The Role of the Institution at the Commencement of the Proceedings - Chapter 3 - Arbitral Institutions Under Scrutiny: ASA Special Series No. 40
Anne Véronique SCHLAEPFER is a Partner in Schellenberg Wittmer's office in Geneva, Switzerland where she heads the International Arbitration Group. Since joining Schellenberg Wittmer in 1996, her practice has focused on international arbitration. She has acted as counsel and arbitrator in complex commercial disputes involving international construction contracts, joint venture agreements, energy (upstream and downstream), sales and distribution contracts, collateral management agreements, corporate affairs, and know-how license agreements. Ms. Schlaepfer has also regularly served as arbitrator (sole arbitrator, co-arbitrator or chairman) in various proceedings (ICC, LCIA, Swiss Rules, Ad hoc). She has represented parties before Swiss courts in arbitration-related court proceedings, in particular challenges of arbitral awards before the Swiss Supreme Court or the Geneva Court of Justice. Several cases in which Ms. Schlaepfer represented parties before the Swiss Supreme Court have been reported in the official collection of Swiss Supreme Court cases and in specialized journals. She has advised companies when negotiating agreements governed by Swiss law and acts as legal expert in the context of arbitration proceedings. Ms. Schlaepfer is the Chairman of the Arbitration Court that administers arbitration proceedings governed by the Swiss Rules of International Arbitration. She is also a member of the Arbitration Committee of the Geneva Chamber of Commerce as well as vice-chair of the IBA Arbitration Committee. She is a former member of the working group for the revision of the Swiss Rules (2010-2011) and of the task force drafting the IBA Guidelines of International Arbitration Clauses, approved in October 2010. She is a lecturer on international arbitration at the University of Paris XII. She is a member of various professional associations (London International Arbitration Club, LCIA and ASA). She is a co-founder of the Young Arbitration Practitioners Group (YAP) and of ASA below 40. Ms. Schlaepfer has authored and co-authored several publications in the fields of international arbitration and private international law.
The purpose of the present article is to discuss the role of the Institution at the beginning of the arbitration proceedings. As some of the readers may remember, it was initially prepared for the ASA conference held in September 2011. In the meantime, and more precisely on 1 June 2012, the revised Swiss Rules of International Arbitration (“Swiss Rules”) entered into force. It seems therefore useful to adapt the existing text to take into account the changes brought by the new Rules, to the extent they have an impact on the issues addressed here.
This article is structured as follows:
First, it is necessary to determine what period of time the words “commencement of the arbitration proceedings” covers.
Then, it is interesting to review the various activities that the Institution must, should or should not undertake during this period of time. As one rapidly realizes, the tasks of the institution are quite numerous during this first phase of the arbitration and of significant importance.
For the purposes of this article, I will focus on the role of the Institution in charge of the administration of arbitration proceedings governed by the Swiss Rules. However, on some points, it may be interesting to compare the system put in place by the Swiss Rules with those provided for by the main arbitration rules, such as the ICC or the LCIA for instance.
I will proceed in a chronological manner, individually addressing the various issues arising during the first phase of the proceedings. The conclusion will be shaped as a question, namely, whether the Institution could and should do more or less at this early stage.