Commencement of Arbitration - Chapter 3 - International Arbitration Checklists - 3rd Edition
Originally from International Arbitration Checklists - Third Edition
The prescribed method of commencing arbitration proceedings will depend on the provisions of the arbitration agreement, the law governing the arbitration proceedings and any institutional or other rules that the parties have agreed should apply to the arbitration. Compliance with the prescribed method of commencement may be a critical factor in determining whether the claimant has issued proceedings within any applicable time limitation period and it may also be relevant to determinate compliance with conditions imposed by national courts for the granting and enforcement of injunction and other forms of interim relief. The checklist items in this chapter relate to commencement under institutional rules, non-institutional rules and applicable law.
Date of Commencement
The date on which the arbitral proceedings are deemed to have commenced may be prescribed in the applicable law governing the proceedings. For example, Article 21 of the United Nations Commission on International Trade Model Law (“UNCITRAL Model Law”) provides that, unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commence on the date on which the respondent receives a request for that dispute to be referred to arbitration. By contrast, Section 14 of the English Arbitration Act states that the parties can agree when arbitral proceedings are to be regarded as commenced and, in the absence of agreement, provides alternative dates which apply depending on the agreed mechanism for the appointment of the tribunal.
If the applicable law governing the proceedings only dictates the commencement date in the absence of agreement between the parties (as in Model Law Jurisdictions), then regard should be had to any institutional or non-institutional rules that the parties have agreed should apply to the proceedings. For example, the ICC Rules provides that the date of commencement is the date on which the ICC Secretariat receives the Request for Arbitration (a similar rule can be found on ICDR, LCIA, WIPO and CAMCA Rules). On the other hand, the UNCITRAL Rules provides that arbitral proceedings shall be deemed to commence on the date on which the notice of arbitration is received by the respondent.