Board may
decide that a different percentage shall apply.
3. The amount in dispute shall be the aggregate value of all claims,
counterclaims and set-offs. Where the amount in dispute cannot be
ascertained, the Board shall determine the Fees of the Arbitral Tribunal
taking all relevant circumstances into account.
4. In exceptional circumstances, the Board may deviate from the
amounts set out in the table.
Article 3 Administrative Fee
1. The Administrative Fee shall be determined in accordance with the
table below.
2. The amount in dispute shall be the aggregate value of all claims,
counterclaims and set-offs. Where the amount in dispute cannot be
ascertained, the Board shall determine the Administrative Fee taking all
relevant circumstances into account.
3. In exceptional circumstances, the Board may deviate from the
amounts set out in the table.
Article 4 Expenses
In addition to the Fees of the arbitrator(s) and the Administrative Fee, the
Board shall fix an amount to cover any reasonable expenses incurred by
the arbitrator(s) and the SCC. The expenses of the arbitrator(s) may
include the fee and expenses of any expert appointed by the Arbitral
Tribunal pursuant to Article 34 of the Arbitration Rules.
Article 5 Pledge
By paying the Advance on Costs pursuant to Article 51 (1) of the
Arbitration Rules, each party irrevocably and unconditionally pledges to
the SCC and to the arbitrators, as represented by the SCC, any rights over
any amount paid to the SCC as continuing security for any liabilities for
the Costs of the Arbitration.

[B] Administrative Fees

The SCC charges a €3,000 registration fee at the time of filing the request for arbitration.
(284) The registration fee constitutes part of the overall administrative fee. (285) The SCC
determines the amount of the administrative fee to be charged based on the amount in
P 521 dispute in accordance with the table below. (286) The SCC may deviate from the amounts
P 522 stated in the table under “exceptional circumstances.” (287)
Table 8.26 SCC Administrative Fee Schedule
Amount in Dispute (EUR) Administrative Fee (EUR)
Up to 25,000 3,000
from 25,001 to 50,000 3,000 + 4.0% on the amount above 25,000
from 50,001 to 10,0000 4,000 + 2.4% on the amount above 50,000
from 100,001 to 500,000 5,200 + 2.0% on the amount above 100,000
from 500,001 to 1,000,000 13,200 + 0.8% on the amount above 500,000
from 1,000,001 to 2,000,000 17,200 + 0.5% on the amount above 1,000,000
from 2,000,001 to 5,000,000 22,200 + 0.3% on the amount above 2,000,000
from 5,000,001 to 10,000,000 31,200 + 0.14% on the amount above 5,000,000
from 10,000,001 to 50,000,000 38,200 + 0.04% on the amount above 10,000,000
from 50.000,001 to 75,000,000 54,200 + 0.02% on the amount above 50,000,000
from 75.000,001 59,200 + 0.02% on the amount above 75,000,000
Maximum 60,000

[C] Arbitrator Fees

The SCC Board determines the fee of the presiding arbitrator or a sole arbitrator based on

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 the amount in dispute, according to the arbitrator fee schedule below. (288) Within the
ranges provided in the schedule, the starting point is the median value based on the sum
in dispute, with other factors being taking into account including the complexity of the
matter; the parties’ respective positions; the number of parties; procedural aspects; and
the number of arbitrators. (289) If the dispute is settled, the claimant withdraws its claim,
or the case is dismissed due to lack of jurisdiction, the SCC Board determines the level of
fees to be paid to the tribunal, based upon a report from the tribunal on the amount of
work it has completed. (290)
Each arbitrator is entitled to receive a fee based on the sum in dispute in the arbitration,
pursuant to a schedule of fees that is included in the SCC Rules (Table 8.27). (291) Co-
arbitrators each receive 60% of the total fee paid to the presiding arbitrator, unless the
SCC Board decides otherwise in consultation with the arbitral tribunal. (292) Other
institutions follow a similar practice, but it is unusual for this principle to be set forth
P 522 expressly in the rules. The SCC may deviate from the fees calculated in accordance with
P 523 the following schedule in “exceptional circumstances.” (293)
Table 8.27 SCC Arbitrator Fee Schedule
Amount in Dispute Fee of the Presiding Arbitrator/Sole Arbitrator
(EUR) Minimum (EUR) Maximum (EUR)
to 25,000 4,000 12,000
from 25,001 to 50,000 4,000 + 2.0% on the amount 12,000 + 14.0% on the amount
above 25,000 above 25,000
from 50,001 to 100,000 4,500 + 5.0% on the amount 15,500 + 5.0% on the amount
above 50,000 above 50,000
from 100,001 to 500,000 7,000 + 2.0% on the amount 18,000 + 4.0% on the amount
above 100,000 above 100,000
from 500,001 to 1,000,000 15,000 + 1.0% on the amount 34,000 + 3.0% on the amount
above 500,000 above 500,000
from 1,000,001 to 20,000 + 0.8% on the amount 49,000 +2.3% on the amount
2,000,000 above 1,000,000 above 1,000,000
from 2,000,001 to 28,000 + 0.4% on the amount 72,000 + 1.4% on the amount
5,000,000 above 2,000,000 above 2,000,000
from 5,000,001 to 40,000 + 0.2% on the amount 114,000 + 0.5% on the amount
10,000,000 above 5,000,000 above 5,000,000
from 10,000,001 to 50,000 + 0.05% on the amount 139,000 + 0.2% on the amount
50,000,000 above 10,000,000 above 10,000,000
from 50,000,001 to 70,000 + 0.05% on the amount 219,000 + 0.12% on the amount
75,000,000 above 50,000,000 above 50,000,000
from 75,000,001 to 82,500 + 0.03% on the amount 249,000 + 0.05% on the
100,000,000 above 75,000,000 amount above 75,000,000
from 100,000,001 To be determined by the To be determined by the
Board Board

[D] Arbitrators’ Costs and Disbursements

The SCC typically requires the parties to pay an advance on costs to cover the reasonable
expenses of the arbitrators, including any tribunal-appointed experts, and the SCC’s own
administrative fee. (294)
In common with other international arbitration institutions, the SCC considers the
appropriateness of arbitrators’ expenses on the basis of reasonableness, and the SCC’s
guidelines for arbitrators include detailed advice on the expenses that may be claimed.
(295) The SCC permits arbitrators to claim a €500 per diem to cover the costs of overnight
accommodation, meals, and intracity taxi fares. (296)
P 523 The arbitrators also may submit a claim for any costs they have incurred in relation to
P 524 setting up the hearing, including the rental costs for hearing rooms, equipment,
telephone and video conferences, and the like; interpreters, court reporters, and
translation services; courier fees; and the costs of any tribunal-appointed expert
witnesses. (297) In practice, the majority of these expenses usually are paid by the parties
themselves.
Generally, arbitrators are required to pay their own costs in the first instance and seek
reimbursement after the award has been rendered, although the SCC Board may approve
advance payments from an advance on costs in substantial cases. (298)

[E] Advances on Costs and Non-payment

The SCC Board of Directors will determine the advances on costs to be paid by the parties,
which will correspond to the estimated costs of arbitration. (299) Unless determined

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 otherwise by the Board, each party is responsible for half of advance costs. (300) The Board
also may determine that each party is responsible for advances related to the claims that
it advances. (301) If a party fails to pay its share of advances on costs, the Secretariat will
give the other party the opportunity to do so within a specific period of time, and the
arbitral tribunal may, at the request of the party making payment, write a separate award
for reimbursement. (302) If advance costs are not paid, the Board of Directors of the SCC
will dismiss the case. (303)

[F] Cost Allocation

SCC arbitral tribunals may, upon the request of a party, apportion the costs of an
arbitration in the final arbitral award and are advised to decide on the apportionment of
the arbitration costs “having regard to the outcome of the case, each party’s contribution
to the efficiency and expeditiousness of the arbitration and any other relevant
circumstances.” (304) The emphasis in the SCC Rules is thus not entirely on the “loser pays”
principle (as it is, for example, under the LCIA Rules). Instead, this is just one of the factors
that may be taken into account.
P 524
P 525

§8.09 SIAC RULES

[A] Overview
Under the SIAC Rules, the costs of the arbitration generally comprise SIAC’s administrative
fees and expenses; the tribunal’s fees and expenses; and the costs of any expert appointed
by the tribunal. (305) The SIAC Schedule of Fees (annexed to the Rules) establishes a fixed
filing fee for the case and for each claim and counterclaim. (306) The Schedule of Fees also
prescribes graduated maximum fees for the administering institution and the arbitrators
based on the amount in controversy. The Registrar is able to direct the parties to pay
additional fees for administration and/or the arbitrators “[i]n exceptional circumstances.”
(307) The tribunal is also entitled to reimbursement from the parties for reasonable and
necessary expenses. (308) Under the Schedule of Fees, SIAC charges a fixed fee for
emergency arbitrator applications, arbitrator appointments, arbitrator challenges,
mediation-arbitration, and allocation of costs (where the tribunal does not make such
allocation). The fixed fees are slightly higher for Singapore parties to account for
Singapore’s 7% Goods and Service Tax (GST). The graduated fees are exclusive of GST.

[B] Filing and Administrative Fees

The SIAC Schedule of Fees sets forth a fixed filing fee of S$ 2,000 for the case and for each
claim and counterclaim. Singapore parties must pay a filing fee of S$ 2,140 to cover the
GST. The Schedule of Fees also prescribes graduated maximum administrative fees based
on the amount in controversy. These fees do not include the fees and expenses of the
tribunal (indicated further below), costs for a hearing venue and related support services,
or SIAC’s administrative expenses (Table 8.28).
P 525
P 526 Table 8.28 SIAC’s General Administration Fees
Sum in Dispute (S$) Administration Fees (S$)
Up to 50,000 3,800
50,001 to 100,000 3,800 + 2.200% excess over 50,000
100,001 to 500,000 4,900 + 1.200% excess over 100,000
500,001 to 1,000,000 9,700 + 1.000% excess over 500,000
1,000,001 to 2,000,000 14,700 + 0.650% excess over 1,000,000
2,000,001 to 5,000,000 21,200 + 0.320% excess over 2,000,000
5,000,001 to 10,000,000 30,800 + 0.160% excess over 5,000,000
10,000,001 to 50,000,000 38,800 + 0.095% excess over 10,000,000
50,000,001 to 80,000,000 76,800 + 0.040% excess over 50,000,000
80,000,001 to 100,000,000 88,800 + 0.031% excess over 80,000,000
Above 100,000,000 95,000
Under the SIAC Schedule of Fees, additional fees (shown in Table 8.29) apply if SIAC is
called upon to appoint an emergency arbitrator, appoint one or more arbitrators to the
tribunal, decide a party’s challenge to an arbitrator appointment, or administer a
mediation-arbitration with the SIMC. Each of these procedural mechanisms is discussed in
sections §10.05 (Emergency Relief), §4.04 (Appointment of Arbitrators), §4.05 (Arbitrator
Challenge) and §10.02 (Mediation-Arbitration), respectively.
Table 8.29 Other Administrative Fees (S$)

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 Singapore Parties Non-Singapore Parties
(Includes 7% GST)
Emergency Arbitrator Application 5,350 5,000
Appointment of Arbitrator (1, 2 or 3,210 4,280 5,350 3,000 4,000 5,000
3)
Challenge of Arbitrator 8,560 8,000
Mediation-Arbitration (additional SIAC S$ 2,140 + SIMC S$ SIAC S$ 2,000 + SIMC S$
fee of S$ 2,000 may apply) 1,000 = S$ 3,140 1,000 = S$ 3,000

[C] Arbitrator Fees

Under the SIAC Rules, the Registrar determines the fees of the tribunal. (309) The Schedule
of Fees (Table 8.30) prescribes graduated maximum fees for each arbitrator based on the
amount in controversy. For a three-member tribunal, the sums indicated in the right-hand
column of the table below will have to be multiplied by three. Under the Schedule of Fees,
the fees of an emergency arbitrator are fixed at S$ 25,000 plus expenses. SIAC’s Schedule
of Fees for arbitrators does not account for an arbitrator’s time spent on the case as other
regimes do. Thus, the SIAC approach to arbitrator fees may result in a relatively higher cost
of arbitrator(s) for a less time-consuming case, but a relatively lower cost of arbitrator(s)
P 526 for a more time-consuming case. Though, as mentioned above, the Registrar retains the
P 527 discretion to direct the parties to pay additional fees for an “exceptionally” time-
consuming case. The parties are free to agree on an alternative method of calculating the
arbitrator’s fees. (310)
Table 8.30 SIAC Arbitrator’s Fees
Sum in Dispute (S$) Administration Fees (S$)
Up to 50,000 6,250
50,001 to 100,000 6,250 + 13.800% excess over 50,000
100,001 to 500,000 13,150 + 6.500% excess over 100,000
500,001 to 1,000,000 39,150 + 4.850% excess over 500,000
1,000,001 to 2,000,000 63,400 + 2.750% excess over 1,000,000
2,000,001 to 5,000,000 90,900 + 1.200% excess over 2,000,000
5,000,001 to 10,000,000 126,900 + 0.700% excess over 5,000,000
10,000,001 to 50,000,000 161,900 + 0.300% excess over 10,000,000
50,000,001 to 80,000,000 281,900 + 0.160% excess over 50,000,000
80,000,001 to 100,000,000 329,900 + 0.075% excess over 80,000,000
100,000,001 to 500,000,000 344,900 + 0.065% excess over 100,000,000
Above 500,000,000 605,000 + 0.040% excess over 500,000,000
Emergency Arbitrator 25,000 (311)

[D] Arbitrator’s Expenses and Disbursements

Under the SIAC Rules, the arbitrator is entitled to reimbursement from the parties for both
“out-of-pocket expenses” and “other allowances.” (312) Out-of-pocket expenses are all
reasonable and necessary expenses related to the work of the arbitrator, exclusive of
“other allowances.” (313) Other allowances are a per diem of S$ 400 for each arbitrator, or
S$ 1,000 for travel outside his or her place of residence, to cover the costs of hotel, meals,
P 527 laundry, local transportation, communications, and tips. (314) Arbitrators who must travel
P 528 outside their place of residence are also entitled to reimbursement of business-class
airfare. (315) Arbitrators must submit receipts to SIAC for verification of all expenditures.
(316)

[E] Advances on Costs and Non-payment

The Registrar is empowered to calculate all costs of the arbitration. (317) At the outset of
the arbitration, the Registrar will fix the amount of deposits payable by the parties
(typically 50% payable by the claimant and 50% payable by the respondent). (318) The
Registrar may fix additional deposits corresponding to each claim and counterclaim. (319)
These amounts are based on the amount of monetary damages claimed; if such amount is
not yet quantifiable, the Registrar may apply a provisional estimate. (320) Under the
Schedule of Fees, a fixed deposit of S$ 30,000 is required from each party toward the fees
and expenses of an emergency arbitrator.
The parties are jointly and severally liable for the costs of the arbitration, as under other
regimes. (321) Since the claimant is naturally motivated to pay her deposit in order to
pursue her claims, this rule has the practical effect of putting the cost of all deposits on
the claimant whenever a respondent is unwilling or unable to pay its own deposit. The

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 situation can be rebalanced later through the tribunal’s power to allocate costs in the final
award. (322) If the claimant does not pay her deposit (and cover the respondent’s deposit,
if necessary), the tribunal and SIAC may suspend their work on the case, and, upon
expiration of a time limit set by the Registrar, the claimant’s claims will be deemed
withdrawn. Discontinuance is discussed further in section §10.07 (Discontinuance).
In case the arbitrator does not make an order on allocation of costs, a party may call upon
the Registrar to do so. According to the Schedule of Fees, that party must pay a so-called
assessment or taxation fee (Table 8.31) to SIAC for this service, corresponding to the
amount of costs in dispute. This amount in all cases is not less than S$ 5,000 and not more
than S$ 25,000.
P 528
P 529 Table 8.31 Assessment Fees (S$)
Amount of Costs Claimed Assessment or Taxation Fee
Up to 50,000 5,000
50,001 – 100,000 5,000 + 2% of excess over 50,000
100,001 – 250,000 6,000 + 1.5% of excess over 100,000
250,001 – 500,000 8,250 + 1% of excess over 250,000
500,001 – 1,000,000 10,750 + 0.5% of excess over 500,000
Above 1,000,000 13,250 + 0.25% of excess over 1,000,000
Maximum 25,000

§8.10 UNCITRAL
[A] Overview
The UNCITRAL Rules are geared toward ad hoc, non-administered arbitration proceedings
and, therefore, they do not include provision for administrative fees or schedules of
arbitrator’s fees. The UNCITRAL Rules contemplate instead that the arbitrators’ fees and
expenses are a matter for agreement between the parties and the arbitrators who are
appointed. (323)
Where the arbitration is ad hoc, the parties must negotiate fees directly with the
arbitrators. The UNCITRAL Rules (set out in Table 8.32) provide that the fees of the arbitral
tribunal must be “reasonable … taking into account the amount in dispute, the complexity
of the subject-matter, the time spent by the arbitrators and any other relevant
circumstances of the case.” (324) Where the tribunal is appointed by an appointing
authority that has a schedule of fees for arbitrator compensation, the arbitral tribunal
must take this schedule into consideration in setting arbitrator compensation. (325)
The costs of UNCITRAL arbitration proceedings include the fees of the arbitral tribunal,
travel and other expenses of the arbitrators, witnesses, experts, legal representation, and
fees and expenses of any appointing authority that has been called upon to assist the
arbitration process as well as the fees and expenses of the Secretary-General of the PCA.
(326) The costs of the arbitration and of legal representation may be apportioned in the
arbitral award. (327) The UNCITRAL Rules state that in principle the costs of the arbitration
P 529 should be borne by the loser of the case, but the tribunal has discretion to apportion costs
P 530 and fees based on the circumstances. (328)
P 530
P 531 Table 8.32 UNCITRAL Costs
UNCITRAL Arbitration Rules 2010
P 531
P 532

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 UNCITRAL Arbitration Rules 2010
Definition of 1. The arbitral tribunal shall fix the costs of arbitration in the final award
costs Article 40 and, if it deems appropriate, in another decision.
2. The term “costs” includes only:
(a) The fees of the arbitral tribunal to be stated separately as to each
arbitrator and to be fixed by the tribunal itself in accordance with
article 41;
(b) The reasonable travel and other expenses incurred by
the arbitrators;
(c) The reasonable costs of expert advice and of other assistance
required by the arbitral tribunal;
(d) The reasonable travel and other expenses of witnesses to the extent
such expenses are approved by the arbitral tribunal;
(e) The legal and other costs incurred by the parties in relation to the
arbitration to the extent that the arbitral tribunal determines that
the amount of such costs is reasonable;
(f) Any fees and expenses of the appointing authority as well as the
fees and expenses of the Secretary-General of the PCA.
3. In relation to interpretation, correction or completion of any award
under articles 37 to 39, the arbitral tribunal may charge the costs
referred to in paragraphs 2 (b) to (f), but no additional fees.

Fees and 1. The fees and expenses of the arbitrators shall be reasonable in amount,
Expenses of taking into account the amount in dispute, the complexity of the subject
Arbitrators matter, the time spent by the arbitrators and any other relevant
circumstances of the case.
Article 41
2. If there is an appointing authority and it applies or has stated that it
will apply a schedule or particular method for determining the fees for
arbitrators in international cases, the arbitral tribunal in fixing its fees
shall take that schedule or method into account to the extent that it
considers appropriate in the circumstances of the case.
3. Promptly after its constitution, the arbitral tribunal shall inform the
parties as to how it proposes to determine its fees and expenses,
including any rates it intends to apply. Within 15 days of receiving that
proposal, any party may refer the proposal to the appointing authority
for review. If, within 45 days of receipt of such a referral, the appointing
authority finds that the proposal of the arbitral tribunal is inconsistent
with paragraph 1, it shall make any necessary adjustments thereto,
which shall be binding upon the arbitral tribunal.

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 UNCITRAL Arbitration Rules 2010
4.
(a) When informing the parties of the arbitrators’ fees and expenses
that have been fixed pursuant to article 40, paragraphs 2 (a) and
(b), the arbitral tribunal shall also explain the manner in which the
corresponding amounts have been calculated;
(b) Within 15 days of receiving the arbitral tribunal’s determination of
fees and expenses, any party may refer for review such
determination to the appointing authority. If no appointing
authority has been agreed upon or designated, or if the appointing
authority fails to act within the time specified in these Rules, then
the review shall be made by the Secretary-General of the PCA;
(c) If the appointing authority or the Secretary-General of the PCA finds
that the arbitral tribunal’s determination is inconsistent with the
arbitral tribunal’s proposal (and any adjustment thereto) under
paragraph 3 or is otherwise manifestly excessive, it shall, within 45
days of receiving such a referral, make any adjustments to the
arbitral tribunal’s determination that are necessary to satisfy the
criteria in paragraph 1. Any such adjustments shall be binding upon
the arbitral tribunal;
(d) Any such adjustments shall either be included by the arbitral
tribunal in its award or, if the award has already been issued, be
implemented in a correction to the award, to which the procedure
of article 38, paragraph 3, shall apply.
5. Throughout the procedure under paragraphs 3 and 4, the arbitral
tribunal shall proceed with the arbitration, in accordance with article 17,
paragraph 1.
6. A referral under paragraph 4 shall not affect any determination in the
award other than the arbitral tribunal’s fees and expenses; nor shall it
delay the recognition and enforcement of all parts of the award other
than those relating to the determination of the arbitral tribunal’s fees
and expenses.

Article 42 1. The costs of the arbitration shall in principle be borne by the

unsuccessful party or parties. However, the arbitral tribunal may
apportion each of such costs between the parties if it determines that
apportionment is reasonable, taking into account the circumstances of
the case.
2. The arbitral tribunal shall in the final award or, if it deems appropriate,
in any other award, determine any amount that a party may have to pay
to another party as a result of the decision on allocation of costs.

Article 43 1. The arbitral tribunal, on its establishment, may request the parties to
deposit an equal amount as an advance for the costs referred to in
article 40, paragraphs 2 (a) to (c).
2. During the course of the arbitral proceedings the arbitral tribunal may
request supplementary deposits from the parties.
3. If an appointing authority has been agreed upon or designated, and
when a party so requests and the appointing authority consents to
perform the function, the arbitral tribunal shall fix the amounts of any
deposits or supplementary deposits only after consultation with the
appointing authority, which may make any comments to the arbitral
tribunal that it deems appropriate concerning the amount of such
deposits and supplementary deposits.
4. If the required deposits are not paid in full within 30 days after the
receipt of the request, the arbitral tribunal shall so inform the parties in
order that one or more of them may make the required payment. If such
payment is not made, the arbitral tribunal may order the suspension or
termination of the arbitral proceedings.
5. After a termination order or final award has been made, the arbitral
tribunal shall render an accounting to the parties of the deposits
received and return any unexpended balance to the parties.

[B] Administrative Fees

Administrative fees only apply to an arbitration under the UNCITRAL Rules where the
parties have designated an appointing authority or an institution to administer the
arbitration under UNCITRAL Rules, in which case the fees that the nominated authority or

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 institution charges will apply. The UNCITRAL Rules accordingly do not contain any
provision for administrative fees.

[C] Arbitrator Fees

The UNCITRAL Rules provide that “the fees and expenses of the arbitrators shall be
reasonable in amount, taking into account the amount in dispute, the complexity of the
subject matter, the time spent by the arbitrators and any other relevant circumstances of
the case.” (329) This rule governs both the fees that the arbitrators propose at the
commencement of the arbitration, and the fees actually charged as part of the costs of the
arbitration fixed in the final award. Where no appointing authority has been nominated,
the arbitrators’ fees are generally the subject of negotiation with each arbitrator during the
appointment process. Where the parties have agreed upon an appointing authority, the
tribunal is required to consider the arbitrator fee schedule of the appointing authority in
setting its own fees. (330)
P 532
P 533
The 2010 UNCITRAL rules provide that “[p]romptly after its constitution, the arbitral
tribunal shall inform the parties as to how it proposes to determine its fees and expenses,
including any rates it intends to apply.” (331) If an appointing authority has been
nominated, the parties have 15 days to refer the tribunal’s proposal to the appointing
authority for review for consistency with the overriding standard of reasonableness. (332) If
the appointing authority concludes that the proposed arbitrator fees are unreasonable, it
may make any adjustments, which will be binding on the arbitral tribunal. (333) If no
appointing authority has been agreed upon, or the appointing authority fails to act
promptly, the parties may call upon the Secretary-General of the PCA to determine the
reasonableness of the proposed arbitrator fees. (334)

[D] Arbitrators’ Costs and Disbursements

In the 2010 UNCITRAL Rules, the reasonable travel and other expenses incurred by the
arbitral tribunal and the reasonable costs of any expert advice or other assistance
required by the tribunal are allowed as part of the costs of the arbitration. (335) If either of
the parties considers that the expenses fixed in the final award are unreasonable, they
may refer this issue to the appointing authority, or the Secretary-General of the PCA if
there is no designated appointing authority, for review. (336) Again, the touchstone for this
review is whether the expenses incurred meet the standard of reasonableness.

[E] Advances on Costs and Non-payment

The UNCITRAL Rules permit the arbitral tribunal to ask the parties to pay advances on the
costs of the arbitration. (337) The parties may agree that such requests for advances should
be set in consultation with any appointing authority. (338) If a party does not pay advances
on costs in full within 30 days from the date of the request by the tribunal, the tribunal may
request either of the parties to make the required payment. If such payment is not made,
the tribunal may order the termination or suspension of proceedings. (339)

[F] Cost Allocation

P 533 The UNCITRAL Rules include an exclusive list of the categories of costs that form part of the
P 534 costs of the arbitration. These are: the arbitrators fees; the travel and other expenses
incurred by the arbitrators; the costs of expert advice and of other assistance required by
the arbitral tribunal; the travel and other expenses of witnesses, to the extent such
expenses are approved by the arbitral tribunal; the costs for legal representation and
assistance of the successful party, if such costs were claimed during the arbitral
proceedings, and only to the extent that the arbitral tribunal determines that the amount
of such costs is reasonable; and any fees and expenses of the appointing authority as well
as those of the Secretary-General of the PCA. (340)
The tribunal is required to fix the costs of the arbitration in the final award (341) or in
interim awards or other orders as it determines appropriate. (342) The general principle
for an award of costs under the UNCITRAL Rules is that “The costs of the arbitration shall in
principle be borne by the unsuccessful party or parties.” (343) The arbitral tribunal,
however, has discretion to apportion the costs of the arbitration as it determines to be
reasonable in the circumstances of the case. (344)

FURTHER READING
Stefan Brocker & Kristoffer Löf, The Proceedings—Costs in International Arbitration in
Sweden: A Practitioner’s Guide (Ulf Franke et al. eds., Kluwer Law International 2013).
Micha Buhler & Walder Wyss, Costs in Global Arbitration Review—The Guide to Damages in
International Arbitration (John A. Trenor ed., Londres: Law Business Research Ltd. 2016).
David D. Caron & Lee M. Caplan, The UNCITRAL Arbitration Rules, A Commentary (Oxford
University Press 2013).
Anne-Carole Cremades, La falta de recursos económicos para participar al arbitraje pactado,
Spain Arb. Rev., 8 (2010).

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 Donald Francis Donovan, Allocation of Costs, in Building International Investment Law: The
First 50 Years of ICSID (Meg Kinnear et al. eds., Kluwer Law International 2015).
Carine Dupeyron & Flore Poloni, Procédure de liquidation d’une partie, arbitrage et droit
d’accès à la justice: l’impossible équation?, 30(2) ASA Bull. (2012).
Gustav Flecke-Giammarco, The Allocation of Costs by Arbitral Tribunals in International
Commercial Arbitration, in WTO Litigation, Investment Arbitration, and Commercial
Arbitration 13A (Jorge A. Huerta-Goldman et al. eds., Kluwer Law International 2013).
Susan D. Franck, Empirically Evaluating Claims about Investment Treaty Arbitration, 86 N.C.
L. Rev. 1 (2007).
Susan D. Franck, Rationalizing Cost Awards in Invest Treaty Arbitration, 88 Wash. U. L. Rev.
769 (2011).
P 534
P 535
Jason Fry et al., The Secretariat’s Guide to ICC Arbitration (ICC 2012).
Judith Gill, Choices and Strategies: A Rules-Based Look at Different Approaches to
International Arbitration in the Wake of UNCITRAL’s 2010 Rules Revision Relating to Costs, in
International Arbitration: The Coming of a New Age?, 17 ICCA Congress Series (Albert Jan van
den Berg ed., Kluwer Law International 2013).
John Yukio Gotanda, Setting Arbitrator’s Fees: An International Survey, 33 Vand. J. Transnat’l
L. 4 (2000).
John Y. Gotanda, Attorneys’ Fees Agonistes: The Implications of Inconsistency in the Awarding
of Fees and Costs in International Arbitrations, in Liber Amicorum Bernardo Cremades (Miguel
Ángel Fernández-Ballesteros & David Arias eds., La Ley 2010).
John Y. Gotanda, Bringing Efficiency to the Awarding of Fees and Costs in International
Arbitrations, in International Arbitration and International Commercial Law: Synergy,
Convergence and Evolution (Stefan Michael Kröll et al. eds., Kluwer Law International 2011).
Martin F. Gusy et al., A Guide to the ICDR International Arbitration Rules (Oxford University
Press 2011).
Matthew Hodgson, Counting the Costs of Investment Treaty Arbitration, 9 J. Global Arb. Rev. 2
(March 24, 2014).
Matthew Hodgson, Costs Awards—Who Pays?, 10 J. Global Arb. Rev. 4 (September 2015).
Matthew Hodgson, Cost Allocation in ICSID Arbitration: Theory and (Mis)application
(Columbia University Academic Commons 2015).
Matthew Hodgson & Elizabeth Evans, Allocation of Costs in ICSID Arbitrations, in ICSID
Convention after 50 Years: Unsettled Issues (Crina Baltag ed., Kluwer Law International
2016).
ICC, Revised Note on Personal and Arbitral Tribunal Expenses (effective September 1, 2013).
ICSID, Memorandum on the Fees and Expenses (July 6, 2005).
Matti Kurkela & Santtu Turunen, Due Process in International Commercial Arbitration (2d
ed., 2010).
Patricia O’Prey & Gilda R. Turitz, Preventing the Runaway Arbitration: Strategies for Drafting
an Arbitration Clause, ABA Section of Litigation 2012 Section Annual Conference (2012).
Jenny Power & Christian W. Konrad, The Award—Costs in International Arbitration—A
Comparative Overview of Civil and Common Law Doctrines: Determination of Costs, in
Austrian Arbitration Yearbook 2008 (Christian Klausegger et al. eds., Manz’sche Verlags und
Universitatsbuchhandlung 2008).
Lucy Reed et al., A Guide to ICSID Arbitration (Kluwer Law International 2011).
José Rosell, Arbitration Costs as Relief and/or Damages, 28 J. Int’l Arb. 2 (2011).
Maxi Scherer et al., Arbitrating under the 2014 LCIA Rules: A User’s Guide (Kluwer Law
International 2015).
David Smith, Shifting Sands: Cost-and-Fee Allocation in International Investment Arbitration,
51 Va. J. Int’l L. 749 (2011).
P 535
P 536
Badrinath Srinivasan, UNCITRAL Arbitration Rules, 2010: Comment on Certain Revisions,
Indian J. Arb. L. 2 (August 29, 2013).
Jingzhou Tao, CIETAC Arbitration Rules—Arbitration Fees and Costs, in Concise International
Arbitration (Loukas Mistelis ed., Kluwer Law International 2015).
Herman Verbist et al., ICC Arbitration in Practice (Kluwer Law International 2015).
Jeffrey Waincymer, Procedure and Evidence in International Arbitration (Kluwer Law
International 2012).
P 536

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 P 536

References
1) See generally Patricia O’Prey & Gilda R. Turitz, Preventing the Runaway Arbitration:
Strategies for Drafting an Arbitration Clause, ABA Section of Litigation 2012 Section
Annual Conference (Apr. 20, 2012) (“Typically, two major factors impacting those
potential cost savings are restrictions on pre-hearing discovery in arbitration and
restrictions on challenges to arbitration awards in post-hearing proceedings. When
enforced, these restrictions offer a significantly streamlined process, finality and a
shorter time to ultimate resolution than may exist in the litigation process.”).
2) Ultimately, the only legitimate comparison is one that would measure the total costs
and fees directly incurred by the parties from the time a dispute is filed until a final
and binding resolution of the dispute is achieved; that is, after enforcement or set
aside proceedings in an arbitration, and after all interlocutory and final appeals have
been exhausted in a litigation.
3) See John Yukio Gotanda, Setting Arbitrator’s Fees: An International Survey, 33 Vand. J.
Transnat’l L. 779, 784 (2000) (“[The ad valorem] method is commonly used by arbitral
institutions to assess both administrative fees and the fees of the arbitrators”).
4) The exchange rates used for these calculations are USD 1/RMB 6.667 for CIETAC
administrative fees, USD 1/HKD 7.85 for HKIAC, and for the LCIA, GBP 1/USD 1.2419. For
SCC, where fees are assessed in Euros, the exchange rate used is EUR 1/USD 1.0628.
5) For the purpose of calculating the estimated administrative fees, 5% of the estimated
LCIA arbitrator fees set forth in Table 8.3 was used.
6) USD 25,000 is a one time “Lodging Request” fee that operates as a filing fee. The
remaining USD 42,000 is an annual fee.
7) ICC Rules, Appx. III; SCC Rules, Appx. IV.
8) See ICC Rules, Appx. III, Art. 2(2).
9) See SCC Rules, Appx. IV, Art. 2(2).
10) Notably, ICSID, in its proposed amendments, states that arbitrators, conciliators,
fact-finders and mediators will be paid on an hourly basis rather than the current
mixed (days and hours) formula; and arbitrators will receive a flat per diem for
expenses other than transportation to and from the hearing. See Proposals for
Amendment of the ICSID Rules—Synopsis, para. 10, ICSID, World Bank Group, 2018
(thereafter “ICSID Synopsis”).
https://icsid.worldbank.org/en/amendments/Documents/Homepage/Synopsis_Engli
sh.pdf.
11) See ICDR Rules, Art. 35(2).
12) See ICSID, Schedule of Fees (effective July 1, 2017),
https://icsid.worldbank.org/en/Pages/icsiddocs/Schedule-of-Fees.aspx (accessed
June 30, 2018).
13) LCIA, Schedule of Arbitration Costs, at 2(i) (effective Oct. 1, 2004),
http://www.lcia.org//Dispute_Resolution_Services/schedule-of-costs-lcia-
arbitration.aspx (accessed June 30, 2018).
14) HKIAC Rules, Art. 10.
15) Id., at Art. 10.1.
16) See HKIAC Rules, Schedule 3 (“Arbitral Tribunal’s Fees, Expenses, Terms and
Conditions—Based on Sum in Dispute”).
17) See HKIAC Rules, Schedule 2 (“Arbitral Tribunal’s Fees, Expenses, Terms and
Conditions—Based on Hourly Rates”); HKIAC Rules, Art. 10(3). See also HKIAC Schedule
of Fees (effective Feb. 1, 2015).
18) CIETAC Rules, Art. 82(1).
19) See UNCITRAL Rules, Arts. 41(1), 41(3).
20) The exchange rates used for these calculations are USD 1/RMB 6.667 for CIETAC
administrative fees, and for the LCIA, GBP 1/USD 1.2419. For SCC, where fees are
assessed in Euros, the exchange rate used is EUR 1/USD 1.0628.
21) The fees represent the median range of arbitrator fees multiplied by three
arbitrators. See ICC Rules, Appx. III, Art. 2(3) (“When a case is submitted to more than
one arbitrator, the Court, at its discretion, shall have the right to increase the total
fees up to a maximum which shall normally not exceed three times the fees of one
arbitrator.”).
22) For the purpose of calculating the estimated administrative fees, 5% of the estimated
LCIA arbitrator fees set forth in Table 8.5 was used.
23) The fees represent the median range of arbitrator fees multiplied by three
arbitrators. See ICC Rules, Appx. III, Art. 2(3) (“When a case is submitted to more than
one arbitrator, the Court, at its discretion, shall have the right to increase the total
fees up to a maximum which shall normally not exceed three times the fees of one
arbitrator.”).
24) The fees represent the median range of arbitrator fees.
25) See ICSID, Memorandum on the Fees and Expenses (July 6, 2005),
https://icsid.worldbank.org/en/Pages/icsiddocs/Memorandum-on-the-Fees-and-
Expenses-FullText.aspx (accessed June 30, 2018).

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 26) ICDR, Billing Guidelines for ICDR Arbitrators,
https://www.adr.org/sites/default/files/document_repository/ICDR%20Arbitrator%2
0Billing%20Guidelines.... (accessed June 30, 2018).
27) See generally, Carine Dupeyron, Flore Poloni, Procédure de liquidation d’une partie,
arbitrage et droit d’accès à la justice: l’impossible équation?, 30(2) ASA Bull., 467–479
(2012); Matti Kurkela & Santtu Turunen, Due Process in International Commercial
Arbitration, 98-99 (2d ed., Oceana Publications 2010); Anne-Carole Cremades, La falta
de recursos económicos para participar al arbitraje pactado, 8 Spain Arb. Rev., 151-164
(2010).
28) Court of Cassation of France, First Civil Law Chamber, Pourvoi No. 11-27.770 (Mar. 28,
2013).
29) Id.
30) BDMS Ltd v. Rafael Advanced Defence Systems, (2014) EWHC 451 (Comm).
31) Id., at ¶ 57 (reasoning that the defendant was actively participating in the arbitration,
the breach did not deprive the claimant the right to arbitrate, the ICC rules provide a
machinery for dealing with situations of non-payment, the claimant was not
substantially deprived of the benefit of the contract, and there is no restriction
against bringing the same claim at a later date).
32) Id., at ¶ 64.
33) See discussion infra Part II; see also Gary B. Born, International Commercial Arbitration,
3093 (Kluwer 2014) (“Most institutional rules expressly grant arbitral tribunals the
power to award the costs of legal representation.”).
34) For example, under s. 60(1) of the English Arbitration Act 1996, an agreement between
the parties that one of them shall pay all or part of the costs of the arbitration
regardless of its outcome is only valid if the agreement is made after the dispute has
arisen. On the other hand, Art. 49(2) of the Japanese Arbitration Law of 2003 indicates
that each party “shall bear the costs it has disbursed with respect to the arbitral
proceedings” unless the parties have agreed otherwise.
35) See generally Born, supran. 34, at 3096 (“Where the parties’ agreement addresses the
subject of legal costs, tribunals will virtually always purport to give effect to its
terms.”).
36) See generally Nigel Blackaby et al., Redfern and Hunter on International Arbitration,
535 (Oxford University Press 2015) (“Practical problems of [apportioning costs] have
led many international arbitral tribunals to refrain from ordering the unsuccessful
party to pay the legal costs of the winning party, or simply to order the losing party to
pay an arbitrarily chosen fixed sum towards the winner’s legal costs.”); Jeff
Waincymer, Procedure and Evidence in International Arbitration, 1213 (Kluwer 2012)
(noting that other scholars besides Redfern and Hunter “also support the view that
the loser-pays principle is becoming the norm in international arbitration,” but also
indicating that there is some disagreement over whether this principle is always the
best practice).
37) CIETAC Rules, Art. 52(2).
38) LCIA Rules, Art. 28(4).
39) UNCITRAL Rules, Art. 42(1).
40) ICDR Rules, Art. 34; HKIAC Rules, Art. 34.3.
41) ICC Rules; 38(5).
42) See generally Waincymer, supran. 37, at 1212-1229 (discussing policy considerations
behind awards of costs, including inflated claims and tactics pursued in bad faith).
Some arbitration rules deal with this explicitly. For example, the LCIA Rules provide
that “[t]he Arbitral Tribunal may also take into account the parties’ conduct in the
arbitration, including any co-operation in facilitating the proceedings as to time and
cost and any non-co-operation resulting in undue delay and unnecessary expense.”
LCIA Rules, Art. 28.4.
43) LCIA Rules 2014, Art. 14(5).
44) The LCIA Rules of 2014 and 1998 both allow the tribunal, where it deems appropriate,
to follow a principle different from “loser pays.” See LCIA Rules 2014, Art. 28(4).
45) ICDR International Dispute Resolution Procedures (Including Mediation and
Arbitration Rules), Administrative Fee Schedules (Standard and Flexible Fees), at 1
(amended and effective July 1, 2016),
https://www.adr.org/sites/default/files/ICDR%20Fee%20Schedule.pdf (accessed June
30, 2018).
46) Id.
47) Id.
48) See ICDR Rules, Art. 35. Under the 2009 ICDR Rules, the ICDR was first required to
obtain the agreement of the parties as to appropriate arbitrator compensation and,
only if the parties failed to agree, establish the rate. The most recent revision to the
ICDR Rules requires only that the ICDR consult with the parties when establishing the
rate of arbitrator compensation.
49) ICDR Rules, Art. 34.
50) Id.
51) Id.
52) ICDR, supran. 46.
53) Id., at 2.
54) See id., at 1.
55) See id.

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 56) Id., at 2.
57) Id.
58) Id.
59) Id., at 3.
60) Id., at 2.
61) See id.
62) See id.
63) Id.
64) Id.
65) Id.
66) Id., at 1.
67) Id.
68) ICDR Rules, Art. 35(2). Under Art. 32 of the 2009 ICDR Rules, the ICDR is required to
attempt to obtain the agreement of the parties as to appropriate arbitrator
compensation before establishing the rate of arbitrator compensation and
communicating it in writing to the parties.
69) See ICDR, Billing Guidelines for ICDR Arbitrators,supran. 27.
70) Id.
71) Id.
72) Id.
73) Id.
74) Id.
75) Id.
76) Id.
77) Id.
78) Id.
79) See ICDR Rules 2014, Art. 36. This revision to the ICDR Rules eliminates the authority
granted to the tribunal under Art. 33(2) of the 2009 version to request supplemental
deposits from the parties throughout the course of the arbitration.
80) ICDR Rules 2009, Art. 33(3).
81) Id.; ICDR Rules 2014, Art. 36(3).
82) ICDR Rules 2014, Art. 36(4).
83) ICDR Rules 2009, Art. 33(1).
84) See id., at Arts. 33(2), 33(3) (indicating that the administrator may request each party
to advance costs after filing and may request supplementary deposits from any
party).
85) ICDR Rules 2014, Art. 36(1).
86) Id., at Art. 36(3); ICDR Rules 2009, Art. 33(3).
87) ICDR Rules 2014, Art. 36(3).
88) See ICDR, Administrative Fee Waivers and Pro Bono Arbitrators (Nov. 14, 2011).
89) See generally Waincymer, supran. 37, at 460-465 (providing three alternatives for the
paying party and the tribunal to proceed in cases where one of the parties does not
pay its share of advance costs).
90) ICDR Rules 2014, Art. 34; ICDR Rules 2009, Art. 31.
91) Id.
92) ICDR Rules 2014, Art. 34.
93) CIETAC, China International Economic and Trade Arbitration Commission Arbitration Fee
Schedule I (effective Jan. 1, 2015).
94) Id.; CIETAC Rules 2015, Art. 82(1). Under Art. 82(1) of CIETAC Rules, in international or
foreign-related disputes, administrative fees and arbitrator fees are included as a
single “arbitration fee” in CIETAC Arbitration Fee Schedule I. However, the Arbitration
Court determines an arbitrator’s “special remuneration” with reference to CIETAC
Arbitration Fee Schedule III, which includes a separate fee schedule for arbitrators.
95) See CIETAC Rules, Art. 82(1).
96) Id., Art. 82(1).
97) Id., Art. 52(2) (“The arbitral tribunal has the power to decide in the arbitral award,
having regard to the circumstances of the case, that the losing party shall
compensate the winning party for the expenses reasonably incurred by it in pursuing
the case. In deciding whether or not the winning party’s expenses incurred in pursuing
the case are reasonable, the arbitral tribunal shall take into consideration various
factors such as the outcome and complexity of the case, the workload of the winning
party and/or its representative(s), the amount in dispute, etc.”); CIETAC Rules 2005,
Art. 46(2).
98) See CIETAC, supran. 94.
99) This includes “arbitrators’ special remuneration and … travel and accommodation
expenses … as well as the costs and expenses for experts, appraisers and interpreters
appointed by the arbitral tribunal.” CIETAC Rules, Art. 82(1).
100) See CIETAC Rules, Arts. 33(3), 82(2) (providing that if a party fails to pay advance
deposit for costs on time, “the party shall be deemed not to have nominated the
arbitrator”).
101) CIETAC Rules, Art. 82(3).
102) See CIETAC, China International Economic and Trade Arbitration Commission Arbitration
Fee Schedule III (effective Jan. 1, 2015).

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 103) See CIETAC Rules, Art. 3(2)(c); CIETAC, China International Economic and Trade
Arbitration Commission Arbitration Rules, Appx. II Fee Schedule II (effective Jan. 1,
2015).
104) See CIETAC, China International Economic and Trade Arbitration Commission Arbitration
Rules, Appx. II Fee Schedule I (effective Jan. 1, 2015).
105) Id.
106) See CIETAC supran. 94.
107) CIETAC Rules, Art. 82(1).
108) Id.
109) CIETAC Rules, Art. 82(2).
110) CIETAC Rules, Art. 82(3); CIETAC Rules 2005, Art. 69(3) (the 2005 Rules provide that the
hearing will be held at the domicile of CIETAC).
111) CIETAC Rules (2015), Art. 82(4). This provision does not exist in the 2005 CIETAC
Arbitration rules.
112) CIETAC Rules, Art. 12(3).
113) CIETAC Rules, Art. 13(3). The 2005 Rules do not explicitly address the consequences of
a claimant’s failure to render payment.
114) CIETAC Rules, Art. 16(3). The 2005 Rules do not explicitly address the consequences of
a respondent’s failure to render payment.
115) CIETAC Rules, Art. 82(2).
116) Id.
117) The 2005 CIETAC Rules expressly provide, in Art. 69(2), that the Chairman of CIETAC will
appoint the arbitrator in such an event. The 2012 and 2015 Rules do not include such
an explicit statement although, presumably, the Chairman would make such an
appointment in accordance with Arts. 25(1) and 27(1).
118) CIETAC Rules, Arts. 49(3), 52(2).
119) Id., Art. 52(2).
120) HKIAC Rules, Art. 4.4. See also HKIAC Rules, Schedule 1; HKIAC, 2018 Schedule of Fees.
121) HKIAC Rules, Art. 4.6.
122) Id., at Arts. 34.1, 13.4.
123) See HKIAC Rules, Schedule 2, ¶ 6; HKIAC, 2015 Schedule of Fees.
124) HKIAC Rules, Art. 4.4; HKIAC Rules, Schedule 1, ¶ 1. At the time of writing and as of Feb.
1, 2015, this registration fee was HKD 8,000. HKIAC, 2015 Schedule of Fees.
125) See HKIAC, 2015 Schedule of Fees.
126) HKIAC Rules, Schedule 1, ¶ 2.1.
127) Id., at ¶ 2.4. See also, HKIAC Rules, Arts. 18.2, 27.14, 28.9.
128) HKIAC Rules, Schedule 1, ¶ 2.2.
129) Id., at ¶ 2.5.
130) Id., at ¶ 2.3.
131) Id., at ¶ 2.1.
132) HKIAC Rules, Art. 10.1.
133) Id.
134) Jacopo Roberti Di Sarsina, Innovations to Arbitration Costs under the HKIAC
Administered Arbitration Rules (2013): Clarity, Efficiency and Cost Control, 3 Asian Dis. R.
2014, 129.
135) HKIAC Rules, Schedule 2, ¶ 9.1.
136) HKIAC Rules, Art. 10.2.
137) Id.
138) HKIAC Rules, Schedule 2, ¶¶ 9.3, 9.5.
139) HKIAC, Schedule of Fees 2018.
140) HKIAC Rules, Schedule 2, ¶ 9.4.
141) Id., at ¶ 10. If the hearing is cancelled by the tribunal or is cancelled by a party more
than 60 days before the hearing is scheduled, the parties are not accountable to pay
the arbitrators’ fees for the hearing. If the hearing is cancelled by a party within 30
days of the hearing, the parties must pay the arbitrators at a daily rate of 75% of an
eight-hour day. If the hearing is cancelled over 30 days but less than 60 days prior,
the parties must pay the arbitrators at a daily rate of 50% of an eight-hour day.
Schedule 2, ¶ 10.1. There is no cancellation fee when using the ad valorem method.
142) HKIAC Rules, Art. 10.3(a).
143) HKIAC, Schedule of Fees 2018.
144) HKIAC Rules, Schedule 3, ¶ 6.3. The arbitral tribunal can, after discussion with the
parties, determine not to include set-off defenses in the total for the sum in dispute.
145) Id., at ¶ 6.4.
146) Id., at ¶ 6.7.
147) Id., at ¶ 6.6; HKIAC Rules, Art. 10.3(c).
148) HKIAC Rules, Art. 10.3(b).
149) HKIAC, Practice Note on Schedule 3, ¶ 4.3.
150) HKIAC, Schedule 2, ¶ 3; HKIAC, Schedule 3, ¶ 3; HKIAC, Practice Note on Schedule 2, ¶
5.1; HKIAC, Practice Note on Schedule 3, ¶ 5.1.

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 151) HKIAC, Practice Note on Schedule 2, ¶ 5.2; HKIAC, Practice Note on Schedule 3, ¶ 5.2.
Arbitrators must provide receipts to HKIAC for verification for travel but not for per
diem expenses. Air travel reimbursement is limited to economy, premium economy,
and business classes. Under Schedule 2, arbitrators under the hourly rate payment
method will also receive 50% of their hourly rate when traveling but not working and
100% of their hourly rate when traveling and working. These payments are fees and
are separate from the reimbursements. Schedule 2, ¶ 9.6.
152) HKIAC, Practice Note on Schedule 2, ¶ 5.2(b); HKIAC, Practice Note on Schedule 3, ¶
5.2(b).
153) HKIAC, Practice Note on Schedule 2, ¶ 5.3; HKIAC, Practice Note on Schedule 3, ¶ 5.3.
The arbitrators must provide HKIAC with receipts for verification.
154) HKIAC, Practice Note on Schedule 2, ¶ 5.5; HKIAC, Practice Note on Schedule 3, ¶ 5.5.
Whenever an arbitrator provides HKIAC with receipts for verification, they will be
reimbursed at cost for any photocopying charges. Practice Note on Schedule 2, ¶ 5.4;
HKIAC, Practice Note on Schedule 3, ¶ 5.4.
155) HKIAC, Practice Note on Schedule 2, ¶ 6; HKIAC, Practice Note on Schedule 3, ¶ 6.
156) HKIAC, Practice Note on Schedule 2, ¶ 8.1; HKIAC, Practice Note on Schedule 3, ¶ 8.1.
157) HKIAC Rules, Art. 41.1.
158) Id., at Arts. 41.2, 41.3. Any subsequent requests will likely come within 15 days of
receipt of a new counterclaim or set-off defense. HKIAC, Practice Note on Schedule 2,
¶ 8.2; HKIAC, Practice Note on Schedule 3, ¶ 8.2.
159) HKIAC Rules, Art. 4.6. This dismissal will be without prejudice to the Claimant’s right
to submit the same claim again in the future.
160) HKIAC Rules, Art. 41.4.
161) Id.
162) HKIAC, Practice Note on Schedule 2, ¶ 8.7; HKIAC, Practice Note on Schedule 3, ¶ 8.7.
163) HKIAC Rules, Art. 41.6.
164) HKIAC Rules, Schedule 2, ¶ 7; HKIAC Rules, Schedule 3, ¶ 7.
165) HKIAC Rules, Art. 34.3.
166) Id., at Art. 34.6.
167) Id., at Art. 34.1.
168) Id., at Art. 34.3.
169) Id., at Art. 34.2.
170) Id., at Art. 34.5.
171) ICC Rules, Appx. III, Art. 1.
172) ICC Rules, Art. 38.
173) ICC Rules, Appx. III, Art. 3. The Scales of Administrative Expenses and Arbitrator’s Fees
set forth in the 2017 ICC Rules apply to all arbitrations commenced on or after Jan. 1,
2017 even if an earlier version of the ICC Rules applies to the arbitration. ICC Rules,
Appx. III, Art. 3(1).
174) ICC Rules, Art. 38(4).
175) ICC Rules, Appx. III, Art. 3.
176) ICC Rules, Arts. 38(2), 38(5).
177) Id.
178) ICC Rules, Art. 37(4).
179) Id., at Art. 38(5).
180) Id., at Art. 38(6).
181) The fee schedule for the 2017 ICC Rules is effective Jan. 1, 2017. Appx. III, Art. 3(1). The
fee schedule for the expedited procedure, however, is effective Mar. 1, 2017. Id., at Art.
3(3).
182) ICC Rules, Appx. III, Art. 2(5).
183) Id., at Appx. III, Art. 2(2).
184) Id., at Appx. III, Art. 1(1).
185) Id., at Appx. III, Art. 3(2).
186) Id., at Appx. III, Art. 3.
187) Id.
188) Id., at Appx. III, Art. 2(2).
189) Id., at Appx. III, Art. 2(2).
190) Id., at Appx. III, Art. 2(3).
191) Id., at Appx. III, Art. 2(4).
192) Id., at Appx. III, Art. 3.
193) Id., at Appx. III, Art. 2.8.
194) ICC, Revised Note on Personal and Arbitral Tribunal Expenses (effective Sept. 1, 2013),
https://iccwbo.org/publication/note-personal-arbitral-tribunal-expenses-1-
september-2013/ (accessed July 1, 2018).
195) Id.
196) Id.
197) Id.
198) ICC Rules, Art. 16. Advances on costs are regulated by Art. 37 of the ICC Rules and Art. 1
of Appx. III of the ICC Rules.
199) ICC Rules, Art. 37(2).
200) Jason Fry et al., The Secretariat’s Guide to ICC Arbitration, 3-1406 (ICC 2012).
201) See ICC Rules, Art. 37(2).
202) See id., Art. 37(5).

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 203) See id., Art. 37(6).
204) See id.
205) See id.
206) See id.
207) Id., Art. 37(7).
208) Id., Art. 38(4).
209) Id., Art. 38(5).
210) For an analysis of some of the key differences between the civil and common law
approaches to cost determination and allocation, see Jenny Power & Christian W.
Konrad, The Award—Costs in International Arbitration—A Comparative Overview of Civil
and Common Law Doctrines: Determination of Costs, in Austrian Arbitration Yearbook,
401-430 (Christian Klausegger et al. eds., Manz’sche Verlags und
Universitatsbuchhandlung 2008).
211) ICSID Convention, Art. 59.
212) Id., at Art. 60(2).
213) Id., at Art. 60(1).
214) Id., at Art. 61(2).
215) ICSID (Additional Facility) Rules, Art. 58.
216) ICSID, Schedule of Fees (effective July 1, 2017),
https://icsid.worldbank.org/en/Pages/icsiddocs/Schedule-of-Fees.aspx (accessed
July 1, 2018).
217) Id.
218) ICSID, Memorandum on the Fees and Expenses (July 6, 2005),
https://icsid.worldbank.org/en/Pages/icsiddocs /Memorandum-on-the-Fees-and-
Expenses-FullText.aspx (accessed July 1, 2018).
219) ICSID Convention, Art. 61(2).
220) ICSID, supran. 217.
221) ICSID, Administrative and Financial Regulations, Regulation 14(2).
222) Id., at Regulation 14(3).
223) ICSID, supran. 217.
224) ICSID, Administrative and Financial Regulations, Regulation 14(1).
225) ICSID, supran. 217. Until Jan. 1, 2012, if hearings were held away from the seat of the
Centre in Washington DC, additional administrative charges included an attendance
fee of USD 1,500 per day of meetings in addition to reimbursement for travel and
other expenses. ICSID Annual Report 56 (2013).
226) See ICSID, Administrative and Financial Regulations, Regulation 14(1).
227) A list of the per diem rates for specified host cities is provided in the ICSID
Memorandum on the Fees and Expenses.
228) ICSID, Administrative and Financial Regulations.
229) Id.
230) Id.
231) ICSID, Administrative and Financial Regulations, Regulation 14(3)(a)(i).
232) Id., at Regulation 14(3)(d).
233) Id.
234) Id., at Regulation 14(3)(b).
235) ICSID Convention, Art. 61(2); see also, e.g., Impregilo S.p.A. v. Argentine Republic, ICSID
Case No. ARB/07/17, Decision of the ad hoc Committee on the Application for
Annulment, ¶¶ 218-221, 24 (January 2014) (noting that “[a]lthough the Argentine
Republic’s Application is being rejected in its entirety, the Committee does not
consider the Application frivolous. Accordingly, exercising its discretion under Art.
61(2) of the ICSID Convention, the Committee decides the following: (a) the Applicant
shall bear the costs of the proceeding, comprising all of the fees and expenses of the
Committee Members, and the costs of using the ICSID facilities; and (b) each party
shall bear its own legal costs and expenses incurred with respect to this annulment
proceeding”); Kilic Insaat Ithalat Ihracat Sanayi ve Ticaret Anonim Sirketi v.
Turkmenistan, ICSID Case No. ARB/10/1, Award, ¶¶ 9.2.4-9.2.10 (July 2, 2013) (finding
that “Article 61(2) provides the Tribunal with a wide discretion on how the costs of an
arbitration should be borne. For the reasons discussed below, the Majority concludes
that Claimant should bear its own costs together with 50% of Respondent’s
reasonable costs”); Burimi SRL and Eagle Games SH.A v. Republic of Albania, ICSID Case
No. ARB/11/18, Award, ¶¶ 159-165 (May 29, 2013) (ordering Claimants to pay
Respondents for certain arbitration and legal costs because “some of the grounds for
jurisdiction asserted by Claimants did not withstand even moderate scrutiny.
Moreover, Respondent’s task (as well as the Tribunal’s) was rendered difficult by the
often incoherent presentation by Claimants.”).
236) ICSID Convention, Art. 61(2).
237) See, e.g., ICSID Rules, Rule 28.
238) See Susan D. Franck, Rationalizing Cost Awards in Invest Treaty Arbitration, 88 Wash. U.
L. Rev. 769, 813-816 (2011); Susan D. Franck, Empirically Evaluating Claims about
Investment Treaty Arbitration, 86 N.C. L. Rev. 1, 66-70 (2007); David Smith, Shifting
Sands: Cost-and-Fee Allocation in International Investment Arbitration, 51 Va. J. Int’l L.
749, 758-763 (2011).
239) Schedule of LCIA Arbitration Costs, London Court of International
Arbitration,http://www.lcia.org//Dispute_Resolution_Services/schedule-of-costs-lcia-
arbitration.aspx (accessed July 1, 2018).

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 240) Id., at 1.
241) Id.
242) Id., at 2.
243) LCIA Rules, Art. 28.1.
244) LCIA Rules 2014, Art. 28.2.
245) LCIA Rules, Art. 28.4.
246) Id., at Art. 28.4.
247) Schedule of LCIA Arbitration Costssupran. 240, at 1.
248) Id., at 2(i).
249) Id., at 1(i).
250) Id., at 1(ii).
251) Id.
252) Id., at 1(iii).
253) Schedule of Costs (Appointing Only), London Court of International Arbitration, 1(a)
(http://www.lcia.org/ Dispute_Resolution_Services/schedule-of-costs-appointing-
only.aspx) (accessed Oct. 5, 2017).
254) Id., at 1; Schedule of LCIA Arbitration Costs, London Court of International Arbitration,
1(iv), http://www.lcia.org//Dispute_Resolution_Services/schedule-of-costs-lcia-
arbitration.aspx (accessed Oct. 5, 2017).
255) Schedule of LCIA Arbitration Costs, London Court of International Arbitration,
http://www.lcia. org//Dispute_Resolution_Services/schedule-of-costs-lcia-
arbitration.aspx (accessed Oct. 5, 2017).
256) Id., at 2(i).
257) Id.
258) Id.
259) Id., at 2(iv).
260) English Arbitration Act § 64 (1996).
261) LCIA Rules, Art. 24.1.
262) LCIA Rules, Art. 24.3.
263) LCIA Rules, Art. 24.4.
264) LCIA Rules 1998, Art. 24.3.
265) LCIA Rules 2014, Art. 24.5.
266) LCIA Rules 2014, Art. 24.6; LCIA Rules 1998, Art. 24.4.
267) LCIA Rules 2014, Art. 24.6.
268) Id., at Art. 28.2.
269) LCIA Rules 2014, Art. 28.3.
270) Id., at Art. 28.5.
271) English Arbitration Act § 60 (1996).
272) LCIA Rules 2014, Art. 28.4.
273) Id., at Art. 28.4.
274) SCC Rules, Art. 49(1).
275) Id., Appx. IV, Art. 2(3).
276) SCC Institute, Dispute Resolution Calculator, http://www.sccinstitute.com/dispute-
resolution/calculator/ (accessed Oct. 5, 2017).
277) See SCC Rules, Appx. IV.
278) See SCC Rules, Appx. IV, Art. 2(1)-(2).
279) See SCC Rules, Art. 51, Appx. IV, Art. 1(1).
280) SCC Rules, Arts. 22, 51.
281) Id., Art. 51.
282) Id., at Art. 50.
283) Id., at Art. 49(6). The 2017 rules expressly mandate that the Tribunal consider each
party’s contribution to the efficiency and expeditiousness of the arbitration, in
addition to considering the outcome of the case or any other circumstances.
284) Id., at Appx. IV, Art. 1(1).
285) Id., at Appx. IV, Art. 1(2).
286) Id.
287) Id., at Appx. IV, Art. 2(4).
288) Id., at Appx. IV, Art. 2(1).
289) SCC Institute, Arbitrator’s Guidelines 8,
http://www.sccinstitute.com/media/171486/guidelines-january-2017.pdf (accessed
Oct. 5, 2017).
290) Id., at 8.
291) SCC Rules, Appx. IV, Art. 2.
292) Id.
293) Id.
294) See SCC Rules, Art. 51.
295) SCC Arbitration Institute, Arbitrator’s Guidelines (January 2017)
http://www.sccinstitute.com/media/171486/guidelines-january-2017.pdf (accessed
Oct. 5, 2017).
296) Id., at 11.
297) Id., at 9.
298) Id., at 10.
299) SCC Rules, Art. 11.
300) Id., at Art. 51(3).

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 301) Id.
302) Id., at Art. 51(5).
303) Id., at Art. 12.
304) Id., at Arts. 49(6), 50. The proposed 2017 rules also direct the Tribunal to consider each
party’s contribution to the efficiency and expeditiousness of the arbitration when
apportioning costs.
305) SIAC Rules, Rule 35.2.
306) See id., at Rule 34.1 (requiring that “[t]he Tribunal’s fees and SIAC’s fees shall be
ascertained in accordance with the Schedule of Fees in force at the time of
commencement of the arbitration”).
307) SIAC Rules, Rules 34.9 and 36.1.
308) SIAC Rules, Rule 36.2. See also, Practice Note for Administered Cases (Jan. 2, 2014),
available at http://www.siac.org.sg/our-rules/practice-notes/practice-note-for-
administered-cases (accessed Aug. 7, 2018).
309) SIAC Rules, Rule 36.1.
310) Id., Rule 34.1.
311) The deposits towards the Emergency Arbitrator’s fees and expenses are fixed at S$
30,000, unless the Registrar determines otherwise pursuant to Schedule 1. The
Emergency Arbitrator’s fees are fixed at S$ 25,000, unless the Registrar determines
otherwise pursuant to Schedule 1.
312) SIAC Rules, Rule 36.2.
313) Id., at Rule 36.2; see also, Practice Note for Administered Cases, Art. 16 (Jan. 2, 2014),
available at http://www.siac.org.sg/our-rules/practice-notes/practice-note-for-
administered-cases (accessed Aug. 7, 2018).
314) Practice Note for Administered Cases, Arts. 16-19 (Jan. 2, 2014), available at
http://www.siac.org.sg/our-rules/practice-notes/practice-note-for-administered-
cases (accessed Aug. 7, 2018).
315) Id.
316) Id.
317) SIAC Rules, Rule 34.7.
318) Id., at Rule 34.2.
319) Id.
320) Id., at Rule 34.3.
321) Id., at Rule 34.5.
322) Id., at Rule 37.
323) See UNCITRAL Rules, Art. 41.
324) Id., at Art. 41(1).
325) Id., at Art. 41(2).
326) Id., at Art. 40(2).
327) Id., at Art. 40(1).
328) Id., at Art. 42(1).
329) Id., at Art. 41(1).
330) Id., at Art. 41(2); UNCITRAL Rules 1976, Art. 39(2).
331) UNCITRAL Rules, Art. 41(3).
332) See id.
333) See id.
334) See David D. Caron & Lee M. Caplan, The UNCITRAL Arbitration Rules, A Commentary,
858 (Oxford 2013).
335) UNCITRAL Rules, Arts. 40(2)(b), 40(2)(c).
336) See id., at Art. 41(4)(b).
337) Id., at Art. 43(1).
338) See id., at Art. 43(3).
339) See id., at Art. 43(4).
340) UNCITRAL Rules, Art. 40(1).
341) Id.
342) Id.
343) UNCITRAL Rules, Art. 42(1).
344) Id.

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Document information
Chapter 9: The Award: Form, Effect, and Enforceability
Publication Absent specific language clearly providing otherwise, an arbitral tribunal’s award is
presumptively considered final and binding on the parties. Treaties that deal with the
The International Arbitration recognition or enforcement of arbitral awards, such as the New York Convention or the
Rulebook: A Guide to Arbitral ICSID Convention, just to name two, provide certain exceptions to this general rule. The
Regimes national laws governing arbitration will often also contain certain additional requirements
for awards, which might constitute grounds for the nonrecognition, nonenforcement, or
annulment of awards in a given jurisdiction. Lastly, the applicable arbitral rules may allow
Organization a tribunal to make corrections, clarifications, modifications, or amendments to the award
in limited circumstances. Both counsel and arbitrators must be cognizant of these laws and
International Centre for rules from the moment they take on a case since impermissible defects in the arbitration
Dispute Resolution or the resulting award could render the tribunal’s decision moot.
In this chapter, we (i) present the international legal framework on enforcement of such
awards and relevant arbitral rules; (ii) identify the available remedies that a tribunal may
Organization order in its award, according to the arbitral regimes under consideration; (iii) identify
China International additional requirements for awards with reference to the UNCITRAL Model Law and the
Economic and Trade arbitral regimes; and (iv) discuss the arbitration rules pertaining to the tribunal’s ability to
Arbitration Commission correct, interpret, revise, or supplement its award.

§9.01 INTERNATIONAL LEGAL FRAMEWORK ON AWARD RECOGNITION,

Organization ENFORCEMENT, AND SET-ASIDE
Hong Kong International P 537 A key to both the efficiency and efficacy of international arbitration is that awards are final
Arbitration Centre P 538 and binding with no opportunity for appeal (absent party agreement clearly providing
for such recourse). (1) The courts of signatories to the New York Convention (and similar
treaties such as the Panama Convention) are obligated to recognize arbitral awards as
Organization binding and enforce them, subject to the Convention’s limited grounds for review. (2)
Consistent with this international legal framework, all of the institutional rules expressly
International Court of state that awards shall be final and binding. The ICDR, HKIAC, ICC, LCIA, and SIAC Rules add
Arbitration of the that the parties waive their right to any judicial recourse (“insofar as such waiver can be
International Chamber of validly made”). (3) CIETAC states that parties may not bring a lawsuit for “revision” of the
Commerce award. (4) Distinct from the New York Convention regime, the ICSID Convention provides
that ICSID awards are final and binding and does not give courts any ground for judicial
review. (5) Instead, the courts of Member States must enforce an ICSID award as if it were a
Organization final judgment of its own judicial system. (6) The relevant rules are set out in Table 9.1.
P 538
International Centre for P 539 Table 9.1 Arbitral Awards: Final and Binding
Settlement of Investment AAA-ICDR
Disputes P 539 Article 30. Time, 1. Awards […] shall be final and binding on the parties. […] The
P 540 Form, and Effect of parties shall carry out any such award without delay and, absent
Award agreement otherwise, waive irrevocably their right to any form of
Organization appeal, review, or recourse to any court or other judicial authority,
London Court of insofar as such waiver can validly be made.
International Arbitration CIETAC
Article 49. Making of 3. The arbitral tribunal has the power to fix in the award the specific
Award time period for the parties to perform the award and the liabilities
Organization for failure to do so within the specified time period.
Arbitration Institute of the […]
Stockholm Chamber of
Commerce 9. The arbitral award is final and binding upon both parties. Neither
party may bring a lawsuit before a court or make a request to any
other organization for revision of the award.
Organization
HKIAC
Singapore International
Arbitration Centre Article 35. Form and 35.2. Awards shall be made in writing and shall be final and binding
Effect of the Award on the parties and any person claiming through or under any of the
parties. The parties and any such person waive their rights to any
form of recourse or defence in respect of the setting-aside,
Organization enforcement and execution of any award, in so far as such waiver
United Nations Commission can validly be made.
on International Trade Law 35.3. The parties undertake to comply without delay with any order
or award made by the arbitral tribunal or any emergency arbitrator,
including any order or award made in any proceedings under Articles
Bibliographic reference 27, 28, 29, 30 or 43.
'Chapter 9: The Award: Form,
Effect, and Enforceability', in ICC
Arif Hyder Ali , Jane Wessel ,

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© 2019 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
et al., The International Article 35. Time 6. Every award shall be binding on the parties. By submitting the
Arbitration Rulebook: A Limit for the Final dispute to arbitration under the Rules, the parties undertake to carry
Guide to Arbitral Regimes, Award out any award without delay and shall be deemed to have waived
(© Kluwer Law International; their right to any form of recourse insofar as such waiver can validly
Kluwer Law International be made.
2019) pp. 537 - 590
ICSID
ICSID Convention, 1. The award shall be binding on the parties and shall not be subject
Article 53. to any appeal or to any other remedy except those provided for in
Recognition and this Convention. Each party shall abide by and comply with the
Enforcement of the terms of the award except to the extent that enforcement shall have
Award been stayed pursuant to the relevant provisions of this Convention.
2. For the purposes of this Section, “award” shall include any
decision interpreting, revising or annulling such award pursuant to
Articles 50, 51 or 52.

ICSID Convention, 1. Each Contracting State shall recognize an award rendered

Article 54. pursuant to this Convention as binding and enforce the pecuniary
Recognition and obligations imposed by that award within its territories as if it were a
Enforcement of the final judgment of a court in that State. A Contracting State with a
Award federal constitution may enforce such an award in or through its
federal courts and may provide that such courts shall treat the
award as if it were a final judgment of the courts of a constituent
state.
2. A party seeking recognition or enforcement in the territories of a
Contracting State shall furnish to a competent court or other
authority which such State shall have designated for this purpose a
copy of the award certified by the Secretary-General. Each
Contracting State shall notify the Secretary-General of the
designation of the competent court or other authority for this
purpose and of any subsequent change in such designation.
3. Execution of the award shall be governed by the laws concerning
the execution of judgments in force in the State in whose territories
such execution is sought.

ICSID Convention, Nothing in Article 54 shall be construed as derogating from the law
Article 55. in force in any Contracting State relating to immunity of that State
Recognition and or of any foreign State from execution.
Enforcement of the
Award
LCIA
Article 26. Award(s) 26.8. Every award (including reasons for such award) shall be final
and binding on the parties. The parties undertake to carry out any
award immediately and without any delay (subject only to Article
27); and the parties also waive irrevocably their right to any form of
appeal, review or recourse to any state court or other legal
authority, insofar as such waiver shall not be prohibited under any
applicable law.
SCC
Article 46. Effect of An award shall be final and binding on the parties when rendered. By
an Award agreeing to arbitration under these Rules, the parties undertake to
carry out any award without delay.
SIAC
Rule 32. The Award 32.11. Subject to Rule 33 and Schedule 1, by agreeing to arbitration
under these Rules, the parties agree that any Award shall be final
and binding on the parties from the date it is made, and undertake
to carry out the Award immediately and without delay. The parties
also irrevocably waive their rights to any form of appeal, review or
recourse to any State court or other judicial authority with respect
to such Award insofar as such waiver may be validly made.
UNCITRAL
Article 34. Form and 2. All awards […] shall be final and binding on the parties. The parties
Effect of the Award shall carry out all awards without delay.
The binding nature of a final award applies equally to partial awards. A tribunal will
sometimes issue a partial award for a particular stage in the proceedings if it can dispose
of any issues early. For example, a tribunal may bifurcate the proceedings into a
jurisdiction phase and a merits phase and issue an initial partial award on jurisdiction
only. This is because a partial award declining jurisdiction over certain claims will obviate

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© 2019 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 the need for proceedings on the merits of those claims. A tribunal may also trifurcate the
proceedings into jurisdiction, merits, and damages phases since a partial award rejecting
certain claims on the merits will obviate the need for proceedings on associated damages.
All of the rules provide for binding partial awards, except ICSID, where tribunal decisions
P 540 before the final award are not considered awards, but such decisions become part of the
P 541 eventual final award. The relevant rules are in Table 9.2.
P 541
P 542 Table 9.2 Partial Awards
AAA-ICDR
Article 29. Awards, 1. In addition to making a final award, the arbitral tribunal may
Orders, Decisions make interim, interlocutory, or partial awards, orders, decisions, and
and Rulings rulings.
CIETAC
Article 50. Partial 1. Where the arbitral tribunal considers it necessary, or where a party
Award so requests and the arbitral tribunal agrees, the arbitral tribunal
may first render a partial award on any part of the claim before
rendering the final award. A partial award is final and binding upon
both parties.
2. Failure of either party to perform a partial award shall neither
affect the arbitral proceedings nor prevent the arbitral tribunal from
making the final award.

HKIAC
Article 2. 2.13. References to “award” include, inter alia, an interim,
Interpretation of interlocutory, partial or final award, save for any award made by an
Rules emergency arbitrator.
Article 35. Form and 34.1. The arbitral tribunal may make a single award or separate
Effect of the Award awards regarding different issues at different times and in respect of
all parties involved in the arbitration in the form of interim,
interlocutory, partial or final awards. If appropriate, the arbitral
tribunal may also issue interim awards on costs.
ICC
Article 2. Definitions (v) “award” includes, inter alia, an interim, partial or final award.
Appendix IV. Case The following are examples of case management techniques that
Management can be used by the arbitral tribunal and the parties for controlling
Techniques time and cost. […]
(a) Bifurcating the proceedings or rendering one or more partial
awards on key issues, when doing so may genuinely be
expected to result in a more efficient resolution of the case.

ICSID
Not specifically addressed.
LCIA
Article 26. Award(s) 26.1 The Arbitral Tribunal may make separate awards on different
issues at different times, including interim payments on account of
any claim or cross-claim (including Legal and Arbitration Costs).
Such awards shall have the same status as any other award made
by the Arbitral Tribunal.
SCC
Article 44. Separate The Arbitral Tribunal may decide a separate issue or part of the
Award dispute in a separate award.
SIAC
Rule 1. Scope of 1.3. In these Rules:
Application and
Interpretation “Award” includes a partial, interim or final award and an award of an
Emergency Arbitrator; […]

Rule 32. The Award 32.5. Unless otherwise agreed by the parties, the Tribunal may make
separate Awards on different issues at different times.
UNCITRAL
Article 34. Form and 1. The arbitral tribunal may make separate awards on different
Effect of the Award issues at different times.
All that said, almost all national laws governing arbitrations taking place within the
jurisdiction (i.e., the lex loci arbitri) will state grounds that a losing party may invoke to

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© 2019 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 seek the set-aside of the award. Similarly, the New York Convention on the Recognition and
Enforcement of Foreign Arbitral Awards permits national courts at the award enforcement
stage to conduct a limited review of commercial and non-ICSID investment awards on
specific limited grounds. (7) These grounds are intended to ensure the basic integrity of
arbitration proceedings and respect for national legal systems. Unlike an appeal, however,
they do not permit a review of the merits. Likewise, the ICSID Convention provides limited
grounds for a party to seek annulment of an ICSID award within the ICSID system. (8) In
Table 9.3, we set out the grounds that may be invoked by a losing party under the
P 542 UNCITRAL Model Law (which serves as the basis for the arbitral laws of many jurisdictions
P 543 around the world) and the New York Convention.
P 543
P 544 Table 9.3 Grounds for Refusing Recognition and Enforcement
UNCITRAL MODEL LAWArticle 36. Grounds for Refusing Recognition or Enforcement
1. Recognition or enforcement of an arbitral award, irrespective of the country in which it
was made, may be refused only:
(a) at the request of the party against whom it is invoked, if that party furnishes to the
competent court where the recognition and enforcement is sought, proof that:
(i) a party to the agreement referred to in article II were, under the law applicable
to them, under some incapacity, or the said agreement is not valid under the law
to which the parties have subjected it or, failing any indication thereon, under
the law of the country where the award was made; or
(ii) the party against whom the award is invoked was not given proper notice of the
appointment of an arbitrator or of the arbitration proceedings or was otherwise
unable to present his case; or
(iii) the award deals with a dispute not contemplated by or not falling within the
terms of the submission to arbitration, or it contains decisions on matters
beyond the scope of the submission to arbitration, provided that, if the decisions
on matters submitted to arbitration can be separated from those not so
submitted, that part of the award which contains decisions on matters
submitted to arbitration may be recognized and enforced; or
(iv) the composition of the arbitral tribunal or the arbitral procedure was not in
accordance with the agreement of the parties, or, failing such agreement, was
not in accordance with the law of the country where the arbitration took place;
or
(v) the award has not yet become binding on the parties, or has been set aside or
suspended by a competent authority of the country in which, or under the law of
which, that award was made; or
(b) if the court finds that:
(i) The subject-matter of the difference is not capable of settlement by arbitration
under the law of this State; or
(ii) The recognition or enforcement of the award would be contrary to the public
policy of this State.

NEW YORK CONVENTIONArticle V. Grounds for Refusal to Enforce

1. Recognition and enforcement of the award may be refused, at the request of the party
against whom it is invoked, only if that party furnishes to the competent authority where
the recognition and enforcement is sought, proof that:
(a) The parties to the agreement referred to in article II were, under the law applicable to
them, under some incapacity, or the said agreement is not valid under the law to
which the parties have subjected it or, failing any indication thereon, under the law of
the country where the award was made; or
(b) The party against whom the award is invoked was not given proper notice of the
appointment of the arbitrator or of the arbitration proceedings or was otherwise
unable to present his case; or

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© 2019 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 (c) The award deals with a difference not contemplated by or not falling within the terms
of the submission to arbitration, or it contains decisions on matters beyond the scope
of the submission to arbitration, provided that, if the decisions on matters submitted
to arbitration can be separated from those not so submitted, that part of the award
which contains decisions on matters submitted to arbitration may be recognized and
enforced; or
(d) The composition of the arbitral authority or the arbitral procedure was not in
accordance with the agreement of the parties, or, failing such agreement, was not in
accordance with the law of the country where the arbitration took place; or
(e) The award has not yet become binding on the parties, or has been set aside or
suspended by a competent authority of the country in which, or under the law of
which, that award was made.
2. Recognition and enforcement of an arbitral award may also be refused if the competent
authority in the country where recognition and enforcement is sought finds that:
(a) The subject matter of the difference is not capable of settlement by arbitration under
the law of that country; or
(b) The recognition or enforcement of the award would be contrary to the public policy of
that country.

In an action to enforce an international commercial arbitration award, non-ICSID

investment award, or ICSID Additional Facility award, Article V of the New York Convention
provides that a national court may refuse to enforce a foreign arbitration award only if the
losing party furnishes proof that:
(1) a party was under some legal incapacity when they entered into the arbitration
agreement;
(2) the arbitration agreement was invalid under the applicable law chosen by the
parties, or, if no governing law is chosen, under the law of the seat of arbitration;
(3) the award decides issues beyond the scope of the arbitration;
(4) the party against whom the award was made was not given proper notice about the
proceedings;
(5) the party against whom the award was unable to present his case;
(6) the composition of the tribunal was not in accordance with the parties’ agreement, or
if there is no procedure chosen, under the law of the seat of arbitration;
(7) the arbitral procedure was not in accordance with the parties’ agreement, or if there
is no procedure chosen, under the law of the seat of arbitration;
(8) the award is not yet binding on the parties;
(9) the award has been set aside by a court at the seat of arbitration;
P 544
P 545
(10) the subject of the dispute is nonarbitrable under the law of the seat of arbitration; or
(11) enforcement would be contrary to the public policy of that country.
As one can see from this list, the grounds for a court to refuse to enforce an award concern
certain fundamental defects in the arbitration or the award in four areas: (i) lack of
jurisdiction of the tribunal (1-3); (ii) failure of due process in the proceedings (4-7); (iii)
ineffective award (8-9); and (iv) incompatibility of the award with national law (10-11).
All signatories to the New York Convention implement these grounds through their national
arbitration laws. Many countries base their national arbitration laws on the UNCITRAL
Model Law, which repeats the grounds set forth in the New York Convention, with a few
modifications to the text. Table 9.4 provides examples of national arbitration law grounds
to set aside an arbitration award.
The UNCITRAL Model Law also indicates, in Article 34, the grounds for a losing party to
initiate an action to set aside an arbitral award. (9) These are virtually the same grounds as
for a court’s refusal to enforce an award, i.e., the grounds listed above, with two exceptions.
First, Article 34(2)(iv) clarifies that a set-aside action cannot be based on a violation of the
parties’ agreed procedure if that procedure conflicts with a nonderogable provision of the
Model Law. (10) Second, a set-aside action cannot be based on the award not yet having
become binding or having been set aside at the seat. Aside from these two differences, all
P 545 other texts in Model Law Articles 34 and 36 are materially identical. This tends to ensure
P 546 harmonization in the criteria for all judicial review of arbitration awards. (11)
P 546
P 547 Table 9.4 Examples of National Arbitration Law Grounds for Set-Aside
U.S. FEDERAL ARBITRATION ACT (12)
PP 550
548
549
547
PP 550
548
549
551

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 9 U.S.C. Section 10
(a) In any of the following cases the United States court in and for the district wherein the
award was made may make an order vacating the award upon the application of any
party to the arbitration—
(1) where the award was procured by corruption, fraud, or undue means;
(2) where there was evident partiality or corruption in the arbitrators, or either of
them;
(3) where the arbitrators were guilty of misconduct in refusing to postpone the
hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent
and material to the controversy; or of any other misbehavior by which the rights
of any party have been prejudiced; or
(4) where the arbitrators exceeded their powers, or so imperfectly executed them
that a mutual, final, and definite award upon the subject matter submitted was
not made.
(b) If an award is vacated and the time within which the agreement required the award to
be made has not expired, the court may, in its discretion, direct a rehearing by the
arbitrators.
(c) The United States district court for the district wherein an award was made that was
issued pursuant to section 580 of title 5 may make an order vacating the award upon
the application of a person, other than a party to the arbitration, who is adversely
affected or aggrieved by the award, if the use of arbitration or the award is clearly
inconsistent with the factors set forth in section 572 of title 5.
9 U.S.C Section 11
In either of the following cases the United States court in and for the district wherein the
award was made may make an order modifying or correcting the award upon the
application of any party to the arbitration—
(a) Where there was an evident material miscalculation of figures or an evident material
mistake in the description of any person, thing, or property referred to in the award.
(b) Where the arbitrators have awarded upon a matter not submitted to them, unless it is
a matter not affecting the merits of the decision upon the matter submitted.
(c) Where the award is imperfect in matter of form not affecting the merits of the
controversy.
The order may modify and correct the award, so as to effect the intent thereof and promote
justice between the parties.

ENGLISH ARBITRATION ACT (13)

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 66 Enforcement of the award.
1. An award made by the tribunal pursuant to an arbitration agreement may, by leave of the
court, be enforced in the same manner as a judgment or order of the court to the same
effect.
2. Where leave is so given, judgment may be entered in terms of the award.
3. Leave to enforce an award shall not be given where, or to the extent that, the person
against whom it is sought to be enforced shows that the tribunal lacked substantive
jurisdiction to make the award.
The right to raise such an objection may have been lost (see section 73).
4. Nothing in this section affects the recognition or enforcement of an award under any
other enactment or rule of law, in particular under Part II of the Arbitration Act 1950
(enforcement of awards under Geneva Convention) or the provisions of Part III of this Act
relating to the recognition and enforcement of awards under the New York Convention or by
an action on the award.
67 Challenging the award: substantive jurisdiction.
1. A party to arbitral proceedings may (upon notice to the other parties and to the tribunal)
apply to the court—
(a) challenging any award of the arbitral tribunal as to its substantive jurisdiction; or
(b) for an order declaring an award made by the tribunal on the merits to be of no effect,
in whole or in part, because the tribunal did not have substantive jurisdiction.
A party may lose the right to object (see section 73) and the right to apply is subject to
the restrictions in section 70(2) and (3).
2. The arbitral tribunal may continue the arbitral proceedings and make a further award
while an application to the court under this section is pending in relation to an award as to
jurisdiction.
3. On an application under this section challenging an award of the arbitral tribunal as to
its substantive jurisdiction, the court may by order—
(a) confirm the award,
(b) vary the award, or
(c) set aside the award in whole or in part.
4. The leave of the court is required for any appeal from a decision of the court under this
section.
68 Challenging the award: serious irregularity.
1. A party to arbitral proceedings may (upon notice to the other parties and to the tribunal)
apply to the court challenging an award in the proceedings on the ground of serious
irregularity affecting the tribunal, the proceedings or the award.
A party may lose the right to object (see section 73) and the right to apply is subject to the
restrictions in section 70(2) and (3).
2. Serious irregularity means an irregularity of one or more of the following kinds which the
court considers has caused or will cause substantial injustice to the applicant—

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 (a) failure by the tribunal to comply with section 33 (general duty of tribunal);
(b) the tribunal exceeding its powers (otherwise than by exceeding its substantive
jurisdiction: see section 67);
(c) failure by the tribunal to conduct the proceedings in accordance with the procedure
agreed by the parties;
(d) failure by the tribunal to deal with all the issues that were put to it;
(e) any arbitral or other institution or person vested by the parties with powers in relation
to the proceedings or the award exceeding its powers;
(f) uncertainty or ambiguity as to the effect of the award;
(g) the award being obtained by fraud or the award or the way in which it was procured
being contrary to public policy;
(h) failure to comply with the requirements as to the form of the award; or
(i) any irregularity in the conduct of the proceedings or in the award which is admitted by
the tribunal or by any arbitral or other institution or person vested by the parties with
powers in relation to the proceedings or the award.
3. If there is shown to be serious irregularity affecting the tribunal, the proceedings or the
award, the court may—
(a) remit the award to the tribunal, in whole or in part, for reconsideration,
(b) set the award aside in whole or in part, or
(c) declare the award to be of no effect, in whole or in part.
The court shall not exercise its power to set aside or to declare an award to be of no effect,
in whole or in part, unless it is satisfied that it would be inappropriate to remit the matters
in question to the tribunal for reconsideration.
4. The leave of the court is required for any appeal from a decision of the court under this
section.
69 Appeal on point of law.
1. Unless otherwise agreed by the parties, a party to arbitral proceedings may (upon notice
to the other parties and to the tribunal) appeal to the court on a question of law arising out
of an award made in the proceedings.
An agreement to dispense with reasons for the tribunal’s award shall be considered an
agreement to exclude the court’s jurisdiction under this section.
2. An appeal shall not be brought under this section except—
(a) with the agreement of all the other parties to the proceedings, or
(b) with the leave of the court.
The right to appeal is also subject to the restrictions in section 70(2) and (3).
3. Leave to appeal shall be given only if the court is satisfied—
(a) that the determination of the question will substantially affect the rights of one or
more of the parties,
(b) that the question is one which the tribunal was asked to determine,
(c) that, on the basis of the findings of fact in the award—
(i) the decision of the tribunal on the question is obviously wrong, or
(ii) the question is one of general public importance and the decision of the tribunal
is at least open to serious doubt, and

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 (d) that, despite the agreement of the parties to resolve the matter by arbitration, it is
just and proper in all the circumstances for the court to determine the question.
4. An application for leave to appeal under this section shall identify the question of law to
be determined and state the grounds on which it is alleged that leave to appeal should be
granted.
5. The court shall determine an application for leave to appeal under this section without a
hearing unless it appears to the court that a hearing is required.
6. The leave of the court is required for any appeal from a decision of the court under this
section to grant or refuse leave to appeal.
7. On an appeal under this section the court may by order—
(a) confirm the award,
(b) vary the award,
(c) remit the award to the tribunal, in whole or in part, for reconsideration in the light of
the court’s determination, or
(d) set aside the award in whole or in part.
The court shall not exercise its power to set aside an award, in whole or in part, unless it is
satisfied that it would be inappropriate to remit the matters in question to the tribunal for
reconsideration.
8. The decision of the court on an appeal under this section shall be treated as a judgment
of the court for the purposes of a further appeal.
But no such appeal lies without the leave of the court which shall not be given unless the
court considers that the question is one of general importance or is one which for some
other special reason should be considered by the Court of Appeal.
70 Challenge or appeal: supplementary provisions.
1. The following provisions apply to an application or appeal under section 67, 68 or 69.
2. An application or appeal may not be brought if the applicant or appellant has not first
exhausted—
(a) any available arbitral process of appeal or review, and
(b) any available recourse under section 57 (correction of award or additional award).
3. Any application or appeal must be brought within 28 days of the date of the award or, if
there has been any arbitral process of appeal or review, of the date when the applicant or
appellant was notified of the result of that process.
4. If on an application or appeal it appears to the court that the award—
(a) does not contain the tribunal’s reasons, or
(b) does not set out the tribunal’s reasons in sufficient detail to enable the court properly
to consider the application or appeal, the court may order the tribunal to state the
reasons for its award in sufficient detail for that purpose.
5. Where the court makes an order under subsection (4), it may make such further order as
it thinks fit with respect to any additional costs of the arbitration resulting from its order.

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 6. The court may order the applicant or appellant to provide security for the costs of the
application or appeal, and may direct that the application or appeal be dismissed if the
order is not complied with.
The power to order security for costs shall not be exercised on the ground that the applicant
or appellant is—
(a) an individual ordinarily resident outside the United Kingdom, or
(b) a corporation or association incorporated or formed under the law of a country
outside the United Kingdom, or whose central management and control is exercised
outside the United Kingdom.
7. The court may order that any money payable under the award shall be brought into court
or otherwise secured pending the determination of the application or appeal, and may
direct that the application or appeal be dismissed if the order is not complied with.
8. The court may grant leave to appeal subject to conditions to the same or similar effect as
an order under subsection (6) or (7).
This does not affect the general discretion of the court to grant leave subject to conditions.
71 Challenge or appeal: effect of order of court.
1. The following provisions have effect where the court makes an order under section 67, 68
or 69 with respect to an award.
2. Where the award is varied, the variation has effect as part of the tribunal’s award.
3. Where the award is remitted to the tribunal, in whole or in part, for reconsideration, the
tribunal shall make a fresh award in respect of the matters remitted within three months of
the date of the order for remission or such longer or shorter period as the court may direct.
4. Where the award is set aside or declared to be of no effect, in whole or in part, the court
may also order that any provision that an award is a condition precedent to the bringing of
legal proceedings in respect of a matter to which the arbitration agreement applies, is of no
effect as regards the subject matter of the award or, as the case may be, the relevant part
of the award.

EGYPTIAN ARBITRATION ACT (14)

1. An arbitral award may be annulled only:
If there is no arbitration agreement, if it was void, voidable or its duration had elapsed;
If either party to the arbitration agreement was at the time of the conclusion of the
arbitration agreement fully or partially incapacitated according to the law governing its
legal capacity;
If either party to the arbitration was unable to present its case as a result of not being given
proper notice of the appointment of an arbitrator or of the arbitral proceedings, or for any
other reason beyond its control;
If the arbitral award failed to apply the law agreed upon by the parties to govern the
subject matter in dispute;
If the composition of the arbitral tribunal or the appointment of the arbitrators was in
conflict with this Law or the parties’ agreement;

If the arbitral award dealt with matters not falling within the scope of the arbitration
agreement or exceeding the limits of this agreement. However, in the case when matters
falling within the scope of the arbitration can be separated from the part of the award
which contains matters not included within the scope of the arbitration, the nullity affects
exclusively the latter parts only;
If the arbitral award itself or the arbitration procedures affecting the award contain a legal
violation that causes nullity.
2. The court adjudicating the action for annulment shall ipso jure annul the arbitral award if
it is in conflict with the public policy in the Arab Republic of Egypt.

Unlike the New York Convention/Model Law regime, ICSID awards cannot be challenged
before national courts; they are automatically enforceable in all countries that are
signatories to the ICSID Convention. (15) Instead, any request for annulment of an ICSID
award is addressed to the Secretary-General for appointment of an ICSID ad hoc
annulment committee. (16) However, like judicial review under the Model Law and New
York Convention, the grounds for ICSID annulment concern the legitimacy and integrity of
the process by which the tribunal reached its decision, not the merits of the decision itself.
The grounds for ICSID annulment are laid out in the following table and discussed further
below.
Table 9.5 ICSID Convention Grounds for Annulment
ICSID CONVENTIONArticle 52. Interpretation, Revision and Annulment of the Award

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 1. Either party may request annulment of the award by an application in writing addressed
to the Secretary-General on one or more of the following grounds:
(a) that the Tribunal was not properly constituted;
(b) that the Tribunal has manifestly exceeded its powers;
(c)that there was corruption on the part of a member of the Tribunal;
(d) that there has been a serious departure from a fundamental rule of procedure; or
(e) that the award has failed to state the reasons on which it is based.
[…]
P 551
P 552
The grounds for ICSID annulment are broadly not dissimilar to the grounds for set-aside
under Article 34 of the UNCITRAL Model Law. The first ground under the ICSID Convention,
improper constitution of the tribunal, is nearly identical to ground 6 under the Model
Law/New York Convention further above. This ground has only infrequently provided the
basis for denying recognition of an award under the New York Convention, such as when the
number or qualifications of the arbitrators did not adhere to the parties’ agreement, or
when the procedures for choosing a chairman or challenging an arbitrator were not
followed. (17) The ground is rarely if ever raised in ICSID annulment proceedings. (18) Yet it
is good practice for every award to include a statement that the tribunal was constituted
in accord with the parties’ agreement and applicable rules, along with a description of the
method of the tribunal’s constitution. (19) The requirements for appointing the tribunal are
discussed in detail in section §4.04 of this book (Appointment of Arbitrators).
The second ground, manifest excess of powers, covers two situations. (20) The first is when
the award contains decisions on issues that are outside the scope of the arbitration. (21)
This situation corresponds to ground 3 under the Model Law, award decides issues outside
the scope of the submission to arbitration. Although ICSID and most national courts
recognize the principle of kompetenz-kompetenz, an award rendered by a tribunal that
clearly lacked jurisdiction to hear the dispute would satisfy this ground and so would a
tribunal’s failure to exercise jurisdiction when it clearly had it. (22) In the same vein, an
excess of powers may be found if an award addresses claims not presented by the parties
or not covered by the arbitration agreement, or grants relief not requested by the parties.
(23)
Remarkably, however, of the arbitral regimes considered in this book, only the ICSID
Convention and Rules expressly guide the tribunal toward specifying and deciding all of
the issues submitted for decision and only those issues. The Convention provides that
“[t]he award shall deal with every question submitted to the Tribunal.” (24) The ICSID Rules
likewise mandate that “[t]he award … shall contain … the decision of the Tribunal on every
question submitted to it … .” (25) None of the other rules direct the tribunal to focus its
award on the issues submitted to arbitration, even though a failure to do so constitutes a
ground for nonrecognition and set-aside under the New York Convention and Model Law. It
is therefore highly advisable that every tribunal specify concretely in its award the
disputed issues and organize its decision and reasoning around those issues.
P 552
P 553
The second situation that can be considered a manifest excess of powers is when a tribunal
disregards the applicable law. (26) With the exception of CIETAC, all of the rules require the
tribunal: (i) to apply the law agreed by the parties, or failing such agreement, the law
determined by the tribunal to be appropriate; (ii) to decide in accordance with the
parties’ contract and trade usages; and (iii) not to act as a conciliator or decide in equity
unless the parties so agree. (CIETAC omits the third requirement.)
Under the Model Law, the standard for applying the applicable law is satisfied so long as
the tribunal endeavors to apply the correct law in rendering its award, even if a reviewing
authority disagrees with the analysis. However, a case in which the tribunal refuses to give
effect to a valid choice-of-law clause and manifestly refuses to uphold the parties’
agreement in favor of its own notions of equity could support a public policy objection to
the final award. (27) Similarly, under the ICSID Convention, the standard is not violated
merely if the tribunal errs in its analysis of the applicable law, but only if the tribunal
disregards all applicable laws and decides the case in equity when not authorized to do so
(or it obviously applies laws other than those agreed by the parties). (28) Here again, a
tribunal will do well to expressly indicate the applicable law and reference that law in its
reasoning in the award.
P 553
P 554 Table 9.6 Award Based on Applicable Law
AAA-ICDR
P 555
554
P 556
555

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 Article 31, Applicable 1. The arbitral tribunal shall apply the substantive law(s) or rules of
Laws and Remedies law agreed by the parties as applicable to the dispute. Failing such
an agreement by the parties, the tribunal shall apply such law(s) or
rules of law as it determines to be appropriate.
2. In arbitrations involving the application of contracts, the tribunal
shall decide in accordance with the terms of the contract and shall
take into account usages of the trade applicable to the contract.
3. The tribunal shall not decide as amiable compositeur or ex aequo
et bono unless the parties have expressly authorized it to do so.

CIETAC
Article 49. Making of 1. The arbitral tribunal shall independently and impartially render a
Award fair and reasonable arbitral award based on the facts of the case
and the terms of the contract, in accordance with the law, and with
reference to international practices.
2. Where the parties have agreed on the law applicable to the merits
of their dispute, the parties’ agreement shall prevail. In the absence
of such an agreement or where such agreement is in conflict with a
mandatory provision of the law, the arbitral tribunal shall determine
the law applicable to the merits of the dispute.

HKIAC
Article 36. 36.1. The arbitral tribunal shall decide the substance of the dispute
Applicable Law, in accordance with the rules of law agreed upon by the parties. Any
Amiable designation of the law or legal system of a given jurisdiction shall be
Compositeur construed, unless otherwise expressed, as directly referring to the
substantive law of that jurisdiction and not to its conflict of laws
rules. Failing such designation by the parties, the arbitral tribunal
shall apply the rules of law which it determines to be appropriate.
36.2. The arbitral tribunal shall decide as amiable compositeur or ex
aequo et bono only if the parties have expressly agreed that the
arbitral tribunal should do so.
36.3. In all cases, the arbitral tribunal shall decide the case in
accordance with the terms of the relevant contract(s) and may take
into account the usages of the trade applicable to the
transaction(s).

ICC
Article 21. Applicable 1. The parties shall be free to agree upon the rules of law to be
Rules of Law applied by the arbitral tribunal to the merits of the dispute. In the
absence of any such agreement, the arbitral tribunal shall apply the
rules of law which it determines to be appropriate.
2. The arbitral tribunal shall take account of the provisions of the
contract, if any, between the parties and of any relevant trade
usages.
3. The arbitral tribunal shall assume the powers of an amiable
compositeur or decide ex aequo et bono only if the parties have
agreed to give it such powers.

ICSID
ICSID Convention 1. The Tribunal shall decide a dispute in accordance with such rules
Article 42. Powers of law as may be agreed by the parties. In the absence of such
and Functions of the agreement, the Tribunal shall apply the law of the Contracting State
Tribunal party to the dispute (including its rules on the conflict of laws) and
such rules of international law as may be applicable.
2. The Tribunal may not bring in a finding of non liquet on the
ground of silence or obscurity of the law.
3. The provisions of paragraphs (1) and (2) shall not prejudice the
power of the Tribunal to decide a dispute ex aequo et bono if the
parties so agree.

LCIA

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 Article 22. Additional 22.3. The Arbitral Tribunal shall decide the parties’ dispute in
Powers accordance with the law(s) or rules of law chosen by the parties as
applicable to the merits of their dispute. If and to the extent that the
Arbitral Tribunal decides that the parties have made no such choice,
the Arbitral Tribunal shall apply the law(s) or rules of law which it
considers appropriate.22.4. The Arbitral Tribunal shall only apply to
the merits of the dispute principles deriving from “ex aequo et bono,”
“amiable composition” or “honourable engagement” where the
parties have so agreed in writing.
SCC
Article 27. Applicable 1. The Arbitral Tribunal shall decide the merits of the dispute on the
Law basis of the law(s) or rules of law agreed upon by the parties. In the
absence of such agreement, the Arbitral Tribunal shall apply the law
or rules of law that it considers most appropriate.
2. Any designation by the parties of the law of a given state shall be
deemed to refer to the substantive law of that state, not to its
conflict of laws rules.
3. The Arbitral Tribunal shall decide the dispute ex aequo et bono or
as amiable compositeur only if the parties have expressly authorised
it to do so.

SIAC
Rule 31. Applicable 1. The arbitral tribunal shall apply the rules of law designated by the
Law, Amiable parties as applicable to the substance of the dispute. Failing such
Compositeur and Ex designation by the parties, the arbitral tribunal shall apply the law
Aequo et Bono which it determines to be appropriate.
2. The arbitral tribunal shall decide as amiable compositeur or ex
aequo et bono only if the parties have expressly authorized the
arbitral tribunal to do so.
3. In all cases, the arbitral tribunal shall decide in accordance with
the terms of the contract, if any, and shall take into account any
usage of trade applicable to the transaction.

UNCITRAL
Article 35. 1. The arbitral tribunal shall apply the rules of law designated by the
Applicable Law, parties as applicable to the substance of the dispute. Failing such
Amiable designation by the parties, the arbitral tribunal shall apply the law
Compositeur which it determines to be appropriate.
2. The arbitral tribunal shall decide as amiable compositeur or ex
aequo et bono only if the parties have expressly authorized the
arbitral tribunal to do so.

3. In all cases, the arbitral tribunal shall decide in accordance with

the terms of the contract, if any, and shall take into account any
usage of trade applicable to the transaction.
The third ground under the ICSID Convention, corruption of the tribunal, is also subsumed
by ground 11 under the Model Law, enforcement contrary to public policy. (29) For instance,
corruption in the arbitration is an express ground for set-aside under the United States
Federal Arbitration Act. (30) This ground, however, has never been invoked in an ICSID
annulment application. (31) Still, every award should fully address any arguments by the
parties concerning the arbitrators’ impartiality or independence, or else note that no such
objections were raised in the arbitration. The procedure for challenging an arbitrator is
discussed in detail in section §4.05 (Arbitrator Challenge).
The fourth ground under the ICSID Convention, serious departure from a fundamental rule
of procedure, largely corresponds to Model Law grounds 4 (failure to give notice), 5
(inability to present one’s case), and 7 (proceedings not in accord with the parties’
agreement). Under the Model Law, an award may be set aside when a deviation from the
parties’ agreement on procedure or general principles of due process results in a material
prejudice to a party. (32) As under the Model Law, under the ICSID Convention, a minor and
inconsequential deviation from any rule of procedure is not a sufficient ground for
annulment. Rather, the deviation must deprive a party of the benefit or protection the rule
was intended to provide, and the deviation must have caused the tribunal to reach a
substantially different result in its award. (33) In order to militate against a challenge on
this ground, the award should reference the applicable arbitration rules and include a
summary history of the proceedings to indicate all notices to the parties, opportunities for
the parties to present written and oral arguments as well as documentary, witness, and
expert evidence.
The fifth ground, failure to state reasons, is subsumed by ground 11 under the Model Law,

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 enforcement contrary to public policy, since it concerns the contents of the award and all
arbitration rules and the Model Law require the tribunal to state reasons for its decision.
(34) Most rules permit derogation from the requirement to give reasons by agreement of
the parties, though the ICC and ICSID do not provide such an exception. (35) The parties
should confirm that the law of the seat and of any jurisdiction where enforcement will be
sought will recognize an award that does not give reasons, before taking this exception.
P 556 The standard for stating reasons is similar under both the Model Law and at ICSID. Under
P 557 the Model Law, a thorough analysis of law and facts as in a judicial opinion may not be
required; an award that at least provides logical and coherent reasoning will probably
survive review. An award that lacks any reasoning whatsoever, however, may be set aside.
(36) Similarly, under the ICSID Convention and Rules, a complete absence of reasons, or
reasons that are so insufficient or incomprehensible as to constitute no reasons at all, may
violate the standard. But incomplete reasons that at least allow the annulment committee
to follow the tribunal’s reasoning probably do not violate the standard. (37)
P 557
P 558 Table 9.7 Reasons for the Tribunal’s Decision
AAA-ICDR
Article 30. Time, 1. […] The tribunal shall state the reasons upon which an award is
Form, and Effect of based, unless the parties have agreed that no reasons need be given.
Award
CIETAC
Article 49. Making of 3. The arbitral tribunal shall state in the award […] the facts of the
Award dispute [and] the reasons on which the award is based […]. The facts
of the dispute and the reasons on which the award is based may not
be stated in the award if the parties have so agreed, or if the award is
made in accordance with the terms of a settlement agreement
between the parties. […]
HKIAC
Article 35. Form and 35.4. An award shall state the reasons upon which it is based unless
Effect of the Award the parties have agreed that no reasons are to be given.
Article 41. Expedited 42.2. When HKIAC, after considering the views of the parties, grants
Procedure an application made pursuant to Article 42.1, the arbitral
proceedings shall be conducted in accordance with an Expedited
Procedure based upon the foregoing provisions of these Rules,
subject to the following changes: […]
(g) the arbitral tribunal may state the reasons upon which the
award is based in summary form, unless the parties have
agreed that no reasons are to be given.

ICC
Article 32. Making of 2. The award shall state the reasons upon which it is based.
Award
ICSID
Arbitration Rules, (1) The award […] shall contain:
Rule 47. The Award
[…]
(i) the reasons upon which the decision is based; […]

LCIA
Article 26. Award(s) 26.2. The Arbitral Tribunal […], unless all parties agree in writing
otherwise, shall state the reasons upon which such award is based.
[…]
SCC
Article 42. Making of (1) The Arbitral Tribunal […], unless otherwise agreed by the parties,
Awards shall state the reasons upon which the award is based.
SIAC
Rule 32. The Award 32.4. The Award shall … shall state the reasons upon which it is
based unless the parties have agreed that no reasons are to be
given.
UNCITRAL
Article 34. Form and 3. The arbitral tribunal shall state the reasons upon which the award
Effect of the Award is based, unless the parties have agreed that no reasons are to be
given.

§9.02 REMEDIES

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 The substantive remedies a tribunal may award on the merits of a party’s claims are wide
in scope, subject only to the limitations specified in the law of the seat of the arbitration,
the parties’ agreement, and the substantive law of their contract. The applicable arbitral
rules will also often address the available remedies that can be awarded. For example, the
LCIA Rules are the most comprehensive in this regard, expressly authorizing the tribunal to
order in its final award: payment of money damages for breach of a legal obligation,
disposition of property, specific performance of a contract, and compliance with any other
legal obligation. (38) The LCIA Rules also specifically state than an LCIA tribunal may also
award interest on money damages. (39) The SIAC Rules expressly address only money
damages with interest, (40) disposition of property, (41) and rectification of a contract. (42)
The ICDR Rules expressly address only money damages with interest. (43) Given its origins
in the U.S. where punitive damages may be ordered in civil litigation, the ICDR Rules
clarify that punitive damages are not available in international arbitration “unless any
applicable law(s) requires that compensatory damages be increased in a specified
manner.” (44) The CIETAC Rules require the tribunal only to indicate the “result” of its
P 558 award. (45) The other regimes under consideration do not indicate available remedies for
P 559 the final award, leaving the matter to be determined subject to limitations in the lex loci
arbitri, the agreement of the parties, and the substantive law of the contract.
As discussed in section §10.04 (Interim Measures of Protection), the tribunal may order
interim measures of protection to ensure compliance with the eventual award, such as
requiring a party to post a security for the amount of damages claimed against it or
prohibiting a party from selling certain property that is the subject of the dispute. And, as
discussed in Chapter 8 (Costs and Fees), the tribunal may also indicate in its final award
the allocation of the costs of the arbitration between the parties.
P 559
P 560 Table 9.8 Remedies
AAA-ICDR
Article 31. Applicable 4. A monetary award shall be in the currency or currencies of the
Laws and Remedies contract unless the tribunal considers another currency more
appropriate, and the tribunal may award such pre-award and post-
award interest, simple or compound, as it considers appropriate,
taking into consideration the contract and applicable law(s).
5. Unless the parties agree otherwise, the parties expressly waive and
forego any right to punitive, exemplary, or similar damages unless
any applicable law(s) requires that compensatory damages be
increased in a specified manner. This provision shall not apply to an
award of arbitration costs to a party to compensate for misconduct
in the arbitration.

CIETAC
Article 49. Making of 3. The arbitral tribunal shall state in the award […] the result of the
Award award […].
HKIAC
Not specifically addressed.
ICC
Not specifically addressed.
ICSID
Not specifically addressed.
LCIA
Article 22. Additional 22.1. The Arbitral Tribunal shall have the power, upon the application
Powers of any party or (save for sub-paragraphs (viii), (ix) and (x) below)
upon its own initiative, but in either case only after giving the parties
a reasonable opportunity to state their views and upon such terms
(as to costs and otherwise) as the Arbitral Tribunal may decide:
[…]
(vii) to order compliance with any legal obligation, payment of
compensation for breach of any legal obligation and specific
performance of any agreement (including any arbitration
agreement or any contract relating to land);

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 Article 25. Interim 25.1. The Arbitral Tribunal shall have the power upon the application
and Conservatory of any party, after giving all other parties a reasonable opportunity
Measures to respond to such application and upon such terms as the Arbitral
Tribunal considers appropriate in the circumstances:
[…]
(iii) to order on a provisional basis, subject to a final decision in an
award, any relief which the Arbitral Tribunal would have power
to grant in an award, including the payment of money or the
disposition of property as between any parties.
[…]

Article 26. Award(s) 26.3 An award may be expressed in any currency, unless the parties
have agreed otherwise.
26.4 Unless the parties have agreed otherwise, the Arbitral Tribunal
may order that simple or compound interest shall be paid by any
party on any sum awarded at such rates as the Arbitral Tribunal
decides to be appropriate (without being bound by rates of interest
practised by any state court or other legal authority) in respect of
any period which the Arbitral Tribunal decides to be appropriate
ending not later than the date upon which the award is complied
with.

SCC
Not specifically addressed.
SIAC
Article 27. Additional Unless otherwise agreed by the parties, in addition to the other
Powers of the powers specified in these Rules, and except as prohibited by the
Tribunal mandatory rules of law applicable to the arbitration, the Tribunal
shall have the power to:
(a) order the correction or rectification of any contract, subject to
the law governing such contract;
[…]
(e) order the preservation, storage, sale or disposal of any
property or item which is or forms part of the subject matter of
the dispute;

Rule 32. The Award 32.9. The Tribunal may award simple or compound interest on any
sum which is the subject of the arbitration at such rates as the
parties may have agreed or, in the absence of such agreement, as
the Tribunal determines to be appropriate, in respect of any period
which the Tribunal determines to be appropriate.
UNCITRAL
Not specifically addressed.
P 560
P 561

§9.03 ADDITIONAL REQUIREMENTS

Aside from the foregoing aspects of the arbitration and resulting award which can serve as
grounds for nonenforcement or annulment, there are still other requirements for the form
of the award that should be observed. As noted above, these requirements are set forth in
the Model Law—which, as previously noted, serves as the basis for the domestic law
governing arbitration in many countries around the world—the ICSID Convention, and most
arbitration rules, and some even constitute express grounds for set-aside in certain
jurisdictions. It is therefore good practice for tribunals to observe the following additional
rules in every arbitration award.

[A] Award in Writing

The award must be in writing. Article IV(1)(a) of the New York Convention requires the
presentation of a “duly authenticated original award or a duly certified copy thereof,”
which implies that the award must be in writing. The ICSID Convention also requires a
written award. (46) The UNCITRAL Model Law expressly requires an award in writing. (47) In
turn, most arbitration rules expressly require the award to be in written form. (48) Other
rules imply this requirement through other provisions. For example, CIETAC does not
expressly require an award in writing but implies as much by requiring that the arbitrators
“state” certain information in the award and affix the CIETAC seal to the award. (49)
Likewise, the ICC does not expressly require an award in writing but implies as much
insofar as it refers to the “draft” and “text” of the award. (50)

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 [B] Signature
The award must be signed by the arbitrators. The Model Law and nearly all the arbitration
rules require the award to be rendered and signed by all the members of the tribunal or
else a majority of the tribunal. (51) The SIAC Rules do not expressly require the arbitrators
to sign the award. The CIETAC, ICC, LCIA, SCC, SIAC, and UNCITRAL Rules also provide that if
a majority decision cannot be reached, then the award must be rendered and signed by
the presiding arbitrator. (52) However, the Model Law does not expressly provide for such
P 561 an option. (53) Nor does ICSID provide for the award to be decided solely by the
P 562 presiding arbitrator. (54) In case any arbitrator does not join in the decision of the tribunal,
some rules permit that arbitrator to file a dissenting opinion. (55) The Model Law as well as
the AAA-ICDR, HKIAC, LCIA, SCC, and UNCITRAL rules require the award to contain a
statement of the reason for the absence of any arbitrator’s signature. (56)

[C] Date and Place of the Award

The award must indicate the date and place it was rendered. The Model Law expressly
states these requirements, so do nearly all of the arbitration rules. (57) The SIAC Rules do
not expressly require the award to indicate the date and place where the award is
rendered, but, again, this information will normally be included in SIAC awards by the
arbitrators to avoid all possible grounds for nonenforcement. Also, recall that the official
place of arbitration (also called the “seat”) is not necessarily the place where the
proceedings take place or where the award is actually drafted. (58) This is because the
parties may prefer to select a certain seat to obtain a preferred lex loci arbitri, or law
governing the arbitration proceedings, while selecting a different location for actually
conducting the proceedings simply because that location is more convenient and cost-
efficient for the parties. (59) Consequently, the Model Law and some of the rules provide
that the place of the award is deemed to be the seat, notwithstanding that some or all of
the proceedings or the drafting of the award may have occurred elsewhere. (60) ICSID does
P 562 not require the award to indicate a “seat,” since ICSID proceedings are not subject to any
P 563 national arbitration law.
P 563
P 564 Table 9.9 Award Basics: Writing, Signatures, Date, and Place
AAA-ICDR
P 564 Article 29. Awards, 2. When there is more than one arbitrator, any award […] of the
P 565 Orders, Decisions, tribunal shall be made by a majority of the arbitrators.
and Rulings
Article 30. Time, 1. Awards shall be made in writing by the arbitral tribunal […]. […]
Form, and Effect of
Award 2. An award shall be signed by the arbitrator(s) and shall state the
date on which the award was made and the place of arbitration
pursuant to Article 17. Where there is more than one arbitrator and
any of them fails to sign an award, the award shall include or be
accompanied by a statement of the reason for the absence of such
signature.

CIETAC
Article 49. Making of 3. The arbitral tribunal shall state in the award […] the date on which
Award and the place at which the award is made.
[…]
7. Unless the arbitral award is made in accordance with the opinion
of the presiding arbitrator or the sole arbitrator and signed by the
same, the arbitral award shall be signed by a majority of the
arbitrators. An arbitrator who has a dissenting opinion may or may
not sign his/her name on the award.
8. The date on which the award is made shall be the date on which
the award comes into legal effect.
[…]

HKIAC
Article 33. Decisions 33.1. When there is more than one arbitrator, any award or other
decision of the arbitral tribunal shall be made by a majority of the
arbitrators. If there is no majority, the award shall be made by the
presiding arbitrator alone.
33.2. With the prior agreement of all members of the arbitral
tribunal, the presiding arbitrator may make procedural rulings
alone.

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 Article 35. Form and 35.5. An award shall be signed by the arbitral tribunal. It shall state
Effect of the Award the date on which it was made and the seat of arbitration as
determined under Article 14 and shall be deemed to have been made
at the seat of the arbitration. Where there are three arbitrators and
any of them fails to sign, the award shall state the reason for the
absence of the signature(s).
ICC
Article 32. Making of 1. When the arbitral tribunal is composed of more than one
the Award arbitrator, an award is made by a majority decision. If there is no
majority, the award shall be made by the president of the arbitral
tribunal alone.
[…]
3. The award shall be deemed to be made at the place of the
arbitration and on the date stated therein.

Article 35. 1. Once an award has been made, the Secretariat shall notify to the
Notification, Deposit parties the text signed by the arbitral tribunal, […].
and Enforceability of
the Award […]

ICSID
Article 48. The Award 1. The Tribunal shall decide questions by a majority of the votes of
all its members.
2. The award of the Tribunal shall be in writing and shall be signed
by the members of the Tribunal who voted for it.

Article 49. The Award 1. The award shall be deemed to have been rendered on the date on
which the certified copies were dispatched [by the Secretary-General
to the parties].
Rule 47. The Award (1) The award shall be in writing […]
(2) The award shall be signed by the members of the Tribunal who
voted for it; the date of each signature shall be indicated.
[…]

Rule 48. Rendering 2. The award shall be deemed to have been rendered on the date on
of the Award which the certified copies were dispatched [by the Secretary-General
to the parties].
LCIA
Article 26. Award(s) 26.2. The Arbitral Tribunal shall make any award in writing […]. The
award shall also state the date when the award is made and the seat
of the arbitration; and it shall be signed by the Arbitral Tribunal or
those of its members assenting to it.
[…]
26.5. Where there is more than one arbitrator and the Arbitral
Tribunal fails to agree on any issue, the arbitrators shall decide that
issue by a majority. Failing a majority decision on any issue, the
presiding arbitrator shall decide that issue.
26.6. If any arbitrator refuses or fails to sign the award, the
signatures of the majority or (failing a majority) of the presiding
arbitrator shall be sufficient, provided that the reason for the
omitted signature is stated in the award by the majority or by the
presiding arbitrator.

SCC
Article 41. Awards 1. Where the Arbitral Tribunal consists of more than one arbitrator,
and Decisions any award or other decision shall be made by a majority of the
arbitrators or, failing a majority, by the Chairperson.
Article 42. Making of 1. The Arbitral Tribunal shall make its award in writing […].
Awards
2. An award shall include the date of the award and the seat of
arbitration in accordance with Article 25.
3. An award shall be signed by the arbitrators. If an arbitrator fails to
sign an award, the signatures of the majority of the arbitrators or,
failing a majority, of the Chairperson shall be sufficient, provided
that the reason for the omission of the signature is stated in the
award.

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 SIAC
Rule 32. The Award 32.4. The Award shall be in writing ….
[…]
32.6. If any arbitrator fails to cooperate in the making of the Award,
having been given a reasonable opportunity to do so, the remaining
arbitrators may proceed. The remaining arbitrators shall provide
written notice of such refusal or failure to the Registrar, the parties
and the absent arbitrator. In deciding whether to proceed with the
arbitration in the absence of an arbitrator, the remaining arbitrators
may take into account, among other things, the stage of the
arbitration, any explanation provided by the absent arbitrator for his
refusal to participate and the effect, if any, upon the enforceability
of the Award should the remaining arbitrators proceed without the
absent arbitrator. The remaining arbitrators shall explain in any
Award made the reasons for proceeding without the absent
arbitrator.
32.7. Where there is more than one arbitrator, the Tribunal shall
decide by a majority. Failing a majority decision, the presiding
arbitrator alone shall make the Award for the Tribunal.

UNCITRAL
Article 33. Decisions 1. When there is more than one arbitrator, any award or other
decision of the arbitral tribunal shall be made by a majority of the
arbitrators.
Article 34. Form and 2. All awards shall be made in writing […]. […]
Effect of the Award
[…]
4. An award shall be signed by the arbitrators and it shall contain
the date on which the award was made and indicate the place of
arbitration. Where there is more than one arbitrator and any of them
fails to sign, the award shall state the reason for absence of the
signature.

[D] Deadline for Issuing the Award

P 565 Most arbitration rules require tribunals to make their awards in a timely fashion. CIETAC,
P 566 the ICC, and the SCC allow six months from the date of the closure of proceedings, plus
the possibility of an extension. (61) The ICDR Rules give the tribunal only 60 days from the
closing of the hearing to render its award. (62) The HKIAC Rules indicate three months. (63)
ICSID allows 120 days with the possibility for an extension of up to 60 days. (64) Note that
the LCIA, SIAC, and UNCITRAL Rules do not prescribe any time limit for the tribunal to issue
its award, though compliance with a time limit is required for enforcement under some
national arbitration laws (e.g., Brazil). (65) Parties will do well to preview the national
arbitration law of the seat and, if no time limit is provided in the rules, agree upon an
appropriate time limit for issuance of the award.
The ICC Rules uniquely require a tribunal, after it has declared the proceedings closed, to
inform the parties and the ICC when the tribunal expects to send its draft award to the ICC
Court. (66) This addition to the ICC Rules has been well received by the arbitral community.
After what can be years of arbitration and millions of dollars spent on legal fees and the
arbitration-related costs, the parties are often left in the dark about the timing of the
award’s issuance, even if the relevant rules may stipulate that the award be issued within a
certain time frame. This “black hole of deliberation” can have significant commercial
consequences for the parties, whose business dealings, regulatory filings, credit facilities,
and other business interests, including settlement discussions, can be adversely affected
as a result of not knowing when an award will be forthcoming.
P 566
P 567 Table 9.10 Deadline for Issuing the Award
AAA-ICDR
P 567 Article 30. Time, 1. […] The tribunal shall make every effort to deliberate and prepare
P 568 Form, and Effect of the award as quickly as possible after the hearing. Unless otherwise
Award agreed by the parties, specified by law, or determined by the
Administrator, the final award shall be made no later than 60 days
from the date of the closing of the hearing. […] The tribunal shall
state the reasons upon which an award is based, unless the parties
have agreed that no reasons need be given.
CIETAC

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 Article 48. Time 1. The arbitral tribunal shall render an arbitral award within six (6)
Period for Rendering months from the date on which the arbitral tribunal is formed.
Award
2. Upon the request of the arbitral tribunal, the President of the
Arbitration Court may extend the time period if he/she considers it
truly necessary and the reasons for the extension truly justified.
3. Any suspension period shall be excluded when calculating the
time period in the preceding Paragraph 1.

HKIAC
Article 31. Closure of 31.2. Once the proceedings are declared closed, the arbitral tribunal
Proceedings shall inform HKIAC and the parties of the anticipated date by which
an award will be communicated to the parties. The date of rendering
the award shall be no later than three months from the date when
the arbitral tribunal declares the entire proceedings or the relevant
phase of the proceedings closed, as applicable. This time limit may
be extended by agreement of the parties or, in appropriate
circumstances, by HKIAC.
ICC
Article 27. Closing of As soon as possible after the last hearing concerning matters to be
the Proceedings and decided in an award or the filing of the last authorized submissions
Date for Submission concerning such matters, whichever is later, the arbitral tribunal
of Draft Awards shall:[…]
b) inform the Secretariat and the parties of the date by which it
expects to submit its draft award to the Court for approval pursuant
to Article 34.[…]

Article 31. Time Limit 1. The time limit within which the arbitral tribunal must render its
for the Final Award final award is six months. Such time limit shall start to run from the
date of the last signature by the arbitral tribunal or by the parties of
the Terms of Reference or, in the case of application of Article 23(3),
the date of the notification to the arbitral tribunal by the Secretariat
of the approval of the Terms of Reference by the Court. The Court
may fix a different time limit based upon the procedural timetable
established pursuant to Article 24(2).
2. The Court may extend the time limit pursuant to a reasoned
request from the arbitral tribunal or on its own initiative if it decides
it is necessary to do so.

ICSID
ICSID Arbitration The award (including any individual or dissenting opinion) shall be
Rules, Rule 46. drawn up and signed within 120 days after closure of the proceeding.
Preparation of the The Tribunal may, however, extend this period by a further 60 days if
Award it would otherwise be unable to draw up the award.
SCC
Article 43. Time The final award shall be made no later than six months from the
Limit for Final Award date the arbitration was referred to the Arbitral Tribunal pursuant to
Article 22. The Board may extend this time limit upon a reasoned
request from the Arbitral Tribunal or if otherwise deemed necessary.
SIAC
Not specifically addressed.
UNCITRAL
Not specifically addressed.

[E] Dispatch of the Award

All of the rules except the CIETAC Rules provide a procedure for transmitting the award to
the parties. The ICDR, ICC, ICSID, LCIA, and SIAC Rules indicate that the tribunal will
transmit the original award to the institution, who will then send copies to the parties. (67)
Under the HKIAC and SCC Rules, the tribunal transmits copies of the award to the
institution and the parties at the same time. (68) Since UNCITRAL provides for ad hoc
arbitration, it only requires the tribunal to send copies of the award to the parties. (69)
Some national laws require an arbitration award to be filed or registered with the national
court system. It is generally the responsibility of the parties to alert the tribunal of such
requirements; the AAA/ICDR states this requirement expressly. (70) It is generally
acceptable for an award to be transmitted to the parties by electronic means in addition
to paper copies; the LCIA Rules state this expressly. (71)
P 568

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 P 568
P 569 Table 9.11 Notification and Registration
AAA-ICDR
P 569 Article 30. Time, 4. The award shall be transmitted in draft form by the tribunal to the
P 570 Form, and Effect of Administrator. The award shall be communicated to the parties by
Award the Administrator.
5. If applicable law requires an award to be filed or registered, the
tribunal shall cause such requirement to be satisfied. It is the
responsibility of the parties to bring such requirements or any other
procedural requirements of the place of arbitration to the attention
of the tribunal.

CIETAC
Article 49. Making of 4. The seal of CIETAC shall be affixed to the arbitral award.
Award
HKIAC
Article 35. Form and 35.5. An award shall be signed by the arbitral tribunal. It shall state
Effect of the Award the date on which it was made and the seat of arbitration as
determined under Article 14 and shall be deemed to have been made
at the seat of the arbitration. Where there are three arbitrators and
any of them fails to sign, the award shall state the reason for the
absence of the signature(s).
35.6. The arbitral tribunal shall communicate to HKIAC originals of
the award signed by the arbitral tribunal. HKIAC shall affix its seal to
the award and, subject to any lien, communicate it to the parties.

ICC
Article 35. 1. Once an award has been made, the Secretariat shall notify to the
Notification, Deposit parties the text signed by the arbitral tribunal, provided always that
and Enforceability the costs of the arbitration have been fully paid to the ICC by the
parties or by one of them.2. Additional copies certified true by the
Secretary General shall be made available on request and at any
time to the parties, but to no one else.3. By virtue of the notification
made in accordance with Article 35(1), the parties waive any other
form of notification or deposit on the part of the arbitral tribunal.4.
An original of each award made in accordance with the Rules shall
be deposited with the Secretariat.5. The arbitral tribunal and the
Secretariat shall assist the parties in complying with whatever
further formalities may be necessary.
[…]

ICSID
Article 49. The Award 1. The Secretary-General shall promptly dispatch certified copies of
the award to the parties […].
Rule 48. Rendering 1. Upon signature by the last arbitrator to sign, the Secretary-
of the Award General shall promptly:
(a) authenticate the original text of the award and deposit it in the
archives of the Centre, together with any individual opinions
and statements of dissent; and
(b) dispatch a certified copy of the award (including individual
opinions and statements of dissent) to each party, indicating
the date of dispatch on the original text and on all copies.
[…]
3. The Secretary-General shall, upon request, make available to a
party additional certified copies of the award.

LCIA
Article 26. Award(s) 26.7. The sole or presiding arbitrator shall be responsible for
delivering the award to the LCIA Court, which shall transmit to the
parties the award authenticated by the Registrar as an LCIA award,
provided that all Arbitration Costs have been paid in full to the LCIA
in accordance with Articles 24 and 28. Such transmission may be
made by any electronic means, in addition to paper form (if so
requested by any party). In the event of any disparity between
electronic and paper forms, the paper form shall prevail.
SCC

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 Article 42. Making of 4. The Arbitral Tribunal shall deliver a copy of the award to each of
Awards the parties and to the SCC without delay
SIAC
Rule 32. The Award 32.8. The Award shall be delivered to the Registrar, who shall
transmit certified copies to the parties upon full settlement of the
costs of the arbitration.
UNCITRAL
Article 34. Form and 6. Copies of the award signed by the arbitrators shall be
Effect of the Award communicated to the parties by the arbitral tribunal.

[F] Confidentiality of the Award

Under most regimes, the award as well as the proceedings must remain confidential,
unless the parties agree otherwise. (72) That said, some rules permit disclosure of the
arbitration or the award if such information is already in the public domain (73) or to
comply with a legal duty. (74) Additionally, under the ICDR and HKIAC Rules, the tribunal is
expressly authorized to publish redacted awards, unless the parties agree otherwise. (75)
Under the ICSID Rules, the Centre has an absolute right to publish excerpts of the award
containing the tribunal’s reasoning, but publication of the full award text requires the
parties’ consent. (76) The relevant Rules appear in Table 9.12.
In contrast to the foregoing regimes, under the ICC Rules, the award and proceedings are
by default not confidential, unless one of the parties requests such an order. (77) The
P 570 CIETAC Rules seem to provide for the confidentiality of all “substantive or procedural
P 571 matters relating to the case,” but only for cases “heard in camera.” (78) Additional rules
concerning the confidentiality of documentary evidence and the privacy of hearings are
examined in Chapter 6 (Evidentiary Procedure) and Chapter 7 (Written and Oral
Proceedings), respectively.
P 571
P 572 Table 9.12 Confidentiality of the Arbitration and the Award
AAA-ICDR
P 572 Article 30. Time, 3. An award may be made public only with the consent of all parties
P 573 Form, and Effect of or as required by law, except that the Administrator may publish or
Award otherwise make publicly available selected awards, orders,
decisions, and rulings that have become public in the course of
enforcement or otherwise and, unless otherwise agreed by the
parties, may publish selected awards, orders, decisions, and rulings
that have been edited to conceal the names of the parties and other
identifying details.
Article 37. 1. […] Except as provided in Article 30, unless otherwise agreed by the
Confidentiality parties or required by applicable law, the members of the arbitral
tribunal and the Administrator shall keep confidential all matters
relating to the arbitration or the award.
2. Unless the parties agree otherwise, the tribunal may make orders
concerning the confidentiality of the arbitration or any matters in
connection with the arbitration […].

CIETAC
Article 38. 2. For cases heard in camera, the parties and their representatives,
Confidentiality the arbitrators, the witnesses, the interpreters, the experts consulted
by the arbitral tribunal, the appraisers appointed by the arbitral
tribunal and other relevant persons shall not disclose to any
outsider any substantive or procedural matters relating to the case.
HKIAC
Article 45. 45.1. Unless otherwise agreed by the parties, no party or party
Confidentiality representative may publish, disclose or communicate any
information relating to: […]
(b) an award or Emergency Decision made in the arbitration. […]
45.5. HKIAC may publish any award, whether in its entirety or in the
form of excerpts or a summary, only under the following conditions:
(a) all references to the parties’ names and other identifying
information are deleted; and
(b) no party objects to such publication within the time limit fixed
for that purpose by HKIAC. In the case of an objection, the
award shall not be published.

ICC

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 Article 22. Conduct of 3. Upon the request of any party, the arbitral tribunal may make
the Arbitration orders concerning the confidentiality of the arbitration proceedings
or of any other matters in connection with the arbitration and may
take measures for protecting trade secrets and confidential
information.
ICSID
Convention Article (5) The Centre shall not publish the award without the consent of the
48. The Award parties.
Arbitration Rules, (4) The Centre shall not publish the award without the consent of the
Rule 48. Rendering parties. The Centre shall, however, promptly include in its
of the Award publications excerpts of the legal reasoning of the Tribunal.
LCIA
Article 30. 30.1. The parties undertake as a general principle to keep
Confidentiality confidential all awards in the arbitration, together with all materials
in the arbitration created for the purpose of the arbitration and all
other documents produced by another party in the proceedings not
otherwise in the public domain, save and to the extent that
disclosure may be required of a party by legal duty, to protect or
pursue a legal right, or to enforce or challenge an award in legal
proceedings before a state court or other legal authority.
30.2. The deliberations of the Arbitral Tribunal shall remain
confidential to its members, save as required by any applicable law
and to the extent that disclosure of an arbitrator’s refusal to
participate in the arbitration is required of the other members of the
Arbitral Tribunal under Articles 10, 12, 26 and 27.
30.3. The LCIA does not publish any award or any part of an award
without the prior written consent of all parties and the Arbitral
Tribunal.

SCC
Article 3. Unless otherwise agreed by the parties, the SCC, the Arbitral Tribunal
Confidentiality and any administrative secretary of the Arbitral Tribunal shall
maintain the confidentiality of the arbitration and the award.
SIAC
Rule 32. The Award 32.12. SIAC may, with the consent of the parties and the Tribunal,
publish any Award with the names of the parties and other
identifying information redacted.

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 Rule 39. 39.1. Unless otherwise agreed by the parties, a party and any
Confidentiality arbitrator, including any Emergency Arbitrator, and any person
appointed by the Tribunal, including any administrative secretary
and any expert, shall at all times treat all matters relating to the
proceedings and the Award as confidential. The discussions and
deliberations of the Tribunal shall be confidential.
39.2. Unless otherwise agreed by the parties, a party or any
arbitrator, including any Emergency Arbitrator, and any person
appointed by the Tribunal, including any administrative secretary
and any expert, shall not, without the prior written consent of the
parties, disclose to a third party any such matter except:
(a) for the purpose of making an application to any competent
court of any State to enforce or challenge the Award;
(b) pursuant to the order of or a subpoena issued by a court of
competent jurisdiction;
(c) for the purpose of pursuing or enforcing a legal right or claim;
(d) in compliance with the provisions of the laws of any State
which are binding on the party making the disclosure or the
request or requirement of any regulatory body or other
authority;
(e) pursuant to an order by the Tribunal on application by a party
with proper notice to the other parties; or
(f) for the purpose of any application under Rule 7 or Rule 8 of
these Rules.
39.3. In Rule 39.1, “matters relating to the proceedings” includes the
existence of the proceedings, and the pleadings, evidence and other
materials in the arbitral proceedings and all other documents
produced by another party in the proceedings or the Award arising
from the proceedings, but excludes any matter that is otherwise in
the public domain.
39.4. The Tribunal has the power to take appropriate measures,
including issuing an order or Award for sanctions or costs, if a party
breaches the provisions of this Rule.

UNCITRAL
Article 34. Form and 5. An award may be made public with the consent of all parties or
Effect of the Award where and to the extent disclosure is required of a party by legal
duty, to protect or pursue a legal right or in relation to legal
proceedings before a court or other competent authority.
P 573
P 574
[G] Other Particulars
It is advisable that every award contains other key information, the absence of which could
prevent or delay enforcement in a given jurisdiction. As a useful reference for any award,
ICSID Rule 47 requires the following additional information to be included in the award: a
precise designation of each party; the name of each member of the tribunal and an
identification of the appointing authority of each; the names of the agents, counsel, and
advocates of the parties; the dates and place of the sittings of the tribunal; a summary of
the proceeding; a statement of the facts as found by the tribunal; the submissions of the
parties; any decision of the tribunal on costs; and any individual opinions of the
arbitrators. CIETAC Article 48 likewise requires additional particulars to be included in the
award, such as a statement of the claims, the facts of the dispute, the result of the award,
the allocation of the arbitration costs, as well as the CIETAC seal affixed to the award.

[H] Award Scrutiny

Finally, the CIETAC, ICC, and SIAC Rules provide for institutional scrutiny of the tribunal’s
draft award, with the goal of ensuring the enforceability of awards issued pursuant to their
rules. All three institutions are careful not to allow scrutiny to override the tribunal’s
decisions since the tribunal must remain independent in every aspect of the arbitration.
Accordingly, these rules limit scrutiny to modifications to the form of the award and mere
comments on substantive and procedural issues. These rules are presented in Table 9.13
below.
P 574
P 575 Table 9.13 Scrutiny of the Award
AAA-ICDR
Not specifically addressed.
CIETAC

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 Article 51. Scrutiny of The arbitral tribunal shall submit its draft award to CIETAC for
Draft Award scrutiny before signing the award. CIETAC may bring to the attention
of the arbitral tribunal issues addressed in the award on the
condition that the arbitral tribunal’s independence in rendering the
award is not affected.
HKIAC
Not specifically addressed.
ICC
Article 34. Scrutiny Before signing any award, the arbitral tribunal shall submit it in
of the Award by the draft form to the Court. The Court may lay down modifications as to
Court the form of the award and, without affecting the arbitral tribunal’s
liberty of decision, may also draw its attention to points of
substance. No award shall be rendered by the arbitral tribunal until
it has been approved by the Court as to its form.
Appendix II. Internal When the Court scrutinizes draft awards in accordance with Article
Rules of the 34 of the Rules, it considers, to the extent practicable, the
International Court requirements of mandatory law at the place of the arbitration.
of Arbitration, Article
6. Scrutiny of
Arbitral Awards
ICSID
Not specifically addressed.
LCIA
Not specifically addressed.
SCC
Not specifically addressed.
SIAC
Rule 32. The Award 32.3. Before making any Award, the Tribunal shall submit such
Award in draft form to the Registrar. Unless the Registrar extends
the period of time or unless otherwise agreed by the parties, the
Tribunal shall submit the draft Award to the Registrar not later than
45 days from the date on which the Tribunal declares the
proceedings closed. The Registrar may, as soon as practicable,
suggest modifications as to the form of the Award and, without
affecting the Tribunal’s liberty to decide the dispute, draw the
Tribunal’s attention to points of substance. No Award shall be made
by the Tribunal until it has been approved by the Registrar as to its
form.
UNCITRAL
Not applicable.

§9.04 CORRECTION, INTERPRETATION, REVISION, AND ADDITIONAL AWARD

Of course, to err is human and it is possible that the tribunal simply makes typographical
or computational errors in its award that require correction, or a tribunal may have written
its award in terms that are not entirely clear and lead to differing interpretations by the
parties. A tribunal might even omit to decide one or more issues presented by the parties.
And on rare occasions, new information comes to light that might alter the tribunal’s initial
appreciation of the case. Fortunately, all of the rules under consideration include a “slip”
P 575 rule for some or all of these situations, allowing the tribunal to correct errors, clarify the
P 576 meaning of the award, or issue an additional award concerning outstanding claims or
counterclaims. The ICSID system uniquely provides for a tribunal to revise an award to
account for new facts. The relevant rules are set out in Table 9.14.
A party has a fixed period of time following the issuance of the award to request
corrections to typographical, computational, and other errors in an award. Under the ICDR,
CIETAC, HKIAC, ICC SCC, SIAC, and UNCITRAL Rules, a party must make its request within 30
days of the issuance of the award. (79) The LCIA Rules allow only 28 days, while the ICSID
Convention allows 45 days; the latter period being longer to account for the additional
period of time that it often takes for state parties to act and react in the context of dispute
resolution. (80) All of the regimes except the ICSID Rules permit the tribunal on its own
initiative to make any corrections within the same time periods. (81) These time limits are
intended to ensure that mistakes in the award do not unduly interfere with its
enforcement. Consequently, parties can expect the tribunal or institutional authority not to
grant extensions for applications for corrections. For example, the ICSID Rules expressly
indicate that the Secretary-General “shall refuse to register” a request for rectification (or
supplementary decision) submitted after the deadline. (82) Therefore, the parties will do

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 well to review the award carefully, but quickly, as soon as it is received from the tribunal,
in case they wish to request any corrections.
Following a party’s request for corrections, the tribunal usually has an equal amount of
time to issue its decision, following comments or submissions by the counterparty. (83) The
UNCITRAL Rules grant the tribunal a longer time period—45 days—to issue its decision. (84)
ICSID does not set a deadline for the tribunal’s decision. (85) The ICC Rules uniquely
suggest an equal time period—30 days—for the counterparty to submit its comments on
the request. (86)
P 576 The tribunal’s decision on a request for corrections usually becomes part of the award. (87)
P 577 Only the HKIAC and SCC Rules do not state this expressly. However, both sets of rules do
indicate that the correction must be in writing and must comply with the requirements for
the form of an Award. (88) The ICC, ICSID, LCIA, and UNCITRAL rules likewise indicate that
the decision must fulfill the requirements for an award. (89) The ICDR Rules only add that
the decision must state reasons; the ICSID Convention adds a requirement for notification
of the decision to the parties in the same manner as an award. (90)
With respect to a request for the tribunal to issue a clarifying interpretation of its award,
all of the rules except those of CIETAC, ICSID, and SIAC apply the same procedure as that
for a request for corrections. (91) The ICSID Convention and Rules provide for the same
tribunal or, if that is not possible, a new tribunal, to rule on the request, and authorize the
tribunal to stay enforcement proceedings pending the interpretation. (92) The ICSID
Convention and Rules do not prescribe deadlines for an application for interpretation or
the tribunal’s decision. The CIETAC Rules simply do not provide for the tribunal to issue an
interpretation of its award. The SIAC Rules give 45 days to issue a clarifying interpretation
(compared to 30 days to make corrections). (93)
All of the rules except the ICC Rules provide for the parties to request the tribunal to issue
an additional award to address any claims or counterclaims not resolved in the original
award. The ICDR Rules and CIETAC Rules, and ICSID Convention and Rules, apply the same
procedures to a request for an additional award as to a request for corrections. (94) The
LCIA, SCC, and UNCITRAL Rules apply the same procedures but allow the tribunal twice as
much time to issue its decision: 56 days under the LCIA Rules and 60 days under the SCC
and UNCITRAL Rules. (95) Here again, the SIAC Rules permit 45 days (compared to 30 days
for corrections). (96) The ICC Rules uniquely do not provide for the tribunal to issue an
additional award in response to a request from a party, but instead when a court remits an
award to it. (97)
Finally, at ICSID a party may submit to the Secretary-General a request for the tribunal to
make a revision of the award if new facts are discovered that decisively affect the award,
and that party’s ignorance of those facts was not due to his own negligence. (98) The
P 577 application must be made within 90 days of the discovery of the new information and no
P 578 later than three years after the date of the original award. (99) As with a request for
interpretation, the request for revision should be submitted to the original tribunal, but if
this is not possible, a new tribunal will be constituted to assess the request. (100)
Enforcement will usually be stayed pending the tribunal’s decision on the request. (101)
P 578
P 579 Table 9.14 Correction, Interpretation, Revision and Additional Award
AAA-ICDR
PP 580
582
583
584
585
586
581
587
579 Article 33. 1. Within 30 days after the receipt of an award, any party, with notice
PP 588
580
582
583
584
585
586
581 Interpretation and
587 to the other party, may request the arbitral tribunal to interpret the
Correction of the award or correct any clerical, typographical, or computational
Award errors or make an additional award as to claims, counterclaims, or
setoffs presented but omitted from the award.
2. If the tribunal considers such a request justified after considering
the contentions of the parties, it shall comply with such a request
within 30 days after receipt of the parties’ last submissions
respecting the requested interpretation, correction, or additional
award. Any interpretation, correction, or additional award made by
the tribunal shall contain reasoning and shall form part of the
award.
3. The tribunal on its own initiative may, within 30 days of the date of
the award, correct any clerical, typographical, or computational
errors or make an additional award as to claims presented but
omitted from the award.
4. The parties shall be responsible for all costs associated with any
request for interpretation, correction, or an additional award, and
the tribunal may allocate such costs.

CIETAC

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 Article 53. Correction 1. Within a reasonable time after the award is made, the arbitral
of Award tribunal may, on its own initiative, make corrections in writing of any
clerical, typographical or calculation errors, or any errors of a
similar nature contained in the award.
2. Within thirty (30) days from its receipt of the arbitral award, either
party may request the arbitral tribunal in writing for a correction of
any clerical, typographical or calculation errors, or any errors of a
similar nature contained in the award. If such an error does exist in
the award, the arbitral tribunal shall make the correction in writing
within thirty (30) days of its receipt of the written request for the
correction.
3. The above written correction shall form a part of the arbitral
award and shall be subject to the provisions in Paragraphs 4 to 9 of
Article 49 of these Rules.

Article 54. Additional 1. Where any matter which should have been decided by the arbitral
Award tribunal was omitted from the arbitral award, the arbitral tribunal
may, on its own initiative, make an additional award within a
reasonable time after the award is made.
2. Either party may, within thirty (30) days from its receipt of the
arbitral award, request the arbitral tribunal in writing for an
additional award on any claim or counterclaim which was advanced
in the arbitral proceedings but was omitted from the award. If such
an omission does exist, the arbitral tribunal shall make an
additional award within thirty (30) days of its receipt of the written
request.
3. Such additional award shall form a part of the arbitral award and
shall be subject to the provisions in Paragraphs 4 to 9 of Article 49 of
these Rules.

HKIAC
Article 38. Correction 38.1. Within 30 days after receipt of the award, either party, with
of the Award notice to all other parties, may request the arbitral tribunal to
correct in the award any errors in computation, any clerical or
typographical errors, or any errors of similar nature. The arbitral
tribunal may set a time limit, normally not exceeding 15 days, for all
other parties to comment on such request.
38.2. The arbitral tribunal shall make any corrections it considers
appropriate within 30 days after receipt of the request but may
extend such time limit if necessary.
38.3. The arbitral tribunal may within 30 days after the date of the
award make such corrections on its own initiative.
38.4. The arbitral tribunal has the power to make any further
correction to the award which is necessitated by or consequential on
(a) the interpretation of any point or part of the award under Article
39; or (b) the issue of any additional award under Article 40.
38.5. Such corrections shall be in writing, and the provisions of
Articles 35.2 to 35.6 shall apply.

Article 39. 39.1. Within 30 days after receipt of the award, either party, with
Interpretation of the notice to all other parties, may request that the arbitral tribunal
Award give an interpretation of the award. The arbitral tribunal may set a
time limit, normally not exceeding 15 days, for all other parties to
comment on such request.
39.2. Any interpretation considered appropriate by the arbitral
tribunal shall be given in writing within 30 days after receipt of the
request but the arbitral tribunal may extend such time limit if
necessary.

39.3. The arbitral tribunal has the power to give any further
interpretation of the award which is necessitated by or
consequential on (a) the correction of any error in the award under
Article 38; or (b) the issue of any additional award under Article 40.
39.4. Any interpretation given under Article 39 shall form part of the
award and the provisions of Articles 35.2 to 35.6 shall apply.

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 Article 40. Additional 40.1. Within 30 days after receipt of the award, either party, with
Award notice to all other parties, may request the arbitral tribunal to make
an additional award as to claims presented in the arbitration but
omitted from the award. The arbitral tribunal may set a time limit,
normally not exceeding 30 days, for all other parties to comment on
such request.
40.2. If the arbitral tribunal considers the request for an additional
award to be justified, it shall make the additional award within 60
days after receipt of the request but may extend such time limit if
necessary.
40.3. The arbitral tribunal has the power to make an additional
award which is necessitated by or consequential on (a) the
correction of any error in the award under Article 38; or (b) the
interpretation of any point or part of the award under Article 39.
40.4. When an additional award is made, the provisions of Articles
35.2 to 35.6 shall apply.

ICC
Article 36. Correction 1. On its own initiative, the arbitral tribunal may correct a clerical,
and Interpretation of computational or typographical error, or any errors of similar
the Award; nature contained in an award, provided such correction is submitted
Remission of Awards for approval to the Court within 30 days of the date of such award.
2. Any application of a party for the correction of an error of the kind
referred to in Article 36(1), or for the interpretation of an award, must
be made to the Secretariat within 30 days of the receipt of the award
by such party, in a number of copies as stated in Article 3(1). After
transmittal of the application to the arbitral tribunal, the latter
shall grant the other party a short time limit, normally not
exceeding 30 days, from the receipt of the application by that party,
to submit any comments thereon. The arbitral tribunal shall submit
its decision on the application in draft form to the Court not later
than 30 days following the expiration of the time limit for the receipt
of any comments from the other party or within such other period as
the Court may decide.

3. A decision to correct or to interpret the award shall take the form

of an addendum and shall constitute part of the award. The
provisions of Articles 32, 34 and 35 shall apply mutatis mutandis.
4. Where a court remits an award to the arbitral tribunal, the
provisions of Articles 32, 34, 35 and this Article 36 shall apply mutatis
mutandis to any addendum or award made pursuant to the terms of
such remission. The Court may take any steps as may be necessary
to enable the arbitral tribunal to comply with the terms of such
remission and may fix an advance to cover any additional fees and
expenses of the arbitral tribunal and any additional ICC
administrative expenses.

ICSID
ICSID Convention, 2. The Tribunal upon the request of a party made within 45 days after
Article 49. The Award the date on which the award was rendered may after notice to the
other party decide any question which it had omitted to decide in the
award, and shall rectify any clerical, arithmetical or similar error in
the award. Its decision shall become part of the award and shall be
notified to the parties in the same manner as the award. The periods
of time provided for under paragraph (2) of Article 51 and paragraph
(2) of Article 52 shall run from the date on which the decision was
rendered.
ICSID Convention, 1. If any dispute shall arise between the parties as to the meaning or
Article 50. scope of an award, either party may request interpretation of the
Interpretation, award by an application in writing addressed to the Secretary-
Revision and General.
Annulment of the
Award 2. The request shall, if possible, be submitted to the Tribunal which
rendered the award. If this shall not be possible, a new Tribunal shall
be constituted in accordance with Section 2 of this Chapter. The
Tribunal may, if it considers that the circumstances so require, stay
enforcement of the award pending its decision.

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 ICSID Convention, 1. Either party may request revision of the award by an application in
Article 51. writing addressed to the Secretary-General on the ground of
Interpretation, discovery of some fact of such a nature as decisively to affect the
Revision and award, provided that when the award was rendered that fact was
Annulment of the unknown to the Tribunal and to the applicant and that the
Award applicant’s ignorance of that fact was not due to negligence.
2. The application shall be made within 90 days after the discovery
of such fact and in any event within three years after the date on
which the award was rendered.

3. The request shall, if possible, be submitted to the Tribunal which

rendered the award. If this shall not be possible, a new Tribunal shall
be constituted in accordance with Section 2 of this Chapter.
4. The Tribunal may, if it considers that the circumstances so require,
stay enforcement of the award pending its decision. If the applicant
requests a stay of enforcement of the award in his application,
enforcement shall be stayed provisionally until the Tribunal rules on
such request.

ICSID Rule 49. (1) Within 45 days after the date on which the award was rendered,
Supplementary either party may request, pursuant to Article 49(2) of the Convention,
Decisions and a supplementary decision on, or the rectification of, the award. Such
Rectification a request shall be addressed in writing to the Secretary-General. The
request shall:
(a) identify the award to which it relates;
(b) indicate the date of the request;
(c) state in detail:
(i) any question which, in the opinion of the requesting
party, the Tribunal omitted to decide in the award; and
(ii) any error in the award which the requesting party seeks
to have rectified; and
(d) be accompanied by a fee for lodging the request.
(2) Upon receipt of the request and of the lodging fee, the Secretary-
General shall forthwith:
(a) register the request;
(b) notify the parties of the registration;
(c) transmit to the other party a copy of the request and of any
accompanying documentation; and
(d) transmit to each member of the Tribunal a copy of the notice
of registration, together with a copy of the request and of any
accompanying documentation.
(3) The President of the Tribunal shall consult the members on
whether it is necessary for the Tribunal to meet in order to consider
the request. The Tribunal shall fix a time limit for the parties to file
their observations on the request and shall determine the procedure
for its consideration.
(4) Rules 46-48 shall apply, mutatis mutandis, to any decision of the
Tribunal pursuant to this Rule.
(5) If a request is received by the Secretary-General more than 45
days after the award was rendered, he shall refuse to register the
request and so inform forthwith the requesting party.

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 ICSID Rule 50. The (1) An application for the interpretation, revision or annulment of an
Application award shall be addressed in writing to the Secretary-General and
shall:
(a) identify the award to which it relates;
(b) indicate the date of the application;
(c) state in detail:
(i) in an application for interpretation, the precise points in
dispute;
(ii) in an application for revision, pursuant to Article 51(1) of
the Convention, the change sought in the award, the
discovery of some fact of such a nature as decisively to
affect the award, and evidence that when the award was
rendered that fact was unknown to the Tribunal and to
the applicant, and that the applicant’s ignorance of that
fact was not due to negligence;
(iii) in an application for annulment, pursuant to Article 52(1)
of the Convention, the grounds on which it is based. These
grounds are limited to the following:
– that the Tribunal was not properly constituted;
– that the Tribunal has manifestly exceeded its
powers;
– that there was corruption on the part of a member
of the Tribunal;
– that there has been a serious departure from a
fundamental rule of procedure;
– that the award has failed to state the reasons on
which it is based;
(d) be accompanied by the payment of a fee for lodging the
application.
(2) Without prejudice to the provisions of paragraph (3), upon
receiving an application and the lodging fee, the Secretary-General
shall forthwith:
(a) register the application;
(b) notify the parties of the registration; and
(c) transmit to the other party a copy of the application and of
any accompanying documentation.
(3) The Secretary-General shall refuse to register an application for:
(a) revision, if, in accordance with Article 51(2) of the Convention, it
is not made within 90 days after the discovery of the new fact
and in any event within three years after the date on which the
award was rendered (or any subsequent decision or correction);

(b) annulment, if, in accordance with Article 52(2) of the

Convention, it is not made:
(i) within 120 days after the date on which the award was
rendered (or any subsequent decision or correction) if the
application is based on any of the following grounds:
– the Tribunal was not properly constituted;
– the Tribunal has manifestly exceeded its powers;
– there has been a serious departure from a
fundamental rule of procedure;
– the award has failed to state the reasons on which
it is based;
(ii) in the case of corruption on the part of a member of the
Tribunal, within 120 days after discovery thereof, and in
any event within three years after the date on which the
award was rendered (or any subsequent decision or
correction).
(4) If the Secretary-General refuses to register an application for
revision, or annulment, he shall forthwith notify the requesting party
of his refusal.

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 ICSID Rule 51. (1) Upon registration of an application for the interpretation or
Interpretation or revision of an award, the Secretary-General shall forthwith:
Revision: Further
Procedures (a) transmit to each member of the original Tribunal a copy of the
notice of registration, together with a copy of the application
and of any accompanying documentation; and
(b) request each member of the Tribunal to inform him within a
specified time limit whether that member is willing to take part
in the consideration of the application.
(2) If all members of the Tribunal express their willingness to take
part in the consideration of the application, the Secretary-General
shall so notify the members of the Tribunal and the parties. Upon
dispatch of these notices the Tribunal shall be deemed to be
reconstituted.
(3) If the Tribunal cannot be reconstituted in accordance with
paragraph (2), the Secretary-General shall so notify the parties and
invite them to proceed, as soon as possible, to constitute a new
Tribunal, including the same number of arbitrators, and appointed
by the same method, as the original one.

ICSID Rule 53. Rules The provisions of these Rules shall apply mutatis mutandis to any
of Procedure procedure relating to the interpretation, revision or annulment of an
award and to the decision of the Tribunal or Committee.
ICSID Rule 54. Stay (1) The party applying for the interpretation, revision or annulment
of Enforcement of of an award may in its application, and either party may at any time
the Award before the final disposition of the application, request a stay in the
enforcement of part or all of the award to which the application
relates. The Tribunal or Committee shall give priority to the
consideration of such a request.
(2) If an application for the revision or annulment of an award
contains a request for a stay of its enforcement, the Secretary-
General shall, together with the notice of registration, inform both
parties of the provisional stay of the award. As soon as the Tribunal
or Committee is constituted it shall, if either party requests, rule
within 30 days on whether such stay should be continued; unless it
decides to continue the stay, it shall automatically be terminated.
(3) If a stay of enforcement has been granted pursuant to paragraph
(1) or continued pursuant to paragraph (2), the Tribunal or
Committee may at any time modify or terminate the stay at the
request of either party. All stays shall automatically terminate on
the date on which a final decision is rendered on the application,
except that a Committee granting the partial annulment of an
award may order the temporary stay of enforcement of the
unannulled portion in order to give either party an opportunity to
request any new Tribunal constituted pursuant to Article 52(6) of the
Convention to grant a stay pursuant to Rule 55(3).
(4) A request pursuant to paragraph (1), (2) (second sentence) or (3)
shall specify the circumstances that require the stay or its
modification or termination. A request shall only be granted after
the Tribunal or Committee has given each party an opportunity of
presenting its observations.
(5) The Secretary-General shall promptly notify both parties of the
stay of enforcement of any award and of the modification or
termination of such a stay, which shall become effective on the date
on which he dispatches such notification.

LCIA
Article 27. Correction 27.1. Within 28 days of receipt of any award, a party may by written
of Award(s) and notice to the Registrar (copied to all other parties) request the
Additional Award(s) Arbitral Tribunal to correct in the award any error in computation,
any clerical or typographical error, any ambiguity or any mistake of
a similar nature. If the Arbitral Tribunal considers the request to be
justified, after consulting the parties, it shall make the correction
within 28 days of receipt of the request. Any correction shall take the
form of a memorandum by the Arbitral Tribunal.

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 27.2. The Arbitral Tribunal may also correct any error (including any
error in computation, any clerical or typographical error or any
error of a similar nature) upon its own initiative in the form of a
memorandum within 28 days of the date of the award, after
consulting the parties.
27.3. Within 28 days of receipt of the final award, a party may by
written notice to the Registrar (copied to all other parties), request
the Arbitral Tribunal to make an additional award as to any claim or
cross-claim presented in the arbitration but not decided in any
award. If the Arbitral Tribunal considers the request to be justified,
after consulting the parties, it shall make the additional award
within 56 days of receipt of the request.
27.4. As to any claim or cross-claim presented in the arbitration but
not decided in any award, the Arbitral Tribunal may also make an
additional award upon its own initiative within 28 days of the date of
the award, after consulting the parties.
27.5. The provisions of Article 26.2 to 26.7 shall apply to any
memorandum or additional award made hereunder. A memorandum
shall be treated as part of the award.

SCC
Article 47. Correction (1) Within 30 days of receiving an award, a party may, upon notice to
and Interpretation of the other party, request that the Arbitral Tribunal correct any
an Award clerical, typographical or computational errors in the award, or
provide an interpretation of a specific point or part of the award.
After giving the other party an opportunity to comment on the
request, and if the Arbitral Tribunal considers the request justified, it
shall make the correction or provide the interpretation within 30
days of receiving the request.
(2) The Arbitral Tribunal may correct any error of the type referred to
in paragraph (1) above on its own motion within 30 days of the date
of an award.
(3) Any correction or interpretation of an award shall be in writing
and shall comply with the requirements of Article 42.

Article 48. Additional Within 30 days of receiving an award, a party may, upon notice to
Award the other party, request that the Arbitral Tribunal make an
additional award on claims presented in the arbitration but not
determined in the award. After giving the other party an opportunity
to comment on the request, and if the Arbitral Tribunal considers the
request justified, it shall make the additional award within 60 days
of receipt of the request. When deemed necessary, the Board may
extend this 60 day time limit.
SIAC

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 Rule 33. Correction 33.1. Within 30 days of receipt of an Award, a party may, by written
of Awards, notice to the Registrar and the other party, request the Tribunal to
Interpretation of correct in the Award any error in computation, any clerical or
Awards and typographical error or any error of a similar nature. If the Tribunal
Additional Awards considers the request to be justified, it shall make the correction
within 30 days of receipt of the request. Any correction, made in the
original Award or in a separate memorandum, shall constitute part
of the Award.
33.2. The Tribunal may correct any error of the type referred to in
Rule 33.1 on its own initiative within 30 days of the date of the Award.
33.3. Within 30 days of receipt of an Award, a party may, by written
notice to the Registrar and the other party, request the Tribunal to
make an additional Award as to claims presented in the arbitration
but not dealt with in the Award. If the Tribunal considers the request
to be justified, it shall make the additional Award within 45 days of
receipt of the request.
33.4. Within 30 days of receipt of an Award, a party may, by written
notice to the Registrar and the other party, request that the Tribunal
give an interpretation of the Award. If the Tribunal considers the
request to be justified, it shall provide the interpretation in writing
within 45 days after receipt of the request. The interpretation shall
form part of the Award.
33.5. The Registrar may, if necessary, extend the period of time
within which the Tribunal shall make a correction of an Award,
interpretation of an Award or an additional Award under this Rule.
33.6. The provisions of Rule 32 shall apply in the same manner with
the necessary or appropriate changes in relation to a correction of
an Award, interpretation of an Award and to any additional Award
made.

UNCITRAL
Article 37. 1. Within 30 days after the receipt of the award, a party, with notice
Interpretation of the to the other parties, may request that the arbitral tribunal give an
Award interpretation of the award.
2. The interpretation shall be given in writing within 45 days after the
receipt of the request. The interpretation shall form part of the
award and the provisions of article 34, paragraphs 2 to 6, shall
apply.

Article 38. Correction 1. Within 30 days after the receipt of the award, a party, with notice
of the Award to the other parties, may request the arbitral tribunal to correct in
the award any errors in computation, any clerical or typographical
error, or any error or omission of a similar nature. If the arbitral
tribunal considers that the request is justified, it shall make the
correction within 45 days of receipt of the request.
2. The arbitral tribunal may within 30 days after the communication
of the award make such corrections on its own initiative.
3. Such corrections shall be in writing and shall form part of the
award. The provisions of article 34, paragraphs 2 to 6, shall apply.

Article 39. Additional 1. Within 30 days after the receipt of the termination order or the
Award award, a party, with notice to the other parties, may request the
arbitral tribunal to make an award or an additional award as to
claims presented in the arbitral proceedings but not decided by the
arbitral tribunal.
2. If the arbitral tribunal considers the request for an award or
additional award to be justified, it shall render or complete its award
within 60 days after the receipt of the request. The arbitral tribunal
may extend, if necessary, the period of time within which it shall
make the award.
3. When such an award or additional award is made, the provisions
of article 34, paragraphs 2 to 6, shall apply.

FURTHER READING
Annulment of ICSID Awards: A New Investment Protection Regime in Treaty Arbitration
(Emmanuel Gaillard & Yas Banifatemi eds., Juris Publishing/International Arbitration
Institute 2004).

408
© 2019 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 Stanimir A. Alexandrov, Enforcement of ICSID Awards: Articles 53 and 54 of the ICSID
Convention, in International Investment Law for the 21st Century: Essays in Honour of
Christoph Schreuer (Christina Binder et al. eds., Oxford University Press 2009).
Frédéric Bachand & Fabien Gélinas eds., The UNCITRAL Model Law after 25 Years: Global
Perspectives on International Commercial Arbitration (Juris 2013).
Vladimír Balaš, Chapter Twenty-Seven: Review of Awards, Part III Procedural Issues, the
Oxford Handbook of International Investment Law (Peter Muchlinski et al. eds., Oxford
University Press 2008).
Andrea K. Bjorklund, Chapter 17, State Immunity and the Enforcement of Investor-State
Arbitral Awards, in International Investment Law for the 21st Century: Essays in Honour of
Christoph Schreuer (Christina Binder et al. eds., Oxford University Press 2009).
P 588
P 589
R. Doak Bishop & Silvia M. Marchili, Annulment under the ICSID Convention (Oxford
University Press 2012).
Gary B. Born, Chapter Fifteen: Annulment and Revision of International Arbitral Awards,
International Arbitration: Cases and Materials (Kluwer Law International 2011).
Aron Broches, Awards Rendered Pursuant to the ICSID Convention: Binding Force, Finality,
Recognition, Enforcement, Execution, 2(2) ICSID Review—Foreign Invest. L.J. (1987).
David Caron, Reputation and Reality in the ICSID Annulment Process: Understanding the
Distinction Between Annulment and Appeal, 7(1) ICSID Review—Foreign Invest. L.J. (1992).
Christy Chidiac, Enforcement of Investment Arbitration Awards in the Context of
Protectionism and Backlash, Berkeley J. Int’l L. Blog (May 22, 2017).
Abby Cohen Smutny et al., Enforcement of ICSID Convention Arbitral Awards in U.S. Courts, 43
Pepperdine L. Rev. 649 (2016).
Jieying Ding, Enforcement in International Investment and Trade Law: History, Assessment,
and Proposed Solutions, 47 Georgetown J. Int’l Trade L. 1137 (2016).
Berk Demirkol, Enforcement of International Commercial Arbitration Agreements and Awards
in Investment Treaty Arbitration, 30(1) ICSID Review—Foreign Invest. L.J. (2015).
Wang Dong, Post-Award Remedies and Procedures, in Dispute Settlement: International
Centre for Settlement of Investment Disputes (UNCTAD 2003).
Christopher F. Dugan, Annulment and Set Aside, in Investor-State Arbitration (Christopher F.
Dugan et al. eds., Oxford University Press 2008).
Enforcement of Arbitral Awards Against Sovereigns (R. Doak Bishop ed., Juris Publishing
2009).
Enforcement of Investment Treaty Arbitration Awards: A Global Guide (Julien Fouret ed.,
Globe Law and Business 2015).
Juan Fernández-Armesto, Different Systems for the Annulment of Investment Awards, 26(1)
ICSID Review—Foreign Invest. L.J. (2011).
Veijo Heiskanen & Laura Halonen, Chapter Sixteen: Post-Award Remedies, in Litigating
International Investment Disputes(Chiara Giorgetti ed., Brill 2014).
Sabine Konrad et al., Recent Challenges to Enforcement in the Investment Treaty Field, 26th
Annual Workshop of the Institute for Transnational Arbitration: “Modern Enforcement of
Arbitral Awards: ‘Show Me the Money,’” 8(4) World Arb. & Mediation Rev. (2014).
Jacob A. Kuipers, Too Big to Nail: How Investor-State Arbitration Lacks an Appropriate
Execution Mechanism for the Largest Awards, 39 B.C. Int’l & Comp. L. Rev. 417 (2016).
Carolyn B. Lamm & Eckhard R. Hellbeck, The Enforcement of Awards, in Litigating
International Investment Disputes(Chiara Giorgetti ed., Brill 2014).
Fenghua Li, Safeguarding State Sovereignty: The Relevance of Post-Award Remedies in ICSID
and Non-ICSID Arbitration, German Yearbook of International Law(2015).
P 589
P 590
Loukas A. Mistelis, Washington/ICSID Convention, 1965—Interpretation, Revision and
Annulment of the Award: Article 52 [Annulment], in Concise International Arbitration (Loukas
A. Mistelis ed., Kluwer Law International 2010).
Guido Santiago Tawil, Binding Force and Enforcement of ICSID Awards: Untying Articles 53
and 54 of the ICSID Convention, 50 Years of the New York Convention: ICCA International
Arbitration Conference, ICCA Congress Series No. 14 (Albert Jan van den Berg ed., Kluwer Law
International 2009).
Christoph H. Schreuer et al., The ICSID Convention: A Commentary (2d ed., Cambridge
University Press 2009).
Hi-Taek Shin, Annulment, in Building International Investment Law: The First 50 Years of
ICSID (Meg Kinnear et al. eds., Wolters Kluwer 2015).

409
© 2019 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 Inna Uchkunova & Oleg Temnikov, Enforcement of Awards under the ICSID Convention: What
Solutions to the Problem of State Immunity?, 29(1) ICSID Review—Foreign Invest. L.J. (2014).
P 590

References
1) See New York Convention, Art. III; UNCITRAL Model Law, Art. 35; ICSID Convention,
Executive Report, Art. 53; ICDR Rules, Art. 30(1); CIETAC Rules, Art. 49(9); HKIAC Rules,
Art. 35.2; ICC Rules, Art. 35; LCIA Rules, Art. 26.8; SCC Rules, Art. 46; UNCITRAL Rules, Art.
34(2). The ICDR, ICC, ICSID, and LCIA Rules explicitly provide for the waiver of any
rights of appeal, to the fullest extent permitted by law, thus emphasizing the binding
nature of an arbitral award. See also, NYK Bulkship (Atlantic) NV v. Cargill International
SA [2016] UKSC 20 (noting that the effect of rules such as ICC and LCIA would have
been to exclude an appeal on a point of law under s. 69 of the Arbitration Act 1996,
which could proceed in that case because the arbitration rules of the London
Maritime Arbitration Association did not include a waiver of the right to appeal.)
2) New York Convention, Art. III.
3) ICDR Rules, Art. 30(1); HKIAC Rules, Art. 35.2; ICC Rules, Art. 35(6); LCIA Rules, Art. 26.8.
4) CIETAC Rules, Art. 49(9).
5) ICSID Convention, Art. 53(1).
6) Id., Art. 54(1).
7) As of this writing, 158 countries have ratified the New York Convention. See New York
Arbitration Convention: Contracting States,
http://www.newyorkconvention.org/countries (accessed May 16, 2018). Some
countries have also ratified other treaties concerning the enforcement of foreign
arbitral awards, such as the Panama Convention and the Geneva Convention. Given
the near universal acceptance of the New York Convention, this book focuses on the
requirements under the New York Convention only.
8) As of this writing, 153 countries have ratified the ICSID Convention. See ICSID:
Database of ICSID Member States,
https://icsid.worldbank.org/en/Pages/about/Database-of-Member-States.aspx
(accessed May 16, 2018).
9) See UNCITRAL Model Law, Art. 34.
10) See Analytical Commentary on Draft Text of a Model Law on International Commercial
Arbitration: Report of the Secretary General, United Nations Commission on
International Trade Law, 18th Session (June 3-21, 1985) (A/CN.9/264), Art. 34, Comment
11 (noting that subpara. (a)(iv) “expresses the priority of the mandatory provisions of
the model law over any agreement of the parties”).
11) See id., at Art. 34, Comment 6 (observing that “[p]aragraph (2) sets forth essentially the
same reasons as those on which recognition or enforcement may be refused under
article 36(1) (or article V of the 1958 New York Convention on which it is closely
modelled). It even uses, with few exceptions, the same wording, for the sake of
harmony in the interpretation.”).
12) U.S. Code, Title 9, Arbitration.
13) English Arbitration Act 1996.
14) Egypt’s Law No. 27/1994 Promulgating the Law Concerning Arbitration in Civil and
Commercial Matters, Art. 53.
15) Enforcement may be ultimately blocked before a national court in some instances on
the ground of sovereign immunity. Although a State generally does not enjoy
sovereign immunity from the jurisdiction of a court for purposes of recognizing an
ICSID award, a State may be immune from execution of the award if the assets in
question are used for public, rather than commercial, purposes. See Carolyn B. Lamm
& Eckhard R. Hellbeck, The Enforcement of Awards, in Litigating International
Investment Disputes: A Practitioner’s Guide, 475-477, 483-486 (Chiara Giorgetti ed., Juris
2009).
16) The requesting party must file its Request for Annulment within 120 days after the
award is rendered (unless corruption of an arbitrator is alleged, in which case the
Request must be filed within 120 days of discovery of the corruption or, in any event,
within three years after the award was rendered). Upon receipt of the Request for
Annulment, the Chairman of the Administrative Council must appoint a three-person
ad hoc committee from the Panel of Arbitrators to consider the Request for
Annulment. If the ad hoc committee annuls the award, either party can submit the
underlying dispute to a new tribunal, in essence restarting the arbitration. See ICSID
Convention, Art. 52.
17) See Gary Born, International Commercial Arbitration, 3571 (2d. ed., Kluwer Law
International 2014).
18) R. Doak Bishop & Silvia M. Marchili, Annulment under the ICSID Convention 5.53
(Oxford University Press 2012).
19) See ICSID Rules, Rule 47(1)(b).
20) See Bishop & Marchili, supran. 18, at Ch. 6.

410
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 21) See also, Veijo Heiskanen & Laura Halonen, Post-Award Remedies, in Litigating
International Investment Disputes, 505-506 (Chiara Giorgetti ed., Juris 2009).
22) See Bishop & Marchili, supran. 18, at Ch. 6(D).
23) See Born, supran. 17, at 3544-3549.
24) ICSID Convention, Art. 48.
25) Id., at Art. 47.
26) See Heiskanen & Halonen, supran. 21, at 508.
27) Id., at 3553, n. 822.
28) See Bishop & Marchili, supran. 18, at 6.147 (citing the Klöckner I committee).
29) See Heiskanen & Halonen supran. 21, at 503, n. 18.
30) 9 U.S.C. § 10(a)(2).
31) See Bishop & Marchili, supran. 18, at 7.01, 7.09.
32) See Born, supran. 17, at 3564.
33) See Bishop & Marchili, supran. 18, at Ch. 8.
34) Model Law, Art. 31(2); see also, ICDR Rules, Art. 30(1); CIETAC Rules, Art. 49(3); ICC Rules,
Art. 32(2); ICSID Rules, Rule 47(1)(i); SCC Rules, Art. 42(1); SIAC Rules, Rule 32.4;
UNCITRAL Rules, Art. 34(3).
35) ICDR Rules, Art. 30(1); CIETAC Rules, Art. 49(3); LCIA Rules, Art. 26.2; SCC Rules, Art. 42(1);
SIAC Rules, Rule 32.4; UNCITRAL Rules, Art. 34(3).
36) Born, supran. 17, p. 3569, fn. 900.
37) See Bishop & Marchili, supran. 18, at Ch. 9.
38) LCIA Rules, Art. 22.1(vii); see also, 25.1(iii).
39) Id., Art. 26.4.
40) SIAC Rules, Rule 32.9.
41) Id., Rule 27(e).
42) Id., Rule 27(a).
43) ICDR Rules, Art. 31(4).
44) Id., Art. 31(5).
45) CIETAC Rules, Art. 49(3).
46) ICSID Convention, Art. 48(2).
47) UNCITRAL Model Law, Art. 31(1).
48) See ICDR Rules, Art. 30(1); HKIAC Rules, Art. 35.2; ICSID Rules, Rule 47(1); LCIA Rules, Art.
26.2; SCC Rules, Art. 42(1); SIAC Rules, Rule 32.4; UNCITRAL Rules, Art. 34(2).
49) CIETAC Rules, Art. 49(3) and (4).
50) ICC Rules, Arts. 34, 35(1).
51) ICDR Rules, Arts. 29(2) and 30(2); CIETAC Rules, Art. 49(5); HKIAC Rules, Art. 35.5; ICC
Rules, Art. 32(1); ICSID Convention, Art. 48; LCIA Rules, Arts. 26.2, 26.5; SCC Rules, Art.
41(1); UNCITRAL Rules, Arts. 33(1), 34(4).
52) CIETAC Rules, Art. 49(6); ICC Rules, Art. 32(1); LCIA Rules, Art. 26.5; SCC Rules, Art. 41(1);
SIAC Rules, Rule 32.7; UNCITRAL Rules, Art. 33(2).
53) Model Law, Art. 31.
54) ICSID Convention, Art. 48.
55) See CIETAC Rules, Art. 49(6) (“The written opinions of the other arbitrators shall be
kept with the file and may be appended to the award. Such written opinions shall not
form part of the award.”); ICSID Convention, Art. 48(4) (“Any member of the Tribunal
may attach his individual opinion to the award, whether he dissents from the majority
or not, or a statement of his dissent.”)
56) ICDR Rules, Art. 30(2); HKIAC Rules, Art. 35.5; LCIA Rules, Art. 26.6; SCC Rules, Art. 42(3).
57) ICDR Rules, Art. 30(2); CIETAC Rules, Art. 49(3); HKIAC Rules, Art. 35.5; ICC Rules, Art.
32(3); LCIA Rules, Art. 26.2; SCC Rules, Art. 42(2); UNCITRAL Rules, Art. 34(4). ICSID does
not require an indication of the seat of arbitration, only the “place of the sittings of
the Tribunal” (ICSID Rule 47(1)(e)). ICSID also does not require the tribunal to indicate
a date of the award, but only the date of each signature of the arbitrators (ICSID
Rules, Rule 47(2)). The date of the award is deemed to be the date of dispatch of
certified copies to the parties (ICSID Rules, Rule 48(2)).
58) See section §2.03 of this book (Highly Recommended Provisions) (discussing factors to
consider when selecting the seat of arbitration in an arbitration agreement).
59) See Model Law, Art. 20 (providing that the parties are free to agree on the “place of
arbitration” but that the tribunal may meet at any other place appropriate for
conducting the proceedings).
60) See UNCITRAL Model Law, Art. 31(3) (providing that “the award shall be deemed to
have been made” at the “place of arbitration.”); see also, ICDR Rules, Art. 30(2); ICC
Rules, Art. 32(3); UNCITRAL Rules, Art. 34(4). The LCIA and SCC are more direct, simply
calling for an indication of the “seat of arbitration” (LCIA Rules, Art. 26.2; SCC Rules,
Art. 42(2)).
61) CIETAC Rules, Art. 48(1)-(2); ICC Rules, Art. 31; SCC Rules, Art. 43.
62) ICDR Rules, Art. 30(1).
63) HKIAC Rules, Art. 31.2.

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 64) ICSID Rules, Rule 46. To expedite the process, ICSID’s proposed amendments would
revise the deadline as follows. Awards must be rendered within 60 days after the last
submission on an application for manifest lack of legal merit, 180 days after the last
submission on a preliminary objection, and 240 days after the last submission on all
other matters. Tribunals must use their best efforts to meet the deadline; otherwise
they have to advise the parties with a revised anticipated delivery date. See
Proposals for Amendment of the ICSID Rules—Synopsis, para. 54, ICSID, World Bank
Group, 2018 (thereafter “ICSID Synopsis”).
https://icsid.worldbank.org/en/amendments
/Documents/Homepage/Synopsis_English.pdf.
65) Erica Franzetti, Lexology Navigator, https://lexology.com (accessed Dec. 10, 2018)
(confirming that the Brazil Arbitration Act requires the tribunal to render the award
within six months of constitution of the tribunal, unless the parties have agreed
otherwise).
66) ICC Rules, Art. 27(b).
67) ICDR Rules, Art. 30(4); ICC Rules, Art. 35(1) and (4); ICSID Convention, Art. 49(1); ICSID
Rules, Rule 48(1)(b); LCIA Rules, Art. 26.7; SIAC Rules, Rule 32.8.
68) HKIAC Rules, Art. 35.6; SCC Rules, Art. 42(4).
69) UNCITRAL Rules, Art. 34(6).
70) ICDR Rules, Art. 30(5).
71) LCIA Rules, Art. 26.7.
72) ICDR Rules, Art. 30(3); ICSID Convention, Art. 48(5); ICSID Rules, Rule 48(4); LCIA Rules,
Art. 30.3; SCC Rules, Art. 3; UNCITRAL Rules, Art. 34(5).
73) ICDR Rules, Art. 30(3); LCIA Rules, Art. 30.1.
74) ICDR Rules, Art. 30(3); LCIA Rules, Art. 30.1; UNCITRAL Rules, Art. 34(5).
75) ICDR Rules, Rule 30(3); HKIAC Rules, Art. 45.5.
76) ICSID Rules, Rule 48(4). The proposed amendments would offer a party a chance to
object in writing, but if a party does not object in writing, a new provision in the
Arbitration Rules deems it a consent to publish the whole award. See ICSID Synopsis,
para. 44.
77) ICC Rules, Art. 22(3).
78) CIETAC Rules, Art. 38(2).
79) ICDR Rules, Art. 33(1); CIETAC Rules, Art. 53(2); HKIAC Rules, Art. 38.1; ICC Rules, Art.
36(2); SCC Rules, Art. 47(1); SIAC Rules, Rule 33.1; UNCITRAL Rules, Art. 38(1).
80) LCIA Rules, Art. 27.1; ICSID Convention, Art. 49(2); ICSID Rules, Rule 49(1).
81) ICDR Rules, Art. 33(3); CIETAC Rules, Art. 53(1); HKIAC Rules, Art. 38.3; ICC Rules, Art.
36(1); LCIA Rules, Art. 27.2; SCC Rules, Art. 47(2); UNCITRAL Rules, Art. 38(2). The CIETAC
Rules grant the tribunal a “reasonable time” to make corrections on its own initiative.
See CIETAC Rules, Art. 53(1). ICSID makes no such provision.
82) ICSID Rules, Rule 49(5).
83) ICDR Rules, Art. 33(2); CIETAC Rules, Art. 53(2); HKIAC Rules, Art. 38.2; ICC Rules, Art.
36(2); LCIA Rules, Art. 27.1; SCC Rules, Art. 47(1); SIAC Rules, Rule 33.1. Note that the SIAC
Rules do not expressly contemplate comments by the counterparty.
84) UNCITRAL Rules, Art. 38(1).
85) ICSID’s proposed amendments do set the deadline. The decision on supplementary
decision and rectification must be issued within 60 days after the last submission,
and the decision on interpretation, revision, or annulment must be issued within 120
days after the last submission. See ICSID Synopsis, para. 55.
86) ICC Rules, Art. 36(2).
87) ICDR Rules, Art. 33(2); CIETAC Rules, Art. 53(3); ICC Rules, Art. 36(3); ICSID Convention,
Art. 49(2); ICSID Rules, Rule 49(4); LCIA Rules, Art. 27.5; SIAC Rules, Rule 33.1; UNCITRAL
Rules, Art. 38(3).
88) HKIAC Rules, Art. 38.5; SCC Rules, Art. 47(3).
89) ICC Rules, Art. 36(3); ICSID Rules, Rule 49(4); LCIA Rules, Art. 27.5; UNCITRAL Rules, Art.
38(3).
90) ICDR Rules, Art. 33(2); ICSID Convention, Art. 49(2).
91) ICDR Rules, Art. 33; HKIAC Rules, Art. 39; ICC Rules, Art. 36; LCIA Rules, Art. 27; SCC, Art.
47; UNCITRAL Rules, Art. 37. Different from the current procedure, the proposed ICSID
amendments would aim to simplify the procedure for interpretation, revision, and
annulment of awards, with one round of submissions unless the parties agree
otherwise. See ICSID Synopsis, para. 55.
92) ICSID Convention, Art. 50; ICSID Rules, Rules 51 and 54.
93) SIAC Rules, Rule 33.4.
94) ICDR Rules, Art. 33; CIETAC Rules, Art. 54; ICSID Convention, Art. 49; ICSID Rules, Rule
49.
95) LCIA Rules, Art. 27; SCC Rules, Art. 48; UNCITRAL Rules, Art. 39.
96) SIAC Rules, Rule 33.3.
97) ICC Rules, Art. 36(4).
98) ICSID Convention. Art. 51(1); ICSID Rules, Rule 50(1)(c)(ii).
99) ICSID Convention, Art. 51(2); ICSID Rules, Rule 50(3)(a).
100) ICSID Convention, Art. 51(3); ICSID Rules, Rule 51(2) and (3).
101) ICSID Convention, Art. 51(4); ICSID Rules, Rule 54.

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Document information
Chapter 10: Special Procedures and Procedural Innovations
Publication Responding to feedback from private and public consumers of international arbitration,
the regimes arbitral institutions considered in this book have introduced mechanisms for
The International Arbitration streamlining or expediting the proceedings. These include:
Rulebook: A Guide to Arbitral
Regimes (1) Expedited Procedures. The parties’ dispute may be of relatively modest value and/or
limited complexity, in which case expedited procedures, rather than full
proceedings, may be adequate.
Organization (2) Mediation-Arbitration. Some arbitral regimes provide a pathway from arbitration to
mediation (and back again, if necessary), in case a facilitated negotiation might
International Centre for expedite a resolution of some or all issues in dispute.
Dispute Resolution (3) Consolidation and Joinder. Some cases involve multiple claims, contracts, and/or
parties which can be brought together in a single arbitration through consolidation of
proceedings and joinder of parties.
Organization (4) Interim Measures. There may be a risk to a party that the other party will dispose of
China International assets, destroy evidence, or engage in other malfeasance before a final award can be
Economic and Trade rendered. In that case, it may be appropriate for the tribunal to issue immediately
Arbitration Commission an order for interim measures of protection to preserve the status quo pending the
resolution of the dispute.
(5) Emergency Relief. In cases of exceptional urgency, several arbitral regimes
Organization additionally provide for an order for interim measures to be issued by an emergency
arbitrator even before the tribunal is constituted.
Hong Kong International (6) Summary Decision. Similar to the mechanism for summary judgment that is available
Arbitration Centre in judicial proceedings in some jurisdictions, the tribunal may be able early in the
proceedings to dispose of certain claims or defenses which are evidently without
merit, which will narrow the issues to be addressed in the written and oral
Organization proceedings (and reduce associated time and costs).
P 591
International Court of P 592
Arbitration of the (7) Discontinuance. The arbitration might reach an early conclusion if a party desists or
International Chamber of fails to pursue its claims.
Commerce (8) Consent Award. At any time during the proceedings, the parties may reach a
negotiated settlement, which the tribunal may enter as a consent award. Oftentimes,
the proceedings progressively elucidate the strengths and weaknesses of the parties’
Organization cases, and at a certain point, the parties are able to reach a settlement and avoid
the time and expense of additional written submissions and/or a hearing.
International Centre for
Settlement of Investment In this chapter, we examine each of these mechanisms and the novel approaches taken by
Disputes the leading arbitral regimes.

§10.01 EXPEDITED PROCEDURES

Organization The ICDR, CIETAC, HKIAC, ICC, and SIAC Rules include provisions for expedited procedures,
London Court of usually applied to smaller claims to ensure that the duration and cost of the proceedings
International Arbitration are not out of proportion to the amount in dispute. (1) ICSID, too, is considering adding a
new chapter in its revised arbitration rules to provide for optional expedited procedures.
(2) When applicable, such provisions apply in lieu of any contrary provisions contained
elsewhere in the applicable rules; all other provisions of the rule regime remain
Organization applicable to the dispute. (3) By contrast, the SCC offers an entirely separate and
Arbitration Institute of the comprehensive set of Rules for Expedited Arbitrations. (4) Those regimes that do not
Stockholm Chamber of currently provide for expedited procedures variously provide for expedited formation of
Commerce the tribunal and/or summary decision to save time in certain situations. In this section we
look at the following aspects of expedited procedures: (i) triggers for application of the
expedited procedures; (ii) number and appointment of arbitrators; (iii) limitations on
Organization evidence and written and oral proceedings; and (iv) requirements for the award.
Under the ICDR, CIETAC, HKIAC, ICC, and SIAC Rules, expedited procedures automatically
Singapore International apply to all disputes in which the amount in controversy falls below a certain threshold.
Arbitration Centre
P 592 The HKIAC apply expedited procedures when the “amount in dispute representing the
P 593 aggregate of any claim and counterclaim or set-off defence does not exceed the amount
set by HKIAC on HKIAC’s website on the date the Notice of Arbitration is submitted.” (5) In
Organization January 2019, this threshold was HK$ 25,000,000 (over USD 3 million). Under the SIAC Rules,
United Nations Commission the relevant threshold is currently SGD 6 million (about USD 435,000). (6) The CIETAC and
on International Trade Law ICC Rules merely indicate that the “amount in dispute” must be below RMB 5 million
(about USD 700,000) and USD 2 million, respectively. (7) The ICDR Rules take a different
approach, setting a threshold of USD 250,000 for each claim and counterclaim, rather than
for the aggregate amount in dispute. (8)
Bibliographic reference
As mentioned in Chapter 2 (Agreements to Arbitrate), parties who select one of these
'Chapter 10: Special institutional regimes in their arbitration agreement, and who do not wish for the expedited
Procedures and Procedural procedures to apply to disputes falling below the specified threshold, must “opt out,”
Innovations', in Arif Hyder Ali either by including an opt-out clause in their arbitration agreement or by reaching such an

413
© 2019 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
, Jane Wessel , et al., The agreement after the dispute has arisen. (9) By contrast, the SCC Rules for Expedited
International Arbitration Arbitrations do not apply automatically based on any monetary threshold; rather, they
Rulebook: A Guide to Arbitral apply to a given case only if the parties agree. (10)
Regimes, (© Kluwer Law
International; Kluwer Law The ICDR, CIETAC, HKIAC, ICC, and SIAC Rules also provide that the parties may agree to
International 2019) pp. 591 - apply the expedited procedures to any case regardless of the amount in controversy. (11)
700 The HKIAC and SIAC Rules additionally permit a party to apply for expedited proceedings
“in cases of exceptional urgency.” (12) The CIETAC Rules additionally provide that when
there is no monetary claim or the amount in dispute is unclear, CIETAC will determine
whether to apply expedited procedures after fully considering relevant factors, including
“the complexity of the case and the interests involved.” (13)
Once the expedited procedures take effect, all of these regimes mandate or presume that
the dispute will be decided by a sole arbitrator, though some regimes permit a three-
member tribunal. The ICDR Rules and SCC Rules for Expedited Arbitrations absolutely
require a sole arbitrator. (14) The SIAC Rules also require a sole arbitrator, unless the
President of the SIAC Court determines otherwise. (15) The ICC Rules clarify that the Court
may appoint a sole arbitrator “notwithstanding any contrary provision in the parties’
P 593 arbitration agreement.” (16) The HKIAC Rules, by contrast, call for a sole arbitrator but will
P 594 admit a three-member tribunal if provided for in the parties’ arbitration agreement. (17)
The CIETAC Rules similarly call for a sole arbitrator unless otherwise agreed by the parties.
(18)
The CIETAC, HKIAC, and SIAC Rules apply the same procedures for appointing a sole
arbitrator in expedited proceedings as in ordinary proceedings. (19) By contrast, the ICDR
Rules indicate a strike-and-rank list procedure for appointing the arbitrator in the case of
expedited proceedings. (20) Under this procedure, the ICDR Administrator provides the
claimant and the respondent with an identical list of five arbitrators; the parties may each
strike two names from the list, and then the Administrator may appoint any of the
remaining arbitrators. (21) The ICC Rules and SCC Rules for Expedited Arbitrations permit
the parties jointly to nominate the sole arbitrator, but in the absence of party agreement
within a fixed time period, the institution will make the appointment. (22)
Only the ICDR and ICC Rules, and the SCC Rules for Expedited Arbitrations, provide for an
initial procedural conference among the parties and the arbitrator in expedited
proceedings; the other regimes dispense with this step. (23) The ICDR additionally provides
for a prior administrative conference among the parties and the Administrator. (24)
However, the timing of the initial procedural conference is strictly constrained. Under the
ICDR Rules, the arbitrator must issue its first procedural order (pursuant to any initial
procedural conference) within 14 days of his or her appointment. (25) The SCC Rules for
Expedited Arbitrations permit no more than seven days to elapse from referral of the case
to the arbitrator to issuance of the procedural timetable. (26) Under the ICC Rules, the
initial procedural conference must take place within 15 days of the arbitrator receiving the
case file. (27) There is no requirement for the arbitrator to produce any Terms of Reference
following the initial procedural conference under the ICC’s expedited procedures. (28)
The expedited procedures generally place substantial restrictions on the presentation of
evidence and on written and oral proceedings. All of the expedited procedures under
consideration permit the tribunal to decide the dispute on the basis of written materials
and submissions only, and to dispense with the hearing. (29) Submissions are generally
P 594 limited in number and length and subject to tight deadlines. Only the HKIAC Rules and the
P 595 SCC Rules for Expedited Arbitrations entitle the parties to submit additional written
submissions following the Notice of Arbitration and Answer. (30) However, the HKIAC may
abbreviate the usual time periods for submissions and other procedures, and the SCC
Rules for Expedited Arbitrations set the deadline for written submissions at 15 working
days. (31) By contrast, the ICDR Rules require the parties to include all facts, claims, and
evidence in their Notice of Arbitration and Answer; if any further written submissions will
be made they must be filed within 60 days of the first procedural order. (32) The CIETAC
Rules permit only a Notice of Arbitration, Answer and Counterclaim, and Defense to
Counterclaim, to be filed at intervals of no more than 20 days. (33) The ICC Rules permit the
tribunal broad discretion to limit the number, length, and scope of written submissions,
witness statements, and expert reports and to decide not to allow requests for document
production. (34) In case a hearing will be held, the ICDR Rules require that it take place
within 60 days of the procedural order mentioned above and that it does not exceed 1 day
in duration (subject to any extensions made by the arbitrator). (35) The CIETAC Rules allow
as little as 15 days advance notice to the parties of any hearing. (36)
Once expedited procedures are underway, they generally can be converted to ordinary
proceedings in certain circumstances. The ICC and SIAC Rules provide that the Court or the
tribunal, respectively, may decide that expedited procedures are no longer appropriate
and allow the arbitration to continue as ordinary proceedings. (37) Under the ICDR and
CIETAC Rules, in the event that a party amends its claim or counterclaim, causing the
dispute to exceed the threshold amount, the proceedings can then be administered as
ordinary proceedings only if both parties agree or the arbitrator (or the ICDR
Administrator) finds it necessary to do so. (38) However, the ICDR Rules (and the ICC Rules)
prohibit the parties from making any new claims after the tribunal has been constituted.
(39) The SCC Rules for Expedited Arbitrations allow the arbitrator to order a party to finally
state its case, after which the party may not amend its claim, except for compelling

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 reasons. (40)
These regimes fix short time frames for the arbitrator to issue its award in expedited
proceedings (though extensions may be granted). Under the ICDR Rules, the arbitrator
must make its award within 30 days of the later of the final written submissions or the
hearing. (41) CIETAC sets the deadline at three months from the date the tribunal was
P 595 constituted. (42) The SCC Rules for Expedited Arbitrations fix the deadline at three months
P 596 from the date the case was referred to the arbitrator. (43) The other regimes require
issuance of the award within six months: from the date the tribunal was constituted (SIAC);
from the date the tribunal received the file (HKIAC); or from the date of the initial
procedural conference (ICC). (44) The SCC Rules for Expedited Arbitrations permit the
tribunal to omit the reasons for its award unless a party requests a reasoned award. (45)
The HKIAC and SIAC Rules permit the tribunal to state the reasons for its award in summary
form unless the parties agree that no reasons are to be given. (46)
P 596
P 597 Table 10.1 Expedited Procedures
AAA-ICDR
PP 600
598
602
603
604
599
601
597 International 4. Unless the parties agree or the Administrator determines
PP 600
598
602
603
604
605
599 Arbitration Rules,
601 otherwise, the International Expedited Procedures shall apply in any
Article 1. Scope of case in which no disclosed claim or counterclaim exceeds USD
These Rules $250,000 exclusive of interest and the costs of arbitration. The
parties may also agree to use the International Expedited
Procedures in other cases. The International Expedited Procedures
shall be applied as described in Articles E-1 through E-10 of these
Rules, in addition to any other portion of these Rules that is not in
conflict with the Expedited Procedures. Where no party’s claim or
counterclaim exceeds USD $100,000 exclusive of interest, attorneys’
fees, and other arbitration costs, the dispute shall be resolved by
written submissions only unless the arbitrator determines that an
oral hearing is necessary.
International These Expedited Procedures supplement the International
Expedited Arbitration Rules as provided in Article 1(4).
Procedures, Article
E-1. Scope of
Expedited
Procedures
International Parties are to present detailed submissions on the facts, claims,
Expedited counterclaims, setoffs and defenses, together with all of the
Procedures, Article evidence then available on which such party intends to rely, in the
E-2. Detailed Notice of Arbitration and the Answer. The arbitrator, in consultation
Submissions with the parties, shall establish a procedural order, including a
timetable, for completion of any written submissions.
International The Administrator may conduct an administrative conference with
Expedited the parties and their representatives to discuss the application of
Procedures, Article these procedures, arbitrator selection, mediating the dispute, and
E-3. Administrative any other administrative matters.
Conference
International If an objection is submitted before the arbitrator is appointed, the
Expedited Administrator may initially determine the applicability of these
Procedures, Article Expedited Procedures, subject to the power of the arbitrator to make
E-4. Objection to the a final determination. The arbitrator shall take into account the
Applicability of the amount in dispute and any other relevant circumstances.
Expedited
Procedures
International If, after filing of the initial claims and counterclaims, a party
Expedited amends its claim or counterclaim to exceed USD $250,000.00
Procedures, Article exclusive of interest and the costs of arbitration, the case will
E-5. Changes of continue to be administered pursuant to these Expedited Procedures
Claim or unless the parties agree otherwise, or the Administrator or the
Counterclaim arbitrator determines otherwise. After the arbitrator is appointed, no
new or different claim, counterclaim or setoff and no change in
amount may be submitted except with the arbitrator’s consent.

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 International A sole arbitrator shall be appointed as follows. The Administrator
Expedited shall simultaneously submit to each party an identical list of five
Procedures, Article proposed arbitrators. The parties may agree to an arbitrator from
E-6. Appointment this list and shall so advise the Administrator. If the parties are
and Qualifications of unable to agree upon an arbitrator, each party may strike two
the Arbitrator names from the list and return it to the Administrator within 10 days
from the transmittal date of the list to the parties. The parties are
not required to exchange selection lists. If the parties fail to agree
on any of the arbitrators or if acceptable arbitrators are unable or
unavailable to act, or if for any other reason the appointment
cannot be made from the submitted lists, the Administrator may
make the appointment without the circulation of additional lists.
The parties will be given notice by the Administrator of the
appointment of the arbitrator, together with any disclosures.
International After the arbitrator’s appointment, the arbitrator may schedule a
Expedited procedural conference call with the parties, their representatives,
Procedures, Article and the Administrator to discuss the procedure and schedule for the
E-7. Procedural case. Within 14 days of appointment, the arbitrator shall issue a
Conference and procedural order.
Order
International In expedited proceedings based on written submissions, all
Expedited submissions are due within 60 days of the date of the procedural
Procedures, Article order, unless the arbitrator determines otherwise. The arbitrator
E-8. Proceedings by may require an oral hearing if deemed necessary.
Written Submissions
International In expedited proceedings in which an oral hearing is to be held, the
Expedited arbitrator shall set the date, time, and location of the hearing. The
Procedures, Article oral hearing shall take place within 60 days of the date of the
E-9. Proceedings procedural order unless the arbitrator deems it necessary to extend
with an Oral Hearing that period. Hearings may take place in person or via video
conference or other suitable means, at the discretion of the
arbitrator. Generally, there will be no transcript or stenographic
record. Any party desiring a stenographic record may arrange for
one. The oral hearing shall not exceed one day unless the arbitrator
determines otherwise. The Administrator will notify the parties in
advance of the hearing date.
International Awards shall be made in writing and shall be final and binding on
Expedited the parties. Unless otherwise agreed by the parties, specified by law,
Procedures, Article or determined by the Administrator, the award shall be made not
E-10. The Award later than 30 days from the date of the closing of the hearing or
from the time established for final written submissions.
CIETAC
Article 56. 1. The Summary Procedure shall apply to any case where the
Application amount in dispute does not exceed RMB 5,000,000 unless otherwise
agreed by the parties; or where the amount in dispute exceeds RMB
5,000,000, yet one party applies for arbitration under the Summary
Procedure and the other party agrees in writing; or where both
parties have agreed to apply the Summary Procedure.
2. Where there is no monetary claim or the amount in dispute is not
clear, CIETAC shall determine whether or not to apply the Summary
Procedure after full consideration of relevant factors, including but
not limited to the complexity of the case and the interests involved.

Article 57. Notice of Where after examination the Claimant’s arbitration application is
Arbitration accepted for arbitration under the Summary Procedure, the
Arbitration Court shall send a Notice of Arbitration to both parties.
Article 58. Formation Unless otherwise agreed by the parties, a sole-arbitrator tribunal
of the Arbitral shall be formed in accordance with Article 28 of these Rules to hear
Tribunal a case under the Summary Procedure.

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 Article 59. Defense 1. The Respondent shall submit its Statement of Defense, evidence
and Counterclaim and other supporting documents within twenty (20) days of its
receipt of the Notice of Arbitration. Counterclaim, if any, shall also
be filed with evidence and supporting documents within such time
period.
2. The Claimant shall file its Statement of Defense to the
Respondent’s counterclaim within twenty (20) days of its receipt of
the counterclaim and its attachments.
3. If a party has justified reasons to request an extension of the time
period, the arbitral tribunal shall decide whether to grant such
extension. Where the arbitral tribunal has not yet been formed, such
decision shall be made by the Arbitration Court.

Article 60. Conduct The arbitral tribunal may examine the case in the manner it
of Hearing considers appropriate. The arbitral tribunal may decide whether to
examine the case solely on the basis of the written materials and
evidence submitted by the parties or to hold an oral hearing after
hearing from the parties of their opinions.
Article 61. Notice of 1. For a case examined by way of an oral hearing, after the arbitral
Oral Hearing tribunal has fixed a date for the first oral hearing, the parties shall
be notified of the date at least fifteen (15) days in advance of the oral
hearing. A party having justified reasons may request a
postponement of the oral hearing. However, the party shall
communicate such request in writing to the arbitral tribunal within
three (3) days of its receipt of the notice of the oral hearing. The
arbitral tribunal shall decide whether or not to postpone the oral
hearing.
2. If a party has justified reasons for failure to submit a request for a
postponement of the oral hearing in accordance with the preceding
Paragraph 1, the arbitral tribunal shall decide whether to accept
such a request.
3. A notice of a subsequent oral hearing, a notice of a postponed oral
hearing, as well as a request for postponement of such oral hearing,
shall not be subject to the time periods specified in the preceding
Paragraph 1.

Article 62. Time 1. The arbitral tribunal shall render an arbitral award within three (3)
Period for Rendering months from the date on which the arbitral tribunal is formed.
Award
2. Upon the request of the arbitral tribunal, the President of the
Arbitration Court may extend the time period if he/she considers it
truly necessary and the reasons for the extension truly justified.
3. Any suspension period shall be excluded when calculating the
time period in the preceding Paragraph 1.

Article 63. Change of The Summary Procedure shall not be affected by any amendment to
Procedure the claim or by the filing of a counterclaim. Where the amount in
dispute of the amended claim or that of the counterclaim exceeds
RMB 5,000,000, the Summary Procedure shall continue to apply
unless the parties agree or the arbitral tribunal decides that a
change to the general procedure is necessary.
Article 64. Context The relevant provisions in the other Chapters of these Rules shall
Reference apply to matters not covered in this Chapter.
HKIAC

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 Article 42. Expedited 42.1. Prior to the constitution of the arbitral tribunal, a party may
Procedure apply to HKIAC for the arbitration to be conducted in accordance
with Article 42.2 where:
(a) the amount in dispute representing the aggregate of any claim
and counterclaim (or any set-off defence or cross-claim) does
not exceed the amount set by HKIAC, as stated on HKIAC’s
website on the date the Notice of Arbitration is submitted; or
(b) the parties so agree; or
(c) in cases of exceptional urgency.
42.2. When HKIAC, after considering the views of the parties, grants
an application made pursuant to Article 42.1, the arbitral
proceedings shall be conducted in accordance with an Expedited
Procedure based upon the foregoing provisions of these Rules,
subject to the following changes:
(a) the case shall be referred to a sole arbitrator, unless the
arbitration agreement provides for three arbitrators;
(b) if the arbitration agreement provides for three arbitrators,
HKIAC shall invite the parties to agree to refer the case to a
sole arbitrator. If the parties do not agree, the case shall be
referred to three arbitrators;
(c) HKIAC may shorten the time limits provided for in the Rules, as
well as any time limits that it has set;
(d) after the submission of the Answer to the Notice of Arbitration,
the parties shall in principle be entitled to submit one
Statement of Claim and one Statement of Defence (and
Counterclaim) and, where applicable, one Statement of
Defence in reply to the Counterclaim;
(e) the arbitral tribunal shall decide the dispute on the basis of
documentary evidence only, unless it decides that it is
appropriate to hold one or more hearings;

(f) subject to any lien, the award shall be communicated to the

parties within six months from the date when HKIAC
transmitted the case file to the arbitral tribunal. In exceptional
circumstances, HKIAC may extend this time limit;
(g) the arbitral tribunal may state the reasons upon which the
award is based in summary form, unless the parties have
agreed that no reasons are to be given.
42.3. Upon the request of any party and after consulting with the
parties and any confirmed or appointed arbitrators, HKIAC may,
having regard to any new circumstances that have arisen, decide
that the Expedited Procedure under Article 42 shall no longer apply
to the case. Unless HKIAC considers that it is appropriate to revoke
the confirmation or appointment of any arbitrator, the arbitral
tribunal shall remain in place.

ICC

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 Article 30. Expedited 1. By agreeing to arbitration under the Rules, the parties agree that
Procedure this Article 30 and the Expedited Procedure Rules set forth in
Appendix VI (collectively the “Expedited Procedure Provisions”) shall
take precedence over any contrary terms of the arbitration
agreement.
2. The Expedited Procedure Rules set forth in Appendix VI shall apply
if:
(a) the amount in dispute does not exceed the limit set out in
Article 1(2) of Appendix VI at the time of the communication
referred to in Article 1(3) of that Appendix; or
(b) the parties so agree.
3. The Expedited Procedure Provisions shall not apply if:
(a) the arbitration agreement under the Rules was concluded
before the date on which the Expedited Procedure Provisions
came into force;
(b) the parties have agreed to opt out of the Expedited Procedure
Provisions; or
(c) the Court, upon the request of a party before the constitution
of the arbitral tribunal or on its own motion, determines that it
is inappropriate in the circumstances to apply the Expedited
Procedure Provisions.

Appendix VI. 1. Insofar as Article 30 of the Rules of Arbitration of the ICC (the
Expedited Procedure “Rules”) and this Appendix VI do not provide otherwise, the Rules
Rules, Article 1. shall apply to an arbitration under the Expedited Procedure Rules.
Application of the
Expedited Procedure 2. The amount referred to in Article 30(2), subparagraph a), of the
Rules Rules is US$ 2,000,000.

3. Upon receipt of the Answer to the Request pursuant to Article 5 of

the Rules, or upon expiry of the time limit for the Answer or at any
relevant time thereafter and subject to Article 30(3) of the Rules, the
Secretariat will inform the parties that the Expedited Procedure
Provisions shall apply in the case.
4. The Court may, at any time during the arbitral proceedings, on its
own motion or upon the request of a party, and after consultation
with the arbitral tribunal and the parties, decide that the Expedited
Procedure Provisions shall no longer apply to the case. In such case,
unless the Court considers that it is appropriate to replace and/or
reconstitute the arbitral tribunal, the arbitral tribunal shall remain
in place.

Appendix VI. 1. The Court may, notwithstanding any contrary provision of the
Expedited Procedure arbitration agreement, appoint a sole arbitrator.
Rules, Article 2.
Constitution of the 2. The parties may nominate the sole arbitrator within a time limit to
Arbitral Tribunal be fixed by the Secretariat. In the absence of such nomination, the
sole arbitrator shall be appointed by the Court within as short a time
as possible.

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 Appendix VI. 1. Article 23 of the Rules shall not apply to an arbitration under the
Expedited Procedure Expedited Procedure Rules.
Rules, Article 3.
Proceedings 2. After the arbitral tribunal has been constituted, no party shall
make new claims, unless it has been authorized to do so by the
arbitral tribunal, which shall consider the nature of such new claims,
the stage of the arbitration, any cost implications and any other
relevant circumstances.
3. The case management conference convened pursuant to Article 24
of the Rules shall take place no later than 15 days after the date on
which the file was transmitted to the arbitral tribunal. The Court
may extend this time limit pursuant to a reasoned request from the
arbitral tribunal or on its own initiative if it decides it is necessary to
do so.
4. The arbitral tribunal shall have discretion to adopt such
procedural measures as it considers appropriate. In particular, the
arbitral tribunal may, after consultation with the parties, decide not
to allow requests for document production or to limit the number,
length and scope of written submissions and written witness
evidence (both fact witnesses and experts).
5. The arbitral tribunal may, after consulting the parties, decide the
dispute solely on the basis of the documents submitted by the
parties, with no hearing and no examination of witnesses or experts.
When a hearing is to be held, the arbitral tribunal may conduct it by
videoconference, telephone or similar means of communication.

Appendix VI. 1. The time limit within which the arbitral tribunal must render its
Expedited Procedure final award is six months from the date of the case management
Rules, Article 4. conference. The Court may extend the time limit pursuant to Article
Award 31(2) of the Rules.
2. The fees of the arbitral tribunal shall be fixed according to the
scales of administrative expenses and arbitrator’s fees for the
expedited procedure set out in Appendix III.

Appendix VI. In all matters concerning the expedited procedure not expressly
Expedited Procedure provided for in this Appendix, the Court and the arbitral tribunal
Rules, Article 5. shall act in the spirit of the Rules and this Appendix.
General Rule
ICSID
Not specifically addressed.
LCIA
Not specifically addressed.
SCC
Rules for Expedited The arbitration shall be decided by a sole Arbitrator.
Arbitrations, Article
17. Number of
Arbitrators
Rules for Expedited (1) The parties may agree on a procedure for appointment of the
Arbitrations, Article Arbitrator.
18. Appointment of
Arbitrator (2) Where the parties have not agreed on a procedure, or if the
Arbitrator has not been appointed within the time period agreed by
the parties or, where the parties have not agreed on a time period,
within the time period set by the Board, the appointment shall be
made pursuant to paragraphs (3)–(5).
(3) The parties shall be given 10 days to jointly appoint the
Arbitrator. If the parties fail to appoint the Arbitrator within this
time, the Board shall make the appointment.
[…]

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 Rules for Expedited (1) After the referral of the case to the Arbitrator, the Arbitrator shall
Arbitrations, Article promptly hold a case management conference with the parties to
29. Case organise, schedule and establish procedures for the conduct of the
Management arbitration.
Conference and
Timetable […]
(4) During or immediately following the case management
conference, and no later than 7 days from the referral of the case to
the Arbitrator, the Arbitrator shall seek to establish a timetable for
the conduct of the arbitration, including the date for making the
award.
[…]

Rules for Expedited (1) The parties may make one supplementary written submission in
Arbitrations, Article addition to the Request for Arbitration and the Answer. In
30. Written circumstances the Arbitrator considers to be compelling, the
Submissions Arbitrator may allow the parties to make further written
submissions.
(2) Written submissions shall be brief and the time limits for the
filing of submissions may not exceed 15 working days, subject to any
other time limit that the Arbitrator, for compelling reasons, may
determine.
(3) The Arbitrator may order a party to finally state its claims for
relief and the facts and evidence relied on. At the expiration of the
time for such statement, the party may not amend its claim for relief
nor adduce additional facts or evidence, unless the Arbitrator, for
compelling reasons, so permits.

Rules for Expedited (1) A hearing shall be held only at the request of a party and if the
Arbitrations, Article Arbitrator considers the reasons for the request to be compelling.
33. Hearings
[…]

Rules for Expedited (1) […] A party may request a reasoned award no later than at the
Arbitrations, Article closing statement.
42. Making of
Awards […]

Rules for Expedited The final award shall be made no later than three months from the
Arbitrations, Article date the case was referred to the Arbitrator pursuant to Article 23.
43. Time Limit for The Board may extend this time limit upon a reasoned request from
Final Award the Arbitrator, or if otherwise deemed necessary, having due regard
to the expedited nature of the proceedings.
SIAC
Rule 5. Expedited 5.1. Prior to the constitution of the Tribunal, a party may file an
Procedure application with the Registrar for the arbitral proceedings to be
conducted in accordance with the Expedited Procedure under this
Rule, provided that any of the following criteria is satisfied:
(a) the amount in dispute does not exceed the equivalent amount
of S$6,000,000, representing the aggregate of the claim,
counterclaim and any defence of set-off;
(b) the parties so agree; or
(c) in cases of exceptional urgency.
The party applying for the arbitral proceedings to be conducted in
accordance with the Expedited Procedure under this Rule 5.1 shall,
at the same time as it files an application for the proceedings to be
conducted in accordance with the Expedited Procedure with the
Registrar, send a copy of the application to the other party and shall
notify the Registrar that it has done so, specifying the mode of
service employed and the date of service.

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 5.2. Where a party has filed an application with the Registrar under
Rule 5.1, and where the President determines, after considering the
views of the parties, and having regard to the circumstances of the
case, that the arbitral proceedings shall be conducted in accordance
with the Expedited Procedure, the following procedure shall apply:
(a) the Registrar may abbreviate any time limits under these
Rules;
(b) the case shall be referred to a sole arbitrator, unless the
President determines otherwise;
(c) the Tribunal may, in consultation with the parties, decide if the
dispute is to be decided on the basis of documentary evidence
only, or if a hearing is required for the examination of any
witness and expert witness as well as for any oral argument;
(d) the final Award shall be made within six months from the date
when the Tribunal is constituted unless, in exceptional
circumstances, the Registrar extends the time for making such
final Award; and
(e) the Tribunal may state the reasons upon which the final Award
is based in summary form, unless the parties have agreed that
no reasons are to be given.
5.3. By agreeing to arbitration under these Rules, the parties agree
that, where arbitral proceedings are conducted in accordance with
the Expedited Procedure under this Rule 5, the rules and procedures
set forth in Rule 5.2 shall apply even in cases where the arbitration
agreement contains contrary terms.
5.4. Upon application by a party, and after giving the parties the
opportunity to be heard, the Tribunal may, having regard to any
further information as may subsequently become available, and in
consultation with the Registrar, order that the arbitral proceedings
shall no longer be conducted in accordance with the Expedited
Procedure. Where the Tribunal decides to grant an application under
this Rule 5.4, the arbitration shall continue to be conducted by the
same Tribunal that was constituted to conduct the arbitration in
accordance with the Expedited Procedure.

UNCITRAL
Not specifically addressed.

§10.02 MEDIATION-ARBITRATION
The best resolution of a dispute is often an amicable settlement on favorable terms for
both parties. In some cases, there is no choice but to arbitrate because the parties simply
P 605 do not coincide in their views of acceptable outcomes. But there are many cases that are
P 606 capable of settling even after arbitration has commenced; a third-party mediator or
facilitator can often facilitate such settlement. Under certain regimes, the parties may
consider the possibility of combining mediation or conciliation with arbitration under the
various international arbitration rules, in case a mediation-arbitration, or “med-arb,” can
help the parties advance to settlement, even after their arbitration is underway. (47)
Both mediation and conciliation involve a third-party neutral assisting the parties to
resolve all or part of their dispute with a nonbinding decision. (48) Mediation is a
structured process by which the mediator assists the parties to negotiate a settlement of
their differences, including by meeting with each of them in private and facilitating group
discussions. In conciliation, the conciliator takes a more central role in resolving the
dispute by ascertaining the parties’ positions and advising them on possible solutions.
Both mediation and conciliation are based on the principle of party autonomy: the process
requires the voluntary participation of the parties, and the outcome of mediation or
conciliation is not enforceable until reflected in a validly executed agreement between
the parties. (49) The most common reasons to pursue nonbinding dispute resolution
include preserving the parties’ commercial relationship, saving time and money,
confidentiality, and overcoming cultural and linguistic barriers through facilitated
communication. (50)
Mediation or conciliation can take place as its own proceeding, or, of particular relevance
in the context of this chapter, in connection with an arbitration. It is not uncommon to find
multitiered dispute resolution clauses that require the parties to attempt to negotiate
and/or mediate (or conciliate) an amicable settlement before commencing arbitration.
(51) Or, the parties may become amenable to settling all or part of their dispute after some
arbitration proceedings have allowed them to see more clearly the strengths and
weaknesses of their respective cases. (52)
Most of the arbitral regimes discussed in this book are accompanied by a distinct body of
P 606 rules for mediation or conciliation. (53) With respect to the ICC Rules, the ICC Mediation

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 P 606
P 607 Guidance Notes provide a bridge between the ICC Arbitration Rules and the ICC
Mediation Rules for possible mediation-arbitration (54) The Notes provide important
guidance on the relationship between the two proceedings:
– The mediation may occur either before or during the arbitration;
– If mediation occurs during the arbitration, the tribunal may stay the arbitration;
– The parties may agree upon (or the lex loci arbitri may indicate) tolling any
prescription periods (statutes of limitation) while mediation is ongoing;
– The parties and the tribunal may set a mediation period during the procedural
management conference of the arbitration;
– Confidential documents and communications shared in the mediation are privileged;
they generally may not be used in the arbitration;
– The parties may agree that an arbitrator shall serve as the mediator—but they should
be aware of due process concerns that may result if the mediator learns confidential
information in the course of the mediation that may bear upon his decision in the
arbitration; and
– A settlement resulting from mediation proceedings may be recorded as a consent
award under the ICC Arbitration Rules. (55)
Subject to the foregoing considerations, it is perfectly possible for parties to undertake an
ICC mediation before or even during an ICC arbitration.
The SIAC Rules contain an AMA Protocol which is jointly administered by SIAC and the SIMC.
(56) The SIAC Rules also provide a model Singapore Arb-Med-Arb Clause, which parties may
add to their arbitration agreement: (57)
The Singapore Arb-Med-Arb Clause
[…] The parties further agree that following the commencement of arbitration, they will
attempt in good faith to resolve the Dispute through mediation at the Singapore
International Mediation Centre (“SIMC”), in accordance with the SIAC-SIMC Arb-Med-Arb
Protocol for the time being in force. Any settlement reached in the course of the mediation
shall be referred to the arbitral tribunal appointed by SIAC and may be made a consent
award on agreed terms.
Under the AMA Protocol, a party wishing to commence arbitration under the Singapore
AMA Clause above will file a notice of arbitration pursuant to the SIAC Arbitration Rules.
SIAC will constitute the tribunal pursuant to the parties’ agreement or the default SIAC
Arbitration Rules (see section §4.04 of this book (Appointment of Arbitrators)). Then, the
tribunal will stay the arbitration and refer the case to the SIMC, who will administer the
mediation pursuant to the SIMC Mediation Rules for a period of eight weeks. If the parties
settle their dispute pursuant to the mediation, they may ask the tribunal to record the
P 607 settlement as a consent award (see section §10.08, infra). Or, if the parties do not settle
P 608 after eight weeks of mediation, the case will be referred back to SIAC for arbitration.
Also contemplating med-arb, the ICDR Arbitration Rules expressly reference the
institution’s companion mediation rules but provide more limited guidance on the
relationship between the two. (58) The ICDR Arbitration Rules provide that the
Administrator of the arbitration may invite the parties to mediate their dispute according
to the ICDR Mediation Rules, or the parties may agree to mediate at any stage of the
proceedings. (59) The mediation will run concurrently with the arbitration, unless the
parties agree otherwise. (60) Finally, the ICDR Arbitration Rules prohibit an arbitrator in
the case from serving as the mediator, unless the parties agree otherwise. (61)
The ICSID Arbitration Rules provide that the parties may request the arbitral tribunal to
convene a specific prehearing conference “to consider the issues in dispute with a view to
reaching an amicable settlement.” (62) Under the ICSID system, the Secretary-General may
also take the initiative of inviting the parties informally to discuss their dispute with a view
toward achieving an amicable resolution prior to arbitration. (63) These steps are separate
and apart from the formal ICSID Conciliation Rules. The proposed amendments to the ICSID
Rules would add new Mediation Rules of the Additional Facility, offering mediation of
investment disputes between a State and a foreign investor, one of which is not an ICSID
Member State or a national of an ICSID Member State, or mediation of disputes that do not
arise directly out of an investment between a State and a foreign investor at least one of
which is an ICSID Member State or a national of an ICSID Member State. (64)
Uniquely, the CIETAC conciliation rules are embedded in the CIETAC Arbitration Rules for
the express “combination of conciliation with arbitration.” (65) CIETAC’s conciliation rules
reflect several of the principles set forth in the preceding regimes. The parties may elect to
have their dispute conciliated, either by the tribunal or by a conciliator appointed by
CIETAC. (66) Also, information shared in the conciliation cannot be used against a party in
the arbitration. (67) Finally, the parties may request to have any resulting settlement
P 608 agreement embodied in a consent award. (68) However, the CIETAC conciliation rules do
P 609 not indicate any specific procedures for the conciliation itself (as the other mediation
and conciliation rules do), leaving it to the tribunal to “conciliate the case in a manner it
considers appropriate.” (69)
The CIETAC system reflects the importance that Chinese legal culture places on ADR, (70)

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 and, according to its proponents, offers several benefits. These include: providing the
parties the advantages of both binding and nonbinding dispute resolution in one dispute
resolution process, thereby helping them to preserve their business relationship; providing
for the possibility of an enforceable consent award; (71) and saving the parties cost and
time by avoiding separate proceedings. (72) Moreover, CIETAC considers that, since the
arbitrators may be more familiar with the dispute, there is a higher likelihood of achieving
a settlement than if a new mediator enters the process.
CIETAC’s approach is not uncontroversial. Some arbitration professionals have expressed
the view that an arbitral tribunal should limit its role to the arbitration itself, and not
become engaged in efforts to mediate or conciliate the dispute. (73) This view is based on
the proposition that in any settlement negotiations, parties typically share their views of
the dispute on a confidential and without prejudice basis. Information is often disclosed
regarding the weaknesses of a party’s position, and especially regarding the quantum of
damages it has suffered or amounts that it may be willing to accept or pay to settle the
dispute, which would not normally be revealed in the context of the arbitration. A tribunal
involved in such discussions would therefore be privy to information that it would
otherwise not obtain during the course of the arbitration proceedings. If the efforts at
mediation or conciliation fail to result in a settlement, the tribunal would then be in the
difficult position of having to ignore information to which it has become privy. Table 10.2
includes the relevant rules.
The other arbitral regimes do not address nonbinding dispute resolution specifically in the
body of the rules. However, this in no way means that the parties are prohibited from
agreeing to mediate or conciliate their dispute during the pendency of the arbitration,
P 609 whether pursuant to the institution’s own alternative dispute resolution rules, those of
P 610 another institution, or even ad hoc mediation.
P 610
P 611 Table 10.2 Mediation and Conciliation with Arbitration
CIETAC
P 615
612
613
614
611 Article 47. 1. Where both parties wish to conciliate, or where one party wishes to
P 616
612 Combination of
613
614
615 conciliate and the other party’s consent has been obtained by the
Conciliation with arbitral tribunal, the arbitral tribunal may conciliate the dispute
Arbitration during the arbitral proceedings. The parties may also settle their
dispute by themselves.
2. With the consents of both parties, the arbitral tribunal may
conciliate the case in a manner it considers appropriate.
3. During the process of conciliation, the arbitral tribunal shall
terminate the conciliation proceedings if either party so requests or
if the arbitral tribunal considers that further conciliation efforts will
be futile.
4. The parties shall sign a settlement agreement where they have
reached settlement through conciliation by the arbitral tribunal or
by themselves.
5. Where the parties have reached a settlement agreement through
conciliation by the arbitral tribunal or by themselves, they may
withdraw their claim or counterclaim, or request the arbitral
tribunal to render an arbitral award or a conciliation statement in
accordance with the terms of the settlement agreement.
6. Where the parties request for a conciliation statement, the
conciliation statement shall clearly set forth the claims of the
parties and the terms of the settlement agreement. It shall be signed
by the arbitrators, sealed by CIETAC, and served upon both parties.
7. Where conciliation is not successful, the arbitral tribunal shall
resume the arbitral proceedings and render an arbitral award.
8. Where the parties wish to conciliate their dispute but do not wish
to have conciliation conducted by the arbitral tribunal, CIETAC may,
with the consents of both parties, assist the parties to conciliate the
dispute in a manner and procedure it considers appropriate.
9. Where conciliation is not successful, neither party may invoke any
opinion, view or statement, and any proposal or proposition
expressing acceptance or opposition by either party or by the
arbitral tribunal in the process of conciliation as grounds for any
claim, defense or counterclaim in the subsequent arbitral
proceedings, judicial proceedings, or any other proceedings.

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 10. Where the parties have reached a settlement agreement by
themselves through negotiation or conciliation before the
commencement of an arbitration, either party may, based on an
arbitration agreement concluded between them that provides for
arbitration by CIETAC and the settlement agreement, request CIETAC
to constitute an arbitral tribunal to render an arbitral award in
accordance with the terms of the settlement agreement. Unless
otherwise agreed by the parties, the Chairman of CIETAC shall
appoint a sole arbitrator to form such an arbitral tribunal, which
shall examine the case in a procedure it considers appropriate and
render an award in due course. The specific procedure and time
period for rendering the award shall not be subject to other
provisions of these Rules.
HKIAC
Article 13-General 13.8. Where the parties agree to pursue other means of settling their
Provisions dispute after the arbitration commences, HKIAC, the arbitral tribunal
or emergency arbitrator may, at the request of any party, suspend
the arbitration or Emergency Arbitrator Procedure, as applicable, on
such terms as it considers appropriate. The arbitration or Emergency
Arbitrator Procedure shall resume at the request of any party to
HKIAC, the arbitral tribunal or emergency arbitrator. See also HKIAC
Mediation Rules (effective 1 Aug. 1999).
ICC
Mediation Guidance Relationship between Mediation and Arbitration Proceedings:
Notes
28. Mediation under the Rules may take place either before
arbitration (or litigation) proceedings have been commenced, or in
the course of those proceedings.
29. Where mediation takes place in the course of arbitration
proceedings, it may be appropriate for the arbitration to be stayed
to allow time for conducting the mediation (such a stay or pause in
the proceedings is sometimes referred to as a mediation window).
This enables the parties to focus on the mediation without being
distracted by the need to take steps in the arbitration and incurring
the costs of those steps when a settlement may be imminent. In
other cases, the parties may prefer to conduct the mediation without
requiring a stay or pause in the arbitral proceedings.
30. The suggestion that mediation be used during the arbitration
proceedings may be made by one of the parties. Whether or not it is
helpful to build a mediation window into the timetable for the
arbitration proceedings—and, if so, when that window should occur—
is also a topic which may be discussed between the parties and the
arbitral tribunal at the first and subsequent case management
conferences provided for in Article 24 of the ICC Arbitration Rules.

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 31. Where mediation takes place before arbitration (or litigation)
proceedings have been commenced, the parties may agree that the
expiry of limitation or prescription periods during the mediation
process shall not prevent a party from initiating arbitration or
litigation proceedings in relation to the dispute. Applicable law may
also contain provisions to this effect, or may provide that limitation
periods will not expire whilst mediation proceedings are pending.
32. The ICC publishes various standard clauses referring to the ICC
Mediation Rules. 7 Clause D creates an obligation to refer a dispute
to the ICC Mediation Rules, followed by ICC arbitration if required.
When using Clause D, parties may wish to consider whether they do
or do not want to have access to the ICC Emergency Arbitrator
Provisions during the mediation process. Standard variations to
Clause D are provided in order to clarify the parties’ choice in this
respect.
33. As provided for in Article 9 of the Rules, unless otherwise agreed
by the parties or required by applicable law, the mediation (but not
the fact that it is taking place, has taken place or will take place) is
private and confidential. Consequently, as set out in Article 9(2) of
the Rules, documents, statements or communications which are
submitted by another party or by the mediator in or for the
mediation proceedings may not be produced as evidence in any
arbitration, litigation or similar proceedings, unless they can be
obtained independently by the party seeking to produce them in
those proceedings. The same applies to views expressed, suggestions
made regarding settlement, or any admissions made by another
party in the mediation.
34. In the course of an arbitration, the parties may agree that they
would like a sole arbitrator or a member of a tribunal (usually the
chairman) to assist the parties in negotiating a settlement of their
dispute by acting as a mediator. The parties may further agree that
if the mediation does not produce a settlement of all issues in
dispute in the arbitration, then the mediator may return to the role
of arbitrator and proceed to make or participate in the making of an
award in the arbitration. This practice is quite common in some
jurisdictions, but used rarely, if at all, in others. In those jurisdictions
where it is rarely used, a common concern is that if, while acting as
mediator, an arbitrator meets in private with one party without all
other parties present, or otherwise acquires information in
confidence from one party which is not shared with all other parties,
the rules of due process will not have been respected. A consequence
might be that the arbitrator is challenged, that a subsequent award
made by the

arbitrator is susceptible to being challenged or that its

enforceability is impaired. Because of the potential risks in some
jurisdictions, Article 10(3) allows a mediator to act as an arbitrator
in the same dispute only when all of the parties have consented
thereto in writing. In any event, parties and their advisers may wish
to consider the pros and cons of using an arbitrator as mediator,
and the steps that need to be taken to minimize the risk of
jeopardizing the arbitral process and the enforceability of any
award.
35 Where the parties agree terms of settlement through mediation
proceedings conducted in the course of arbitration proceedings, they
may be able to record the terms of settlement in a consent award
pursuant to Article 32 of the ICC Arbitration Rules. Such a consent
award may be of assistance where, for example, one or more parties
wishes to be able to enforce the settlement agreement as an arbitral
award.

ICDR
Article 5. Mediation Following the time for submission of an Answer, the Administrator
may invite the parties to mediate in accordance with the ICDR’s
International Mediation Rules. At any stage of the proceedings, the
parties may agree to mediate in accordance with the ICDR’s
International Mediation Rules. Unless the parties agree otherwise,
the mediation shall proceed concurrently with arbitration and the
mediator shall not be an arbitrator appointed to the case.
ICSID

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 Arbitration Rules. (2) At the request of the parties, a pre-hearing conference between
Rules 21. Pre- the Tribunal and the parties, duly represented by their authorized
hearing Conference representatives, may be held to consider the issues in dispute with a
view to reaching an amicable settlement.
LCIA
Not specifically addressed.
SCC
Not specifically addressed.
SIAC
Schedule 1. SIAC- 1. This AMA Protocol shall apply to all disputes submitted to the
SIMC Arb-Med-Arb Singapore International Arbitration Centre (“SIAC”) for resolution
Protocol (AMA under the Singapore Arb-Med-Arb Clause or other similar clause
Protocol) (“AMA Clause”) and/or any dispute which parties have agreed to
submit for resolution under this AMA Protocol. Under the AMA
Protocol, parties agree that any dispute settled in the course of the
mediation at the Singapore International Mediation Centre (“SIMC”)
shall fall within the scope of their arbitration agreement.
2. A party wishing to commence an arbitration under the AMA Clause
shall file with the Registrar of SIAC a notice of arbitration in
accordance with the arbitration rules applicable to the arbitration
proceedings (“Arbitration Rules”), which Arbitration Rules shall be
either: (i) the Arbitration Rules of the SIAC (as may be revised from
time to time); or (ii) the UNCITRAL Arbitration Rules (as may be
revised from time to time) where parties have agreed that SIAC shall
administer such arbitration.
3. The Registrar of SIAC will inform SIMC of the arbitration
commenced pursuant to an AMA Clause within 4 working days from
the commencement of the arbitration, or within 4 working days from
the agreement of the parties to refer their dispute to mediation
under the AMA Protocol. SIAC will send to SIMC a copy of the notice
of arbitration.
4. The Tribunal shall be constituted by SIAC in accordance with the
Arbitration Rules and/or the parties’ arbitration agreement.
5. The Tribunal shall, after the exchange of the Notice of Arbitration
and Response to the Notice of Arbitration, stay the arbitration and
inform the Registrar of SIAC that the case can be submitted for
mediation at SIMC. The Registrar of SIAC will send the case file with
all documents lodged by the parties to SIMC for mediation at SIMC.
Upon SIMC’s receipt of the case file, SIMC will inform the Registrar of
SIAC of the commencement of mediation at SIMC (the “Mediation
Commencement Date”) pursuant to the SIMC Mediation Rules. All
subsequent steps in the arbitration shall be stayed pending the
outcome of mediation at SIMC.
6. The mediation conducted under the auspices of SIMC shall be
completed within 8 weeks from the Mediation Commencement Date,
unless, the Registrar of SIAC in consultation with the SIMC extends
the time. For the purposes of calculating any time period in the
arbitration proceeding, the time period will stop running at the
Mediation Commencement Date and resume upon notification of the
Registrar of SIAC to the Tribunal of the termination of the mediation
proceeding.
7. At the termination of the 8-week period (unless the deadline is
extended by the Registrar of SIAC) or in the event the dispute cannot
be settled by mediation either partially or entirely at any time prior
to the expiration of the 8-week period, SIMC shall promptly inform
the Registrar of SIAC of the outcome of the mediation, if any.

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 8. In the event that the dispute has not been settled by mediation
either partially or entirely, the Registrar of SIAC will inform the
Tribunal that the arbitration proceeding shall resume. Upon the date
of the Registrar’s notification to the Tribunal, the arbitration
proceeding in respect of the dispute or remaining part of the dispute
(as the case may be) shall resume in accordance with the Arbitration
Rules.
9. In the event of a settlement of the dispute by mediation between
the parties, SIMC shall inform the Registrar of SIAC that a settlement
has been reached. If the parties request the Tribunal to record their
settlement in the form of a consent award, the parties or the
Registrar of the SIAC shall refer the settlement agreement to the
Tribunal and the Tribunal may render a consent award on the terms
agreed to by the parties.
Financial Matters
10. Parties shall pay a non-refundable case filing fee as set out in
Appendix B of the SIMC Mediation Rules to SIAC for all cases under
this AMA Protocol.
11. Where a case is commenced pursuant to the AMA Clause and
where parties have agreed to submit their dispute for resolution
under the AMA Protocol before the commencement of arbitration
proceedings, this filing fee is payable to SIAC upon the filing of the
notice of arbitration. Otherwise, the portion of the filing fee
remaining unpaid in respect of the mediation shall be payable to
SIAC upon the submission of the case for mediation at SIMC.
12. Parties shall also pay to SIAC, upon request, an advance on the
estimated costs of the arbitration (“Arbitration Advance”) as well as
administrative fees and expenses for the mediation (“Mediation
Advance”) in accordance with SIAC and SIMC’s respective Schedule
of Fees (collectively “the Deposits”). The quantum of the Deposits will
be determined by the Registrar of SIAC in consultation with SIMC.
13. Where a case is commenced pursuant to the AMA Clause and
where parties have agreed to submit their dispute for resolution
under the AMA Protocol before the commencement of arbitration
proceedings, the Mediation Advance shall be paid with the
Arbitration Advance requested by SIAC. Otherwise, the Mediation
Advance shall be paid upon the submission of the case for mediation
at SIMC.
14. Without prejudice to the Arbitration Rules, any party is free to
pay the Deposits of the other party, should the other party fail to
pay its share. The Registrar of SIAC shall inform SIMC if the Deposits
remain wholly or partially unpaid.
15. SIAC is authorised to make payment of the Mediation Advance to
SIMC from the Deposits or the Arbitration Advance held by SIAC
without further reference to the parties.

UNCITRAL
Not specifically addressed.

§10.03 CONSOLIDATION OF CLAIMS AND JOINDER OF PARTIES

Not every international arbitration entails a single set of claims between a single claimant
and respondent. Some cases involve multiple claims, contracts, and parties. New
provisions in most of the regimes under consideration provide for several claims and
parties to be brought together in one arbitration in the interest of economy and efficiency,
as well as to avoid inconsistent outcomes. First, at any time after the claimant has
submitted a request for arbitration, either party might be able to request that other
pending arbitrations under the same rules be consolidated into one proceeding.
Additionally, some of the regimes provide that if a claimant’s claims arise from multiple
contracts, the claimant may be able to consolidate those claims from the outset. Second,
at any time after the claimant has submitted a request for arbitration, either party or even
a nonparty may be able to request the joinder of that nonparty as an additional claimant
or respondent.

[A] Consolidation of Claims

All of the regimes under consideration except the ICSID and UNCITRAL Rules make express
provision for the consolidation of multiple arbitrations taking place under their rules (see
Table 10.3). (74) However, ICSID is considering adding rules for consolidation or
coordination of claims with the parties’ consent. (75) Under the CIETAC, HKIAC, ICC, and SCC

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 Rules, the decision of whether to consolidate arbitrations is made by the institution. (76)
Under the SIAC Rules, a request for consolidation prior to the constitution of the tribunal is
decided by the Registrar; a request after the constitution of the tribunal is decided by the
tribunal. (77) Under the LCIA Rules, the request is decided by the tribunal with the approval
of the LCIA Court. (78) Under the ICDR Rules, the Administrator appoints a special
consolidation arbitrator to make the decision. (79)
P 616 These regimes identify similar criteria for consolidation. First, multiple arbitrations might
P 617 be consolidated whenever they are governed by the same arbitration agreement. (80)
Second, multiple arbitrations under different arbitration agreements might be
consolidated when (i) the parties are the same; (ii) the disputes arise from the same legal
relationship (or transaction or series of transactions); and (iii) the applicable arbitration
agreements are compatible. (81) With respect to this basis for consolidation, the HKIAC
Rules add a fourth requirement: that there be a common issue of law or fact among the
several disputes. (82) The LCIA Rules omit the second requirement (that the disputes arise
from the same legal relationship). (83) By contrast, the CIETAC and SIAC Rules only require
compatible arbitration agreements, either embodied in a principal contract and ancillary
contracts or involving the same parties and legal relationship (or, under SIAC Rules, the
same transaction or series of transactions). (84) Third, in all events, consolidation might be
appropriate if all parties concerned agree to do so. (85) Thus, even where different
arbitration agreements, parties, and/or transactions are in play, the parties might agree
together to request to consolidate their arbitrations, for example, to decide common
issues of law or fact.
The ICDR, CIETAC, HKIAC, ICC, and SCC Rules give further guidance on the relevant
circumstances which may bear on the decision of whether to consolidate arbitrations.
These include, but are not limited to: same applicable law; (86) same arbitrators; (87) early
stage of the various arbitrations; (88) common issues of law or fact; (89) and whether
consolidation would serve the interests of justice and efficiency. (90) The LCIA and SIAC
Rules prohibit consolidation after more than one tribunal has been formed (unless the
arbitrators are the same or, under SIAC Rules, the request for consolidation is based on
party agreement). (91)
As to procedure, unless the parties otherwise agree, arbitrations must be consolidated into
the one which commenced first. (92) Under the ICDR and HKIAC Rules, a consolidation
P 617 arbitrator is appointed who selects some of the previously appointed arbitrators to hear
P 618 the consolidated proceedings and to dismiss the others; the parties are deemed to have
waived their right to appoint the new tribunal. (93) The SIAC Rules provide that in
consolidating an arbitration in which the tribunal has not yet been formed, the SIAC Court
may revoke any arbitrator appointments; thereafter SIAC’s standard rules for arbitrator
appointment apply for constituting the tribunal. (94) However, where consolidation occurs
after the constitution of the tribunal, the Court may revoke arbitrator appointments, and
any party who did not participate in the constitution of that tribunal is deemed to have
waived its right to participate in the constitution of the new tribunal. (95) The SCC Rules
simply provide that the Board may release any arbitrator already appointed. (96) The
HKIAC Rules acknowledge that the revocation of an arbitrator appointment is without
prejudice to the validity of any acts taken or orders issued by that arbitrator. (97) The SIAC
Rules clarify that any decision to consolidate arbitrations is without prejudice to the
tribunal’s power to rule on any question as to its jurisdiction arising from such decision.
(98) The ICDR Rules clarify that its consolidation arbitrator may stay any or all arbitration
pending his or her decision on a request for consolidation. (99)
In addition to providing for consolidation of multiple ongoing arbitrations, many regimes
provide for a party to bring claims under multiple contracts by filing a single request for
arbitration from the outset. The ICC Rules make such a provision without limitation. (100)
The HKIAC, SCC, and SIAC Rules reiterate essentially the same criteria for evaluating a
request for consolidation of multiple arbitrations to a request for arbitration under
multiple contracts, except that the HKIAC Rules do not require that all parties must be
bound by the relevant arbitration agreements, as of November 1, 2018. (101) The SIAC Rules
also provide that a claimant may file several requests for arbitration along with a request
for consolidation, or simply file a single request for arbitration which will be deemed to be
a request for consolidation. (102) The LCIA Rules refer to multiple transactions as the basis
P 618 for a single dispute, which has been taken to allow claims under different contracts to be
P 619 dealt with in a single arbitration. (103)
P 619
P 620 Table 10.3 Consolidation
ICDR
PP 620
622
623
624
625
626
621
627
PP 628
622
623
624
625
626
621
627

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 Article 8. 1. At the request of a party, the Administrator may appoint a
Consolidation consolidation arbitrator, who will have the power to consolidate two
or more arbitrations pending under these Rules, or these and other
arbitration rules administered by the AAA or ICDR, into a single
arbitration where:
(a) the parties have expressly agreed to consolidation; or
(b) all of the claims and counterclaims in the arbitrations are
made under the same arbitration agreement; or
(c) the claims, counterclaims, or setoffs in the arbitrations are
made under more than one arbitration agreement; the
arbitrations involve the same parties; the disputes in the
arbitrations arise in connection with the same legal
relationship; and the consolidation arbitrator finds the
arbitration agreements to be compatible.
2. A consolidation arbitrator shall be appointed as follows:
(a) The Administrator shall notify the parties in writing of its
intention to appoint a consolidation arbitrator and invite the
parties to agree upon a procedure for the appointment of a
consolidation arbitrator.
(b) If the parties have not within 15 days of such notice agreed
upon a procedure for appointment of a consolidation
arbitrator, the Administrator shall appoint the consolidation
arbitrator.
(c) Absent the agreement of all parties, the consolidation
arbitrator shall not be an arbitrator who is appointed to any
pending arbitration subject to potential consolidation under
this Article.
(d) The provisions of Articles 13-15 of these Rules shall apply to the
appointment of the consolidation arbitrator.
3. In deciding whether to consolidate, the consolidation arbitrator
shall consult the parties and may consult the arbitral tribunal(s)
and may take into account all relevant circumstances, including:
(a) applicable law;
(b) whether one or more arbitrators have been appointed in more
than one of the arbitrations and, if so, whether the same or
different persons have been appointed;
(c) the progress already made in the arbitrations;
(d) whether the arbitrations raise common issues of law and/or
facts; and
(e) whether the consolidation of the arbitrations would serve the
interests of justice and efficiency.

4. The consolidation arbitrator may order that any or all arbitrations

subject to potential consolidation be stayed pending a ruling on a
request for consolidation.
5. When arbitrations are consolidated, they shall be consolidated
into the arbitration that commenced first, unless otherwise agreed
by all parties or the consolidation arbitrator finds otherwise.
6. Where the consolidation arbitrator decides to consolidate an
arbitration with one or more other arbitrations, each party in those
arbitrations shall be deemed to have waived its right to appoint an
arbitrator. The consolidation arbitrator may revoke the appointment
of any arbitrators and may select one of the previously-appointed
tribunals to serve in the consolidated proceeding. The Administrator
shall, as necessary, complete the appointment of the tribunal in the
consolidated proceeding. Absent the agreement of all parties, the
consolidation arbitrator shall not be appointed in the consolidated
proceeding.
7. The decision as to consolidation, which need not include a
statement of reasons, shall be rendered within 15 days of the date
for final submissions on consolidation.

CIETAC

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 Article 19. 1. At the request of a party, CIETAC may consolidate two or more
Consolidation of arbitrations pending under these Rules into a single arbitration if:
Arbitrations
(a) all of the claims in the arbitrations are made under the same
arbitration agreement;
(b) the claims in the arbitrations are made under multiple
arbitration agreements that are identical or compatible and
the arbitrations involve the same parties as well as legal
relationships of the same nature;
(c) the claims in the arbitrations are made under multiple
arbitration agreements that are identical or compatible and
the multiple contracts involved consist of a principle contract
and its ancillary contract(s); or
(d) all the parties to the arbitrations have agreed to consolidation.
2. In deciding whether to consolidate the arbitrations in accordance
with the preceding Paragraph 1, CIETAC shall take into account the
opinions of all parties and other relevant factors such as the
correlation between the arbitrations concerned, including the
nomination and appointment of arbitrators in the separate
arbitrations.
3. Unless otherwise agreed by all the parties, the arbitrations shall
be consolidated into the arbitration that was first commenced.
4. After the consolidation of arbitrations, the conduct of the arbitral
proceedings shall be decided by the Arbitration Court if the arbitral
tribunal is not formed, or shall be decided by the arbitral tribunal if
it has been formed.

HKIAC

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 Article 28. 28.1. HKIAC shall have the power, at the request of a party (the
Consolidation of “Request for Consolidation”) and after consulting with the parties
Arbitrations and any confirmed arbitrators, to consolidate two or more
arbitrations pending under these Rules where:
(a) the parties agree to consolidate; or
(b) all of the claims in the arbitrations are made under the same
arbitration agreement; or
(c) the claims are made under more than one arbitration
agreement, a common question of law or fact arises in both or
all of the arbitrations, the rights to relief claimed are in respect
of, or arise out of, the same transaction or series of
transactions, and HKIAC finds the arbitration agreements to be
compatible.
28.2. Any party wishing to consolidate two or more arbitrations
pursuant to Article 28.1 shall communicate a Request for
Consolidation to HKIAC, all other parties and any confirmed or
appointed arbitrators.
28.3. The Request for Consolidation shall include the following:
(a) the case references of the arbitrations pending under the Rules
requested to be consolidated, where applicable;
(b) the names and addresses, facsimile numbers and/or email
addresses of each of the parties to the arbitrations, their
representatives and any arbitrators who have been confirmed
or appointed in the arbitrations;
(c) a request that the arbitrations be consolidated;
(d) a copy of the arbitration agreement giving rise to the
arbitrations;
(e) a copy of the contract(s) or other legal instrument(s) out of or
in relation to which the Request for Consolidation arises, or
reference thereto;
(f) a description of the general nature of the claim and an
indication of the amount involved, if any, in each of the
arbitrations;
(g) a statement of the facts supporting the Request for
Consolidation, including, where applicable, evidence of all
parties’ written consent to consolidate the arbitrations;
(h) the points at issue;
(i) the legal arguments supporting the Request for Consolidation;
(j) details of any applicable mandatory provision affecting
consolidation of arbitrations;
(k) comments on the constitution of the arbitral tribunal if the
Request for Consolidation is granted, including whether to
preserve the appointment of any arbitrators already
designated or confirmed; and

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 (l) confirmation that copies of the Request for Consolidation and
any supporting materials included with it have been or are
being communicated simultaneously to all other relevant
parties and any confirmed or appointed arbitrators, by one or
more means of service to be identified in such confirmation.
28.4. HKIAC may vary any of the requirements in Article 28.3 as it
deems appropriate.
28.5. Where the non-requesting parties or any confirmed or
appointed arbitrators are requested to provide comments on the
Request for Consolidation, such comments may include (without
limitation) the following particulars:
(a) comments on the particulars set forth in the Request for
Consolidation pursuant to Article 28.3(a) to (j);
(b) responses to the comments made in the Request for
Consolidation pursuant to Article 28.3(k); and
(c) confirmation that copies of the comments have been or are
being communicated simultaneously to all other relevant
parties and any confirmed or appointed arbitrators, by one or
more means of service to be identified in such confirmation.
28.6. Where HKIAC decides to consolidate two or more arbitrations,
the arbitrations shall be consolidated into the arbitration that
commenced first, unless all parties agree or HKIAC decides otherwise
taking into account the circumstances of the case. HKIAC shall
communicate such decision to all parties and to any confirmed or
appointed arbitrators in all arbitrations.
28.7 The consolidation of two or more arbitrations is without
prejudice to the validity of any act done or order made by a
competent authority in support of the relevant arbitration before it
was consolidated.
28.8 Where HKIAC decides to consolidate two or more arbitrations,
the parties to all such arbitrations shall be deemed to have waived
their right to designate an arbitrator, and HKIAC may revoke any
confirmation or appointment of an arbitrator. HKIAC shall appoint
the arbitral tribunal in respect of the consolidated proceedings with
or without regard to any party’s designation.
28.9. The revocation of the confirmation or appointment of an
arbitrator pursuant to Article 28.8 is without prejudice to:
(a) the validity of any act done or order made by that arbitrator
before his or her confirmation or appointment was revoked;
(b) his or her entitlement to be paid his or her fees and expenses
subject to Schedule 2 or 3 as applicable; and
(c) the date when any claim or defence was raised for the purpose
of applying any limitation bar or any similar rule or provision.
28.10. HKIAC may adjust its Administrative Fees and the arbitral
tribunal’s fees (where appropriate) after a Request for Consolidation
has been submitted.

Article 29. Single Claims arising out of or in connection with more than one contract
Arbitration under may be made in a single arbitration, provided that:
Multiple Contracts
(a) a common question of law or fact arises under each arbitration
agreement giving rise to the arbitration; and
(b) the rights to relief claimed are in respect of, or arise out of, the
same transaction or a series of related transactions; and
(c) the arbitration agreements under which those claims are made
are compatible.

ICC
Article 9. Multiple Subject to the provisions of Articles 6(3)–6(7) and 23(4), claims
Contracts arising out of or in connection with more than one contract may be
made in a single arbitration, irrespective of whether such claims are
made under one or more than one arbitration agreement under the
Rules.

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 Article 10. The Court may, at the request of a party, consolidate two or more
Consolidation of arbitrations pending under the Rules into a single arbitration, where:
Arbitrations
(a) the parties have agreed to consolidation; or
(b) all of the claims in the arbitrations are made under the same
arbitration agreement; or
(c) where the claims in the arbitrations are made under more than
one arbitration agreement, the arbitrations are between the
same parties, the disputes in the arbitrations arise in
connection with the same legal relationship, and the Court
finds the arbitration agreements to be compatible.
In deciding whether to consolidate, the Court may take into account
any circumstances it considers to be relevant, including whether one
or more arbitrators have been confirmed or appointed in more than
one of the arbitrations and, if so, whether the same or different
persons have been confirmed or appointed.
When arbitrations are consolidated, they shall be consolidated into
the arbitration that commenced first, unless otherwise agreed by all
parties.

ICSID
Not specifically addressed.
LCIA
Article 22. Additional 22.1. The Arbitral Tribunal shall have the power, upon the application
Powers of any party or (save for sub-paragraphs (viii), (ix) and (x) below)
upon its own initiative, but in either case only after giving the parties
a reasonable opportunity to state their views and upon such terms
(as to costs and otherwise) as the Arbitral Tribunal may decide:
[…]
(ix) to order, with the approval of the LCIA Court, the consolidation
of the arbitration with one or more other arbitrations into a
single arbitration subject to the LCIA Rules where all the
parties to the arbitrations to be consolidated so agree in
writing;
(x) to order, with the approval of the LCIA Court, the consolidation
of the arbitration with one or more other arbitrations subject
to the LCIA Rules commenced under the same arbitration
agreement or any compatible arbitration agreement(s)
between the same disputing parties, provided that no arbitral
tribunal has yet been formed by the LCIA Court for such other
arbitration(s) or, if already formed, that such tribunal(s) is (are)
composed of the same arbitrators; […]

SCC
Article 14. Multiple 1. Parties may make claims arising out of or in connection with more
Contracts in a Single than one contract in a single arbitration.
Arbitration
2. If any party raises any objections as to whether all of the claims
made against it may be determined in a single arbitration, the
claims may proceed in a single arbitration provided that the SCC
does not manifestly lack jurisdiction over the dispute between the
parties pursuant to Article 12 (i).
3. In deciding whether the claims shall proceed in a single
arbitration, the Board shall consult with the parties and shall have
regard to:
(i) whether the arbitration agreements under which the claims are
made are compatible;
(ii) whether the relief sought arises out of the same transaction or
series of transactions;
(iii) the efficiency and expeditiousness of the proceedings; and
(iv) any other relevant circumstances.
4. In all cases where the Board decides that the claims may proceed
in a single arbitration, any decision as to the Arbitral Tribunal’s
jurisdiction over the claims shall be made by the Arbitral Tribunal.

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 Article 15. 1. At the request of a party the Board may decide to consolidate a
Consolidation of newly commenced arbitration with a pending arbitration, if:
Arbitrations
(i) the parties agree to consolidate;
(ii) all the claims are made under the same arbitration agreement;
or
(iii) where the claims are made under more than one arbitration
agreement, the relief sought arises out of the same transaction
or series of transactions and the Board considers the
arbitration agreements to be compatible.
2. In deciding whether to consolidate, the Board shall consult with
the parties and the Arbitral Tribunal and may have regard to:
(i) the stage of the pending arbitration;
(ii) the efficiency and expeditiousness of the proceedings; and
(iii) any other relevant circumstances.
3. Where the Board decides to consolidate, the Board may release
any arbitrator already appointed.

SIAC
Rule 6. Multiple 6.1. Where there are disputes arising out of or in connection with
Contracts more than one contract, the Claimant may:
(a) file a Notice of Arbitration in respect of each arbitration
agreement invoked and concurrently submit an application to
consolidate the arbitrations pursuant to Rule 8.1; or
(b) file a single Notice of Arbitration in respect of all the
arbitration agreements invoked which shall include a
statement identifying each contract and arbitration agreement
invoked and a description of how the applicable criteria under
Rule 8.1 are satisfied. The Claimant shall be deemed to have
commenced multiple arbitrations, one in respect of each
arbitration agreement invoked, and the Notice of Arbitration
under this Rule 6.1(b) shall be deemed to be an application to
consolidate all such arbitrations pursuant to Rule 8.1.
6.2. Where the Claimant has filed two or more Notices of Arbitration
pursuant to Rule 6.1(a), the Registrar shall accept payment of a
single filing fee under these Rules for all the arbitrations sought to
be consolidated. Where the Court rejects the application for
consolidation, in whole or in part, the Claimant shall be required to
make payment of the requisite filing fee under these Rules in respect
of each arbitration that has not been consolidated.

6.3. Where the Claimant has filed a single Notice of Arbitration

pursuant to Rule 6.1(b) and the Court rejects the application for
consolidation, in whole or in part, it shall file a Notice of Arbitration
in respect of each arbitration that has not been consolidated, and
the Claimant shall be required to make payment of the requisite
filing fee under these Rules in respect of each arbitration that has
not been consolidated.

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 Rule 8. 8.1. Prior to the constitution of any Tribunal in the arbitrations
Consolidation sought to be consolidated, a party may file an application with the
Registrar to consolidate two or more arbitrations pending under
these Rules into a single arbitration, provided that any of the
following criteria is satisfied in respect of the arbitrations to be
consolidated:
(a) all parties have agreed to the consolidation;
(b) all the claims in the arbitrations are made under the same
arbitration agreement; or
(c) the arbitration agreements are compatible, and: (i) the
disputes arise out of the same legal relationship(s); (ii) the
disputes arise out of contracts consisting of a principal
contract and its ancillary contract(s); or (iii) the disputes arise
out of the same transaction or series of transactions.
8.2. An application for consolidation under Rule 8.1 shall include:
(a) the case reference numbers of the arbitrations sought to be
consolidated;
(b) the names, addresses, telephone numbers, facsimile numbers
and electronic mail addresses, if known, of all parties and their
representatives, if any, and any arbitrators who have been
nominated or appointed in the arbitrations sought to be
consolidated;
(c) the information specified in Rule 3.1(c) and Rule 3.1(d);
(d) if the application is being made under Rule 8.1(a),
identification of the relevant agreement and, where possible, a
copy of such agreement; and
(e) a brief statement of the facts and legal basis supporting the
application.
8.3. The party applying for consolidation under Rule 8.1 shall, at the
same time as it files an application for consolidation with the
Registrar, send a copy of the application to all parties and shall
notify the Registrar that it has done so, specifying the mode of
service employed and the date of service.

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 8.4. The Court shall, after considering the views of all parties, and
having regard to the circumstances of the case, decide whether to
grant, in whole or in part, any application for consolidation under
Rule 8.1. The Court’s decision to grant an application for
consolidation under this Rule 8.4 is without prejudice to the
Tribunal’s power to subsequently decide any question as to its
jurisdiction arising from such decision. The Court’s decision to reject
an application for consolidation under this Rule 8.4, in whole or in
part, is without prejudice to any party’s right to apply to the Tribunal
for consolidation pursuant to Rule 8.7. Any arbitrations that are not
consolidated shall continue as separate arbitrations under these
Rules.
8.5. Where the Court decides to consolidate two or more arbitrations
under Rule 8.4, the arbitrations shall be consolidated into the
arbitration that is deemed by the Registrar to have commenced first,
unless otherwise agreed by all parties or the Court decides otherwise
having regard to the circumstances of the case.
8.6. Where an application for consolidation is granted under Rule
8.4, the Court may revoke the appointment of any arbitrators
appointed prior to the decision on consolidation. Unless otherwise
agreed by all parties, Rule 9 to Rule 12 shall apply as appropriate,
and the respective timelines thereunder shall run from the date of
receipt of the Court’s decision under Rule 8.4.
8.7. After the constitution of any Tribunal in the arbitrations sought
to be consolidated, a party may apply to the Tribunal to consolidate
two or more arbitrations pending under these Rules into a single
arbitration, provided that any of the following criteria is satisfied in
respect of the arbitrations to be consolidated:
(a) all parties have agreed to the consolidation;
(b) all the claims in the arbitrations are made under the same
arbitration agreement, and the same Tribunal has been constituted
in each of the arbitrations or no Tribunal has been constituted in the
other arbitration(s); or
(c) the arbitration agreements are compatible, the same Tribunal
has been constituted in each of the arbitrations or no Tribunal has
been constituted in the other arbitration(s), and: (i) the disputes arise
out of the same legal relationship(s); (ii) the disputes arise out of
contracts consisting of a principal contract and its ancillary
contract(s); or (iii) the disputes arise out of the same transaction or
series of transactions.
8.8. Subject to any specific directions of the Tribunal, the provisions
of Rule 8.2 shall apply, mutatis mutandis, to an application for
consolidation under Rule 8.7.

8.9. The Tribunal shall, after giving all parties the opportunity to be
heard, and having regard to the circumstances of the case, decide
whether to grant, in whole or in part, any application for
consolidation under Rule 8.7. The Tribunal’s decision to grant an
application for consolidation under this Rule 8.9 is without prejudice
to its power to subsequently decide any question as to its jurisdiction
arising from such decision. Any arbitrations that are not
consolidated shall continue as separate arbitrations under these
Rules.
8.10. Where an application for consolidation is granted under Rule
8.9, the Court may revoke the appointment of any arbitrators
appointed prior to the decision on consolidation.
8.11. The Court’s decision to revoke the appointment of any
arbitrator under Rule 8.6 or Rule 8.10 is without prejudice to the
validity of any act done or order or Award made by the arbitrator
before his appointment was revoked.
8.12. Where an application for consolidation is granted under Rule
8.4 or Rule 8.9, any party who has not nominated an arbitrator or
otherwise participated in the constitution of the Tribunal shall be
deemed to have waived its right to nominate an arbitrator or
otherwise participate in the constitution of the Tribunal, without
prejudice to the right of such party to challenge an arbitrator
pursuant to Rule 14.

UNCITRAL

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 Not specifically addressed.

[B] Joinder of Parties

After an arbitration has begun, a claimant or respondent may wish to join another
respondent who may also be liable for the claimant’s damages. Or, a claimant may wish to
join forces and share costs with another claimant against the respondent in the same
dispute, or the respondent may wish to join an additional claimant to prevent it from
bringing separate proceedings in connection with the same dispute. Lastly, a third party
may wish to join the arbitration, again to team up with the claimant, or for a single
determination of its share of liability along with the respondent. The ICDR, HKIAC, ICC, LCIA,
SCC, SIAC, and UNCITRAL Rules expressly permit a party to request the joinder of
additional parties after the arbitration has commenced. (104) The HKIAC and SIAC Rules—
the most developed regimes on this subject—additionally and expressly permit a nonparty
to request to be joined in the arbitration. (105) The relevant rules are reproduced at Table
10.4.
P 628
P 629
Each of these regimes, except the ICSID Rules, provide for the requesting party to submit
an application for joinder to the institution for decision prior to the constitution of the
tribunal. (106) However, some of the regimes include a cutoff for such applications. The
ICDR and ICC Rules do not permit joinder after the appointment of any arbitrator, unless
all parties agree. (107) The SCC Rules do not permit joinder after the respondent has
submitted its Answer, unless the SCC Board of Directors decides otherwise. (108) Only the
HKIAC, SIAC, and UNCITRAL Rules permit an application for joinder to be submitted after
the constitution of the arbitral tribunal. (109)
The party, or nonparty, typically must submit an application for joinder containing
substantially the same information and fulfilling the same notice requirements as a
request for arbitration. (110) Consequently, the date on which the application is received
by the institution (or tribunal) is deemed to be the date of commencement of the
arbitration with respect to the additional party. (111) If the request is made by a party
seeking to join a nonparty, the nonparty is then required to submit an answer to the
application; however, the SIAC and UNCITRAL Rules dispense with this formality, instead
requiring the SIAC Court to consider the nonparty’s “views” or the tribunal to give the
nonparty an “opportunity to be heard.” (112) If the request is made by a nonparty, then the
parties to the arbitration must submit their comments on the request. (113) Even if not
required, as a matter of good practice, the nonrequesting party or parties should submit
their observations following the criteria for an Answer, as under the other regimes.
The only universal criterion for evaluating a request for joinder is that the additional party
be bound by a relevant arbitration agreement. (114) Under the HKIAC and SIAC Rules, an
application will be rejected by the institution or tribunal if it is not satisfied prima facie
that the party to be joined is bound by the arbitration agreement. (115) The SCC Rules
P 629 mandate that the institution reject the application upon finding a manifest lack of
P 630 jurisdiction. (116) The LCIA and SIAC Rules provide, in the alternative, that joinder may
be permitted if the parties consent. (117) The UNCITRAL Rules additionally require the
tribunal to consider any prejudice to any of the parties resulting from joinder in deciding
the request. (118) Any initial decision in favor of joinder is, of course, without prejudice to
the tribunal’s power to rule on its jurisdiction over the additional party. (119)
A complication may arise concerning the appointment of the tribunal upon the joinder of a
new party. Under the HKIAC, SCC, and SIAC Rules, if an additional party is joined prior to
confirmation of the tribunal, then the institution may revoke any arbitrator appointments
and appoint the tribunal. (120) Consequently, a party will have to consider whether it is
willing to sacrifice any arbitrator appointment that may have been made in favor of joining
the additional party.
In the event that an arbitration concerns multiple parties—whether from the outset,
through naming additional counterparties, or through consolidation—some of the arbitral
regimes make special provision for all parties to make claims and counterclaims vis-à-vis
any other party. The ICDR and ICC Rules expressly provide that in arbitrations with
multiple parties, including a party that has been joined after commencement of the
proceedings, any party may make claims, counterclaims, or assert setoffs against any other
party. (121) The other regimes do not make such an express provision, but neither do they
prohibit any party from making a claim against any other party.
P 630
P 631 Table 10.4 Joinder of Parties
AAA-ICDR
P 636
632
633
634
635
631 Article 3. Answer and 7. In arbitrations with multiple parties, Respondent may make
637
PP 638
632
633
634
635
636
637 Counterclaim claims or assert setoffs against another Respondent and Claimant
may make claims or assert setoffs against another Claimant in
accordance with the provisions of this Article 3.

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 Article 7. Joinder 1. A party wishing to join an additional party to the arbitration shall
submit to the Administrator a Notice of Arbitration against the
additional party. No additional party may be joined after the
appointment of any arbitrator, unless all parties, including the
additional party, otherwise agree. The party wishing to join the
additional party shall, at that same time, submit the Notice of
Arbitration to the additional party and all other parties. The date on
which such Notice of Arbitration is received by the Administrator
shall be deemed to be the date of the commencement of arbitration
against the additional party. Any joinder shall be subject to the
provisions of Articles 12 and 19.
2. The request for joinder shall contain the same information
required of a Notice of Arbitration under Article 2(3) and shall be
accompanied by the appropriate filing fee.
3. The additional party shall submit an Answer in accordance with
the provisions of Article 3.
4. The additional party may make claims, counterclaims, or assert
setoffs against any other party in accordance with the provisions of
Article 3.

Article 12. 5. If there are more than two parties to the arbitration, the
Appointment of Administrator may appoint all arbitrators unless the parties have
Arbitrators agreed otherwise no later than 45 days after the commencement of
the arbitration.
CIETAC
Not specifically addressed.
HKIAC
Article 27. Joinder of 27.1. The arbitral tribunal or, where the arbitral tribunal is not yet
Additional Parties constituted, HKIAC shall have the power to allow an additional party
to be joined to the arbitration provided that:
(a) prima facie, the additional party is bound by an arbitration
agreement under these Rules giving rise to the arbitration,
including any arbitration under Article 28 or 29; or
(b) all parties, including the additional party, expressly agree.
27.2. Any decision pursuant to Article 27.1 is without prejudice to the
arbitral tribunal’s power to decide any question as to its jurisdiction
arising from such decision.
27.3. Any Request for Joinder shall be raised no later than in the
Statement of Defence, except in exceptional circumstances.
27.4. Before the arbitral tribunal is constituted, a party wishing to
join an additional party to the arbitration shall communicate a
Request for Joinder to HKIAC, all other parties and any confirmed or
appointed arbitrators.
27.5. After the arbitral tribunal is constituted, a party wishing to join
an additional party to the arbitration shall communicate a Request
for Joinder to the arbitral tribunal, HKIAC and all other parties.

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 27.6. The Request for Joinder shall include the following:
(a) the case reference of the existing arbitration;
(b) the names and addresses, facsimile numbers and/or email
addresses, if known, of each of the parties, including the
additional party, their representatives and any arbitrators who
have been confirmed or appointed in the arbitration;
(c) a request that the additional party be joined to the arbitration;
(d) a copy of the contract(s) or other legal instrument(s) out of or
in relation to which the request arises, or reference thereto;
(e) a statement of the facts supporting the request;
(f) the points at issue;
(g) the legal arguments supporting the request;
(h) any relief or remedy sought;
(i) the existence of any funding agreement and the identity of any
third party funder pursuant to Article 44; and
(j) confirmation that copies of the Request for Joinder and any
supporting materials included with it have been or are being
communicated simultaneously to all other parties and any
confirmed or appointed arbitrators, by one or more means of
service to be identified in such confirmation.
27.7. Within 15 days of receiving the Request for Joinder, the
additional party shall communicate an Answer to the Request for
Joinder to HKIAC, all other parties and any confirmed or appointed
arbitrators. The Answer to the Request for Joinder shall include the
following:
(a) the name, address, facsimile number and/or email address of
the additional party and its representatives (if different from
the description contained in the Request for Joinder);
(b) any plea that the arbitral tribunal has been improperly
constituted and/or lacks jurisdiction over the additional party;
(c) the additional party’s comments on the particulars set forth in
the Request for Joinder pursuant to Article 27.6(a) to (g);
(d) the additional party’s answer to any relief or remedy sought in
the Request for Joinder, pursuant to Article 27.6(h);
(e) details of any claims by the additional party against any other
party to the arbitration;
(f) the existence of any funding agreement entered into by the
additional party and the identity of any third party funder
pursuant to Article 44; and
(g) confirmation that copies of the Answer to the Request for
Joinder and any supporting materials included with it have
been or are being communicated simultaneously to all other
parties and any confirmed or appointed arbitrators, by one or
more means of service to be identified in such confirmation.

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 27.8. HKIAC or the arbitral tribunal may vary any of the requirements
in Article 27.6 and 27.7 as it deems appropriate.
27.9. An additional party wishing to be joined to the arbitration shall
communicate a Request for Joinder to HKIAC, all other parties and
any confirmed or appointed arbitrators. The provisions of Article 27.6
shall apply to such Request for Joinder.
27.10. Within 15 days of receiving a Request for Joinder, the parties
shall communicate their comments on the Request for Joinder to
HKIAC, all other parties and any confirmed or appointed arbitrators.
Such comments may include (without limitation):
(a) any plea that the arbitral tribunal lacks jurisdiction over the
additional party;
(b) comments on the particulars set forth in the Request for
Joinder, pursuant to Article 27.6(a) to (g);
(c) answer to any relief or remedy sought in the Request for
Joinder pursuant to Article 27.6(h);
(d) details of any claims against the additional party; and
(e) confirmation that copies of the comments have been or are
being communicated simultaneously to all other parties and
any confirmed or appointed arbitrators, by one or more means
of service to be identified in such confirmation.
27.11. Where an additional party is joined to the arbitration, the
arbitration against that additional party shall be deemed to
commence on the date on which HKIAC or the arbitral tribunal once
constituted, received the Request for Joinder.
27.12. Where an additional party is joined to the arbitration, all
parties to the arbitration shall be deemed to have waived their right
to designate an arbitrator.
27.13. Where an additional party is joined to the arbitration before
the arbitral tribunal is constituted, HKIAC may revoke any
confirmation or appointment of an arbitrator, and shall appoint the
arbitral tribunal with or without regard to any party’s designation.
27.14. The revocation of the confirmation or appointment of an
arbitrator pursuant to Article 27.13 is without prejudice to:
(a) the validity of any act done or order made by that arbitrator
before his or her confirmation or appointment was revoked;
(b) his or her entitlement to be paid his or her fees and expenses
subject to Schedule 2 or 3 as applicable; and
(c) the date when any claim or defence was raised for the purpose
of applying any limitation bar or any similar rule or provision.
27.15. HKIAC may adjust its Administrative Fees and the arbitral
tribunal’s fees (where appropriate) after a Request for Joinder has
been submitted.

ICC

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 Article 7. Joinder of 1. A party wishing to join an additional party to the arbitration shall
Parties submit its request for arbitration against the additional party (the
“Request for Joinder”) to the Secretariat. The date on which the
Request for Joinder is received by the Secretariat shall, for all
purposes, be deemed to be the date of the commencement of
arbitration against the additional party. Any such joinder shall be
subject to the provisions of Articles 6(3)–6(7) and 9. No additional
party may be joined after the confirmation or appointment of any
arbitrator, unless all parties, including the additional party,
otherwise agree. The Secretariat may fix a time limit for the
submission of a Request for Joinder.
2. The Request for Joinder shall contain the following information:
(a) the case reference of the existing arbitration;
(b) the name in full, description, address and other contact details
of each of the parties, including the additional party; and
(c) the information specified in Article 4(3) subparagraphs c), d), e)
and f).
The party filing the Request for Joinder may submit therewith such
other documents or information as it considers appropriate or as
may contribute to the efficient resolution of the dispute.
3. The provisions of Articles 4(4) and 4(5) shall apply, mutatis
mutandis, to the Request for Joinder.
4. The additional party shall submit an Answer in accordance,
mutatis mutandis, with the provisions of Articles 5(1)–5(4). The
additional party may make claims against any other party in
accordance with the provisions of Article 8.

Article 8. Claims 1. In an arbitration with multiple parties, claims may be made by

Between Multiple any party against any other party, subject to the provisions of
Parties Articles 6(3)–6(7) and 9 and provided that no new claims may be
made after the Terms of Reference are signed or approved by the
Court without the authorization of the arbitral tribunal pursuant to
Article 23(4).
2. Any party making a claim pursuant to Article 8(1) shall provide
the information specified in Article 4(3) subparagraphs c), d), e) and
f).
3. Before the Secretariat transmits the file to the arbitral tribunal in
accordance with Article 16, the following provisions shall apply,
mutatis mutandis, to any claim made: Article 4(4) subparagraph a);
Article 4(5); Article 5(1) except for subparagraphs a), b), e) and f);
Article 5(2); Article 5(3) and Article 5(4). Thereafter, the arbitral
tribunal shall determine the procedure for making a claim.

ICSID
Not specifically addressed.
LCIA
Article 22. Additional 22.1. The Arbitral Tribunal shall have the power, upon the application
Powers of any party or (save for sub-paragraphs (viii), (ix) and (x) below)
upon its own initiative, but in either case only after giving the parties
a reasonable opportunity to state their views and upon such terms
(as to costs and otherwise) as the Arbitral Tribunal may decide:
[…]
(viii) to allow one or more third persons to be joined in the
arbitration as a party provided any such third person and the
applicant party have consented thereto in writing, and thereafter to
make a single final award, or separate awards, in respect of all
parties so implicated in the arbitration;
[…]

SCC

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 Article 13. Joinder of (1) A party to the arbitration may request that the Board join one or
Additional Parties more additional parties to the arbitration.
(2) The Request for Joinder shall be made as early as possible. A
Request for Joinder made after the submission of the Answer will not
be considered, unless the Board decides otherwise. Articles 6 and 7
shall apply mutatis mutandis to the Request for Joinder.
(3) Arbitration against the additional party shall be deemed to
commence on the date the SCC receives the Request for Joinder.
(4) The Secretariat shall set a time period within which the additional
party shall submit an Answer to the Request for Joinder. Article 9
shall apply mutatis mutandis to the Answer to the Request for
Joinder.
(5) The Board may decide to join one or more additional parties
provided that the SCC does not manifestly lack jurisdiction over the
dispute between the parties, including any additional party
requested to be joined to the arbitration, pursuant to Article 12 (i).
(6) In deciding whether to grant the Request for Joinder where claims
are made under more than one arbitration agreement, the Board
shall consult with the parties and shall have regard to Article 14 (3)
(i)-(iv).
(7) In all cases where the Board decides to grant the Request for
Joinder any decision as to the Arbitral Tribunal’s jurisdiction over any
party joined to the arbitration shall be made by the Arbitral
Tribunal.
(8) Where the Board decides to grant the Request for Joinder and the
additional party does not agree to any arbitrator already appointed,
the Board may release the arbitrators and appoint the entire Arbitral
Tribunal, unless all parties, including the additional party, agree on
a different procedure for the appointment of the Arbitral Tribunal.

SIAC

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 Rule 7: Joinder of 7.1. Prior to the constitution of the Tribunal, a party or non-party to
Additional Parties the arbitration may file an application with the Registrar for one or
more additional parties to be joined in an arbitration pending under
these Rules as a Claimant or a Respondent, provided that any of the
following criteria is satisfied:
(a) the additional party to be joined is prima facie bound by the
arbitration agreement; or
(b) all parties, including the additional party to be joined, have
consented to the joinder of the additional party.
7.2. An application for joinder under Rule 7.1 shall include:
(a) the case reference number of the pending arbitration;
(b) the names, addresses, telephone numbers, facsimile numbers
and electronic mail addresses, if known, of all parties,
including the additional party to be joined, and their
representatives, if any, and any arbitrators who have been
nominated or appointed in the pending arbitration;
(c) whether the additional party is to be joined as a Claimant or a
Respondent;
(d) the information specified in Rule 3.1(c) and Rule 3.1(d);
(e) if the application is being made under Rule 7.1(b), identification
of the relevant agreement and, where possible, a copy of such
agreement; and
(f) a brief statement of the facts and legal basis supporting the
application.
The application for joinder is deemed to be complete when all the
requirements of this Rule 7.2 are fulfilled or when the Registrar
determines that there has been substantial compliance with such
requirements. SIAC shall notify all parties, including the additional
party to be joined, when the application for joinder is complete.
7.3. The party or non-party applying for joinder under Rule 7.1 shall,
at the same time as it files an application for joinder with the
Registrar, send a copy of the application to all parties, including the
additional party to be joined, and shall notify the Registrar that it
has done so, specifying the mode of service employed and the date
of service.

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 7.4. The Court shall, after considering the views of all parties,
including the additional party to be joined, and having regard to the
circumstances of the case, decide whether to grant, in whole or in
part, any application for joinder under Rule 7.1. The Court’s decision
to grant an application for joinder under this Rule 7.4 is without
prejudice to the Tribunal’s power to subsequently decide any
question as to its jurisdiction arising from such decision. The Court’s
decision to reject an application for joinder under this Rule 7.4, in
whole or in part, is without prejudice to any party’s or non-party’s
right to apply to the Tribunal for joinder pursuant to Rule 7.8.
7.5. Where an application for joinder is granted under Rule 7.4, the
date of receipt of the complete application for joinder shall be
deemed to be the date of commencement of the arbitration in
respect of the additional party.
7.6. Where an application for joinder is granted under Rule 7.4, the
Court may revoke the appointment of any arbitrators appointed
prior to the decision on joinder. Unless otherwise agreed by all
parties, including the additional party joined, Rule 9 to Rule 12 shall
apply as appropriate, and the respective timelines thereunder shall
run from the date of receipt of the Court’s decision under Rule 7.4.
7.7. The Court’s decision to revoke the appointment of any arbitrator
under Rule 7.6 is without prejudice to the validity of any act done or
order or Award made by the arbitrator before his appointment was
revoked.
7.8. After the constitution of the Tribunal, a party or non-party to the
arbitration may apply to the Tribunal for one or more additional
parties to be joined in an arbitration pending under these Rules as a
Claimant or a Respondent, provided that any of the following
criteria is satisfied:
(a) the additional party to be joined is prima facie bound by the
arbitration agreement; or
(b) all parties, including the additional party to be joined, have
consented to the joinder of the additional party.
Where appropriate, an application to the Tribunal under this Rule 7.8
may be filed with the Registrar.
7.9. Subject to any specific directions of the Tribunal, the provisions
of Rule 7.2 shall apply, mutatis mutandis, to an application for
joinder under Rule 7.8.
7.10. The Tribunal shall, after giving all parties, including the
additional party to be joined, the opportunity to be heard, and
having regard to the circumstances of the case, decide whether to
grant, in whole or in part, any application for joinder under Rule 7.8.
The Tribunal’s decision to grant an application for joinder under this
Rule 7.10 is without prejudice to its power to subsequently decide
any question as to its jurisdiction arising from such decision.

7.11. Where an application for joinder is granted under Rule 7.10, the
date of receipt by the Tribunal or the Registrar, as the case may be,
of the complete application for joinder shall be deemed to be the
date of commencement of the arbitration in respect of the
additional party.
7.12. Where an application for joinder is granted under Rule 7.4 or
Rule 7.10, any party who has not nominated an arbitrator or
otherwise participated in the constitution of the Tribunal shall be
deemed to have waived its right to nominate an arbitrator or
otherwise participate in the constitution of the Tribunal, without
prejudice to the right of such party to challenge an arbitrator
pursuant to Rule 14.
7.13. Where an application for joinder is granted under Rule 7.4 or
Rule 7.10, the requisite filing fee under these Rules shall be payable
for any additional claims or counterclaims.

UNCITRAL

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 Article 17. General 17.5. The arbitral tribunal may, at the request of any party, allow one
Provisions or more third persons to be joined in the arbitration as a party
provided such person is a party to the arbitration agreement, unless
the arbitral tribunal finds, after giving all parties, including the
person or persons to be joined, the opportunity to be heard, that
joinder should not be permitted because of prejudice to any of those
parties. The arbitral tribunal may make a single award or several
awards in respect of all parties so involved in the arbitration.

§10.04 INTERIM MEASURES OF PROTECTION

In some cases, a party faces a substantial risk that the other party will dispose of assets,
destroy evidence, or engage in other conduct that would undermine the arbitration. In
other cases, it is simply necessary to preserve the status quo for the claim to be properly
heard (e.g., the breach of a particular contract may be adequately compensable through
monetary damages). To address such circumstances, all of the arbitral regimes under
consideration empower the tribunal, at the request of a party, to order urgent and
appropriate interim measures of protection. (122) The ICSID Rules additionally permit the
tribunal to order interim measures sua sponte. (123) In this section we look at (i) the types
of interim measures a tribunal may order; (ii) the criteria for evaluating a request for
interim measures; (iii) the requirement of the requesting party to post a security or
otherwise cover the other party’s costs of compliance with the order; and (iv) the ability of
parties to arbitration proceedings to seek interim measures from a court. The relevant
rules are collected in Table 10.5.
P 638
P 639
Nearly all of the regimes under consideration permit the tribunal to order any interim
measures of protection that it deems appropriate. (124) The ICDR Rules further define “any”
interim measures as generally including injunctions and measures for the protection or
conservation of property. (125) The HKIAC and UNCITRAL Rules define interim measures
through a more specific, nonexhaustive list of orders for a party to: maintain the status quo
pending resolution of the dispute; take action to prevent or refrain from taking action that
is likely to cause imminent harm to a party or prejudice to the arbitral proceedings;
preserve assets out of which an eventual award may be satisfied; or preserve evidence that
may be relevant and material to the arbitration. (126) The LCIA Rules do not authorize any
and all measures that the tribunal deems appropriate, but instead provide an exhaustive
list of orders for a party to: provide a security for part or all of the amount in dispute;
preserve, store, sell, or otherwise dispose of any documents, goods, samples, property,
site, or thing under that party’s control and relating to the subject matter of the
arbitration; or take any other action that the tribunal could order in a final award, such as
the payment of money or the disposition of property. (127)
The ICSID Rules indicate specific pleading requirements for a party’s application for
interim measures. The application must specify the rights to be preserved, the measures
requested, and the circumstances that require such measures. (128) The circumstances that
require such measures may be informed by the factors that a tribunal typically considers
in deciding a party’s request for an order of interim measures. However, only the HKIAC and
UNCITRAL Rules specifically indicate such factors. These include likely irreparable harm to
the requesting party which outweighs the burden on the other party of complying with the
order, as well as a reasonable possibility that the requesting party will succeed on the
merits of his or her claim. (129) Some of the regimes expressly acknowledge the power of
the tribunal to modify or terminate its order should the circumstances evolve so as to
eliminate such factors. (130)
As a general matter, the party against whom an interim measure is sought must be given
notice of the application and an opportunity to be heard prior to the issuance of any order.
However, if there is a concern that, upon notification of the application for an order against
P 639 it, that party may act to frustrate the eventual order or award, then the applicant may
P 640 make the application ex parte, subject to any contrary provision in the arbitration
agreement, the arbitration rules, and the lex loci arbitri. (131) In that case, the party against
whom the order is sought will be given notice of the order after it is issued, as well as an
opportunity to be heard as soon thereafter as practicable. (132) Only the ICSID and LCIA
Rules expressly contemplate that the tribunal may issue an order for interim measures of
protection only after giving the party against whom the order is sought notice and an
opportunity to respond. (133) The other regimes make no such express requirement and
would therefore seem to admit ex parte applications for interim measures in appropriate
circumstances.
All of the regimes under consideration except ICSID expressly empower the tribunal to
require the requesting party to provide security for the costs associated with the other
party’s compliance with the measure. (134) The reasoning behind this rule is best
explained through an illustration. A claimant might seek an interim order enjoining the
respondent from selling certain goods to be sure that the respondent can satisfy an
eventual award against it. The respondent will incur an estimated cost of USD 100,000 to
store the goods for the duration of the arbitration. The tribunal issues the order but first
requires the claimant to post a security of USD 100,000. The tribunal later determines in its

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 award that the respondent prevails on the merits. The respondent is then entitled to
collect the security posted by the claimant to cover the cost of complying with the order.
Another method of compensating the respondent in the scenario above is through the
tribunal’s power to award costs. The ICDR, HKIAC, and UNCITRAL Rules expressly permit the
tribunal to award costs and any damages associated with a party’s compliance with an
interim measure in the final award or at any point during the arbitration, if it is
determined that the order should not have been issued. (135)
As to the form of the interim measure, most of the rules provide that the arbitral tribunal
can issue either a procedural order or an interim award. (136) If the party seeking the
measure anticipates that judicial assistance will be required to enforce the measure,
counsel should check the arbitration law of that jurisdiction to confirm whether the courts
will enforce an order or an interim award. Most jurisdictions that have adopted the
UNCITRAL Model Law will recognize and enforce an interim measure in either form and
P 640 regardless of the country in which the measure was issued. (137) Note that the ICC Rules
P 641 uniquely require the tribunal to give reasons even if it issues an order rather than an
award, though it is advisable for every tribunal at least to state summary reasons to
withstand a challenge to the award. (138) Under the ICSID Convention and Rules, the
tribunal can technically only “recommend” interim, or provisional, measures. (139)
However, even with this textual difference, ICSID tribunals have held that they have the
authority to issue binding orders for interim measures. (140)
To avoid any uncertainty, all of the arbitral regimes under consideration permit the parties
to seek interim measures directly from a judicial authority and state that such action is not
incompatible with the arbitration agreement or the arbitration rules. (141) In some
instances, a national arbitration law may prohibit arbitral tribunals from ordering certain
interim measures, or the courts where the interim measure would need to be enforced may
simply have greater respect for a judicial order than an arbitral order. In such cases, it may
be advisable or even necessary to apply to the competent judicial authority. (142) Here
again, we recall the importance of selection of the seat of the arbitration, which
determines both the law applicable to the arbitration and the general posture of local
courts toward international arbitration. (143)
Parties will need to consider carefully what implications an interim relief proceeding
before a national court might have for subsequent or concurrent arbitral proceedings. For
example, in certain jurisdictions, it remains unclear whether the factual and legal findings
of the local court in an interim relief proceeding have res judicata effect for the
arbitration, or whether evidence presented or produced pursuant to a discovery order in
the judicial proceedings may be used in the subsequent arbitral proceedings.
The CIETAC Rules show a preference for national courts to decide requests for interim
P 641 measures. The CIETAC Rules reserve interim measures for determination by the Chinese
P 642 courts when Chinese law applies but allow the arbitral tribunal to issue orders under
other applicable law. (144) This is a welcome distinction, allowing the tribunal to exercise
additional powers which were not explicitly available in the 2005 CIETAC Rules.
At the other end of the spectrum, the LCIA Rules express a preference for the tribunal to
order interim measures. The LCIA Rules indicate that the parties may apply to a national
court for interim measures after the formation of the tribunal only in “exceptional cases.”
(145) This requirement sets a high bar for parties who wish to apply to national courts and
maintains a tribunal’s control over the dispute. The current LCIA Rules on this point
represent a change from the 1998 LCIA Rules which did not address this point. (146)
A problem arises when the tribunal is faced with an application for some form of interim
measure and a challenge to its jurisdiction at the same time. If the interim measure is
sought as a matter of urgency, the requesting party may suffer further harm while waiting
for the tribunal’s decision on jurisdiction. However, if the tribunal issues the order, but
later determines it lacks jurisdiction, the party will likely not be able to enforce the order.
In cases in which the tribunal’s jurisdiction is challenged, the party seeking an urgent
interim measure would be well advised to seek those measures from a court.
P 642
P 643 Table 10.5 Interim Measures of Protection
AAA-ICDR
P 646
643
644
645
647
PP 648
644
645
646
647

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Article 24. Interim 1. At the request of any party, the arbitral tribunal may order or
Measures award any interim or conservatory measures it deems necessary,
including injunctive relief and measures for the protection or
conservation of property.
2. Such interim measures may take the form of an interim order or
award, and the tribunal may require security for the costs of such
measures.
3. A request for interim measures addressed by a party to a judicial
authority shall not be deemed incompatible with the agreement to
arbitrate or a waiver of the right to arbitrate.
4. The arbitral tribunal may in its discretion allocate costs
associated with applications for interim relief in any interim order or
award or in the final award.
[…]

CIETAC
Article 23. 1. Where a party applies for conservatory measures pursuant to the
Conservatory and laws of the People’s Republic of China, CIETAC shall forward the
Interim Measures party’s application to the competent court designated by that party
in accordance with the law.
[…]
3. At the request of a party, the arbitral tribunal may decide to order
or award any interim measure it deems necessary or proper in
accordance with the applicable law or the agreement of the parties
and may require the requesting party to provide appropriate security
in connection with the measure.

HKIAC
Article 23. Interim 23.2. At the request of either party, the arbitral tribunal may order
Measures of any interim measures it deems necessary or appropriate.
Protection and
Emergency Relief 23.3. An interim measure, whether in the form of an order or award
or in another form, is any temporary measure ordered by the arbitral
tribunal at any time prior to the issuance of the award by which the
dispute is finally decided, that a party, for example and without
limitation:
(a) maintain or restore the status quo pending determination of
the dispute;
(b) take action that would prevent, or refrain from taking action
that is likely to cause, current or imminent harm or prejudice
to the arbitral process itself;
(c) provide a means of preserving assets out of which a
subsequent award may be satisfied; or
(d) preserve evidence that may be relevant and material to the
resolution of the dispute.
23.4. When deciding a party’s request for an interim measure under
Article 23.2, the arbitral tribunal shall take into account the
circumstances of the case. Relevant factors may include, but are not
limited to:
(a) harm not adequately reparable by an award of damages is
likely to result if the measure is not ordered, and such harm
substantially outweighs the harm that is likely to result to the
party against whom the measure is directed if the measure is
granted; and
(b) there is a reasonable possibility that the requesting party will
succeed on the merits of the claim. The determination on this
possibility shall not affect the discretion of the arbitral
tribunal in making any subsequent determination.
 23.5. The arbitral tribunal may modify, suspend or terminate an
interim measure it has granted, upon application of any party or, in
exceptional circumstances and upon prior notice to the parties, on
the arbitral tribunal’s own initiative.
23.6. The arbitral tribunal may require the party requesting an
interim measure to provide appropriate security in connection with
the measure.
23.7. The arbitral tribunal may require any party promptly to
disclose any material change in the circumstances on the basis of
which an interim measure was requested or granted.
23.8. The party requesting an interim measure may be liable for any
costs and damages caused by the measure to any party if the
arbitral tribunal later determines that, in the circumstances then
prevailing, the measure should not have been granted. The arbitral
tribunal may award such costs and damages at any point during the
arbitration.
23.9 A request for interim measures addressed by any party to a
competent judicial authority shall not be deemed incompatible with
the arbitration agreement(s), or as a waiver thereof.

ICC
Article 28. 1. Unless the parties have otherwise agreed, as soon as the file has
Conservatory and been transmitted to it, the arbitral tribunal may, at the request of a
Interim Measures party, order any interim or conservatory measure it deems
appropriate. The arbitral tribunal may make the granting of any
such measure subject to appropriate security being furnished by the
requesting party. Any such measure shall take the form of an order,
giving reasons, or of an award, as the arbitral tribunal considers
appropriate.
2. Before the file is transmitted to the arbitral tribunal, and in
appropriate circumstances even thereafter, the parties may apply to
any competent judicial authority for interim or conservatory
measures. The application of a party to a judicial authority for such
measures or for the implementation of any such measures ordered
by an arbitral tribunal shall not be deemed to be an infringement or
a waiver of the arbitration agreement and shall not affect the
relevant powers reserved to the arbitral tribunal. Any such
application and any measures taken by the judicial authority must
be notified without delay to the Secretariat. The Secretariat shall
inform the arbitral tribunal thereof.

ICSID
ICSID Convention, Except as the parties otherwise agree, the Tribunal may, if it
Article 47. Powers considers that the circumstances so require, recommend any
and Functions of the provisional measures which should be taken to preserve the
Tribunal respective rights of either party.
Arbitration Rules, 1. At any time after the institution of the proceeding, a party may
Rule 39. Provisional request that provisional measures for the preservation of its rights
Measures be recommended by the Tribunal. The request shall specify the rights
to be preserved, the measures the recommendation of which is
requested, and the circumstances that require such measures.
2. The Tribunal shall give priority to the consideration of a request
made pursuant to paragraph (1).
3. The Tribunal may also recommend provisional measures on its
own initiative or recommend measures other than those specified in
a request. It may at any time modify or revoke its recommendations.
4. The Tribunal shall only recommend provisional measures, or
modify or revoke its recommendations, after giving each party an
opportunity of presenting its observations.
5. If a party makes a request pursuant to paragraph (1) before the
constitution of the Tribunal, the Secretary-General shall, on the
application of either party, fix time limits for the parties to present
observations on the request, so that the request and the
observations may be considered by the Tribunal promptly upon its
constitution.
6. Nothing in this Rule shall prevent the parties, provided that they
have so stipulated in the agreement recording their consent, from
requesting any judicial or other authority to order provisional
measures, prior to or after the institution of the proceeding, or
during the proceeding, for the preservation of their respective rights
and interests.

LCIA
Article 25. Interim 25.1. The Arbitral Tribunal shall have the power upon the application
and Conservatory of any party, after giving all other parties a reasonable opportunity
Measures to respond to such application and upon such terms as the Arbitral
Tribunal considers appropriate in the circumstances:
(i) to order any respondent party to a claim or cross-claim to
provide security for all or part of the amount in dispute, by way
of deposit or bank guarantee or in any other manner;
(ii) to order the preservation, storage, sale or other disposal of any
documents, goods, samples, property, site or thing under the
control of any party and relating to the subject-matter of the
arbitration; and
(iii) to order on a provisional basis, subject to a final decision in an
award, any relief which the Arbitral Tribunal would have power
to grant in an award, including the payment of money or the
disposition of property as between any parties.
 Such terms may include the provision by the applicant party of a
cross-indemnity, secured in such manner as the Arbitral Tribunal
considers appropriate, for any costs or losses incurred by the
respondent party in complying with the Arbitral Tribunal’s order. Any
amount payable under such cross-indemnity and any consequential
relief may be decided by the Arbitral Tribunal by one or more awards
in the arbitration.
25.2. The Arbitral Tribunal shall have the power upon the application
of a party, after giving all other parties a reasonable opportunity to
respond to such application, to order any claiming or cross-claiming
party to provide or procure security for Legal Costs and Arbitration
Costs by way of deposit or bank guarantee or in any other manner
and upon such terms as the Arbitral Tribunal considers appropriate
in the circumstances. Such terms may include the provision by that
other party of a cross-indemnity, itself secured in such manner as
the Arbitral Tribunal considers appropriate, for any costs and losses
incurred by such claimant or cross-claimant in complying with the
Arbitral Tribunal’s order. Any amount payable under such cross-
indemnity and any consequential relief may be decided by the
Arbitral Tribunal by one or more awards in the arbitration. In the
event that a claiming or cross-claiming party does not comply with
any order to provide security, the Arbitral Tribunal may stay that
party’s claims or cross-claims or dismiss them by an award.
25.3. The power of the Arbitral Tribunal under Article 25.1 shall not
prejudice any party’s right to apply to a state court or other legal
authority for interim or conservatory measures to similar effect: (i)
before the formation of the Arbitral Tribunal; and (ii) after the
formation of the Arbitral Tribunal, in exceptional cases and with the
Arbitral Tribunal’s authorisation, until the final award. After the
Commencement Date, any application and any order for such
measures before the formation of the Arbitral Tribunal shall be
communicated promptly in writing by the applicant party to the
Registrar; after its formation, also to the Arbitral Tribunal; and in
both cases also to all other parties.
25.4. By agreeing to arbitration under the Arbitration Agreement, the
parties shall be taken to have agreed not to apply to any state court
or other legal authority for any order for security for Legal Costs or
Arbitration Costs.

SCC
Article 37. Interim 1. The Arbitral Tribunal may, at the request of a party, grant any
Measures interim measures it deems appropriate.
2. The Arbitral Tribunal may order the party requesting an interim
measure to provide appropriate security in connection with the
measure.
3. An interim measure shall take the form of an order or an award.
4. Provisions with respect to interim measures requested before
arbitration has commenced, or before a case has been referred to an
Arbitral Tribunal, are set out in Appendix II.
5. A request for interim measures made by a party to a judicial
authority is not incompatible with the arbitration agreement or with
these Rules.

SIAC
Rule 30. Interim and 30.1. The Tribunal may, at the request of a party, issue an order or an
Emergency Interim Award granting an injunction or any other interim relief it deems
Relief appropriate. The Tribunal may order the party requesting interim
relief to provide appropriate security in connection with the relief
sought.
[…]
30.3. A request for interim relief made by a party to a judicial
authority prior to the constitution of the Tribunal, or in exceptional
circumstances thereafter, is not incompatible with these Rules.

UNCITRAL
 Article 26. Interim 1. The arbitral tribunal may, at the request of a party, grant interim
Measures measure.
2. An interim measure is any temporary measure by which, at any
time prior to the issuance of the award by which the dispute is finally
decided, the arbitral tribunal orders a party, for example and
without limitation, to:
(a) Maintain or restore the status quo pending determination of
the dispute;
(b) Take action that would prevent, or refrain from taking action
that is likely to cause, (i) current or imminent harm or (ii)
prejudice to the arbitral process itself;
(c) Provide a means of preserving assets out of which a
subsequent award may be satisfied; or
(d) Preserve evidence that may be relevant and material to the
resolution of the dispute.
3. The party requesting an interim measure under paragraphs 2(a) to
(c) shall satisfy the arbitral tribunal that:

(a) Harm not adequately reparable by an award of damages is

likely to result if the measure is not ordered, and such harm
substantially outweighs the harm that is likely to result to the
party against whom the measure is directed if the measure is
granted; and
(b) There is a reasonable possibility that the requesting party will
succeed on the merits of the claim. The determination on this
possibility shall not affect the discretion of the arbitral
tribunal in making any subsequent determination.
4. With regard to a request for an interim measure under paragraph
2(d). The requirements in paragraphs 3(a) and (b) shall apply only to
the extent the arbitral tribunal considers appropriate.
5. The arbitral tribunal may modify, suspend or terminate an interim
measure it has granted, upon application of any party or, in
exceptional circumstances and upon prior notice to the parties, on
the arbitral tribunal’s own initiative.
6. The arbitral tribunal may require the party requesting an interim
measure to provide appropriate security in connection with the
measure.
7. The arbitral tribunal may require any party promptly to disclose
any material change in the circumstance on the basis of which the
interim measure was requested or granted.
8. The party requesting an interim measure may be liable for any
costs and damages caused by the measure to any party if the
arbitral tribunal later determines that, in the circumstances then
prevailing, the measure should not have been granted. The arbitral
tribunal may award such costs and damages at any point during the
proceedings.
9. A request for interim measures addressed by any party to a
judicial authority shall not be deemed incompatible with the
agreement to arbitrate, or as a waiver of that agreement.

§10.05 EMERGENCY RELIEF

A recent development in many arbitral regimes is the addition of procedures for a party to
request the appointment of an emergency arbitrator to issue an especially urgent order of
interim measures of protection prior to the constitution of the arbitral tribunal. The AAA
amended the ICDR Rules in 2006 to include an innovative procedure for emergency interim
relief. (147) Following the ICDR’s lead, other institutions also amended their rules to
P 648 provide for emergency relief. All of the regimes under consideration ICSID and UNCITRAL
P 649 include provisions for a party to obtain an enforceable order for emergency relief in as
little as few days or weeks. (148) These procedures are without prejudice to the right of a
party to bring such a petition in a court of competent jurisdiction. (149) Because questions
still remain as to the enforceability of order or awards issued pursuant to an emergency
relief procedure, it remains to be seen whether parties will embrace the new emergency
procedures or will continue to bring prearbitration applications for protective measures to
the appropriate national courts. (150) These regimes generally address: (i) the applicability
of emergency procedures; (ii) requirements for the application; (iii) emergency arbitrator
disclosures, appointment, challenge, and replacement; (iv) conduct of the proceedings and
 powers of the emergency arbitrator; (v) contents and effect of the emergency arbitrator’s
order; and (vi) and costs of the proceedings. The relevant rules are collected in Table 10.6.
The ICC and LCIA Rules provide that their emergency relief procedures do not apply if the
arbitration agreement was concluded before the procedures came into force (and the
parties did not agree to opt in); the parties have agreed to opt out of the procedures; or
the parties have agreed to another prearbitral procedure for interim measures. (151) All
other regimes’ emergency relief procedures will apply to parties’ disputes based on the
election of the rule regime in the arbitration agreement, unless the parties specifically opt
out of their application. As mentioned in section §2.04 of this book (Optional Provisions), if
parties do not wish these procedures to apply automatically, they must agree to “opt out”
and include language to this effect in their arbitration agreement. (152)
P 649 Unless otherwise agreed by the parties, the seat of the emergency proceedings is the same
P 650 as the seat of the arbitration. (153) In the absence of party agreement on the seat of
arbitration, and without prejudice to the eventual tribunal’s decision on the seat of
arbitration, the default seat for emergency proceedings is Hong Kong under the HKIAC
Rules, London under the LCIA Rules, Singapore under the SIAC Rules, and whatever place is
fixed by the institution under the ICC and SCC Rules. (154) The default seat under the
CIETAC Rules is “the domicile of CIETAC or its sub-commission/arbitration center
administering the case,” or other location determined by CIETAC. (155) The ICDR Rules do
not make provision for the seat of emergency proceedings, though the Administrator is
empowered to determine initially the place of proceedings in the absence of party
agreement. (156)
The requirements for a party’s application for emergency relief share many of the
characteristics of a request for arbitration and a request for interim measures. The arbitral
regimes under consideration variously require: the names and contact information of the
parties and the applicant’s representative; a description of the dispute; the relief sought;
the reasons why the relief is required on an emergency basis; the reasons why the party is
entitled to the relief; and any comments on the applicable law, seat, and language of the
arbitration, along with a copy of the arbitration agreement, any supporting documentary
evidence, a confirmation that the counterparty has been duly notified of the application
(unless the institution is responsible for notification), a copy of any Request for Arbitration
that may have already been filed, and an advance on costs for the emergency proceedings.
(157)
If the administering institution accepts the party’s application, it will seek to appoint an
emergency arbitrator within a short period of time, usually one to three days. (158) Upon
acceptance of the appointment, some regimes require the arbitrator to disclose promptly
in writing any information likely to give rise to justifiable doubts as to his or her
independence or impartiality. (159) Any challenge by a party to appointment of the
P 650 emergency arbitrator usually must be made within one to three days from that party
P 651 learning of the basis for the challenge. (160) If the institution decides to accept the
challenge, it will appoint a replacement emergency arbitrator usually within one or two
days of its decision. (161)
Following acceptance of his or her appointment, the regimes variously provide that the
emergency arbitrator enjoys the power to issue immediately a procedural timetable; rule
on his or her own jurisdiction and applicability of emergency procedures; order the
applicant to post security for the requested measures; and conduct the proceedings as the
emergency arbitrator deems appropriate, so long as the arbitrator acts fairly and
impartially and the parties have a reasonable opportunity to be heard. (162) As is the case
for ordinary proceedings, meetings among the emergency arbitrator and the parties need
not be held at the seat if the emergency arbitrator determines that another location is
more appropriate or that meetings may be held by videoconference or telephone. (163)
The emergency arbitrator may order or award any interim measures as described in the
preceding section, with the same binding effect. (164) The deadline for the emergency
arbitrator to issue the award ranges from 5 to 15 days from the date he or she accepted the
appointment or received the case file, with the possibility of an extension. (165) The
emergency arbitrator typically must issue the award in writing with signature and indicate
the date and place of the award; all of the regimes require the emergency arbitrator to
P 651 give reasons for his or her decision, though the HKIAC and SIAC Rules permit summary
P 652 reasons. (166) The emergency arbitrator’s power to act ceases once the tribunal is
constituted, and he or she generally may not serve as a member of the tribunal. (167)
The regimes variously provide that the emergency order will remain in effect unless one of
the following scenarios occurs: the applicant withdraws all its claims; the institution
terminates the emergency proceedings; the institution accepts a challenge against the
emergency arbitrator; the emergency arbitrator modifies or terminates his or her initial
order; the ordinary arbitration proceedings are not commenced, or the arbitral tribunal is
not formed, within a specified time following the order; the arbitration proceedings are
suspended for a specified period; the arbitral tribunal modifies or terminates the
emergency order; the arbitration proceedings are discontinued; or the arbitral tribunal
renders a final award (unless the tribunal decides the emergency order shall continue to
be effective). (168) Note that there is substantial variation among the regimes regarding
the number of grounds specified. For example, the ICDR Rules contemplate that only the
 emergency arbitrator or the tribunal may modify or revoke the award, while the LCIA Rules
contemplate that only the tribunal may do so. (169) The CIETAC, HKIAC, and SIAC Rules
provide for automatic revocation of the emergency order if the arbitral tribunal is not
constituted within 90 days of the order, while the SCC Rules set the deadline at 30 days
from the order to commencement of arbitration. (170)
All of the regimes except the ICDR Rules specifically require the applicant to advance the
costs of the emergency proceedings. (171) These costs generally include the institution’s
administrative expenses, the emergency arbitrator’s fees and expenses, and the legal and
other reasonable costs incurred by the parties for the emergency proceedings. (172) The
institution typically is able to increase the amount of the required advance during the
course of the proceedings. (173) Most regimes expressly indicate that an applicant’s failure
to pay the advance on costs will result in the dismissal of its application. (174) All of the
P 652 regimes except the LCIA empower the emergency arbitrator finally to determine and
P 653 apportion the costs of the emergency proceedings in its order. (175) The LCIA Rules leave
it to the institution to establish the costs of the emergency proceedings and to the arbitral
tribunal to apportion them. (176)
P 653
P 654 Table 10.6 Emergency Relief
AAA-ICDR
PP 668
658
660
654
655
656
659
662
663
664
665
666
669
670
657
661
667
672
673
674
671 Article 6. Emergency 1. A party may apply for emergency relief before the constitution of
PP 668
658
660
655
656
659
662
663
664
665
666
669
670
657
661
667
672
673
674
675
671 Measures of the arbitral tribunal by submitting a written notice to the
Protection Administrator and to all other parties setting forth the nature of the
relief sought, the reasons why such relief is required on an
emergency basis, and the reasons why the party is entitled to such
relief. The notice shall be submitted concurrent with or following the
submission of a Notice of Arbitration. Such notice may be given by
email, or as otherwise permitted by Article 10, and must include a
statement certifying that all parties have been notified or an
explanation of the steps taken in good faith to notify all parties.
2. Within one business day of receipt of the notice as provided in
Article 6(1), the Administrator shall appoint a single emergency
arbitrator. Prior to accepting appointment, a prospective emergency
arbitrator shall, in accordance with Article 13, disclose to the
Administrator any circumstances that may give rise to justifiable
doubts as to the arbitrator’s impartiality or independence. Any
challenge to the appointment of the emergency arbitrator must be
made within one business day of the communication by the
Administrator to the parties of the appointment of the emergency
arbitrator and the circumstances disclosed.
3. The emergency arbitrator shall as soon as possible, and in any
event within two business days of appointment, establish a schedule
for consideration of the application for emergency relief. Such
schedule shall provide a reasonable opportunity to all parties to be
heard and may provide for proceedings by telephone, video, written
submissions, or other suitable means, as alternatives to an in-person
hearing. The emergency arbitrator shall have the authority vested in
the arbitral tribunal under Article 19, including the authority to rule
on her/his own jurisdiction, and shall resolve any disputes over the
applicability of this Article.
 4. The emergency arbitrator shall have the power to order or award
any interim or conservancy measures that the emergency arbitrator
deems necessary, including injunctive relief and measures for the
protection or conservation of property. Any such measures may take
the form of an interim award or of an order. The emergency
arbitrator shall give reasons in either case. The emergency arbitrator
may modify or vacate the interim award or order. Any interim award
or order shall have the same effect as an interim measure made
pursuant to Article 24 and shall be binding on the parties when
rendered. The parties shall undertake to comply with such an
interim award or order without delay.
5. The emergency arbitrator shall have no further power to act after
the arbitral tribunal is constituted. Once the tribunal has been
constituted, the tribunal may reconsider, modify, or vacate the
interim award or order of emergency relief issued by the emergency
arbitrator. The emergency arbitrator may not serve as a member of
the tribunal unless the parties agree otherwise.
6. Any interim award or order of emergency relief may be
conditioned on provision of appropriate security by the party
seeking such relief.
7. A request for interim measures addressed by a party to a judicial
authority shall not be deemed incompatible with this Article 6 or
with the agreement to arbitrate or a waiver of the right to arbitrate.
8. The costs associated with applications for emergency relief shall
be addressed by the emergency arbitrator, subject to the power of
the arbitral tribunal to determine finally the allocation of such
costs.

Article 17. Place of 1. If the parties do not agree on the place of arbitration by a date
Arbitration established by the Administrator, the Administrator may initially
determine the place of arbitration, subject to the power of the
arbitral tribunal to determine finally the place of arbitration within
45 days after its constitution.
CIETAC
Article 23. 2. In accordance with the applicable law or the agreement of the
Conservatory and parties, a party may apply to the Arbitration Court for emergency
Interim Measures relief pursuant to the CIETAC Emergency Arbitrator Procedures
(Appendix III). The emergency arbitrator may decide to order or
award necessary or appropriate emergency measures. The decision
of the emergency arbitrator shall be binding upon both parties.
[…]
Appendix III. 1. A party requiring emergency relief may apply for the Emergency
Emergency Arbitrator Procedures based upon the applicable law or the
Arbitrator agreement of the parties.
Proceedings
2. The party applying for the Emergency Arbitrator Procedures (the
Article 1. Application “Applicant”) shall submit its Application for the Emergency
for the Emergency Arbitrator Procedures to the Arbitration Court or the arbitration
Arbitrator court of the relevant sub-commission/arbitration center of CIETAC
Procedures administering the case prior to the formation of the arbitral tribunal.
3. The Application for the Emergency Arbitrator Procedures shall
include the following information:
(a) the names and other basic information of the parties involved
in the Application;
(b) a description of the underlying dispute giving rise to the
Application and the reasons why emergency relief is required;
(c) a statement of the emergency measures sought and the
reasons why the applicant is entitled to such emergency relief;
(d) other necessary information required to apply for the
emergency relief; and
(e) comments on the applicable law and the language of the
Emergency Arbitrator Procedures.
When submitting its Application, the Applicant shall attach the
relevant documentary and other evidence on which the Application
is based, including but not limited to the arbitration agreement and
any other agreements giving rise to the underlying dispute.
The Application, evidence and other documents shall be submitted
in triplicate. Where there are multiple parties, additional copies shall
be provided accordingly.
4. The Applicant shall advance the costs for the Emergency
Arbitrator Procedures.
5. Where the parties have agreed on the language of arbitration,
such language shall be the language of the Emergency Arbitrator
Procedures. In the absence of such agreement, the language of the
Procedures shall be determined by the Arbitration Court.

Article 2. Acceptance 1. After a preliminary review on the basis of the Application, the
of Application and arbitration agreement and relevant evidence submitted by the
Appointment of the Applicant, the Arbitration Court shall decide whether the Emergency
Emergency Arbitrator Procedures shall apply. If the Arbitration Court decides to
Arbitrator apply the Emergency Arbitrator Procedures, the President of the
Arbitration Court shall appoint an emergency arbitrator within one
(1) day from his/her receipt of both the Application and the advance
payment of the costs for the Emergency Arbitrator Procedures.
2. Once the emergency arbitrator has been appointed by the
President of the Arbitration Court, the Arbitration Court shall
promptly transmit the Notice of Acceptance and the Applicant’s
application file to the appointed emergency arbitrator and the party
against whom the emergency measures are sought, meanwhile
copying the Notice of Acceptance to each of the other parties to the
arbitration and the Chairman of CIETAC.
Article 3. Disclosure 1. An emergency arbitrator shall not represent either party, and shall
and Challenge of the be and remain independent of the parties and treat them equally.
Emergency
Arbitrator 2. Upon acceptance of the appointment, an emergency arbitrator
shall sign a Declaration and disclose to the Arbitration Court any
facts or circumstances likely to give rise to justifiable doubts as to
his/her impartiality or independence. If circumstances that need to
be disclosed arise during the Emergency Arbitrator Procedures, the
emergency arbitrator shall promptly disclose such circumstances in
writing.
3. The Declaration and/or the disclosure of the emergency arbitrator
shall be communicated to the parties by the Arbitration Court.
4. Upon receipt of the Declaration and/or the written disclosure of
an emergency arbitrator, a party wishing to challenge the arbitrator
on the grounds of the facts or circumstances disclosed by the
emergency arbitrator shall forward the challenge in writing within
two (2) days from the date of such receipt. If a party fails to file a
challenge within the above time period, it may not subsequently
challenge the emergency arbitrator on the basis of the matters
disclosed by the emergency arbitrator.
5. A party which has justifiable doubts as to the impartiality or
independence of the appointed emergency arbitrator may challenge
that emergency arbitrator in writing and shall state the facts and
reasons on which the challenge is based with supporting evidence.
6. A party may challenge an emergency arbitrator in writing within
two (2) days from the date of its receipt of the Notice of Acceptance.
Where a party becomes aware of a reason for a challenge after such
receipt, the party may challenge the emergency arbitrator in writing
within two (2) days after such reason has become known, but no
later than the formation of the arbitral tribunal.

7. The President of the Arbitration Court shall make a final decision

on the challenge of the emergency arbitrator. If the challenge is
accepted, the President of the Arbitration Court shall reappoint an
emergency arbitrator within one (1) day from the date of the decision
confirming the challenge, and copy the decision to the Chairman of
CIETAC. The emergency arbitrator who has been challenged shall
continue to perform his/her functions until a final decision on the
challenge has been made.
The disclosure and challenge proceedings shall apply equally to the
reappointed emergency arbitrator.
8. Unless otherwise agreed by the parties, the emergency arbitrator
shall not accept nomination or appointment to act as a member of
the arbitral tribunal in any arbitration relating to the underlying
dispute.

Article 4. Place of Unless otherwise agreed by the parties, the place of the emergency
the Emergency arbitrator proceedings shall be the place of arbitration, which is
Arbitrator determined in accordance with Article 7 of the Arbitration Rules.
Proceedings
Article 5. The 1. The emergency arbitrator shall establish a procedural timetable
Emergency for the emergency arbitrator proceedings within a time as short as
Arbitrator possible, best within two (2) days from his/her acceptance of the
Proceedings appointment. The emergency arbitrator shall conduct the
proceedings in the manner the emergency arbitrator considers to be
appropriate, taking into account the nature and the urgency of the
emergency relief, and shall ensure that each party has a reasonable
opportunity to present its case.
2. The emergency arbitrator may order the provision of appropriate
security by the party seeking the emergency relief as the
precondition of taking emergency measures.
3. The power of the emergency arbitrator and the emergency
arbitrator proceedings shall cease on the date of the formation of
the arbitral tribunal.
4. The emergency arbitrator proceedings shall not affect the right of
the parties to seek interim measures from a competent court
pursuant to the applicable law.
Article 6. Decision of 1. The emergency arbitrator has the power to make a decision to
the Emergency order or award necessary emergency relief, and shall make every
Arbitrator reasonable effort to ensure that the decision is valid.
2. The decision of the emergency arbitrator shall be made within
fifteen (15) days from the date of that arbitrator’s acceptance of the
appointment. The President of the Arbitration Court may extend the
time period upon the request of the emergency arbitrator only if the
President of the Arbitration Court considers it reasonable.
3. The decision of the emergency arbitrator shall state the reasons
for taking the emergency measures, be signed by the emergency
arbitrator and stamped with the seal of the Arbitration Court or the
arbitration court of its relevant sub-commission/arbitration center.
4. The decision of the emergency arbitrator shall be binding upon
both parties. A party may seek enforcement of the decision from a
competent court pursuant to the relevant law provisions of the
enforcing state or region. Upon a reasoned request of a party, the
emergency arbitrator or the arbitral tribunal to be formed may
modify, suspend or terminate the decision.
5. The emergency arbitrator may decide to dismiss the application of
the Applicant and terminate the emergency arbitrator proceedings,
if that arbitrator considers that circumstances exist where
emergency measures are unnecessary or unable to be taken for
various reasons.
6. The decision of the emergency arbitrator shall cease to be binding:
(a) if the emergency arbitrator or the arbitral tribunal terminates
the decision of the emergency arbitrator;
(b) if the President of the Arbitration Court decides to accept a
challenge against the emergency arbitrator;
(c) upon the rendering of a final award by the arbitral tribunal,
unless the arbitral tribunal decides that the decision of the
emergency arbitrator shall continue to be effective;
(d) upon the Applicant’s withdrawal of all claims before the
rendering of a final award;
(e) if the arbitral tribunal is not formed within ninety (90) days
from the date of the decision of the emergency arbitrator. This
period of time may be extended by agreement of the parties or
by the Arbitration Court under circumstances it considers
appropriate; or
(f) if the arbitration proceedings have been suspended for sixty
(60) consecutive days after the formation of the arbitral
tribunal.
Article 7. Costs of the 1. The Applicant shall advance an amount of RMB 30,000 as the
Emergency costs of the emergency arbitrator proceedings, consisting of the
Arbitrator remuneration of the emergency arbitrator and the administrative fee
Proceedings of CIETAC. The Arbitration Court may require the Applicant to
advance any other additional and reasonable actual costs.
A party applying to the CIETAC Hong Kong Arbitration Center for
emergency relief shall advance the costs of the emergency
arbitrator proceedings in accordance with the CIETAC Arbitration Fee
Schedule III (Appendix II).
2. The emergency arbitrator shall determine in its decision in what
proportion the costs of the emergency arbitrator proceedings shall
be borne by the parties, subject to the power of the arbitral tribunal
to finally determine the allocation of such costs at the request of a
party.
3. The Arbitration Court may fix the amount of the costs of the
emergency arbitrator proceedings refundable to the Applicant if
such proceedings terminate before the emergency arbitrator has
made a decision.

Article 8. These rules for the Emergency Arbitrator Procedures shall be

Miscellaneous interpreted by CIETAC.
HKIAC
Article 23. Interim 23.1. A party may apply for urgent interim or conservatory relief (the
Measures of “Emergency Relief”) prior to the constitution of the arbitral tribunal
Protection and pursuant to Schedule 4.
Emergency Relief
Schedule 4. 1. A party requiring Emergency Relief may submit an application (the
Emergency “Application”) for the appointment of an emergency arbitrator to
Arbitrator HKIAC (a) before, (b) concurrent with, or (c) following the filing of a
Procedures Notice of Arbitration, but prior to the constitution of the arbitral
(Effective 1 tribunal.
November 2018)
2. The Application shall be submitted in accordance with any of the
means specified in Articles 3.1 and 3.2 of the Rules. The Application
shall include the following information:
(a) the names and (in so far as known) the addresses, facsimile
numbers and/or email addresses of the parties to the
Application and of their representatives;
(b) a description of the circumstances giving rise to the
Application and of the underlying dispute referred to
arbitration;
(c) a statement of the Emergency Relief sought;
(d) the reasons why the applicant needs the Emergency Relief on
an urgent basis that cannot await the constitution of an
arbitral tribunal;
(e) the reasons why the applicant is entitled to such Emergency
Relief;
(f) any relevant agreement and, in particular, the arbitration
agreement;
(g) comments on the language, the seat of the Emergency Relief
proceedings, and the applicable law;
(h) confirmation of payment of the amount referred to in
paragraph 5 of this Schedule (the “Application Deposit”);
(i) the existence of any funding agreement and the identity of any
third party funder pursuant to Article 44; and
(j) confirmation that copies of the Application and any supporting
materials included with it have been or are being
communicated simultaneously to all other parties to the
arbitration by one or more means of service to be identified in
such confirmation.
3. The Application may contain such other documents or information
as the applicant considers appropriate or as may contribute to the
efficient examination of the Application.
4. If HKIAC determines that it should accept the Application, HKIAC
shall seek to appoint an emergency arbitrator within 24 hours after
receipt of both the Application and the Application Deposit.
5. The Application Deposit is the amount set by HKIAC, as stated on
HKIAC’s website on the date the Application is submitted. The
Application Deposit consists of HKIAC’s emergency administrative
fees and the emergency arbitrator’s fees and expenses. The
emergency arbitrator’s fees shall be determined by reference to his
or her hourly rate subject to the terms of Schedule 2 and shall not
exceed the amount set by HKIAC, as stated on HKIAC’s website on the
date the Application is submitted unless the parties agree or HKIAC
determines otherwise in exceptional circumstances. HKIAC may, at
any time during the Emergency Relief proceedings, request
additional deposits to cover any increase in the emergency
arbitrator’s fees or HKIAC’s emergency administrative fees, taking
into account, inter alia, the nature of the case and the nature and
amount of work performed by the emergency arbitrator and HKIAC.
If the party which submitted the Application fails to pay the
additional deposits within the time limit fixed by HKIAC, the
Application shall be dismissed.
6. Once the emergency arbitrator has been appointed, HKIAC shall
communicate the appointment to the parties to the Application and
shall communicate the case file to the emergency arbitrator.
Thereafter, the parties shall communicate with the emergency
arbitrator directly, with a copy to all other parties to the Application
and HKIAC. Any written communications from the emergency
arbitrator to the parties shall also be copied to HKIAC.
7. Article 11 of the Rules shall apply to the emergency arbitrator,
except that the time limits set out in Articles 11.7 and 11.9 are
shortened to three days.
8. Where an emergency arbitrator dies, has been successfully
challenged, has been otherwise removed, or has resigned, HKIAC
shall seek to appoint a substitute emergency arbitrator within 24
hours. If an emergency arbitrator withdraws or a party agrees to
terminate an emergency arbitrator’s appointment under paragraph
8 of this Schedule, no acceptance of the validity of any ground
referred to in Article 11.6 of the Rules shall be implied. If the
emergency arbitrator is replaced, the Emergency Relief proceedings
shall resume at the stage where the emergency arbitrator was
replaced or ceased to perform his or her functions, unless the
substitute emergency arbitrator decides otherwise.
9. If the parties have agreed on the seat of arbitration, such seat
shall be the seat of the Emergency Relief proceedings. Where the
parties have not agreed on the seat of arbitration, and without
prejudice to the arbitral tribunal’s determination of the seat of
arbitration pursuant to Article 14.1 of the Rules, the seat of the
Emergency Relief proceedings shall be Hong Kong.
10. Taking into account the urgency inherent in the Emergency Relief
proceedings and ensuring that each party has a reasonable
opportunity to be heard on the Application, the emergency
arbitrator may conduct such proceedings in such a manner as the
emergency arbitrator considers appropriate. The emergency
arbitrator shall have the power to rule on objections that the
emergency arbitrator has no jurisdiction, including any objections
with respect to the existence, validity or scope of the arbitration
clause or of the separate arbitration agreement, and shall resolve
any disputes over the applicability of this Schedule.
11. Articles 23.2 to 23.8 shall apply, mutatis mutandis, to any
Emergency Relief granted by the emergency arbitrator.
12. Any decision, order or award of the emergency arbitrator on the
Application (the “Emergency Decision”) shall be made within 14 days
from the date on which HKIAC transmitted the case file to the
emergency arbitrator. This time limit may be extended by agreement
of the parties or, in appropriate circumstances, by HKIAC.
13. The Emergency Decision may be made even if in the meantime
the case file has been transmitted to the arbitral tribunal.
14. Any Emergency Decision shall:
(a) be made in writing;
(b) state the date when it was made and reasons upon which the
Emergency Decision is based, which may be in summary form
(including a determination on whether the emergency
arbitrator has jurisdiction to grant the Emergency Relief); and
(c) be signed by the emergency arbitrator.
 15. Any Emergency Decision may fix and apportion the costs of the
Emergency Relief proceedings, subject always to the power of the
arbitral tribunal to fix and apportion finally such costs in
accordance with Article 34 of the Rules. The costs of the Emergency
Relief proceedings include HKIAC’s emergency administrative fees,
the fees and expenses of the emergency arbitrator and any tribunal
secretary, and the reasonable legal and other costs incurred by the
parties for the Emergency Relief proceedings.
16. Any Emergency Decision shall have the same effect as an interim
measure granted pursuant to Article 23 of the Rules and shall be
binding on the parties when rendered.
17. Any Emergency Decision ceases to be binding:
(a) if the emergency arbitrator or the arbitral tribunal so decides;
(b) upon the arbitral tribunal rendering a final award, unless the
arbitral tribunal expressly decides otherwise;
(c) upon the termination of the arbitration before the rendering of
a final award; or
(d) if the arbitral tribunal is not constituted within 90 days from
the date of the Emergency Decision. This time limit may be
extended by agreement of the parties or, in appropriate
circumstances, by HKIAC.
18. Subject to paragraph 13 of this Schedule, the emergency
arbitrator shall have no further power to act once the arbitral
tribunal is constituted.
19. The emergency arbitrator may not act as arbitrator in any
arbitration relating to the dispute that gave rise to the Application
and in respect of which the emergency arbitrator has acted, unless
otherwise agreed by the parties to the arbitration.
20. The Emergency Arbitrator Procedure is not intended to prevent
any party from seeking urgent interim or conservatory measures
from a competent authority at any time.
21. The Emergency Arbitrator Procedure shall be terminated if a
Notice of Arbitration has not been submitted by the applicant to
HKIAC within seven days of HKIAC’s receipt of the Application, unless
the emergency arbitrator extends this time limit.
22. Where the Emergency Arbitrator Procedure is terminated without
an Emergency Decision, the emergency arbitrator may fix and
apportion any costs of the Emergency Relief proceedings, subject to
the power of the arbitral tribunal to fix and apportion finally such
costs in accordance with Article 34 of the Rules.

ICC
Article 29. 1. A party that needs urgent interim or conservatory measures that
Emergency cannot await the constitution of an arbitral tribunal (“Emergency
Arbitrator Measures”) may make an application for such measures pursuant to
the Emergency Arbitrator Rules in Appendix V. Any such application
shall be accepted only if it is received by the Secretariat prior to the
transmission of the file to the arbitral tribunal pursuant to Article 16
and irrespective of whether the party making the application has
already submitted its Request for Arbitration.
2. The emergency arbitrator’s decision shall take the form of an
order. The parties undertake to comply with any order made by the
emergency arbitrator.
3. The emergency arbitrator’s order shall not bind the arbitral
tribunal with respect to any question, issue or dispute determined in
the order. The arbitral tribunal may modify, terminate or annul the
order or any modification thereto made by the emergency
arbitrator.
4. The arbitral tribunal shall decide upon any party’s requests or
claims related to the emergency arbitrator proceedings, including
the reallocation of the costs of such proceedings and any claims
arising out of or in connection with the compliance or non-
compliance with the order.
5. Articles 29(1)–29(4) and the Emergency Arbitrator Rules set forth in
Appendix V (collectively the “Emergency Arbitrator Provisions”) shall
apply only to parties that are either signatories of the arbitration
agreement under the Rules that is relied upon for the application or
successors to such signatories.
6. The Emergency Arbitrator Provisions shall not apply if:
the arbitration agreement under the Rules was concluded before the
date on which the Rules came into force;
the parties have agreed to opt out of the Emergency Arbitrator
Provisions; or
the parties have agreed to another pre-arbitral procedure that
provides for the granting of conservatory, interim or similar
measures.
7. The Emergency Arbitrator Provisions are not intended to prevent
any party from seeking urgent interim or conservatory measures
from a competent judicial authority at any time prior to making an
application for such measures, and in appropriate circumstances
even thereafter, pursuant to the Rules. Any application for such
measures from a competent judicial authority shall not be deemed
to be an infringement or a waiver of the arbitration agreement. Any
such application and any measures taken by the judicial authority
must be notified without delay to the Secretariat.
Appendix V. 1. A party wishing to have recourse to an emergency arbitrator
Emergency pursuant to Article 29 of the Rules of Arbitration of the ICC (the
Arbitrator Rules “Rules”) shall submit its Application for Emergency Measures (the
“Application”) to the Secretariat at any of the offices specified in the
Article 1. Application Internal Rules of the Court in Appendix II to the Rules.
for Emergency
Measures 2. The Application shall be supplied in a number of copies sufficient
to provide one copy for each party, plus one for the emergency
arbitrator, and one for the Secretariat.
3. The Application shall contain the following information:
(a) the name in full, description, address and other contact details
of each of the parties;
(b) the name in full, address and other contact details of any
person(s)representing the applicant;
(c) a description of the circumstances giving rise to the
Application and of the underlying dispute referred or to be
referred to arbitration;
(d) a statement of the Emergency Measures sought;
(e) the reasons why the applicant needs urgent interim or
conservatory measures that cannot await the constitution of
an arbitral tribunal;
(f) any relevant agreements and, in particular, the arbitration
agreement;
(g) any agreement as to the place of the arbitration, the
applicable rules of law or the language of the arbitration;
(h) proof of payment of the amount referred to in Article 7(1) of
this Appendix; and
(i) any Request for Arbitration and any other submissions in
connection with the underlying dispute, which have been filed
with the Secretariat by any of the parties to the emergency
arbitrator proceedings prior to the making of the Application.
The Application may contain such other documents or information
as the applicant considers appropriate or as may contribute to the
efficient examination of the Application.
4. The Application shall be drawn up in the language of the
arbitration if agreed upon by the parties or, in the absence of any
such agreement, in the language of the arbitration agreement.
5. If and to the extent that the President of the Court (the
“President”) considers, on the basis of the information contained in
the Application, that the Emergency Arbitrator Provisions apply with
reference to Article 29(5) and Article 29(6) of the Rules, the
Secretariat shall transmit a copy of the Application and the
documents annexed thereto to the responding party. If and to the
extent that the President considers otherwise, the Secretariat shall
inform the parties that the emergency arbitrator proceedings shall
not take place with respect to some or all of the parties and shall
transmit a copy of the Application to them for information.

6. The President shall terminate the emergency arbitrator

proceedings if a Request for Arbitration has not been received by the
Secretariat from the applicant within 10 days of the Secretariat’s
receipt of the Application, unless the emergency arbitrator
determines that a longer period of time is necessary.
Article 2. 1. The President shall appoint an emergency arbitrator within as
Appointment of the short a time as possible, normally within two days from the
Emergency Secretariat’s receipt of the Application.
Arbitrator;
Transmission of the 2. No emergency arbitrator shall be appointed after the file has been
File transmitted to the arbitral tribunal pursuant to Article 16 of the
Rules. An emergency arbitrator appointed prior thereto shall retain
the power to make an order within the time limit permitted by
Article 6(4) of this Appendix.
3. Once the emergency arbitrator has been appointed, the
Secretariat shall so notify the parties and shall transmit the file to
the emergency arbitrator. Thereafter, all written communications
from the parties shall be submitted directly to the emergency
arbitrator with a copy to the other party and the Secretariat. A copy
of any written communications from the emergency arbitrator to the
parties shall be submitted to the Secretariat.
4. Every emergency arbitrator shall be and remain impartial and
independent of the parties involved in the dispute.
5. Before being appointed, a prospective emergency arbitrator shall
sign a statement of acceptance, availability, impartiality and
independence. The Secretariat shall provide a copy of such
statement to the parties.
6. An emergency arbitrator shall not act as an arbitrator in any
arbitration relating to the dispute that gave rise to the Application.

Article 3. Challenge 1. A challenge against the emergency arbitrator must be made

of an Emergency within three days from receipt by the party making the challenge of
Arbitrator the notification of the appointment or from the date when that party
was informed of the facts and circumstances on which the challenge
is based if such date is subsequent to the receipt of such notification.
2. The challenge shall be decided by the Court after the Secretariat
has afforded an opportunity for the emergency arbitrator and the
other party or parties to provide comments in writing within a
suitable period of time.

Article 4. Place of 1. If the parties have agreed upon the place of the arbitration, such
the Emergency place shall be the place of the emergency arbitrator proceedings. In
Arbitrator the absence of such agreement, the President shall fix the place of
Proceedings the emergency arbitrator proceedings, without prejudice to the
determination of the place of the arbitration pursuant to Article
18(1) of the Rules.
2. Any meetings with the emergency arbitrator may be conducted
through a meeting in person at any location the emergency
arbitrator considers appropriate or by video conference, telephone
or similar means of communication.

Article 5. 1. The emergency arbitrator shall establish a procedural timetable

Proceedings for the emergency arbitrator proceedings within as short a time as
possible, normally within two days from the transmission of the file
to the emergency arbitrator pursuant to Article 2(3) of this Appendix.
2. The emergency arbitrator shall conduct the proceedings in the
manner which the emergency arbitrator considers to be appropriate,
taking into account the nature and the urgency of the Application.
In all cases, the emergency arbitrator shall act fairly and impartially
and ensure that each party has a reasonable opportunity to present
its case.
Article 6. Order 1. Pursuant to Article 29(2) of the Rules, the emergency arbitrator’s
decision shall take the form of an order (the “Order”).
2. In the Order, the emergency arbitrator shall determine whether
the Application is admissible pursuant to Article 29(1) of the Rules
and whether the emergency arbitrator has jurisdiction to order
Emergency Measures.
3. The Order shall be made in writing and shall state the reasons
upon which it is based. It shall be dated and signed by the
emergency arbitrator.
4. The Order shall be made no later than 15 days from the date on
which the file was transmitted to the emergency arbitrator pursuant
to Article 2(3) of this Appendix. The President may extend the time
limit pursuant to a reasoned request from the emergency arbitrator
or on the President’s own initiative if the President decides it is
necessary to do so.
5. Within the time limit established pursuant to Article 6(4) of this
Appendix, the emergency arbitrator shall send the Order to the
parties, with a copy to the Secretariat, by any of the means of
communication permitted by Article 3(2) of the Rules that the
emergency arbitrator considers will ensure prompt receipt.
6. The Order shall cease to be binding on the parties upon:
the President’s termination of the emergency arbitrator proceedings
pursuant to Article 1(6) of this Appendix;
the acceptance by the Court of a challenge against the emergency
arbitrator pursuant to Article 3 of this Appendix;
the arbitral tribunal’s final award, unless the arbitral tribunal
expressly decides otherwise; or
the withdrawal of all claims or the termination of the arbitration
before the rendering of a final award.
7. The emergency arbitrator may make the Order subject to such
conditions as the emergency arbitrator thinks fit, including requiring
the provision of appropriate security.
8. Upon a reasoned request by a party made prior to the
transmission of the file to the arbitral tribunal pursuant to Article 16
of the Rules, the emergency arbitrator may modify, terminate or
annul the Order.

Article 7. Costs of the 1. The applicant must pay an amount of US$ 40,000, consisting of
Emergency US$ 10,000 for ICC administrative expenses and US$ 30,000 for the
Arbitrator emergency arbitrator’s fees and expenses. Notwithstanding Article
Proceedings 1(5) of this Appendix, the Application shall not be notified until the
payment of US$ 40,000 is received by the Secretariat.
2. The President may, at any time during the emergency arbitrator
proceedings, decide to increase the emergency arbitrator’s fees or
the ICC administrative expenses taking into account, inter alia, the
nature of the case and the nature and amount of work performed by
the emergency arbitrator, the Court, the President and the
Secretariat. If the party which submitted the Application fails to pay
the increased costs within the time limit fixed by the Secretariat, the
Application shall be considered as withdrawn.
3. The emergency arbitrator’s Order shall fix the costs of the
emergency arbitrator proceedings and decide which of the parties
shall bear them or in what proportion they shall be borne by the
parties.
4. The costs of the emergency arbitrator proceedings include the ICC
administrative expenses, the emergency arbitrator’s fees and
expenses and the reasonable legal and other costs incurred by the
parties for the emergency arbitrator proceedings.
5. In the event that the emergency arbitrator proceedings do not
take place pursuant to Article 1(5) of this Appendix or are otherwise
terminated prior to the making of an Order, the President shall
determine the amount to be reimbursed to the applicant, if any. An
amount of US$ 5,000 for ICC administrative expenses is non-
refundable in all cases.
Article 8. General 1. The President shall have the power to decide, at the President’s
Rule discretion, all matters relating to the administration of the
emergency arbitrator proceedings not expressly provided for in this
Appendix.
2. In the President’s absence or otherwise at the President’s request,
any of the Vice-Presidents of the Court shall have the power to take
decisions on behalf of the President.
3. In all matters concerning emergency arbitrator proceedings not
expressly provided for in this Appendix, the Court, the President and
the emergency arbitrator shall act in the spirit of the Rules and this
Appendix.

ICSID
Not specifically addressed.
LCIA
Article 9B. 9.4. Subject always to Article 9.14 below, in the case of emergency at
Emergency any time prior to the formation or expedited formation of the
Arbitrator Arbitral Tribunal (under Articles 5 or 9A), any party may apply to the
LCIA Court for the immediate appointment of a temporary sole
arbitrator to conduct emergency proceedings pending the formation
or expedited formation of the Arbitral Tribunal (the “Emergency
Arbitrator”).
9.5. Such an application shall be made to the Registrar in writing
(preferably by electronic means), together with a copy of the
Request (if made by a Claimant) or a copy of the Response (if made
by a Respondent), delivered or notified to all other parties to the
arbitration. The application shall set out, together with all relevant
documentation: (i) the specific grounds for requiring, as an
emergency, the appointment of an Emergency Arbitrator; and (ii) the
specific claim, with reasons, for emergency relief. The application
shall be accompanied by the applicant’s written confirmation that
the applicant has paid or is paying to the LCIA the Special Fee under
Article 9B, without which actual receipt of such payment the
application shall be dismissed by the LCIA Court. The Special Fee
shall be subject to the terms of the Schedule of Costs. Its amount is
prescribed in the Schedule, covering the fees and expenses of the
Emergency Arbitrator and the administrative fees and expenses of
the LCIA, with additional charges (if any) of the LCIA Court. After the
appointment of the Emergency Arbitrator, the amount of the Special
Fee payable by the applicant may be increased by the LCIA Court in
accordance with the Schedule. Article 24 shall not apply to any
Special Fee paid to the LCIA.
9.6. The LCIA Court shall determine the application as soon as
possible in the circumstances. If the application is granted, an
Emergency Arbitrator shall be appointed by the LCIA Court within
three days of the Registrar’s receipt of the application (or as soon as
possible thereafter). Articles 5.1, 5.7, 5.9, 5.10, 6, 9C, 10 and 16.2 (last
sentence) shall apply to such appointment. The Emergency
Arbitrator shall comply with the requirements of Articles 5.3, 5.4 and
(until the emergency proceedings are finally concluded) Article 5.5.
 9.7. The Emergency Arbitrator may conduct the emergency
proceedings in any manner determined by the Emergency Arbitrator
to be appropriate in the circumstances, taking account of the nature
of such emergency proceedings, the need to afford to each party, if
possible, an opportunity to be consulted on the claim for emergency
relief (whether or not it avails itself of such opportunity), the claim
and reasons for emergency relief and the parties’ further
submissions (if any). The Emergency Arbitrator is not required to
hold any hearing with the parties (whether in person, by telephone or
otherwise) and may decide the claim for emergency relief on
available documentation. In the event of a hearing, Articles 16.3,
19.2, 19.3 and 19.4 shall apply.
9.8. The Emergency Arbitrator shall decide the claim for emergency
relief as soon as possible, but no later than 14 days following the
Emergency Arbitrator’s appointment. This deadline may only be
extended by the LCIA Court in exceptional circumstances (pursuant
to Article 22.5) or by the written agreement of all parties to the
emergency proceedings. The Emergency Arbitrator may make any
order or award which the Arbitral Tribunal could make under the
Arbitration Agreement (excepting Arbitration and Legal Costs under
Articles 28.2 and 28.3); and, in addition, make any order adjourning
the consideration of all or any part of the claim for emergency relief
to the proceedings conducted by the Arbitral Tribunal (when
formed).
9.9. An order of the Emergency Arbitrator shall be made in writing,
with reasons. An award of the Emergency Arbitrator shall comply
with Article 26.2 and, when made, take effect as an award under
Article 26.8 (subject to Article 9.11). The Emergency Arbitrator shall
be responsible for delivering any order or award to the Registrar,
who shall transmit the same promptly to the parties by electronic
means, in addition to paper form (if so requested by any party). In
the event of any disparity between electronic and paper forms, the
electronic form shall prevail.
9.10. The Special Fee paid shall form a part of the Arbitration Costs
under Article 28.2 determined by the LCIA Court (as to the amount of
Arbitration Costs) and decided by the Arbitral Tribunal (as to the
proportions in which the parties shall bear Arbitration Costs). Any
legal or other expenses incurred by any party during the emergency
proceedings shall form a part of the Legal Costs under Article 28.3
decided by the Arbitral Tribunal (as to amount and as to payment
between the parties of Legal Costs).
9.11. Any order or award of the Emergency Arbitrator (apart from any
order adjourning to the Arbitral Tribunal, when formed, any part of
the claim for emergency relief) may be confirmed, varied, discharged
or revoked, in whole or in part, by order or award made by the
Arbitral Tribunal upon application by any party or upon its own
initiative.

9.12. Article 9B shall not prejudice any party’s right to apply to a

state court or other legal authority for any interim or conservatory
measures before the formation of the Arbitration Tribunal; and it
shall not be treated as an alternative to or substitute for the
exercise of such right. During the emergency proceedings, any
application to and any order by such court or authority shall be
communicated promptly in writing to the Emergency Arbitrator, the
Registrar and all other parties.
9.13. Articles 3.3, 13.1-13.4, 14.4, 14.5, 16, 17, 18, 22.3, 22.4, 23, 28, 29,
30, 31 and 32 and the Annex shall apply to emergency proceedings.
In addition to the provisions expressly set out there and in Article 9B
above, the Emergency Arbitrator and the parties to the emergency
proceedings shall also be guided by other provisions of the
Arbitration Agreement, whilst recognising that several such
provisions may not be fully applicable or appropriate to emergency
proceedings. Wherever relevant, the LCIA Court may abridge under
any such provisions any period of time (pursuant to Article 22.5).
9.14. Article 9B shall not apply if either: (i) the parties have
concluded their arbitration agreement before 1 October 2014 and the
parties have not agreed in writing to “opt in” to Article 9B; or (ii) the
parties have agreed in writing at any time to “opt out” of Article 9B.

SCC
Article 37. Interim 3. An interim measure shall take the form of an order or an award.
Measures
4. Provisions with respect to interim measures requested before
arbitration has commenced, or before a case has been referred to an
Arbitral Tribunal, are set out in Appendix II.
5. A request for interim measures made by a party to a judicial
authority is not incompatible with the arbitration agreement or with
these Rules.

Appendix II. 1. A party may apply for the appointment of an Emergency Arbitrator
Emergency until the case has been referred to an Arbitral Tribunal pursuant to
Arbitrator Article 22 of the Arbitration Rules.
Article 1. Emergency 2. The powers of the Emergency Arbitrator shall be those set out in
Arbitrator Article 37 (1)-(3) of the Arbitration Rules.
Such powers terminate on referral of the case to an Arbitral Tribunal
pursuant to Article 22 of the Arbitration Rules, or when an
emergency decision ceases to be binding according to Article 9 (4) of
this Appendix.

Article 2. Application An application for the appointment of an Emergency Arbitrator shall

for the Appointment include:
of an Emergency
Arbitrator (i) a statement of the names, addresses, telephone and facsimile
numbers and e-mail addresses of the parties and their counsel;
(ii) a summary of the dispute;
(iii) a statement of the interim relief sought and the reasons
therefor;
(iv) a copy or description of the arbitration agreement or clause
under which the dispute is to be settled;
(v) comments on the seat of the emergency proceedings, the
applicable law(s) and the language(s) of the proceedings; and
(vi) proof of payment of the costs for the emergency proceedings
pursuant to Article 10 (1)-(2) of this Appendix.

Article 3. Notice As soon as an application for the appointment of an Emergency

Arbitrator has been received, the Secretariat shall send the
application to the other party.
Article 4. 1. The Board shall seek to appoint an Emergency Arbitrator within 24
Appointment of the hours of receipt of the application.
Emergency
Arbitrator 2. An Emergency Arbitrator shall not be appointed if the SCC
manifestly lacks jurisdiction over the dispute.
3. Article 19 of the Arbitration Rules applies to the challenge of an
Emergency Arbitrator, except that a challenge must be made within
24 hours from the time the circumstances giving rise to the
challenge became known to the party.
4. An Emergency Arbitrator may not act as an arbitrator in any
future arbitration relating to the dispute, unless otherwise agreed by
the parties.

Article 5. Seat of the The seat of the emergency proceedings shall be that which has been
Emergency agreed upon by the parties as the seat of the arbitration. If the seat
Proceedings of the arbitration has not been agreed by the parties, the Board shall
determine the seat of the emergency proceedings.
Article 6. Referral to Once an Emergency Arbitrator has been appointed, the Secretariat
the Emergency shall promptly refer the application to the Emergency Arbitrator.
Arbitrator
Article 7. Conduct of Article 23 of the Arbitration Rules shall apply to the emergency
the Emergency proceedings, taking into account the urgency inherent in such
Proceedings proceedings.
Article 8. Emergency 1. Any emergency decision on interim measures shall be made no
Decisions on Interim later than 5 days from the date the application was referred to the
Measures Emergency Arbitrator pursuant to Article 6 of this Appendix. The
Board may extend this time limit upon a reasoned request from the
Emergency Arbitrator, or if otherwise deemed necessary.
2. Any emergency decision on interim measures shall:
(i) be made in writing;
(ii) state the date when it was made, the seat of the emergency
proceedings and the reasons upon which the decision is based;
and
(iii) be signed by the Emergency Arbitrator.
3. The Emergency Arbitrator shall promptly deliver a copy of the
emergency decision to each of the parties and to the SCC.

Article 9. Binding 1. An emergency decision shall be binding on the parties when

Effect of Emergency rendered.
Decisions
2. At the reasoned request of a party, the Emergency Arbitrator may
amend or revoke the emergency decision.
3. By agreeing to arbitration under the Arbitration Rules, the parties
undertake to comply with any emergency decision without delay.
4. The emergency decision ceases to be binding if:
(i) the Emergency Arbitrator or an Arbitral Tribunal so decides;
(ii) an Arbitral Tribunal makes a final award;
(iii) arbitration is not commenced within 30 days from the date of
the emergency decision; or
(iv) the case is not referred to an Arbitral Tribunal within 90 days
from the date of the emergency decision.
5. An Arbitral Tribunal is not bound by the decision(s) and reasons of
the Emergency Arbitrator.

Article 10. Costs of 1. The party applying for the appointment of an Emergency
the Emergency Arbitrator shall pay the costs set out in subparagraphs (2)(i) and (ii)
Proceedings below upon filing the application.
2. The costs of the emergency proceedings include:
(i) the fee of the Emergency Arbitrator, which amounts to EUR 16
000;
(ii) the application fee of EUR 4 000; and
(iii) the reasonable costs incurred by the parties, including costs
for legal representation.
3. At the request of the Emergency Arbitrator, or if otherwise deemed
appropriate, the Board may decide to increase or reduce the costs
set out in subparagraphs (2) (i) and (ii) above, having regard to the
nature of the case, the work performed by the Emergency Arbitrator
and the SCC and any other relevant circumstances.

4. If payment of the costs set out in subparagraphs (2) (i) and (ii)
above is not made in due time, the Secretariat shall dismiss the
application.
5. At the request of a party, the Emergency Arbitrator shall in the
emergency decision apportion the costs of the emergency
proceedings between the parties.
6. The Emergency Arbitrator shall apply the principles of Article 49
(6) of the Arbitration Rules when apportioning the costs of the
emergency proceedings.

SIAC
Rule 30. Interim and 30.2. A party that wishes to seek emergency interim relief prior to the
Emergency Relief constitution of the Tribunal may apply for such relief pursuant to the
procedures set forth in Schedule 1.
30.3. A request for interim relief made by a party to a judicial
authority prior to the constitution of the Tribunal, or in exceptional
circumstances thereafter, is not incompatible with these Rules.
Schedule 1. 1. A party that wishes to seek emergency interim relief may,
Emergency concurrent with or following the filing of a Notice of Arbitration but
Arbitrator prior to the constitution of the Tribunal, file an application for
emergency interim relief with the Registrar. The party shall, at the
same time as it files the application for emergency interim relief,
send a copy of the application to all other parties. The application
for emergency interim relief shall include:
(a) the nature of the relief sought;
(b) the reasons why the party is entitled to such relief; and
(c) a statement certifying that all other parties have been
provided with a copy of the application or, if not, an
explanation of the steps taken in good faith to provide a copy
or notification to all other parties.
2. Any application for emergency interim relief shall be accompanied
by payment of the non-refundable administration fee and the
requisite deposits under these Rules towards the Emergency
Arbitrator’s fees and expenses for proceedings pursuant to this
Schedule 1. In appropriate cases, the Registrar may increase the
amount of the deposits requested from the party making the
application. If the additional deposits are not paid within the time
limit set by the Registrar, the application shall be considered as
withdrawn.
3. The President shall, if he determines that SIAC should accept the
application for emergency interim relief, seek to appoint an
Emergency Arbitrator within one day of receipt by the Registrar of
such application and payment of the administration fee and
deposits.
4. If the parties have agreed on the seat of the arbitration, such seat
shall be the seat of the proceedings for emergency interim relief.
Failing such an agreement, the seat of the proceedings for
emergency interim relief shall be Singapore, without prejudice to the
Tribunal’s determination of the seat of the arbitration under Rule
21.1.
5. Prior to accepting appointment, a prospective Emergency
Arbitrator shall disclose to the Registrar any circumstances that
may give rise to justifiable doubts as to his impartiality or
independence. Any challenge to the appointment of the Emergency
Arbitrator must be made within two days of the communication by
the Registrar to the parties of the appointment of the Emergency
Arbitrator and the circumstances disclosed.
6. An Emergency Arbitrator may not act as an arbitrator in any
future arbitration relating to the dispute, unless otherwise agreed by
the parties.
7. The Emergency Arbitrator shall, as soon as possible but, in any
event, within two days of his appointment, establish a schedule for
consideration of the application for emergency interim relief. Such
schedule shall provide a reasonable opportunity for the parties to be
heard, but may provide for proceedings by telephone or video
conference or on written submissions as alternatives to a hearing in
person. The Emergency Arbitrator shall have the powers vested in
the Tribunal pursuant to these Rules, including the authority to rule
on his own jurisdiction, without prejudice to the Tribunal’s
determination.
8. The Emergency Arbitrator shall have the power to order or award
any interim relief that he deems necessary, including preliminary
orders that may be made pending any hearing, telephone or video
conference or written submissions by the parties. The Emergency
Arbitrator shall give summary reasons for his decision in writing. The
Emergency Arbitrator may modify or vacate the preliminary order,
the interim order or Award for good cause.
9. The Emergency Arbitrator shall make his interim order or Award
within 14 days from the date of his appointment unless, in
exceptional circumstances, the Registrar extends the time. No
interim order or Award shall be made by the Emergency Arbitrator
until it has been approved by the Registrar as to its form.
10. The Emergency Arbitrator shall have no power to act after the
Tribunal is constituted. The Tribunal may reconsider, modify or
vacate any interim order or Award issued by the Emergency
Arbitrator, including a ruling on his own jurisdiction. The Tribunal is
not bound by the reasons given by the Emergency Arbitrator. Any
interim order or Award issued by the Emergency Arbitrator shall, in
any event, cease to be binding if the Tribunal is not constituted
within 90 days of such order or Award or when the Tribunal makes a
final Award or if the claim is withdrawn.
 11. Any interim order or Award by the Emergency Arbitrator may be
conditioned on provision by the party seeking such relief of
appropriate security.
12. The parties agree that an order or Award by an Emergency
Arbitrator pursuant to this Schedule 1 shall be binding on the parties
from the date it is made, and undertake to carry out the interim
order or Award immediately and without delay. The parties also
irrevocably waive their rights to any form of appeal, review or
recourse to any State court or other judicial authority with respect
to such Award insofar as such waiver may be validly made.
13. The costs associated with any application pursuant to this
Schedule 1 may initially be apportioned by the Emergency
Arbitrator, subject to the power of the Tribunal to determine finally
the apportionment of such costs.
14. These Rules shall apply as appropriate to any proceeding
pursuant to this Schedule 1, taking into account the urgency of such
a proceeding. The Emergency Arbitrator may decide in what manner
these Rules shall apply as appropriate, and his decision as to such
matters is final and not subject to appeal, review or recourse. The
Registrar may abbreviate any time limits under these Rules in
applications made pursuant to proceedings commenced under Rule
30.2 and Schedule 1.

UNCITRAL
Not specifically addressed.

§10.06 SUMMARY DECISION

Procedures for the summary judgment on some or all claims are a common feature of
judicial proceedings in a number of jurisdictions around the world. (177) Likewise, in
international arbitration, summary decisions allow a tribunal to dispose of an
unmeritorious case without going through the time and expense of an entire proceeding
(see Table 10.7). Summary decision can also allow a tribunal to narrow the parties’ dispute
or eliminate a claim or a claimant in a multiparty dispute. (178) However, of the arbitral
P 675 regimes under consideration, only the HKIAC, ICSID, SCC, and SIAC Rules make provision for
P 676 summary decision. In most cases, such procedures have been used in international
arbitration on an ad hoc basis, depending on the issues in dispute and the legal training
and experience of the arbitrators. (179)
The ICSID Rules contain a summary decision procedure that allows a party State to argue
that a claim or counterclaim simply has no chance of success. (180) Rule 41(5) of the ICSID
Rules allows a party to make a preliminary objection on the grounds that “a claim is
manifestly without legal merit” no later than 30 days after the arbitral tribunal has been
constituted. Parties have made objections under Rule 41(5) concerning jurisdiction, merits,
and the relief sought. (181) Tribunals have applied a high standard for finding a claim to be
manifestly without legal merit. (182) For instance, in the ICSID case between Trans-Global
Petroleum and Jordan, the tribunal found that the term “manifest” requires the
“respondent to establish its objection clearly and obviously, with relative ease and
dispatch. The standard is thus set high.” (183) Although a successful Rule 41(5) objection can
substantially reduce the duration of the proceedings, a failed objection can actually
prolong them, since the objecting party may then use the same arguments to support
preliminary objections to jurisdiction under Rule 41(1). (184)
The SIAC Rules provide for summary decision not only on the ground that a claim or
defense is manifestly without legal merit but also on the ground that the claim or defense
is manifestly outside the jurisdiction of the tribunal. (185) Going a step further still, the 2017
SCC Arbitration Rules expressly provide for the tribunal to dispose of a claim or part of a
claim in summary form based on an objection to jurisdiction, admissibility, or the merits.
(186) The rule further specifies that the objecting party’s request may be granted if “an
allegation of fact or law material to the outcome of the case is manifestly unsustainable”;
or “even if the facts alleged by the other party are assumed to be true, no award could be
P 676 rendered in favour of that party under the applicable law”; or “any issue of fact or law
P 677 material to the outcome of the case is, for any other reason, suitable to determination
by way of summary procedure.” (187) The 2018 HKIAC Rules newly adopted similar
provisions. (188)
P 677
P 678 Table 10.7 Summary Decision
AAA-ICDR
P 678
679 Not specifically addressed.
PP 680
679
CIETAC
Not specifically addressed.
HKIAC
Article 43. Early 43.1. The arbitral tribunal shall have the power, at the request of any
Determination party and after consulting with all other parties, to decide one or
Procedure more points of law or fact by way of early determination procedure,
on the basis that:
(a) such points of law or fact are manifestly without merit; or
(b) such points of law or fact are manifestly outside the arbitral
tribunal’s jurisdiction; or
(c) even if such points of law or fact are submitted by another party
and are assumed to be correct, no award could be rendered in
favour of that party.
43.2. Any party making a request for early determination procedure
shall communicate the request to the arbitral tribunal, HKIAC and
all other parties.
43.3. Any request for early determination procedure shall be made as
promptly as possible after the relevant points of law or fact are
submitted, unless the arbitral tribunal directs otherwise.
43.4. The request for early determination procedure shall include the
following:
(a) a request for early determination of one or more points of law or
fact and a description of such points;
(b) a statement of the facts and legal arguments supporting the
request;
(c) a proposal of the form of early determination procedure to be
adopted by the arbitral tribunal;
(d) comments on how the proposed form referred to in Article 43.4(c)
would achieve the objectives stated in Articles 13.1 and 13.5; and
(e) confirmation that copies of the request and any supporting
materials included with it have been or are being communicated
simultaneously to all other parties by one or more means of service
to be identified in such confirmation.

43.5. After providing all other parties with an opportunity to submit

comments on the request, the arbitral tribunal shall issue a decision
either dismissing the request or allowing the request to proceed by
fixing the early determination procedure in the form it considers
appropriate. The arbitral tribunal shall make such decision within 30
days from the date of filing the request. This time limit may be
extended by agreement of the parties or, in appropriate
circumstances, by HKIAC.
43.6. If the request is allowed to proceed, the arbitral tribunal shall
make its order or award, which may be in summary form, on the
relevant points of law or fact. The arbitral tribunal shall make such
order or award within 60 days from the date of its decision to
proceed. This time limit may be extended by agreement of the
parties or, in appropriate circumstances, by HKIAC.
43.7. Pending the determination of the request, the arbitral tribunal
may decide whether and to what extent the arbitration shall
proceed.

ICC
Not specifically addressed.
ICSID
Arbitration Rules, (5) Unless the parties have agreed to another expedited procedure
Rule 41. Preliminary for making preliminary objections, a party may, no later than 30
Objections days after the constitution of the Tribunal, and in any event before
the first session of the Tribunal, file an objection that a claim is
manifestly without legal merit. The party shall specify as precisely
as possible the basis for the objection. The Tribunal, after giving the
parties the opportunity to present their observations on the
objection, shall, at its first session or promptly thereafter, notify the
parties of its decision on the objection. The decision of the Tribunal
shall be without prejudice to the right of a party to file an objection
pursuant to paragraph (1) or to object, in the course of the
proceeding, that a claim lacks legal merit.
(6) If the Tribunal decides that the dispute is not within the
jurisdiction of the Centre or not within its own competence, or that
all claims are manifestly without legal merit, it shall render an
award to that effect.

LCIA
Not specifically addressed.
SCC
Article 39. Summary 1. A party may request that the Arbitral Tribunal decide one or more
Procedure issues of fact or law by way of summary procedure, without
necessarily undertaking every procedural step that might otherwise
be adopted for the arbitration.
2. A request for summary procedure may concern issues of
jurisdiction, admissibility or the merits. It may include, for example,
an assertion that:
(i) an allegation of fact or law material to the outcome of the
case is manifestly unsustainable;
(ii) even if the facts alleged by the other party are assumed to be
true, no award could be rendered in favour of that party under
the applicable law; or
(iii) any issue of fact or law material to the outcome of the case is,
for any other reason, suitable to determination by way of
summary procedure.
3. The request shall specify the grounds relied on and the form of
summary procedure proposed, and demonstrate that such
procedure is efficient and appropriate in all the circumstances of the
case.
4. After providing the other party an opportunity to submit
comments, the Arbitral Tribunal shall issue an order either
dismissing the request or fixing the summary procedure in the form
it deems appropriate.
5. In determining whether to grant a request for summary procedure,
the Arbitral Tribunal shall have regard to all relevant circumstances,
including the extent to which the summary procedure contributes to
a more efficient and expeditious resolution of the dispute.
6. If the request for summary procedure is granted, the Arbitral
Tribunal shall seek to make its order or award on the issues under
consideration in an efficient and expeditious manner having regard
to the circumstances of the case, while giving each party an equal
and reasonable opportunity to present its case pursuant to Article 23
(2).

SIAC
 Rule 29. Early 29.1. A party may apply to the Tribunal for the early dismissal of a
Dismissal of Claims claim or defence on the basis that:
and Defences
(a) a claim or defence is manifestly without legal merit; or
(b) a claim or defence is manifestly outside the jurisdiction of the
Tribunal.
29.2. An application for the early dismissal of a claim or defence
under Rule 29.1 shall state in detail the facts and legal basis
supporting the application. The party applying for early dismissal
shall, at the same time as it files the application with the Tribunal,
send a copy of the application to the other party, and shall notify
the Tribunal that it has done so, specifying the mode of service
employed and the date of service.
29.3. The Tribunal may, in its discretion, allow the application for the
early dismissal of a claim or defence under Rule 29.1 to proceed. If
the application is allowed to proceed, the Tribunal shall, after giving
the parties the opportunity to be heard, decide whether to grant, in
whole or in part, the application for early dismissal under Rule 29.1.
29.4. If the application is allowed to proceed, the Tribunal shall
make an order or Award on the application, with reasons, which may
be in summary form. The order or Award shall be made within 60
days of the date of filing of the application, unless, in exceptional
circumstances, the Registrar extends the time.

UNCITRAL
Not specifically addressed.

§10.07 DISCONTINUANCE
A party’s failure to pursue its claims, or counterclaims, may be considered a withdrawal of
those claims. And, if the claimant withdraws, or is deemed to have withdrawn, its claims,
the arbitration proceedings may be discontinued by the tribunal (or the administering
authority, if the tribunal is not yet constituted). (189) Importantly, discontinuance of the
proceedings does not dispose of the legal issues in dispute; the claimant is free to raise
the same claims in a subsequent dispute. Specifically, the proceedings may be
discontinued if the claimant (i) fails to pay the necessary registration fees or meet other
formal requirements related to its request for arbitration; (ii) fails to pay the advance on
costs for the arbitration; (iii) fails to submit its Statement of Claim or otherwise carry on
P 680 with the arbitration; or (iv) voluntarily withdraws his claims. Sensibly, these rules put the
P 681 onus on the claimant to either pursue its claims or rest its case, rather than keep the
respondent, the tribunal, and the administering institution in a holding pattern.
First, arbitration proceedings may be discontinued, or considered not commenced in the
first place, if the claimant fails to pay the required registration fee along with the request
for arbitration and, in some cases, complete other related formalities. The HKIAC and LCIA
Rules indicate that the claimant must submit with its request for arbitration a
confirmation that the registration fee has been paid, or else the Registrar will not treat the
arbitration as having commenced. (190) The ICSID Rules simply state that the Secretary-
General will take no further action until the registration fee is paid. (191) The SIAC Rules
imply as much through operation of Rules 3.1 and 3.3, which require payment of the filing
fee in order to complete the Notice of Arbitration and, in turn, to commence the
arbitration. (192) The SCC Rules state that the claimant shall pay the registration fee and, if
it does not do so within a time established by the Secretariat, its Request for Arbitration
will be dismissed. (193) The ICC Rules are to the same effect with respect to nonpayment of
fees and failure to submit the required copies of the Request for Arbitration. (194) The ICDR
Rules merely state that the claimant shall pay the registration fee without indicating the
consequences of nonpayment. (195) Under the CIETAC Rules, if the claimant fails to pay the
registration fee—or to meet all requirements for the contents of the Request for Arbitration
or to attach the evidence on which the claimant relies—the claimant will be deemed not to
have submitted a Request for Arbitration, unless it remedies the deficiency within the time
period specified by the Arbitration Court. (196) By the same token, a respondent who does
not pay the applicable registration fee for a counterclaim will be deemed not to have
made a counterclaim. (197) This rule does not apply under the UNCITRAL Rules since there
is no institution to collect a registration fee.
Second, the arbitration may be discontinued in the event that a party (typically the
respondent) fails to cover the advance on costs of the arbitration. Under all of the rules
under consideration, except the CIETAC Rules, the tribunal or institution may require the
parties to make equal payments as an advance on the arbitrators’ fees and other costs of
the arbitration. (198) If one party fails to pay its share, then the other party may pay that
P 681 amount and seek reimbursement in the tribunal’s award. If a claimant fails to make its own
P 682 payment, or cover the respondent’s nonpayment, then the claimant’s claims will be
dismissed or deemed withdrawn, or the proceedings suspended or terminated. (199)
 Third, an arbitration may be discontinued in the event of certain inaction by the claimant.
The HKIAC, SCC, SIAC, and UNCITRAL Rules provide that the proceedings will be terminated
in the event that the claimant fails to submit its Statement of Claim (and there are no
counterclaims or other issues to be decided by the tribunal). (200) The SCC Rules also
provide that a failure by the claimant to respond to a request for further details will result
in dismissal of the case. (201) The ICSID Arbitration Rules provide more generally that an
arbitration proceeding will be discontinued in the case where the parties do not take any
actions during at least six months or other period of time agreed by the parties. (202) The
LCIA Rules empower the tribunal to terminate the arbitration if it appears that the
arbitration has been abandoned by the parties. (203)
Fourth, a claimant may simply wish to withdraw its claims, or a respondent may wish to
withdraw its counterclaims. As provided under the ICSID Institution Rules, the requesting
party may withdraw its Request for Arbitration before it has been registered by sending
written notice to the Secretary-General. (204) Thereafter, as long as the other parties agree,
or do not object, to discontinuance, the arbitral tribunal will cease to hear the case and
refrain from ruling on it. (205) The CIETAC Rules likewise permit the parties to withdraw
claims or counterclaims, and if all claims and counterclaims are withdrawn, the
proceedings are terminated. (206) The other rules do not make express provision for
voluntary withdrawal of claims but would presumably permit the tribunal to accept such a
request, subject to the views of the other party.
Finally, the ICDR, HKIAC, and UNCITRAL Rules provide the tribunal with the general
authority to terminate the proceedings whenever it determines, after soliciting the views
of the parties, that the proceedings have become “unnecessary or impossible.” (207) This
same authority is also established in the UNCITRAL Model Law. (208) Again, the
discontinuance or termination of the proceedings on the foregoing grounds does not
dispose of the parties’ claims and counterclaims, which can be asserted in a subsequent
proceeding.
P 682
P 683 The relevant rules are collected in Table 10.8.
P 683
P 684 Table 10.8 Discontinuance or Termination
AAA-ICDR
PP 688
684
685
686
689
687 Article 2. Notice of 4. The Notice of Arbitration shall be accompanied by the appropriate
PP 688
685
686
689
690
687 Arbitration filing fee.
Article 32. 2. If continuation of the arbitration becomes unnecessary or
Settlement or Other impossible due to the non-payment of deposits required by the
Reasons for Administrator, the arbitration may be suspended or terminated as
Termination provided in Article 36(3).
3. If continuation of the arbitration becomes unnecessary or
impossible for any reason other than as stated in Sections 1 and 2 of
this Article, the tribunal shall inform the parties of its intention to
terminate the arbitration. The tribunal shall thereafter issue an
order terminating the arbitration, unless a party raises justifiable
grounds for objection.

Article 36. Deposits 3. If the deposits requested are not paid promptly and in full, the
Administrator shall so inform the parties in order that one or more
of them may make the required payment. If such payment is not
made, the arbitral tribunal may order the suspension or termination
of the proceedings. If the tribunal has not yet been appointed, the
Administrator may suspend or terminate the proceedings.
4. Failure of a party asserting a claim or counterclaim to pay the
required deposits shall be deemed a withdrawal of the claim or
counterclaim.

CIETAC
Article 13. 3. Where after examination the Arbitration Court finds the formalities
Acceptance of a required for the arbitration application to be incomplete, it may
Case request the Claimant to complete them within a specified time
period. The Claimant shall be deemed not to have submitted a
Request for Arbitration if it fails to complete the required formalities
within the specified time period. In such a case, the Claimant’s
Request for Arbitration and its attachments shall not be kept on file
by the Arbitration Court.
Article 16. 3. When filing the counterclaim, the Respondent shall pay an
Counterclaim arbitration fee in advance in accordance with the Arbitration Fee
Schedule of CIETAC within a specified time period, failing which the
Respondent shall be deemed not to have filed any counterclaim.
Article 46. 1. A party may withdraw its claim or counterclaim in its entirety. In
Withdrawal and the event that the Claimant withdraws its claim in its entirety, the
Dismissal arbitral tribunal may proceed with its examination of the
counterclaim and render an arbitral award thereon. In the event
that the Respondent withdraws its counterclaim in its entirety, the
arbitral tribunal may proceed with the examination of the claim and
render an arbitral award thereon.
2. A party may be deemed to have withdrawn its claim or
counterclaim if the arbitral proceedings cannot proceed for reasons
attributable to that party.
3. A case may be dismissed if the claim and counterclaim have been
withdrawn in their entirety. Where a case is to be dismissed prior to
the formation of the arbitral tribunal, the President of the
Arbitration Court shall make a decision on the dismissal. Where a
case is to be dismissed after the formation of the arbitral tribunal,
the arbitral tribunal shall make the decision.

HKIAC
Article 4. Notice of 4.4 The Notice of Arbitration shall be accompanied by payment to
Arbitration HKIAC of the Registration Fee as required by Schedule 1.
4.5 The Notice of Arbitration may include the Statement of Claim.
4.6 If the Notice of Arbitration does not comply with these Rules or if
the Registration Fee is not paid, HKIAC may request the Claimant to
remedy the defect within an appropriate time limit. If the Claimant
complies with such directions within the applicable time limit, the
arbitration shall be deemed to have commenced under Article 4.2 on
the date the initial version was received by HKIAC. If the Claimant
fails to comply, the arbitration shall be deemed not to have
commenced under Article 4.2 without prejudice to the Claimant’s
right to submit the same claim at a later date in a subsequent
Notice of Arbitration.

Article 26. Default 26.1. If, within the time limit set by the arbitral tribunal, the Claimant
has failed to communicate its written statement without showing
sufficient cause for such failure, the arbitral tribunal may terminate
the arbitration unless another party has brought a claim and wishes
the arbitration to continue, in which case the tribunal may proceed
with the arbitration in respect of the other party’s claim.
Article 36. 36.2 The arbitral tribunal shall decide as amiable compositeur or ex
Applicable Law, aequo et bono only if the parties have expressly agreed that the
Amiable arbitral tribunal should do so
Compositeur
Article 37. 37.1. If, before the arbitral tribunal is constituted, a party wishes to
Settlement or Other terminate the arbitration, it shall communicate this to all other
Grounds for parties and HKIAC. HKIAC shall set a time limit for all other parties
Termination to indicate whether they agree to terminate the arbitration. If no
other party objects within the time limit, HKIAC may terminate the
arbitration. If any party objects to the termination of the arbitration,
the arbitration shall proceed in accordance with the Rules.
37.2. If, after the arbitral tribunal is constituted and before the final
award is made:
(a) the parties settle the dispute, the arbitral tribunal shall either
issue an order for the termination of the arbitration or, if
requested by the parties and accepted by the arbitral tribunal,
record the settlement in the form of an arbitral award on
agreed terms. The arbitral tribunal is not obliged to give
reasons for such an award.
(b) continuing the arbitration becomes unnecessary or impossible
for any reason not mentioned in Article 37.2(a), the arbitral
tribunal shall issue an order for the termination of the
arbitration. The arbitral tribunal shall issue such an order
unless a party raises a justifiable objection, having been given
a reasonable opportunity to comment upon the proposed
course of action.
37.3. The arbitral tribunal shall communicate copies of the order to
terminate the arbitration or of the arbitral award on agreed terms,
signed by the arbitral tribunal, to HKIAC. Subject to any lien, HKIAC
shall communicate the order for termination of the arbitration or
the arbitral award on agreed terms to the parties. Where an arbitral
award on agreed terms is made, the provisions of Articles 35.2, 35.3,
35.5 and 35.6 shall apply.

ICC
Article 4. Request for 4. Together with the Request, the claimant shall:
Arbitration
(a) submit the number of copies thereof required by Article 3(1);
and
(b) make payment of the filing fee required by Appendix III
(“Arbitration Costs and Fees”) in force on the date the Request
is submitted.
In the event that the claimant fails to comply with either of these
requirements, the Secretariat may fix a time limit within which the
claimant must comply, failing which the file shall be closed without
prejudice to the claimant’s right to submit the same claims at a
later date in another Request.

Article 37. Advance 5. […] In all cases, any party shall be free to pay any other party’s
to Cover the Costs of share of any advance on costs should such other party fail to pay its
the Arbitration share.
6. When a request for an advance on costs has not been complied
with, and after consultation with the arbitral tribunal, the Secretary
General may direct the arbitral tribunal to suspend its work and set
a time limit, which must be not less than 15 days, on the expiry of
which the relevant claims shall be considered as withdrawn. Should
the party in question wish to object to this measure, it must make a
request within the aforementioned period for the matter to be
decided by the Court. Such party shall not be prevented, on the
ground of such withdrawal, from reintroducing the same claims at a
later date in another proceeding.

ICSID
Institution Rules, (1) On receiving a request the Secretary-General shall: (a) send an
Rule 5. acknowledgement to the requesting party; (b) take no other action
Acknowledgement of with respect to the request until he has received payment of the
the Request prescribed fee. (2) As soon as he has received the fee for lodging the
request, the Secretary-General shall transmit a copy of the request
and of the accompanying documentation to the other party.
Institution Rules, The requesting party may, by written notice to the Secretary
Rule 8. Withdrawal General, withdraw the request before it has been registered. The
of the Request Secretary General shall promptly notify the other party, unless,
pursuant to Rule 5(1)(b), the request had not been transmitted to it.
Administrative and (3)(d) [I]n connection with every conciliation proceeding, and in
Financial connection with every arbitration proceeding unless a different
Regulations, division is provided for in the Arbitration Rules or is decided by the
Regulation 14. Direct parties or the Tribunal, each party shall pay one half of each
Costs of Individual advance or supplemental charge, without prejudice to the final
Proceedings decision on the payment of the cost of an arbitration proceeding to
be made by the Tribunal pursuant to Article 61(2) of the Convention.
All advances and charges shall be payable, at the place and in the
currencies specified by the Secretary-General, as soon as a request
for payment is made by him. If the amounts requested are not paid
in full within 30 days, then the Secretary-General shall inform both
parties of the default and give an opportunity to either of them to
make the required payment. At any time 15 days after such
information is sent by the Secretary-General, he may move that the
Commission or Tribunal stay the proceeding, if by the date of such
motion any part of the required payment is still outstanding. If any
proceeding is stayed for non-payment for a consecutive period in
excess of six months, the Secretary-General may, after notice to and
as far as possible in consultation with the parties, move that the
competent body discontinue the proceeding;
Arbitration Rules, If a party requests the discontinuance of the proceeding, the
Rule 44. Tribunal, or the Secretary-General if the Tribunal has not yet been
Discontinuance at constituted, shall in an order fix a time limit within which the other
Request of a Party party may state whether it opposes the discontinuance. If no
objection is made in writing within the time limit, the other party
shall be deemed to have acquiesced in the discontinuance and the
Tribunal, or if appropriate the Secretary-General, shall in an order
take note of the discontinuance of the proceeding. If objection is
made, the proceeding shall continue.
Arbitration Rules, If the parties fail to take any steps in the proceeding during six
Rule 45. consecutive months or such period as they may agree with the
Discontinuance for approval of the Tribunal, or of the Secretary-General if the Tribunal
Failure of Parties to has not yet been constituted, they shall be deemed to have
Act discontinued the proceeding and the Tribunal, or if appropriate the
Secretary-General, shall, after notice to the parties, in an order take
note of the discontinuance.
LCIA
Article 1. Request for 1.1. Any party wishing to commence an arbitration under the LCIA
Arbitration Rules (the “Claimant”) shall deliver to the Registrar of the LCIA Court
(the “Registrar”) a written request for arbitration (the “Request”),
containing or accompanied by:
(vi) confirmation that the registration fee prescribed in the
Schedule of Costs has been or is being paid to the LCIA, without
which actual receipt of such payment the Request shall be
treated by the Registrar as not having been delivered and the
arbitration as not having been commenced under the
Arbitration Agreement. […]

Article 22. Additional 22.1. The Arbitral Tribunal shall have the power, upon the application
Powers of any party or (save for sub-paragraphs (viii), (ix) and (x) below)
upon its own initiative, but in either case only after giving the parties
a reasonable opportunity to state their views and upon such terms
(as to costs and otherwise) as the Arbitral Tribunal may decide:
(xi) to order the discontinuance of the arbitration if it appears to
the Arbitral Tribunal that the arbitration has been abandoned
by the parties or all claims and any cross-claims withdrawn by
the parties, provided that, after fixing a reasonable period of
time within which the parties shall be invited to agree or to
object to such discontinuance, no party has stated its written
objection to the Arbitral Tribunal to such discontinuance upon
the expiry of such period of time.
Article 24. Deposits 24.4. In the event that a party fails or refuses to make any payment
on account of the Arbitration Costs as directed by the LCIA Court, the
LCIA Court may direct the other party or parties to effect a substitute
payment to allow the arbitration to proceed (subject to any order or
award on Arbitration Costs).
24.5. In such circumstances, the party effecting the substitute
payment may request the Arbitral Tribunal to make an order or
award in order to recover that amount as a debt immediately due
and payable to that party by the defaulting party, together with any
interest.
24.6. Failure by a claiming or cross-claiming party to make promptly
and in full any required payment on account of Arbitration Costs
may be treated by the Arbitral Tribunal as a withdrawal from the
arbitration of the claim or cross-claim respectively, thereby
removing such claim or cross-claim (as the case may be) from the
scope of the Arbitral Tribunal’s jurisdiction under the Arbitration
Agreement, subject to any terms decided by the Arbitral Tribunal as
to the reinstatement of the claim or cross-claim in the event of
subsequent payment by the claiming or cross-claiming party. Such a
withdrawal shall not preclude the claiming or cross-claiming party
from defending as a respondent any claim or cross-claim made by
another party.

SCC
Article 7. 2. If the Registration Fee is not paid upon filing the Request for
Registration Fee Arbitration, the Secretariat shall set a time period within which the
Claimant shall pay the Registration Fee. If the Registration Fee is not
paid within this time period, the Secretariat shall dismiss the
Request for Arbitration.
Article 10. Request (2) If the Claimant fails to comply with a request for further details,
for Further Details the Board may dismiss the case.
Article 12. Dismissal The Board shall dismiss a case, in whole or in part, if:
(i) the SCC manifestly lacks jurisdiction over the dispute; or
(ii) the Advance on Costs is not paid pursuant to Article 51.

Article 35. Default 1. If the Claimant, without good cause, fails to submit a Statement of
Claim in accordance with Article 29, the Arbitral Tribunal shall
terminate the proceedings, provided the Respondent has not filed a
counterclaim.
Article 51. Advance 5. If a party fails to make a required payment, the Secretariat shall
on Costs give the other party an opportunity to do so within a specified period
of time. If the payment is not made within that time, the Board shall
dismiss the case in whole or in part. If the other party makes the
required payment, the Arbitral Tribunal may, at the request of that
party, make a separate award for reimbursement of the payment.
SIAC
Rule 3. Notice of 3.1. A party wishing to commence an arbitration under these Rules
Arbitration (the “Claimant”) shall file with the Registrar a Notice of Arbitration
which shall include:
[…]
(k) payment of the requisite filing fee under these Rules.
[…]
3.3. The date of receipt of the complete Notice of Arbitration by the
Registrar shall be deemed to be the date of commencement of the
arbitration. For the avoidance of doubt, the Notice of Arbitration is
deemed to be complete when all the requirements of Rule 3.1 and
Rule 6.1(b) (if applicable) are fulfilled or when the Registrar
determines that there has been substantial compliance with such
requirements. SIAC shall notify the parties of the commencement of
the arbitration.

Rule 20. 20.8. If the Claimant fails within the time specified to submit its
Submissions by the Statement of Claim, the Tribunal may issue an order for the
Parties termination of the arbitral proceedings or give such other directions
as may be appropriate.
 Rule 34. Fees and 34.6. If a party fails to pay the deposits directed by the Registrar
Deposits either wholly or in part:
(a) the Tribunal may suspend its work and the Registrar may
suspend SIAC’s administration of the arbitration, in whole or in
part; and
(b) the Registrar may, after consultation with the Tribunal (if
constituted) and after informing the parties, set a time limit on
the expiry of which the relevant claims or counterclaims shall
be considered as withdrawn without prejudice to the party
reintroducing the same claims or counterclaims in another
proceeding.

UNCITRAL
Article 30. Default 1. If, within the period of time fixed by these Rules or the arbitral
tribunal, without showing sufficient cause:
(a) The claimant has failed to communicate its statement of
claim, the arbitral tribunal shall issue an order for the
termination of the arbitral proceedings, unless there are
remaining matters that may need to be decided and the
arbitral tribunal considers it appropriate to do so; […]

Article 36. 2. If, before the award is made, the continuation of the arbitral
Settlement or Other proceedings becomes unnecessary or impossible for any reason not
Grounds for mentioned in paragraph 1, the arbitral tribunal shall inform the
Termination parties of its intention to issue an order for the termination of the
proceedings. The arbitral tribunal shall have the power to issue such
an order unless there are remaining matters that may need to be
decided and the arbitral tribunal considers it appropriate to do so.
Article 43. Deposit of 4. If the required deposits are not paid in full within 30 days after the
Costs receipt of the request, the arbitral tribunal shall so inform the
parties in order that one or more of them may make the required
payment. If such payment is not made, the arbitral tribunal may
order the suspension or termination of the arbitral proceedings.

§10.08 CONSENT AWARD

The arbitration may also be discontinued if the parties settle their dispute prior to the
issuance of a final award (see Table 10.9). In such cases, the parties may simply withdraw
their claims, resulting in an administrative closure of the proceedings or an order from the
tribunal to terminate or dismiss the arbitration. The parties may, in some cases, request
the tribunal to enter an award reflecting their settlement, which is generally known as a
“consent award.” The ability of the arbitral tribunal to issue a consent award is expressly
recognized in most of the arbitral rules, as well as in the UNCITRAL Model Law. (209) For
example, Article 33 of the ICC Rules provides that if the parties agree to settle the case
after its transmission to the arbitral tribunal, “the settlement shall be recorded in the form
of an award made by consent of the parties, if so requested by the parties and if the
arbitral tribunal agrees to do so.” Similarly, Article 45(1) of the SCC Arbitration Rules
empowers the arbitral tribunal, at the request of the parties, to “make a consent award
recording the settlement.” The SIAC Rules make a similar provision. (210)
There are sound reasons for the parties to ask the tribunal to issue a consent award. If a
settlement agreement is rendered as an award, it will likely be enforced in any number of
jurisdictions under applicable treaties and legislation concerning the recognition and
enforcement of arbitral awards. (211) If the settlement is embodied only in a contractual
agreement, enforcement against a defaulting party would require an action for breach of
contract, then possibly subsequent proceedings for enforcement of that judgment in a
jurisdiction where the defendant’s assets are located. However, it must be noted that the
P 690 parties cannot compel an arbitral tribunal to enter a consent award, and the tribunal may
P 691 legitimately refuse to do so when it believes that the terms of the award would be
fraudulent, illegal, or contrary to mandatory provisions of law or fundamental notions of
fairness. (212) In the case of ICSID arbitration, the tribunal may also record the settlement
in an award; however, under the ICSID Arbitration Rules, the tribunal has no obligation to
do so. Indeed, according to Article 41, the arbitral tribunal has an independent duty to
verify its jurisdiction, and it may therefore render an award concluding that jurisdiction is
lacking rather than ratifying the terms of the parties’ settlement. (213) Assuming the
tribunal agrees to issue a consent award, it can generally rely upon the fact of settlement
by the parties as the basis for the award, rather than being expected to set out detailed
reasons for the award. (214)
P 691
P 692 Table 10.9 Consent Award
AAA-ICDR
P 694
692
693
P 695
693
694
Article 32. 1. If the parties settle the dispute before a final award is made, the
Settlement or Other arbitral tribunal shall terminate the arbitration and, if requested by
Reasons for all parties, may record the settlement in the form of a consent
Termination award on agreed terms. The tribunal is not obliged to give reasons
for such an award.
2. If continuation of the arbitration becomes unnecessary or
impossible due to the non-payment of deposits required by the
Administrator, the arbitration may be suspended or terminated as
provided in Article 36(3).
3. If continuation of the arbitration becomes unnecessary or
impossible for any reason other than as stated in Sections 1 and 2 of
this Article, the tribunal shall inform the parties of its intention to
terminate the arbitration. The tribunal shall thereafter issue an
order terminating the arbitration, unless a party raises justifiable
grounds for objection.

Article 36. Deposits 1. The Administrator may request that the parties deposit
appropriate amounts as an advance for the costs referred to in
Article 34.
2. During the course of the arbitration, the Administrator may
request supplementary deposits from the parties.
3. If the deposits requested are not paid promptly and in full, the
Administrator shall so inform the parties in order that one or more
of them may make the required payment. If such payment is not
made, the arbitral tribunal may order the suspension or termination
of the proceedings. If the tribunal has not yet been appointed, the
Administrator may suspend or terminate the proceedings.

4. Failure of a party asserting a claim or counterclaim to pay the

required deposits shall be deemed a withdrawal of the claim or
counterclaim.
5. After the final award has been made, the Administrator shall
render an accounting to the parties of the deposits received and
return any unexpended balance to the parties.

CIETAC
Article 47. […]
Combination of
Conciliation with 5. Where the parties have reached a settlement agreement through
Arbitration conciliation by the arbitral tribunal or by themselves, they may
withdraw their claim or counterclaim, or request the arbitral
tribunal to render an arbitral award or a conciliation statement in
accordance with the terms of the settlement agreement.
6. Where the parties request for a conciliation statement, the
conciliation statement shall clearly set forth the claims of the
parties and the terms of the settlement agreement. It shall be signed
by the arbitrators, sealed by CIETAC, and served upon both parties.
[…]
10. Where the parties have reached a settlement agreement by
themselves through negotiation or conciliation before the
commencement of an arbitration, either party may, based on an
arbitration agreement concluded between them that provides for
arbitration by CIETAC and the settlement agreement, request CIETAC
to constitute an arbitral tribunal to render an arbitral award in
accordance with the terms of the settlement agreement. Unless
otherwise agreed by the parties, the Chairman of CIETAC shall
appoint a sole arbitrator to form such an arbitral tribunal, which
shall examine the case in a procedure it considers appropriate and
render an award in due course. The specific procedure and time
period for rendering the award shall not be subject to other
provisions of these Rules.

HKIAC
Article 37. 37.1. If, before the arbitral tribunal is constituted, a party wishes to
Settlement or Other terminate the arbitration, it shall communicate this to all other
Grounds for parties and HKIAC. HKIAC shall set a time limit for all other parties
Termination to indicate whether they agree to terminate the arbitration. If no
other party objects within the time limit, HKIAC may terminate the
arbitration. If any party objects to the termination of the arbitration,
the arbitration shall proceed in accordance with the Rules.
37.2. If, after the arbitral tribunal is constituted and before the final
award is made:

(a) the parties settle the dispute, the arbitral tribunal shall either
issue an order for the termination of the arbitration or, if
requested by the parties and accepted by the arbitral tribunal,
record the settlement in the form of an arbitral award on
agreed terms. The arbitral tribunal is not obliged to give
reasons for such an award.
(b) continuing the arbitration becomes unnecessary or impossible
for any reason not mentioned in Article 37.2(a), the arbitral
tribunal shall issue an order for the termination of the
arbitration. The arbitral tribunal shall issue such an order
unless a party raises a justifiable objection, having been given
a reasonable opportunity to comment upon the proposed
course of action.
37.3. The arbitral tribunal shall communicate copies of the order to
terminate the arbitration or of the arbitral award on agreed terms,
signed by the arbitral tribunal, to HKIAC. Subject to any lien, HKIAC
shall communicate the order for termination of the arbitration or
the arbitral award on agreed terms to the parties. Where an arbitral
award on agreed terms is made, the provisions of Articles 35.2, 35.3,
35.5 and 35.6 shall apply.

ICC
Article 33. Award by If the parties reach a settlement after the file has been transmitted
Consent to the arbitral tribunal in accordance with Article 16, the settlement
shall be recorded in the form of an award made by consent of the
parties, if so requested by the parties and if the arbitral tribunal
agrees to do so.
ICSID
Rule 43. Settlement (1) If, before the award is rendered, the parties agree on a settlement
and Discontinuance of the dispute or otherwise to discontinue the proceeding, the
Tribunal, or the Secretary-General if the Tribunal has not yet been
constituted, shall, at their written request, in an order take note of
the discontinuance of the proceeding.
(2) If the parties file with the Secretary-General the full and signed
text of their settlement and in writing request the Tribunal to
embody such settlement in an award, the Tribunal may record the
settlement in the form of its award.

LCIA
Article 26. Award(s) […]
26.9. In the event of any final settlement of the parties’ dispute, the
Arbitral Tribunal may decide to make an award recording the
settlement if the parties jointly so request in writing (a “Consent
Award”), provided always that such Consent Award shall contain an
express statement on its face that it is an award made at the parties’
joint request and with their consent. A Consent Award need not
contain reasons. If the parties do not jointly request a Consent
Award, on written confirmation by the parties to the LCIA Court that
a final settlement has been reached, the Arbitral Tribunal shall be
discharged and the arbitration proceedings concluded by the LCIA
Court, subject to payment by the parties of any outstanding
Arbitration Costs in accordance with Articles 24 and 28.
 Article 28. […]
Arbitration Costs
and Legal Costs 28.6. If the arbitration is abandoned, suspended, withdrawn or
concluded, by agreement or otherwise, before the final award is
made, the parties shall remain jointly and severally liable to pay to
the LCIA and the Arbitral Tribunal the Arbitration Costs determined
by the LCIA Court.
[…]

SCC
Article 45. 1. If the parties reach a settlement before the final award is made,
Settlement or Other the Arbitral Tribunal may, at the request of both parties, make a
Grounds for consent award recording the settlement.
Termination of the
Arbitration 2. If the arbitration is terminated for any other reason before the
final award is made, the Arbitral Tribunal shall issue an award
recording the termination.

SIAC
Rule 32. The Award 32.10. In the event of a settlement, and if the parties so request, the
Tribunal may make a consent Award recording the settlement. If the
parties do not require a consent Award, the parties shall confirm to
the Registrar that a settlement has been reached, following which
the Tribunal shall be discharged and the arbitration concluded upon
full settlement of the costs of the arbitration.
UNCITRAL
Article 36 UNCITRAL 1. If, before the award is made, the parties agree on a settlement of
Rules. Settlement or the dispute, the arbitral tribunal shall either issue an order for the
Other Grounds for termination of the arbitral proceedings or, if requested by the parties
Termination and accepted by the arbitral tribunal, record the settlement in the
form of an arbitral award on agreed terms. The arbitral tribunal is
not obliged to give reasons for such an award.
2. If, before the award is made, the continuation of the arbitral
proceedings becomes unnecessary or impossible for any reason not
mentioned in paragraph 1, the arbitral tribunal shall inform the
parties of its intention to issue an order for the termination of the
proceedings. The arbitral tribunal shall have the power to issue such
an order unless there are remaining matters that may need to be
decided and the arbitral tribunal considers it appropriate to do so.
3. Copies of the order for termination of the arbitral proceedings or
of the arbitral award on agreed terms, signed by the arbitrators,
shall be communicated by the arbitral tribunal to the parties. Where
an arbitral award on agreed terms is made, the provisions of article
34, paragraphs 2, 4 and 5, shall apply.

Article 30. UNCITRAL 1. If, during arbitral proceedings, the parties settle the dispute,
Model Law the arbitral tribunal shall terminate the proceedings and, if
requested by the parties and not objected to by the arbitral
tribunal, record the settlement in the form of an arbitral award
on agreed terms.
2. An award on agreed terms shall be made in accordance with
the provisions of article 31 and shall state that it is an award.
Such an award has the same status and effect as any other
award on the merits of the case.

FURTHER READING
Expedited Procedures
Michael Bühler & Pierre Heitzmann, The 2017 ICC Expedited Rules: From Softball to
Hardball? 34(2) J. of Int’l Arb. (Kluwer Law International 2017).
Laurent Lévy & Michael Polkinghorne (eds.), Expedited Procedures in International
Arbitration, Dossiers of the ICC Institute of World Business Law, vol. 16 (Kluwer Law
International); International Chamber of Commerce (ICC) (2017).
Chan Len Sung S.C. & Tan Weiyi, Making Arbitration Effective: Expedited Procedures,
Emergency Arbitrators and Interim Relief, 6(2) Contemp. Asia Arb. J. 349 (2013).
P 695
P 696
Mediation-Arbitration
 Christopher Newmark & Richard Hill, Can a Mediated Settlement Become an Enforceable
Arbitration Award?, 16 Arb. Int’l 1 (March 2000).
Harold. I. Abramson, Protocols for International Arbitrators Who Dare to Settle Cases, 10 Am.
Rev. Int’l Arb. 1 (1999).
Nadja Alexander, International and Comparative Mediation, in Global Trends in Dispute
Resolution (Kluwer Law International 2009).
C.M. Baker & A.H. Ali, A Cross-Comparison of Institutional Mediation Rules, 4(1) Transnational
Disp. Mgmt. (February 2007).
Susan Blake, Julie Brown & Stuart Sime, A Practical Approach to Alternative Dispute
Resolution (Oxford University Press 2012).
Peter Berger, Private Dispute Resolution in International Business: Negotiation, Mediation,
Arbitration (3d ed., Kluwer Law International 2015).
Bertrand, E., Arbitration and Mediation: An Impossible Conciliation? (Arbitrage et médiation:
l'impossible conciliation?), 2 Int’l. Business L.J. (Revue de drot des affaires internationales)
(2001).
Kristin M. Blankley, Keeping a Secret from Yourself: Confidentiality When the Same Neutral
Serves Both as Mediator and Arbitrator in the Same Case, Baylor L. Rev. (2011).
Henry J. Brown & Arthur Marriot, ADR Principles and Practice (Sweet & Maxwell 2011).
Christian Bühring-Uhle, Arbitration and Mediation in International Business (2d ed., Kluwer
Law International 2006).
CEDR, Commission on Settlement in International Arbitration, Final Report (November 2009).
Wang Sheng Chang, CIETAC’s Perspective on Arbitration and Conciliation Concerning China, in
New Horizons in International Commercial Arbitration and Beyond (Albert Jan van den Berg
ed., Kluwer Law International 2005).
Tai-Heng Cheng, Reflections on Culture in Med—Arb, Contemporary Issues in International
Arbitration and Mediation: The Fordham Papers, vol. 4 (A. Rovine ed., Martinus Nijhoff
(2009).
Jack. J. Coe, Towards a Complementary Use of Conciliation in Investor-State Disputes, A
Preliminary Sketch, in Mediation & ADR, TDM 1 (2007).
Anthony Connerty, The 2012 Revision of the CIETAC Arbitration Rules: A Look at the Most
Significant Changes, 67 Disp. Res. J. 72 (May-July 2012).
Susan Frank, Using Investor—State Mediation Rules to Promote Conflict Management: An
Introductory Guide, 29(1) ICSID Review—Foreign Invest. L.J. (2014).
Sally A. Harpole, The Combination of Conciliation with Arbitration in the People’s Republic of
China, 24 J. Int’l Arb. 6 (2007).
Michael F. Hoellering, Mediation & Arbitration: A Growing Interaction, 52 Disp. Res. J. 23
(1997).
International Energy Charter, Guide on Investment Mediation (2016).
Christine Kang, Oriental Experience of Combining Arbitration with Conciliation: New
Development of CIETAC and Chinese Judicial Practice, 40 Fordham Int’l L. J. 3, 919-952 (2017).
P 696
P 697
F. Khalifa, Mediation use in ISDS, 11(1) Transnational Disp. Mgmt. (2014).
W. von Kumberg et al., Enabling Early Settlement in Investor-State Arbitration: The Time to
Introduce Mediation Has Come, 29(1) ICSID Rev. 133 (2014).
Marjorie Mantle, Mediation: A Practical Guide for Lawyers (Oxford University Press 2017).
T. Martin, “International Mediation: An Evolving Market,” Contemporary Issues in
International Arbitration & Mediation, the Fordham Papers (Martinus Nijhoff Publishers,
2010).
Michael McIlwrath & John Savage, International Arbitration and Mediation: A Practical Guide
(Kluwer Law International 2010).
David J. McLean & Sean-Patrick Wilson, Compelling Mediation in the Context of Med—Arb
Agreements 63 Disp. Res. J. 28 (2008).
Mediation of Investor-State Conflicts, 127 Harvard L. Rev. 2543 (June 20, 2014).
Dilyara Nigmatullina, The Combined Use of Mediation and Arbitration in Commercial Dispute
Resolution: Results from an International Study, 33 J. Int’l Arb. 1 (2016).
Brian A. Pappas, Med—Arb and the Legalization of Alternative Dispute Resolution (2013).
Michael Pryles, Multi-tiered Dispute Resolution Clauses, in International Arbitration and
National Courts: The Never Ending Story (Albert Jan van den Berg ed., Kluwer Law
International 2001).
 Jacob Rosoff, Hybrid Efficiency in Arbitration: Waiving Potential Conflicts for Dual Role
Arbitrators in Arb—Med Proceedings (2009).
Arthur W. Rovine (ed.), Contemporary Issues in International Arbitration and Mediation
(Martinus Nijhoff Publishers 2011).
Christoph H. Schreuer et al., The ICSID Convention: A Commentary (2d ed., Cambridge
University Press 2001).
Sheetal Sharma, “Arbitration, Mediation and Conciliation,” iPleaders-Intelligent Legal
Solutions (February 8, 2018).
Esme Shirlow, The Rising Interest in the Mediation of Investment Treaty Disputes, and Scope
for increasing Interaction Between Mediation and Arbitration (Kluwer Arbitration Blog
September 29, 2016).
Margret Stevens & Ben Love, Investor—State Mediation: Observations on the Role of
Institutions.
Edna Sussman, Developing an Effective Med—Arb/Arb—Med Process (2009).
F. Yeoh & D. Ang, Reflections on Gao Haiyan—Of “Arb—Med,” “Waivers” and Cultural
Contextualism of Public Policy Arguments, 29(3) J. of Int’l. Arb. (2012).
Nancy. A. Welsh & Andrea Kupfer Schneider, The Thoughtful Integration of Mediation into
Bilateral Investment Treaty Arbitration, 18 Harvard Neg. L. Rev. (2013).
Martin C. Weisman, Med- Arb: The Best of Both Worlds, 19(3) Disp. Res. Magazine (Spring
2013).
P 697
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Consolidation and Joinder
Gary B. Born, Chapter Twelve: Multiparty and Multicontract Issues in International
Arbitration, in International Arbitration: Law and Practice (2d ed., Kluwer Law International
2015).
Antonio Crivellaro, Consolidation of Arbitral and Court Proceedings in Investment Disputes, 4
Law & Prac. Int’l Cts. & Tribunals 371 (2005).
Bernard Hanotiau, Complex Arbitrations: Multiparty, Multicontract, Multi-Issue and Class
Actions (Kluwer Law International 2005).
Gabrielle Kaufmann-Kohler, Laurence Boisson de Chazournes, Victor Bonnin & Makane
Moïse Mbengue, Consolidation of Proceedings in Investment Arbitration: How Can Multiple
Proceedings Arising from the Same or Related Situations Be Handled Efficiently?: Final Report
on the Geneva Colloquium Held on 22 April 2006, 22(1) ICSID Review—Foreign Invest. L.J., 59-
125 (March 2006).
Okuma Kazutake, Party Autonomy in International Commercial Arbitration: Consolidation of
Multiparty and Classwide Arbitration, 9 Ann. Surv. Int’l & Comp. L. Art. 9 (2003).
Interim Measures and Emergency Relief
Baruch Baigel, The Emergency Arbitrator Procedure under the 2012 ICC Rules: A Juridical
Analysis, 31 J. Int’l Arb. 1 (Kluwer Law International 2014).
Raja Bose & Ian Meredith, Emergency Arbitration Procedures: A Comparative Analysis, 5 Int’l.
Arb. L. Rev. 186 (2012).
Amir Ghaffari & Emmylou Walters, The Emergency Arbitrator: The Dawn of a New Age?, 30
Arb. Int’l 153 (2014).
Tim Hardy, et al., International Arbitration Practice Guideline: Applications for Interim
Measures (Chartered Institute of Arbitrators 2016).
Jonathan Hill, Is an Interim Measure of Protection Ordered by an Arbitral Tribunal an Arbitral
Award?, 9(4) J. Int’l. Disp. Settlement (2018).
Caline Mouawad & Elizabeth Silbert, A Guide to Interim Measures in Investor-State
Arbitration, 29 Arb. Int’l 381 (2013).
Lawrence W. Newman & Colin Ong (eds.), Interim Measures in International Arbitration
(JurisNet, LLC 2014).
D. Alan Redfern, Arbitration and the Courts: Interim Measures of Protection—Is the Tide about
to Turn, 30 Tex. Int’l L. J. 71 (1995).
Ben H. Sheppard, Jr. and John M. Townsend, Holding the Fort until the Arbitrators Are
Appointed: The New ICDR International Emergency Rule, 61(2) Disp. Res. J. (May/June 2006).
Peter J.W. Sherwin & Douglas C. Rennie, Interim Relief under International Arbitration Rules
and Guidelines: A Comparative Analysis, 20 Am. Rev. Int’l Arb. 317 (2009).
Ali Yesilirmak, Provisional Measures in International Commercial Arbitration (Kluwer Law
International 2005).
Sarah Zagata Vasani, The Emergency Arbitrator: Doubling as an Effective Option for Urgent
 Relief and an Early Settlement Tool (Energy Law Exchange 2018).
P 698
P 699
Early Dismissal: Summary Decision, Discontinuance and Settlement
Klaus Peter Berger, The Settlement Privilege: A General Principle of International ADR Law, 24
Arb. Int’l 2 (June 2008).
Nicholas Murray Butler, The International Mind: An Argument for the Judicial Settlement of
International Disputes (Charles F. Howlett ed., Information Age Publishing Inc. 2013).
Philip Chong & Blake Primrose, Summary Judgment in International Arbitrations Seated in
England, 33 Arb. Int’l 1 (March 2017).
Michael Collins, Do International Arbitral Tribunals have any Obligations to Encourage
Settlement of the Disputes Before Them?, 19 Arb. Int’l 3 (September 2003).
Lucy Greenwood, Window of Opportunity—Building a Short Period of Time into Arbitral Rules
in Order for Parties to Explore Settlement, 27 Arb. Int’l 199 (2011).
Francis Hornyold-Strickland & Duncan Speller, Preliminary Determination—Path to
Efficiency OR Treacherous Shortcut (Kluwer Arbitration Blog April 21, 2016).
Michael Kerr, Concord and Conflict in International Arbitration, 13 Arb. Int’l 1 (June 1997).
Hilmar Raeschke-Kessler, The Arbitrator as Settlement Facilitator, 21 Arb. Int’l 4 (December
2005).
Adam Raviv, No More Excuses: Toward a Workable System of Dispositive Motions in
International Arbitration, 28 Arb. Int’l 3 (2012).
Mauro Rubino-Sammartano, Chapter 22: Preliminary Issues and Initial Stage, in
International Arbitration Law (Kluwer Law and Taxation Publishers 1990).
Inna Uchkunova, Rule 41(5) of the ICSID Arbitration Rules: The Sleeping Beauty of the ICSID
System (Kluwer Arbitration Blog June 27, 2014).
P 699

References
1) ICDR Rules, Art. 1(4); CIETAC Rules, Art. 56; HKIAC Rules, Art. 42; ICC Rules, Art. 30 and
Appx. VI; SIAC Rules, Rule 5.
2) Proposals for Amendment of the ICSID Rules—Synopsis, ICSID, World Bank Group, 2018
(ICSID Synopsis), available at https://icsid.worldbank.org/en/amendments/
Documents/Homepage/Synopsis_English.pdf, paras. 56-59 (indicating that parties
may agree to opt into an expedited arbitral process for the full arbitration, specifying
time limits for each period, and providing for the selection and appointment of
arbitrators in accordance with the shorter time frame in an expedited arbitration).
3) ICDR Rules, Arts. 1(4) and E-1; CIETAC Rules, Art. 64; HKIAC Rules, Art. 42.2; ICC Rules,
Appx. VI, Art. 1(1). Both the ICC and SIAC Rules state that the expedited procedures
even supersede any contrary terms in the parties’ arbitration agreement. ICC Rules,
Art. 30(1); SIAC Rules, Rule 5.3.
4) Rules for Expedited Arbitrations, Arbitration Institute of the Stockholm Chamber of
Commerce (in force as of Mar. 1, 2017) (SCC Expedited Procedures). Only selected
excerpts of the SCC Rules for Expedited Arbitrations appear in Table 10.1.
5) HKIAC Rules, Art. 42.1(a).
6) SIAC Rules, Rule 5.1(a).
7) CIETAC Rules, Art. 56(1); ICC Rules, Appx. VI, Art. 1(2).
8) ICDR Rules, Art. 1(4).
9) See ICC Rules, Art. 30(3)(b).
10) SCC Rules for Expedited Arbitrations, p. 2.
11) ICDR Rules, Art. 1(4); CIETAC Rules, Art. 56(1); HKIAC Rules, Art. 42.1(b); ICC Rules, Art.
30(2)(b); SIAC Rules, Rule 5.1(b).
12) HKIAC Rules, Art. 42.1(c); SIAC Rules, Rule 5.1(c).
13) CIETAC Rules, Art. 56(2).
14) ICDR Rules, Art. E-6; SCC Rules for Expedited Arbitrations, Art. 17.
15) SIAC Rules, Rule 5.2(b).
16) ICC Rules, Appx. VI, Art. 2(1).
17) HKIAC Rules, Art. 42.2(a).
18) CIETAC Rules, Art. 58.
19) Id.; HKIAC Rules, Art. 42.2(a); SIAC Rules, Rule 5.2(b).
20) ICDR Rules, Art. E-6.
21) Id.
22) ICC Rules, Appx. VI, Art. 2(2); SCC Rules for Expedited Arbitrations, Art. 18(3).
23) ICDR Rules, Art. E-7; ICC Rules, Appx. VI, Art. 3(3); SCC Rules for Expedited Arbitrations,
Art. 29.
24) ICDR Rules, Art. E-3.
25) Id., at Art. E-7; see also Art. E-2.
26) SCC Rules for Expedited Arbitrations, Art. 29(4).
27) ICC Rules, Appx. VI, Art. 3(3).
28) Id., at Art. 3(1).
29) ICDR Rules, Art. 1(4) (adding the condition that no party’s claim or counterclaim
exceeds USD 100,000); CIETAC, Art. 60; HKIAC, Art. 42(2)(e); ICC Rules, Appx. VI, Art. 3(5);
SCC Rules for Expedited Arbitrations, Art. 33(1); SIAC Rules, Rule 5.2(c).
30) HKIAC Rules, Art. 42.2(d); SCC Rules for Expedited Arbitrations, Art. 30(1).
31) HKIAC Rules, Art. 42.2(c); SCC Rules for Expedited Arbitrations, Art. 30(2).
32) ICDR Rules, Arts. E-2 and E-8.
33) CIETAC Rules, Art. 59(1)-(2).
34) ICC Rules, Appx. VI, Art. 3(4).
35) ICDR Rules, Art. E-9.
36) CIETAC Rules, Art. 61(1).
37) ICC Rules, Appx. VI, Art. 1(4); SIAC Rules, Rule 5.4.
38) ICDR Rules, Art. E-5; CIETAC Rules, Art. 63.
39) ICDR Rules, Art. E-5; ICC Rules, Appx. VI, Art. 3(2).
40) SCC Rules for Expedited Arbitrations, Art. 30(3).
41) ICDR Rules, Art. E-10.
42) CIETAC Rules, Art. 62(1).
43) SCC Rules for Expedited Arbitrations, Art. 43.
44) SIAC Rules, Rule 5.2(d); HKIAC Rules, 42(2)(f); ICC Rules, Appx. VI, Art. 4(1).
45) See SCC Rules for Expedited Arbitrations, Art. 42(1).
46) HKIAC Rules, 42(2)(g); SIAC Rules, Rule 5.2(e).
47) Full discussion of freestanding mediation and conciliation procedures and issues is
beyond the scope of this book. For a comparative analysis of mediation rules, see C.M.
Baker and A.H. Ali, A Cross-Comparison of Institutional Mediation Rules, 4(1)
Transnational Disp. Mgmt. (February 2007). Additional sources on mediation and
conciliation appear at the end of this chapter.
48) Nadja Alexander, International and Comparative Mediation, Global Trends in Dispute
Resolution, 15 (Kluwer Law International 2009).
49) Michael Pryles, “Multi-Tiered Dispute Resolution Clauses,” International Arbitration and
National Courts: The Never Ending Story (Albert Jan van den Berg ed., Kluwer Law
International 2001), 25.
50) Alexander, supran. 48, at 11.
51) See section §2.04 of this book (Optional Provisions).
52) Michael McIlwrath & John Savage, International Arbitration and Mediation: A Practical
Guide, 184 (Kluwer Law International 2010).
53) ICDR International Mediation Rules, International Centre for Dispute Resolution (June
1, 2014) (“ICDR Mediation Rules”); HKIAC Arbitration Rules (effective Nov. 1, 2018),
HKIAC Mediation Rules (effective Aug. 1, 1999); ICC Mediation Rules; “ICSID Conciliation
Rules; SCC Mediation Rules; UNCITRAL Conciliation Rules. CIETAC Arbitration Rules
contain a provision for conciliation (Art. 47); CIETAC does not offer a separate
conciliation regime.
54) Mediation Guidance Notes, International Chamber of Commerce (2013).
55) Id.
56) SIAC Rules, Schedule 1, SIAC-SIMC Arb-Med-Arb Protocol (AMA Protocol).
57) SIAC Rules, Schedule 1, SIAC-SIMC Arb-Med-Arb Model Clause (Arb-Med-Arb Clause).
58) ICDR Rules, Art. 5.
59) Id.
60) Id.
61) See id. There are very different views on whether arbitrators should ever be involved
in mediation or conciliation—or, for that matter, any type of settlement discussions—
or whether the arbitrators should remain completely separate from any discussions
or procedures.
62) ICSID Rules, Rule 21(2).
63) Christoph H. Schreuer, The ICSID Convention: A Commentary, 828 para. 82 (2d ed.,
Cambridge 2001).
64) For more details, see ICSID Synopsis, supran. 2, paras. 78-95; 114-122.
65) CIETAC Rules, Art. 47; see also McIlwrath & John Savage, supran. 52, 185-186; Michael F.
Hoellering, Mediation & Arbitration: A Growing Interaction, 52 Disp. Res. J. 23, 25 (1997).
66) CIETAC Rules, Arts. 47(1), 47(8).
67) Id., at Art. 47(9).
68) Id., Arts. 47(5) and 47(10).
69) Id., at Art. 47(2).
70) Dilyara Nigmatullina, The Combined Use of Mediation and Arbitration in Commercial
Dispute Resolution: Results from an International Study, 33 J. of Int’l Arb., 74 (Kluwer
Law International 2016).
71) Sally A. Harpole, The Combination of Conciliation with Arbitration in the People’s
Republic of China, 24 J. of Int’l Arb., 62 (Kluwer Law International 2007).
72) Wang Sheng Chang, “CIETAC’s Perspective on Arbitration and Conciliation Concerning
China,” New Horizons in International Commercial Arbitration and Beyond, vol. 12, 40-41
(Albert Jan van den Berg ed., Kluwer Law International 2005).
73) See, e.g., CEDRCommission on Settlement in International Arbitration, Final Report, 2
(November 2009),
http://www.cedr.com/about_us/arbitration_commission/Arbitration_Commission_Do
c_Final.pdf. Even though the CIETAC rules allow the arbitral tribunal to act as
conciliators, in the view of many Western practitioners, this procedure presents a
clear conflict. See, e.g., Michael. I. Kaplan, Solving the Pitfalls of Impartiality When
Arbitrating in China: How the Lessons of the Soviet Union and Iran Can Provide Solutions
to Western Parties Arbitrating in China, 110 Penn. St. L. Rev. 769, 804 (2006); but see
Anthony Connerty, The 2012 Revision of the CIETAC Arbitration Rules: A Look at the Most
Significant Changes, 67 Disp. Res. J. 72, 75 (May-July 2012) (noting that the new CIETAC
Rules, at Art. 45(8), allow the parties to request the appointment of conciliators who
are not members of the arbitral tribunal, thus resolving the appearance of conflict).
74) ICDR Rules, Art. 8; CIETAC Rules, Art. 19; HKIAC Rules, Art. 28; ICC Rules, Art. 10; LCIA
Rules, Art. 22(1)(ix)-(x); SCC Rules, Art. 15; SIAC Rules, Rule 8.
75) ICSID Synopsis, supran. 2, para. 40.
76) CIETAC Rules, Art. 19(1); HKIAC Rules, Art. 28; ICC Rules, Art. 10; SCC Rules, Art. 15(1).
77) SIAC Rules, Rules 8.1 and 8.7.
78) LCIA Rules, Art. 22(1)(ix)-(x).
79) ICDR Rules, Art. 8(2) (indicating procedures for appointment); Rule 8(6) (prohibiting
the consolidation arbitrator from serving on the tribunal in the consolidated
arbitration); Rule 8(7) (requiring the decision on consolidation within 15 days of the
date of the parties’ submissions on consolidation, but no requirement to give reasons
for the decision).
80) ICDR Rules, Art. 8(1)(b); CIETAC Rules, Art. 19(1)(a); HKIAC Rules, Art. 28.1(b); ICC Rules,
Art. 10(b); LCIA Rules, Art. 22.1(x); SCC Rules, Art. 15(1)(ii); SIAC Rules, Rule 8.1(b). Under
the SIAC Rules, after the tribunal has been constituted, multiple arbitrations can be
consolidated under the same arbitration agreement only if no other tribunal has
been formed or the arbitral tribunals are the same. SIAC Rules, Rule 8.7(b).
81) ICDR Rules, Art. 8(1)(c); HKIAC Rules, Art. 28.1(c); ICC Rules, Art. 10(c).
82) HKIAC Rules, Art. 28.1(c).
83) LCIA Rules, Art. 22(1)(x).
84) CIETAC Rules, Art. 28(1)(b)-(c); SIAC Rules, Rule 8.1(c); see also SIAC Rules, Rule 8.7(c).
85) ICDR Rules, Art. 8(1)(a); CIETAC Rules, Art. 19(1)(d); HKIAC Rules, Art. 28.1(a); ICC Rules,
Art. 10(a); LCIA Rules, Art. 22(1)(ix); SCC Rules, Art. 15(1)(i); SIAC Rules, Rules 8.1(a) and
8.7(a).
86) ICDR Rules, Art. 8(3)(a).
87) Id., at Art. 8(3)(b); CIETAC Rules, Art. 19(2); HKIAC Rules, Art. 28.3(k) (“whether to
preserve the appointment of any arbitrators already designated or confirmed”); ICC
Rules, Art. 10.
88) ICDR Rules, Art. 8(3)(c); SCC Rules, Art. 15(2)(i).
89) ICDR Rules, Art. 8(3)(d); CIETAC Rules, Art. 19(2) (“the correlation between the
arbitrations concerned”).
90) ICDR Rules, Art. 8(3)(e); SCC Rules, Art. 15(2)(ii) (“the efficiency and expeditiousness of
the proceedings”).
91) LCIA Rules, Art. 22(1)(x); SIAC Rules, Rule 8.7.
92) ICDR Rules, Art. 8(5); CIETAC Rules, Art. 19(3); HKIAC Rules, Art. 28.6; ICC Rules, Art. 10;
SIAC Rules, Rule 8.5.
93) ICDR Rules, Art. 8(6); HKIAC Rules, Art. 28.8.
94) SIAC Rules, Rule 8.6.
95) Id., at Rule 8(12).
96) SCC Rules, Art. 15(3).
97) HKIAC Rules, Art. 28.9(a).
98) SIAC Rules, Rules 8.4 and 8.9.
99) ICDR Rules, Art. 8(4).
100) ICC Rules, Art. 9 (“irrespective of whether such claims are made under one or more
than one arbitration agreement under the Rules”).
101) HKIAC Rules, Art. 29 (indicating three requirements: common questions of law and
fact; same transaction or series of transactions; and compatible arbitration
agreements); SCC Rules, Art. 14(3) (indicating four requirements: compatible
arbitration agreements; same transaction or series of transactions; efficiency and
expeditiousness of the proceedings; and any other relevant circumstances); SIAC
Rules, Rule 6.1 (incorporating consolidation criteria by reference to Rule 8.1).
102) SIAC Rules, Rule 6.1.
103) LCIA Rules, Art. 1(1)(iii). It had been generally thought that the previous version of LCIA
Rules permitted a similar approach. However, the English Court took the highly
unusual step of refusing to enforce an arbitration award where the claimant had
brought a single arbitration based on two identical arbitration agreements in
substantially identical contracts relating to separate consignments of crude oil. A v. B
[2011] EWHC 3417 (Comm). This led to a modification to the LCIA Rules to clarify the
position.
104) ICDR Rules, Art. 7; HKIAC Rules, Art. 27; ICC Rules, Art. 7; SCC Rules, Art. 13; SIAC Rules,
Rule 7; UNCITRAL Rules, Art. 17(5).
105) HKIAC Rules, Art. 27.9; SIAC Rules, Rules 7.1 and 7.8.
106) ICDR Rules, Art. 7(1); HKIAC Rules, Art. 27.8; ICC Rules, Art. 7(1); SCC Rules, Art. 13(1); SIAC
Rules, Rules 7.1 and 7.4; UNCITRAL Rules, Art. 17(5).
107) ICDR Rules, Art. 7(1); ICC Rules, Art. 7(1).
108) SCC Rules, Art. 13(2).
109) HKIAC Rules, Art. 27(5); SIAC Rules, Rule 7.8; UNCITRAL Rules, Art. 17(5).
110) ICDR Rules, Art. 7(1) and (2); HKIAC, Arts. 27.6 and 27.9; ICC Rules, Art. 7(1)-(3); SCC Rules,
Art. 13(2); SIAC Rules, Rules 7.2, 7.3, 7.8, and 7.9.
111) ICDR Rules, Art. 7(1); HKIAC Rules, Art. 27.11; SCC Rules, Art. 13(3); SIAC Rules, Rules 7.5
and 7.11.
112) ICDR Rules, Art. 7(3); HKIAC, Art. 27.7; ICC Rules, Art. 7(4); SCC Rules, Art. 13(4); UNCITRAL
Rules, Art. 17(5).
113) HKIAC Rules, Art. 27.10; SIAC Rules, Rules 7.4 and 7.10.
114) ICDR Rules, Art. 7(2) (applying requirements of a Notice of Arbitration which include “a
copy of the entire arbitration clause or agreement being invoked”); HKIAC Rules, Art.
27.1(a); ICC Rules, Art. 7(2)(c) (applying requirements of a Request for Arbitration,
including “any relevant agreements and, in particular, the arbitration agreement(s)”);
SCC Rules, Art. 13(2) (applying requirements of a Request for Arbitration, including “a
copy or description of the arbitration agreement or clause under which the dispute is
to be settled”); SIAC Rules, Rules 7.1(a) and 7.8(a); UNCITRAL Rules, Art. 17(5).
115) HKIAC Rules, Art. 27.1(a); SIAC Rules, Rules 7.1(a) and 7.8(a).
116) SCC Rules, Art. 13(5).
117) LCIA Rules, Art. 22(1)(viii); SIAC Rules, Rule 7.1(b).
118) UNCITRAL Rules, Art. 17(5).
119) HKIAC Rules, Art. 27.2; SCC Rules, Art. 13(7); SIAC Rules, Rules 7.4 and 7.10.
120) HKIAC Rues, Art. 27.13; SCC Rules, Art. 13(8); SIAC Rules, Rules 7.6 and 7.12. As is the case
for consolidation, the revocation of the appointment of an arbitrator due to joinder of
a party is without prejudice to the validity of any act or order made by the arbitrator
prior to revocation and his entitlement to applicable fees. HKIAC Rules, Arts. 27(12)
and 27(14); SIAC Rules, Rule 7.7.
121) ICDR Rules, Art. 3(7); ICC Rules, Art. 8(1).
122) ICDR Rules, Art. 24; CIETAC Rules, Art. 23; HKIAC Rules, Art. 23; ICC Rules, Art. 28; ICSID
Convention, Art. 47; ICSID Rules, Rule 39; LCIA Rules, Art. 25; SCC Rules, Art. 37; SIAC
Rules, Rule 30; UNCITRAL Rules, Art. 26.
123) ICSID Rules, Rule 39(3).
124) ICDR Rules, Art. 24(1); CIETAC Rules, Art. 23(3); HKIAC Rules, Art. 23.2; ICC Rules, Art.
28(1); ICSID Convention, Art. 47; SCC Rules, Art. 37(1); SIAC Rules, Rule 30.1; UNCITRAL
Rules, Art. 26(2).
125) ICDR Rules, Art. 24(1).
126) HKIAC Rules, Art. 23.3; UNCITRAL Rules, Art. 26(2).
127) LCIA Rules, Art. 25(1).
128) ICSID Rules, Rule 39(1).
129) HKIAC Rules, Art. 23.4; UNCITRAL Rules, Art. 26(3). The UNCITRAL Rules clarify that the
tribunal need not apply these factors to an application for an order to preserve
evidence. UNCITRAL Rules, Art. 26(4).
130) HKIAC Rules, Arts. 23.5 and 23.7; ICSID Rules, Rule 39(3); UNCITRAL Rules, Arts. 26(5) and
26(7).
131) Tim Hardy, et al., International Arbitration Practice Guideline: Applications for Interim
Measures (Chartered Institute of Arbitrators 2016), Art. 7. See also, UNCITRAL Model
Law, Arts. 17B and 17C.
132) Id.
133) ICSID Rules, Rule 39(4); LCIA Rules, Art. 25(1).
134) ICDR Rules, Art. 24(2); CIETAC Rules, Art. 23(3); HKIAC Rules, Art. 23.6; ICC Rules, Art.
28(1); LCIA Rules, Art. 25(1)-(2); SCC Rules, Art. 37(2); SIAC Rules, Rule 30.1; UNCITRAL
Rules, Art. 26(6). ICSID is considering adopting a new rule allowing a Tribunal to order
security for costs. See ICSID Synopsis, supran. 2, para. 51.
135) ICDR Rules, Art. 24(4); HKIAC Rules, Art. 23.8; UNCITRAL Rules, Art. 26(8).
136) ICDR Rules, Art. 24(2); CIETAC Rules, Art. 23(3); HKIAC Rules, Art. 23.3; ICC Rules, Art.
28(1); SCC Rules, Art. 37(3); SIAC Rules, Rule 30.1.
137) UNCITRAL Model Law on International Commercial Arbitration (2006), Art. 17H. See
also D. Alan Redfern, Arbitration and the Courts: Interim Measures of Protection—Is the
Tide about to Turn, 30 Tex. Int’l L. J. 71, 82 (1995).
138) ICC Rules, Art. 28(1).
139) See Convention on the Settlement of Investment Disputes between States and
Nationals of Other States (ICSID Convention), Art. 47; ICSID Rules, Rule 39(1). This
reflects the reluctance on the part of the drafters of the ICSID Convention to be seen
as infringing on Member States’ sovereignty and to avoid the difficult question of
enforcing orders against states. See Aron Broches, Convention on the Settlement of
Investment Disputes Between States and Nationals of Other States of 1965: Explanatory
Notes and Survey of Its Application, in Yearbook of Commercial Arbitration 627, 676 (A.
Jan van den Berg ed., 1993).
140) See, e.g., RSM Prod. Corp. v. St. Lucia, ICSID Case No. ARB/12/10, Decision on St. Lucia’s
Request for Security for Costs (Dec. 12, 2013); Border Timbers Ltd. et al. v. Republic of
Zimbabwe, ICSID Case No. ARB/10/25, Procedural Order No. 5 (Apr. 3, 2013); Niko
Resources v. Bangladesh Petroleum Exploration and Prod. Co. Ltd. (“Bapex”) and
Bangladesh Oil Gas and Mineral Corp. (“Petrobangla”), ICSID Cases No. ARB/10/11 and
ARB/10/18, Procedural Order No. 5 (May 1, 2014).
141) ICDR Rules, Art. 24(3); CIETAC Rules, Art. 23(1); HKIAC Rules, Art. 23.9; ICC Rules, Art.
28(2); ICSID Rules, Rule 39(6); LCIA Rules, Art. 25(3); SCC Rules, Art. 37(5); SIAC Rules,
Rule 30.3; UNCITRAL Rules, Art. 26(9). The ICSID Rules permit a party to seek interim
relief from a national court only if they have so stipulated in the agreement recording
their consent to arbitrate. ICSID Rules, Rule 39(6).
142) Herman Verbist et al., ICC Arbitration in Practice 155-156 (2d ed., Kluwer Law
International 2015).
143) See section §2.03 of this book (Highly Recommended Provisions).
144) CIETAC Rules, Art. 23. Compare with the 2005 CIETAC Rules under which an application
for interim measures is made to CIETAC, which forwards it on to a competent court.
See CIETAC Rules 2005, Art. 17.
145) LCIA Rules, Art. 25(3).
146) See Peter Turner & Reza Mohtashami, A Guide to the LCIA Arbitration Rules 177-178
(Oxford University Press 2009) (“All turns, therefore, on the meaning of the word
‘exceptional.’ It is submitted that this should mean no more and no less than that
there is a presumption that the application should be made to the arbitral tribunal.
It will of course be for the application to justify a derogation in a particular case from
this presumption.”).
147) See ICDR Rules 2006, Art. 37. See also, Ben H. Sheppard, Jr. & John M. Townsend,
Holding the Fort until the Arbitrators Are Appointed: The New ICDR International
Emergency Rule, Disp. Res. J. (May/June 2006).
148) ICDR Rules, Art. 6; CIETAC Rules, Art. 23 and Appx. III; HKIAC Rules, Art. 23 and Schedule
4; ICC Rules, Art. 29 and Appx. V; LCIA Rules, Art. 9B; SCC Rules, Art. 37 and Appx. II;
SIAC Rules, Rule 30 and Schedule 1. The ICSID Rules do not offer emergency relief
provisions, but they do provide for briefing on provisional measures prior to
formation of the tribunal “so that the request and observations may be considered
promptly upon its constitution.” ICSID Rules, Rule 39(5).
149) ICDR Rules, Art. 6(7); CIETAC Rules, Appx. III, Art. 5(4); HKIAC Rules, Schedule 4, Art. 23;
ICC Rules, Art. 29(7); LCIA Rules, Art. 9(12); SCC Rules, Appx. II, Art. 37(5); SIAC Rules,
Rule 30.3. However, this does not necessarily allow a party two bites of the cherry. In
Gerald Metals SA v. Timis [2016] EWHC 2327 (Ch), the English High Court held that it had
no power to order urgent interim measures in circumstances where the LCIA had
dismissed the claimant’s application for the appointment of an emergency
arbitrator.
150) For example, to the end of 2017, the total number of filed cases under the ICC
emergency arbitrator provisions (introduced in 2012) is only 78. See, ICC announces
2017 figures confirming global reach and leading position for complex, high-value
disputes, International Chamber of Commerce (July 3, 2018),
https://iccwbo.org/media-wall/news-speeches/icc-announces-2017-figures-
confirming-global-reach-leadi... (accessed Aug. 28, 2018). One instance in which a
party may prefer to utilize the emergency arbitrator proceedings is where the
provisional measure sought “concerns multiple jurisdictions and would otherwise
require applications to be made in several courts in different countries.” Jason Fry et
al., The Secretariat’s Guide to ICC Arbitration 294 (ICC 2012).
151) ICC Rules, Art. 29(6); LCIA Rules, Art. 9.14.
152) See Raja Bose & Ian Meredith, Emergency Arbitration Procedures: A Comparative
Analysis, 5 Int’l. Arb. L. Rev. 186, 191 (2012).
153) CIETAC Rules, Appx. III, Art. 4; HKIAC Rules, Schedule 4, Art. 9; ICC Rules, Appx. V, Art.
4(1); LCIA Rules, Art. 9.13 (referencing Art. 16); SCC Rules, Appx. II, Art. 5; SIAC Rules,
Schedule 1, Art. 4. The ICDR Rules do not make special provision for the seat of
emergency proceedings.
154) HKIAC Rules, Schedule 4, Art. 9; ICC Rules, Appx. V, Art. 4(1); LCIA Rules, Art. 9.13
(referencing Art. 16); SCC Rules, Appx. II, Art. 5; SIAC Rules, Schedule 1, Art. 4.
155) CIETAC Rules, Appx. III, Art. 4 (referencing Art. 7).
156) ICDR Rules, Art. 17(1).
157) ICDR Rules, Art. 6(1); CIETAC Rules, Appx. III, Art. 1(3); HKIAC Rules, Schedule 4, Art. 2;
ICC Rules, Appx. V, Art. 1(3); LCIA Rules, Art. 9.5; SCC Rules, Appx. II, Art. 2; SIAC Rules,
Schedule 1, Art. 1.
158) ICDR Rules, Art. 6(2) (“one business day”); CIETAC Rules, Appx. III, Art. 2(1) (“one (1)
day”); HKIAC Rules, Schedule 4, Art. 4 (“24 hours”); ICC Rules, Appx. V, Art. 2(1) (“within
as short a time as possible, normally within two days”); LCIA Rules, Art. 9.6 (“three
days”); SCC Rules, Appx. II, Art. 4(1) (“24 hours”); SIAC Rules, Schedule 1, Art. 3 (“one
day”).
159) CIETAC Rules, Appx. III, Art. 3(2); HKIAC Rules, Schedule 4, Art. 7 (referencing Art. 11);
ICC Rules, Appx. V, Art. 5; LCIA Rules, Art. 9.6 (referencing Arts. 5.3-5.5); SIAC Rules,
Schedule 1, Art. 5. The ICDR and SCC Rules do not require arbitrator disclosures.
160) ICDR Rules, Art. 6(2) (“one business day”); CIETAC Rules, Appx. III, Arts. 3(4) and 3(6)
(“two (2) days”); HKIAC Rules, Schedule 4, Art. 7 (“three days”); ICC Rules, Appx. V, Art.
3(1) (“three days”); SCC Rules, Appx. II, Art. 4(3) (“24 hours”); SIAC Rules, Schedule 1, Art.
5 (“two days”). The LCIA Rules on this point defer to its ordinary rules for arbitrator
challenges, which allow 14 days. LCIA Rules, Art. 9.6 (referencing Art. 10).
161) CIETAC Rules, Appx. III, Art. 3(7) (“one (1) day”); HKIAC Rules, Schedule 4, Art. 8 (“24
hours”); ICC Rules, Appx. V, Art. 3(2) (“after the Secretariat has afforded an opportunity
for the emergency arbitrator and the other party or parties to provide comments in
writing within a suitable period of time”). The ICDR and SCC Rules do not indicate a
time frame for appointing a replacement emergency arbitrator. The LCIA and SIAC
Rules make no special provision for replacement of an emergency arbitrator.
162) ICDR Rules, Arts. 6(3) and 6(6); CIETAC Rules, Appx. III, Art. 5; HKIAC Rules, Schedule 4,
Art. 10; ICC Rules, Appx. V, Arts. 5 and 6(7); LCIA Rules, Art. 9.7; SCC Rules, App II, Art. 7;
SIAC Rules, Schedule 1, Arts. 7 and 11.
163) ICDR Rules, Art. 6(3); ICC Rules, Appx. V, Art. 4(2); LCIA Rules, Art. 9.7 (referencing Art.
16.3).
164) ICDR Rules, Art. 6(4); CIETAC Rules, Appx. III, Art. 6; HKIAC Rules, Schedule 4, Art. 16; ICC
Rules, Appx. V, Art. 6(1); LCIA Rules, Art. 9.8; SCC Rules, Art. 37(3) and Appx. II, Art. 9;
SIAC Rules, Schedule 1, Art. 8.
165) CIETAC Rules, Appx. III, Art. 6(2) (“within fifteen (15) days from the date of that
arbitrator’s acceptance of the appointment”); HKIAC Rules, Schedule 4, Art. 12 (“within
14 days from the date on which HKIAC transmitted the file to the emergency
arbitrator”); ICC Rules, Appx. V, Art. 6(4) (“within 15 days from the date on which the
file was transmitted to the emergency arbitrator”); LCIA Rules, Art. 9.8 (“as soon as
possible, but no later than 14 days following the Emergency Arbitrator’s
appointment”); SCC Rules, Appx. II, Art. 8(1) (“no later than 5 days from the date the
application was referred to the Emergency Arbitrator”); SIAC Rules, Schedule 1, Art. 9
(“within 14 days from the date of his appointment”). The ICDR Rules set no deadline
for the issuance of the emergency order.
166) ICDR Rules, Art. 6(4); CIETAC Rules, Appx. III, Art. 6(3); HKIAC Rules, Schedule 4, Art.
14(b); ICC Rules, Appx. V, Art. 6(3); LCIA Rules, Art. 9.9; SCC Rules, Appx. II, Art. 8(2); SIAC
Rules, Schedule 1, Art. 8.
167) ICDR Rules, Art. 6(5); CIETAC Rules, Appx. III, Arts. 3(8) and 5(3); HKIAC Rules, Schedule
4, Arts. 18 and 19; ICC Rules, Appx. V, Art. 2(6); SCC Rules, Appx. II, Art. 1(2); SIAC Rules,
Schedule 1, Arts. 6 and 10. The LCIA Rules do not make a specific provision on this
point.
168) ICDR Rules, Arts. 6(4) and 6(5); CIETAC Rules, Appx. III, Arts. 6(4) and 6(6); HKIAC Rules,
Schedule 4, Art. 17; ICC Rules, Appx. V, Arts. 6(6) and 6(8); LCIA Rules, Art. 9.11; SCC
Rules, Appx. II, Arts. 9(2) and 9(4); SIAC Rules, Schedule 1, Arts. 8 and 10.
169) ICDR Rules, Arts. 6(4) and 6(5); LCIA Rules, Art. 9.11.
170) CIETAC Rules, Appx. III, Arts. 6(4) and 6(6)(e); HKIAC Rules, Schedule 4, Art. 17(d); SCC
Rules, Appx. II, Art. 9(4)(iv); SIAC Rules, Schedule 1, Arts. 8 and 10.
171) CIETAC Rules, Appx. III, Arts. 1(4) and 7(1); HKIAC Rules, Schedule 4, Arts. 2(h) and 5; ICC
Rules, Appx. V, Art. 7(1); LCIA Rules, Art. 9.5; SCC Rules, Appx. II, Arts. 10(1) and 10(2);
SIAC Rules, Schedule 1, Art. 2.
172) CIETAC Rules, Appx. III, Art. 7 HKIAC Rules, Schedule 4, Art. 15; ICC Rules, Appx. V, Art.
7(4); LCIA Rules, Arts. 9.5 and 9.10; SCC Rules, Appx. II, Art. 10(2); SIAC Rules, Schedule 1,
Art. 2.
173) CIETAC Rules, Appx. III, Art. 7(1); HKIAC Rules, Schedule 4, Art. 5; ICC Rules, Appx. V, Art.
7(2); SCC Rules, Appx. II, Art. 10(3); SIAC Rules, Schedule 1, Art. 2.
174) HKIAC Rules, Schedule 4, Art. 5; ICC Rules, Appx. V, Art. 7(2); SCC Rules, Appx. II, Art.
10(4); SIAC Rules, Schedule 1, Art. 2.
175) ICDR Rules, Art. 6(8); CIETAC Rules, Appx. III, Art. 7(2); HKIAC Rules, Schedule 4, Art. 15;
ICC Rules, Appx. V, Art. 7(3); SCC Rules, Appx. II, Art. 10(5); SIAC Rules, Schedule 1, Art.
13. Each of these provisions, except those of the ICC and SCC Rules, subject the
emergency arbitrator’s determination on costs to a further determination by the
arbitral tribunal. The CIETAC Rules additionally provide that if the emergency
proceedings terminate before an order is issued, the Arbitration Court will fix the
amount of costs. CIETAC Rules, Appx. III, Art. 7(3).
176) LCIA Rules, Arts. 9(8) and 9(10).
177) See, e.g., Federal Rules of Civil Procedure (Dec. 1, 2017), US Gov’t Publishing Office; The
Civil Procedure Rules (Apr. 26, 1999), Supreme Court of England and Wales; Swiss Civil
Procedure Code (Dec. 19, 2008), Federal Assembly of the Swiss Confederation; Code of
Civil Procedure (July 1, 2013).
178) Francis Hornyold-Strickland & Duncan Speller, Preliminary Determination—Path to
Efficiency or Treacherous Shortcut (Kluwer Arbitration Blog Apr. 21, 2016)
http://arbitrationblog.kluwerarbitration.com /2016/04/21/preliminary-
determinations-path-to-efficiency-or-treacherous-shortcut/ (accessed July 5, 2018).
179) All of the rules examined in this book address objections to a tribunal’s jurisdiction
and the timing for such objections. See section §3.03 of this book (Jurisdictional
Objections).
180) Rule 29(1) of the 2017 SIAC’s Arbitration Rules also includes a provision dealing with
the “Early Dismissal of Claims and Defences,” allowing parties to apply for early
dismissal on the ground that a claim or defense is “manifestly without legal merit.”
SIAC International Arbitration Rules, Rule 29(1) states that “A Party may apply to the
Tribunal for the early dismissal of a claim or defence on the basis that: a) a claim or
defence is manifestly without legal merit; b) a claim or defence is manifestly outside
the jurisdiction of the Tribunal; or c) a claim or defence is manifestly inadmissible.”
181) Inna Uchkunova, Rule 41(5) of the ICSID Arbitration Rules: The Sleeping Beauty of the
ICSID system (June 27, 2014), http://kluwerarbitrationblog.com/2014/06/27/rule-415-
of-the-icsid-arbitration-rules-the-sleeping-bea... (accessed July 5, 2018). Proposed
ICSID rules amendments expand the scope of grounds to object that objections for
manifest lack of legal merit may be raised concerning the substance of the claim, the
jurisdiction of the Centre, or the competence of the Tribunal. See ICSID Synopsis,
supran. 2, para. 37.
182) Id.
183) Trans-Global Petroleum, Inc. v. The Hashemite Kingdom of Jordan, ICSID Case No.
ARB/07/25, The Tribunal’s Decision on the Respondent’s Objection Under Rule 41(5) of
the ICSID Rules (May 12, 2008), para. 88.
184) Uchkunova, supran. 181, at § IV.
185) SIAC Rules, Rule 29.1.
186) SCC Rules, Art. 39(2).
187) Id., at Art. 39(2)(i)-(ii).
188) HKIAC Rules, Art. 43.
189) See, e.g., CIETAC Rules, Art. 46(2) (“A party may be deemed to have withdrawn its
claim or counterclaim if the arbitral proceedings cannot proceed for reasons
attributable to that party.”).
190) HKIAC Rules, Arts. 4.4, 4.6; LCIA Rules, Art. 1(1)(vi).
191) ICSID Institution Rules, Rule 5(1)(b).
192) SIAC Rules, Rules 3.1, 3.3.
193) SCC Rules, Art. 7.
194) ICC Rules, Art. 4(4).
195) ICDR Rules, Art. 2(4).
196) CIETAC Rules, Art. 13(3). The submission of arbitration documents may also be a
condition for the continuation of a CIETAC Arbitration. See CIETAC Rules, Art. 21.
197) Id., at Art. 16.
198) See Ch. 8 (Costs and Fees).
199) ICDR Rules, Arts. 36(3), 36(4); ICSID Administrative and Finance Regulation 14(3); ICC
Rules, Arts. 37(5), 37(6); LCIA Rules, Arts. 24.4-24.6; SCC Rules, Art. 51(5); SIAC Rules, Rule
34.6; UNCITRAL Rules, Art. 43(4).
200) HKIAC Rules, Art. 26.1; SCC Rules, Art. 35; SIAC Rules, Rule 20.8, UNCITRAL Rules, Art. 30.
201) SCC Rules, Art. 10(2).
202) ICSID Rules, Rule 45. The proposed amendments to the ICSID Rules would revise the
rule on discontinuance for a party’s failure to take a step, by requiring notice after
150 days of inactivity, allowing a further 30 days to take a step, failing which the
proceeding will be deemed discontinued. See ICSID Synopsis, supran. 2, para. 53.
203) LCIA Rules, Art. 22.1(xi).
204) ICSID Institution Rules, Rule 8.
205) ICSID Rules, Rule 44.
206) CIETAC Rules, Arts. 46(1) and 46(3).
207) HKIAC Rules, Art. 36.2; ICDR Rules 2014, Art. 32(2); UNCITRAL Rules 2010, Art. 36(2).
208) UNCITRAL Model Law, Art. 32(2)(c).
209) UNCITRAL Model Law, Art. 30.
210) SIAC Rules, Rule 32.10.
211) See Ch. 9 (The Award: Form, Effect, and Enforceability).
212) See, e.g., Jeffrey Waincymer, Procedure and Evidence in International Arbitration, 1284-
1286 (Kluwer Law International 2012); Gary B. Born, International Arbitration: Cases and
Materials, 3023-3024 (Kluwer Law International 2011); Yves Derains and Eric Schwartz,
Guide to the ICC Rules of Arbitration, 310 (2d ed., Kluwer Law International 2005).
213) Christoph H. Schreuer et al., The ICSID Convention: A Commentary, 825 (2d ed.,
Cambridge University Press 2009).
214) See, e.g., Waincymer, supran. 212, at 1283; Schreuer, et al., supran. 213, at 826.
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