How to Commence an International Arbitration - Chapter I.3 - Practitioner's Handbook On International Arbitration And Mediation- 3rd Edition
Stephen R. Bond is Senior of Counsel in the London office of Covington & Burling and European Head of the firm's international arbitration practice group. He concentrates in the field of international commercial arbitration. He has served as counsel, co-counsel, chairman or co-arbitrator in numerous international arbitrations. During his career, he has held a number of high profile positions that include Secretary General of the International Court of Arbitration of the International Chamber of Commerce (ICC) from 1985-1991 and the U.S. Member of the ICC International Court of Arbitration for the period 1994-1999. He was Vice Chairman of the ICC Working Group charged with drafting the 1998 ICC Rules of Arbitration. In addition to his ICC experience, Mr. Bond served as Assistant Legal Adviser in the Office of the Legal Adviser of the Department of State and as Counselor for Legal Affairs in the United States Mission to the United Nations in Geneva, where he was accorded the State Department's Distinguished Honors Award.
Abby Cohen Smutny is a Partner in the Washington DC office of White & Case LLP. She is widely recognized as a leading expert on international arbitration, with particular expertise in complex financial disputes and investor-State disputes. Ms. Smutny is a member of the American Law Institute and serves on the Advisory Committee for the Restatement of the U.S. Law of International Commercial Arbitration of the American Law Institute. She also served as a member of the Special Drafting Committee of the ICC Task Force on Arbitration With States and State Entities. She is Vice-Chair of the Institute for Transnational Arbitration, Co-Editor in Chief of World Arbitration and Mediation Review, a member of the Editorial Committee of the Yearbook on International Investment Law and Policy, and a member of the Editorial Board of the Journal of International Arbitration. She is a former Vice-Chair of the Arbitration Committee of the International Bar Association and Chair of its Sub-Committee on Investment Treaty Arbitration. She is also a former Chair of the International Law Section of the District of Columbia Bar. Ms. Smutny has served several terms as a member of the American Society of International Law's Executive Council and also has served as a member of the Society's Executive Committee.
Originally from Practitioner's Handbook On International Arbitration And Mediation- 3rd Edition
This chapter describes the elements necessary for a request to commence an arbitration, both generally and under the ICC Rules of Arbitration, the LCIA Arbitration Rules, the AAA/ICDR International Arbitration Rules, the rules for an ICSID arbitration, and the UNCITRAL Arbitration Rules. It also discusses the tactical considerations behind the preparation of a request for arbitration and enforcement of the arbitration agreement.
§ 3.01 Introduction
[1] Know the Arbitration Rules
Practitioner's Hint: The practitioner should be familiar with the arbitration rules that will guide the conduct of the particular arbitration.
The vast majority of international arbitrations proceed from start to finish without any court intervention. Most are commenced simply by following the procedures set forth in the applicable arbitration rules.
Accordingly, when commencing an arbitration, a party first should familiarize itself thoroughly with the applicable procedural rules. This should be done without assuming that procedures applicable in one's own national courts will be relevant. Even experienced parties familiar with one or two arbitral fora should not assume that other arbitration rules will be essentially the same. Differences among arbitration fora do exist, even with regard to the procedures for commencing an arbitration, and should be understood at the very outset to avoid mistakes.
Although one of the principal benefits of arbitration is the flexibility inherent in the rules of arbitration, the practitioner should bear in mind that, to achieve arbitration's well-earned reputation of flexibility, arbitration rules have been drafted as deliberately vague or sile nt on such practical matters as the introduction of documentary and oral evidence. That vague and silent treatment is designed to accommodate the widest variety of circumstances and to afford parties the opportunity to tailor the proceedings to fit their needs.
§ 3.01 Introduction
[1] Know the Arbitration Rules
[2] The Request for Arbitration: In General
[3] The Response to the Request for Arbitration: In General
[4] Going to Court Despite an Agreement to Arbitrate
§ 3.02 General Considerations before Commencing Arbitration
[1] Existence of an Agreement to Arbitrate
[a] Agreement to Arbitrate is Separable From the Principal Agreement
[b] Existence of Agreement to Arbitrate: Question for Courts or Arbitrators?
[c] Preconditions
[2] Scope of Agreement to Arbitrate -- A Distinct Concern
[3] Parties to the Agreement
[a] Multiple Parties/Multiple Agreements
[b] Non-Signatories
[4] Defective or "Pathological" Arbitration Agreements
[5] Time Bars
[6] Commencing an Arbitration against a Sovereign Party
§ 3.03 Procedures for Commencing an International Arbitration
[1] General Observations
[a] No Need to Apply to Court
[b] Understand the Applicable Rules
[2] What to Include in the Request for Arbitration: General Considerations
[a] Initial Submission
[b] Establishing the Claimant’s Right to Arbitrate
[c] Additional Data
[d] The Pros and Cons of Telling Claimant’s Story
[e] Comparing the Request and Other Pleadings
[3] How to Respond to a Request for Arbitration: General Considerations
[4] Specific Procedures for Commencing an ICC Arbitration
[a] Claimant
[b] Respondent
[5] Specific Procedures for Commencing a LCIA Arbitration
[a] Claimant
[b] Respondent
[6] Specific Procedures for Commencing an AAA/ICDR International Rules Arbitration
[a] Claimant
[b] Respondent
[7] Specific Procedures for Commencing an ICSID Arbitration
[a] Arbitration under the ICSID Convention
[i] Restrictions of the ICSID Convention
[ii] Consent of the Respondent State Required
[iii] Commencing Arbitration under the ICSID Convention Rules
[b] Arbitration under ICSID’s Additional Facility Rules
[8] Specific Procedures for Commencing an Arbitration under the UNCITRAL Rules
[a] Institutional Versus Non-Institutional Arbitration
[b] The Non-Institutional Feature of the UNCITRAL Arbitration Rules
[c] Claimant
[d] Respondent
§ 3.04 Selecting Arbitrators
§ 3.05 Enforcement of Arbitral Agreements
[1] International Conventions and Treaties
[a] The New York Convention
[b] The Panama Convention
[c] The ICSID Convention
[2] National Laws
[a] The United States
[b] Other Jurisdictions
[3] Optional or Unilateral Clauses
[4] Sovereign Immunity
[5] Arbitrability
[a] Identifying Which Forum’s Laws Govern the Question of Arbitrability
[b] Special Considerations When Dealing With a Sovereign Party
§ 3.06 Simultaneous Commencement of Arbitration and Litigation
[1] Waiver of Right to Arbitrate
[2] Court-Ordered Interim or Conservatory Measures
[a] U.S. Courts
[b] Other Jurisdictions