International Arbitration: Lecture 5

International Arbitration: Lecture 5
Matteo Zambelli
[email protected]
University of West London
School of Law
1
2
Overview
A. Commencing an arbitration.
B. Appointment of arbitrators.
C. Qualities required in arbitrators.
D. Challenges of arbitrators.
E. Organisation of the arbitral tribunal.
F. Q&A.
3
Commencing an arbitration
Before commencing an arbitration, or responding to a request for
arbitration, there are several preliminary steps that one should perform:
Check arbitration clause
Check limitation
Interim measures
Prepare the case
Determine what action is necessary
Where there are no specific provisions in the arbitration agreement, a
party must commence arbitration by serving a notice of arbitration: a
written communication by which a party commences an arbitration.

4
(cont.)
Unless there are requirements in the arbitration agreement or applicable
arbitration rules, there are no specific requirements on the form of the
notice. It could just be a letter from the claimant to the respondent.
Where possible, it should:
Follow the provisions of applicable arbitration law (for example, section 14 of
the Arbitration Act 1996).
Clarify what is required of the other party (for example, to agree the
appointment of an arbitrator).
Specify all matters in dispute to be determined in the arbitration by using both
specific and general wording. Usually, it will be preferable to draft the notice
widely to incorporate all conceivable disputes.

5
(cont.)
Issues relating to the commencement of arbitration proceedings arise
relatively frequently. A failure to commence arbitration proceedings
effectively has two potential results:
The claims may be, or become, time-barred because the (ineffective) attempt to
commence arbitration has failed to stop time from running for the purposes of
limitation or contractual time-bars. Commencement of proceedings in the wrong
forum is ineffective for the purposes of limitation.
The tribunal may lack jurisdiction to determine the claims because of the failure to
commence arbitration effectively.
The applicability of statutory limitation periods in arbitration is clear from
section 13(1) of the Arbitration Act 1996: “The Limitation Acts apply to
arbitral proceedings as they apply to legal proceedings”.

6
(cont.)
The parties are free to agree how they should “commence proceedings”
for the purposes of limitation (section 14(1), Arbitration Act 1996). Any
agreement must be in writing if it is to be effective.
Some institutional rules do contain provisions that specify when, for
limitation purposes, an arbitration is commenced. See, for example:
UNCITRAL Rules 2010 – Date on which arbitration notice received by respondent (Article
3(2)).
LCIA Rules 2020 – Date of receipt by Registrar of Request is treated as date of
commencement for all purposes, subject to the LCIA’s actual receipt of the registration
fee (Article 1.4). Payment of Fee is a prerequisite.
ICC Rules 2021 – Date of receipt by Secretariat of Request for Arbitration is deemed to
be date of commencement “for all purposes” (Article 4(2)). Payment of Fee is a
prerequisite.
ICDR Rules – Deemed to commence on the date on which administrator receives notice
of arbitration (Article 2(2)).
SIAC Rules 2016 – Date of receipt of the complete Notice of Arbitration by the Registrar
(Rule 3.3).

7
(cont.)
In the absence of any agreement governing the position, the Arbitration
Act 1996 applies as follows:
Where the arbitration agreement requires the appointment of a named or
designated arbitrator
, arbitral proceedings are commenced in respect of a
matter “
when one party serves on the other party or parties a notice in writing
requiring him or them to submit that matter to the person so named or
designated
” (section 14(3)).
Where the tribunal is to be appointed by the parties, arbitral proceedings
are commenced in respect of a matter “
when one party serves on the other
party or parties notice in writing requiring him or them to appoint an arbitrator
or to agree to the appointment of an arbitrator in respect of that matter

(section 14(4)).
Where the tribunal is to be appointed by a third party, arbitral proceedings
are commenced in respect of a matter “
when one party gives notice in writing
to that person requesting him to make the appointment in respect of that
matter
” (section 14(5)).
8
(cont.)
Except for notices to be served on third parties pursuant to section 14(5)
Arbitration Act 1996, the notice of arbitration must “require” the recipient
to act, by either submitting disputes to a named arbitrator or by
appointing an arbitrator to the tribunal.
English courts have adopted a very broad and non-technical approach to
the question of what the notice should state. An English court will
recognise as valid any notice which:
Makes clear that the arbitration agreement is being invoked.
Requires the recipient to take steps accordingly. An implicit requirement may
suffice, although in
Vosnoc Ltd v Transglobal Projects Ltd [1998] 1 WLR 101
a strict approach was taken to the construction of a notice commencing
arbitration.
Specifies the dispute to be referred with sufficient particularity.
9
(cont.)
The parties are free to agree how any notice should be served.
Some institutional rules contain provisions dealing with service: for
example, Article 1 of the LCIA 2014 and 2020 Rules specifies the
number of copy documents that must be “sent” to the Registrar with the
Request for Arbitration; and Article 4 provides for all notices to be served
by post, courier, facsimile, email or any other electronic communication
that provides a record of transmission. Notices may also be served
personally under Article 4 of the LCIA 2014 and 2020 Rules.
If there is no agreement, the default provisions of section 76 of the
Arbitration Act 1996 apply. You may serve by “any effective means”.
Posting the notice to the recipient’s last known principal residence, or
business address, or registered or principal office will be treated as
effective.

10
Establishing a tribunal
A key feature of arbitration is the ability of the parties to choose their own
tribunal for the determination of their dispute. A tribunal that is not
constituted in accordance with the arbitration agreement, is potentially
jurisdictionally vulnerable and any awards such a tribunal makes may not
be valid. Therefore, it is of fundamental importance that a tribunal is
properly constituted.
The method for appointing the tribunal, is sometimes contained in the
arbitration agreement, or in the applicable arbitral institution rules.
The Arbitration Act 1996 also provides an outline procedure for the
appointment of a tribunal, which the parties can rely on in the event that
they have not, or are unable to, agree on a procedure.

Appointing
arbitration.
the tribunal differs technically from commencing the

11
(cont.)
The composition and appointment of the tribunal is governed expressly
or impliedly by the arbitration agreement or, in the absence of this
agreement, by the law of the “seat” or “place” of the arbitration.
Parties should have regard to:
Express terms.
Where institutional rules apply, these should be checked for any provision
that may be relevant to the composition of the tribunal.
Implied terms.
Statute. The Arbitration Act 1996 implies certain terms.
12
(cont.)
The first question that needs to be addressed is to identify the type of
tribunal specified by the arbitration agreement. If the tribunal’s
constitution does not comply with the arbitration agreement, then it will
lack jurisdiction to hear the dispute or to make any award.
The arbitration agreement need to be checked in order to determine:
How many arbitrators are required to be appointed. Usually, the tribunal will
consist of one (“sole”) or three arbitrators.
Whether there is to be a chairperson or an umpire.
What qualifications the arbitrators must possess.
The method of appointment. The arbitration agreement, or any applicable
arbitral institutional rules, may contain provisions governing the procedure for
choosing and/or appointing an arbitrator.

13
Emergency arbitrators
An emergency arbitrator may be needed where the arbitral tribunal has
not yet been appointed or constituted and a party to the proceedings
wants to obtain an order or an interim award for interim measures to
prevent the other party from dissipating evidence or assets (including
intellectual property), pending the full hearing of the dispute and the final
award.
Some institutional arbitration rules permit the appointment of an
emergency arbitrator before the arbitration is commenced (that is, before
notice of arbitration or the equivalent is filed with the institution).
The appointment of an emergency arbitrator does not necessarily
preclude a party from seeking the assistance of the relevant national
court. The majority of institutional arbitration rules contain provisions
expressly protecting a party’s right to seek the assistance of the national
courts or “competent judicial authority” for interim measures or relief.

14
(cont.)
The decision of an emergency arbitrator is referred to as an order, an
interim award, an award or an interim emergency measure, depending
on the institutional rules governing the dispute.
In general institutional rules provide the emergency arbitrator with a wide
discretion to order whatever relief he / she considers necessary. For
example:
under the ICC Rules 2021, the emergency arbitrator may grant urgent or
emergency interim measures or relief (Article 29(1)).
under the WIPO Arbitration Rules 2014, the emergency arbitrator is given the
power to award whatever interim remedy or relief he / she considers
necessary (Article 49(i)).
under the LCIA 2014 and 2020 Rules, the emergency arbitrator is granted the
same powers as a fully constituted tribunal would have under the relevant
rules (Article 9.8), however he / she is not permitted to make an order or
award relating to costs of the arbitration.
See also Schedule 1 of SIAC Rules 2016.
15
Appointment of Arbitrators
Typically the parties are free to agree the procedure for choosing and
appointing an arbitrator.
The arbitration agreement, or any applicable arbitral institutional rules,
may contain provisions governing the procedure for choosing and/or
appointing an arbitrator. For example:
The arbitration agreement may name the arbitrator to be appointed. This is
very rare, however, and involves obvious risks.
If a sole arbitrator is to be appointed, the arbitration agreement may often
require the parties to agree on his or her identity.
If a three-man tribunal is to be appointed, it is common for the agreement to
require the parties to appoint one arbitrator each, and the arbitrators so
appointed to appoint a third arbitrator.
The arbitration agreement may provide for all arbitrators to be chosen and
appointed by a third party – typically an arbitral institution. A variant of this is to
provide for a third party to make the appointment only where the parties are
unable to agree, or fail to appoint, their own arbitrators.

16
(cont.)
The procedure for securing an appointment by a third party varies
according to the arbitration agreement and the institution concerned.
In ICC Arbitration under ICC Rules 2017 and ICC Rules 2021, if the parties have agreed
to a sole arbitrator, they may nominate an arbitrator by agreement within 30 days of the
Request, failing which the ICC Court appoints an arbitrator (Article 12.3). If three
arbitrators are to be appointed, the parties must each nominate an arbitrator in their
Request and Answer, respectively (Article 12.4). The third arbitrator is nominated by the
ICC Court unless there is an agreed procedure for nomination, in which case the
appointment is subject to confirmation by the ICC Court (Article 12.5).
In LCIA Arbitration under the Arbitration Rules 2020, if the parties have agreed to a sole
arbitrator, the default position is that the LCIA Court will appoint a sole arbitrator (Article
5.8) unless the parties have agreed in writing otherwise. If the parties have agreed in
writing to a three-member tribunal, they will often agree that each party should nominate
one arbitrator. The LCIA Court will then confirm those nominations (unless it considers
that the proposed arbitrator is not suitable) (Article 5.6).
In arbitration under the 2010 Arbitration Rules of the United Nations Commission on
International Trade Law (UNCITRAL), the parties usually agree that appointments should
be made by a third party, often the LCIA, the ICC or the ICDR (Articles 6-8).

17
(cont.)
If the contract requires you to appoint your own arbitrator, you must go
through the following steps:
Choosing or agreeing to an arbitrator.
Performing pre-appointment checks.
Appointing the arbitrator.
18
Qualities required in arbitrators
The quality of arbitration proceedings is largely dependent on the quality
and skill of the arbitrators chosen. Careless selection can result in
jeopardising any prospects of success.
Factors in selection of a party-nominated arbitrator
Nationality
Likely disposition
Potential impact on selection of the chairman
Availability
Familiarity with relevant business or industry involved in the dispute
Familiarity with law governing contract
Familiarity with arbitration practice
Language
Standing and reputation
Impartiality and independence
19
(cont.)
Impartiality and independence
All major international arbitration rules require that each arbitrator (whether partyappointed or not) is to be “independent”, “impartial” or “neutral”, or some
combination of these. For example:
The ICC Rules (2021) impose obligations of both independence and impartiality, and
provide that an arbitrator may be challenged for “
an alleged lack of impartiality or
independence, or otherwise
” (Article 14.1). Before appointment or confirmation, a
prospective arbitrator must sign a statement of acceptance, availability, impartiality and
independence (Article 11.2).
The LCIA Rules 2020 provide that: “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 authorised representative of any party. No arbitrator shall give advice to any party
on the parties’ dispute or the conduct or outcome of the arbitration
.” (Article 5.3).
The UNCITRAL Rules provide that: “When a person is approached in connection with his
or her possible appointment as an arbitrator, he or she shall disclose any circumstances
likely to give rise to justifiable doubts as to his or her 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 11).
20
(cont.)
When considering potential candidates for nomination, any matters that may
cause doubts about the proposed arbitrator’s impartiality or independence should
be identified.
The International Bar Association (IBA) Guidelines on Conflicts of Interest
comprise a series of general standards, followed by non-exhaustive lists of
circumstances (IBA Application Lists), which give guidance on the practical
application of the general standards.
General Standard 1 of the IBA guidelines (general principle) provides: “Every
arbitrator shall be impartial and independent of the parties at the time of accepting
an appointment to serve and shall remain so during the entire arbitration
proceeding until the final award has been rendered or the proceeding has
otherwise finally terminated.”

21
(cont.)
General Standard 2 of the IBA guidelines (conflicts of interest) provides that an
arbitrator shall decline to accept an appointment or refuse to continue to act as
arbitrator if: “
(b) … facts or circumstances exist, or have arisen since the
appointment, that, from a reasonable third person’s point of view having
knowledge of the relevant facts, give rise to justifiable doubts as to the arbitrator’s
impartiality or independence
“.
Under General Standard 2(c), doubts are justifiable if: “a reasonable person and
informed third party would reach the conclusion that there was a likelihood that
the arbitrator may be influenced by factors other than the merits of the case as
presented by the parties in reaching his or her decision
.”
The explanation to General Standard 2 describes this as an “an appearance test”
to apply “objectively”.

22
(cont.)
The IBA Application Lists are divided by colour (red, orange and green), with
different disclosure requirements and consequences for each colour:
Non-waivable Red List. The arbitrator should always decline the appointment (essentially,
situations where accepting the appointment would mean the arbitrator being a judge in his own
cause). For example, where the arbitrator is a director (or has a similar controlling influence) or
has a significant financial interest in one of the parties.
Waivable Red List. This is described as “serious but not severe” situations, where the
arbitrator may only accept the appointment if the parties provide fully informed, express
consent. For example, where the arbitrator has previously provided legal advice on the dispute
to one of the parties or has had a previous involvement in the case.
Orange List. This sets out situations where a disqualifying conflict of interest may be present
and the relevant circumstances should be disclosed. After this (under the IBA Conflicts
Guidelines), the parties have 30 days to challenge the appointment. For example, where the
arbitrator’s law firm is currently rendering services to one of the parties, without creating a
significant commercial relationship and without the involvement of the arbitrator.
Green List. This is made up of situations where a disqualifying conflict of interest is not present
and no disclosure is necessary, according to the IBA Conflicts Guidelines. For example, where
the arbitrator has previously published a general opinion on an issue that also arises in the
arbitration or where the arbitrator’s law firm has acted against one of the parties in an unrelated
matter without the involvement of the arbitrator.

23
(cont.)
Having chosen an arbitrator and being satisfied of his availability and willingness
to act, one must next make the appointment. The steps to be taken depend on
whether the appointment is an agreed appointment or a unilateral appointment.
However, in each case, one must ensure that the following requirements are
satisfied:
The arbitrator is requested to accept the appointment in relation to a
particular dispute.
The arbitrator has signaled his acceptance of appointment in relation to that
dispute.
The arbitrator’s acceptance of appointment has been communicated to the
other party to the arbitration.

24
Effect of appointment
If the tribunal is to be a sole arbitrator, then it is fully constituted as soon
as the appointment of the chosen arbitrator is completed. The tribunal is
immediately entitled to exercise any of its procedural powers.
In the case of a tribunal consisting of more than one arbitrator, however,
the position is less straightforward. The tribunal is not complete until the
specified number of arbitrators has been appointed under the arbitration
agreement.
Until that happens, the tribunal has no power to act. However, in the
meantime, one may rely on emergency arbitrators or national courts may
be able to step in and assist.

25
Challenges
Some institutional rules incorporate provisions for challenging appointments. For
example, the ICC Rules permit challenges within 30 days of the notification of
appointment. The challenge is determined by the ICC Court (Article 14, ICC Rules
2021).
Under the 2014 ICDR International Arbitration Rules:
a party may challenge the appointment of an arbitrator within 15 days after
being notified of the appointment or after learning of circumstances that give
rise to the challenge (Article 14). The administrator has sole discretion to
decide a challenge (Article 14.3), unless the parties or the challenged
arbitrator agree that the challenged arbitrator should withdraw (Article 14.3).
Additionally, if an arbitrator or a party has doubts as to an arbitrator’s
impartiality or independence, the arbitrator or the party must disclose this
information to all parties and the Administrator. If a party fails to do so, this is
considered a waiver of the right to challenge an arbitrator based on those
circumstances (Article 13(3)).

26
(cont.)
The LCIA Rules 2020 try to address this issue at an early stage by requiring
arbitral candidates to file with the Registrar a written declaration stating (Article
5.4):
Whether there are any circumstances currently known to him that 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.
Whether he is ready, willing and able to devote sufficient time, diligence and industry to
ensure the expeditious and efficient conduct of the arbitration.
The LCIA Court may revoke any arbitrator’s appointment on its own initiative, at
the written request of all other members of the arbitral tribunal or on a written
challenge by any party if (among other things) he becomes “unfit to act” or
circumstances exist that give rise to justifiable doubts as to that arbitrator’s
impartiality or independence
” (Article 10.1). Article 10.2 provides that the LCIA
Court may determine that an arbitrator is unfit to act if he:
Acts in deliberate violation of the arbitration agreement.
Does not act fairly or impartially as between the parties.
Does not conduct or participate in the arbitration with reasonable efficiency, diligence and
industry.

27
(cont.)
The grounds for challenge under the ICC Rules 1998 and the ICC Rules 2012 /
2017 / 2021 are slightly different from each other.
Article 11(1) of the ICC Rules 1998 envisages that a party may challenge an arbitrator
“for an alleged lack of independence or otherwise”.
Article 14(1) of the ICC Rules 2012 / 2017 / 2021 provides for an arbitrator to be
challenged “for an alleged lack of impartiality or independence, or otherwise” (reflecting
the requirement in Article 11(1) of the ICC Rules 2012 / 2017 / 2021 for arbitrators to be
“impartial and independent”).
Both rules will probably be interpreted in the same way, not least because Article
11(1) of the ICC Rules 1998 would arguably cover complaints about an arbitrator’s
lack of impartiality as well. The use of the word “otherwise” could cover
misconduct of the arbitration proceedings (for example, by breach of the duty to
act fairly and impartially (Article 15(2), ICC Rules 1998; Article 22(4), ICC Rules
2012 / 2017 / 2021).
The ICC Court applies an objective test when deciding challenges to arbitrators.
28
(cont.)
A party to arbitration under the UNCITRAL Rules (2013) may challenge an
arbitrator if circumstances exist that give rise to justifiable doubts as to the
arbitrator’s impartiality or independence (Article 12). This is the same test as that
under the LCIA Rules, the ICDR Rules, the Singapore International Arbitration
Centre (SIAC) Rules and the Stockholm Chamber of Commerce (SCC) Rules. A
party may challenge an arbitrator whom it has appointed, or in whose appointment
it has participated, only if it became aware of the grounds for complaint after the
appointment was made.
The use of the word “justifiable” imports an objective standard for impartiality and
independence, so the question is whether the complaint is objectively reasonable.
According to one appointing authority deciding a challenge under the UNCITRAL
Rules, the test is whether a reasonably well informed person would believe that
the perceived doubt was justifiable.

29
(cont.)
National laws generally provide for the removal of arbitrators (usually on the
grounds of lack of impartiality or independence) rather than challenges to
appointments.
In the US, the Federal Arbitration Act incorporates by reference the Panama
Convention, which in turn incorporates the Rules of Procedure of the InterAmerican Commercial Arbitration Commission (the IACAC Rules) (9 U.S.C. §§
301-307; Panama Convention, Article 3) as a default source of arbitration
procedures. The IACAC Rules provide for challenges to IACAC arbitrators if
circumstances give rise to justifiable doubts about the arbitrator’s impartiality or
independence (Articles 10-12, IACAC Rules).
However, the Federal Arbitration Act does not provide a process for challenging
the appointment of the arbitrator(s) before the award has been made. As a result,
US courts generally do not consider interlocutory challenges to an arbitrator’s
appointment (i.e.
AVIC Int’l USA, Inc. v. Tang Energy Grp., Ltd., No. 15-10190,
2015 WL 5011975 (5th Cir. Aug. 25, 2015)). After the award is made, an arbitrator
can be challenged through a proceeding to confirm or vacate the award.

30
(cont.)
In England, there is no procedure for challenging appointments under the
Arbitration Act 1996.
The only possible remedy is section 24 pursuant to which a party may apply to the
English court to remove an arbitrator on any of the following grounds:
Circumstances exist that give rise to justifiable doubts as to his / her impartiality (section
24(1)(a)).
He / she does not possess the qualifications required by the arbitration agreement
(section 24(1)(b)).
He / she is physically or mentally incapable of conducting the proceedings or there are
justifiable doubts as to his capacity to do so (section 24(1)(c)).
He / she has refused or failed to conduct the proceedings properly or with “reasonable
despatch”, if substantial injustice will be caused to the applicant (section 24(1)(d)).
The relevant test for an application under section 24(1)(a) (existence of circumstances
giving rise to justifiable doubts as to impartiality) is whether a fair-minded and informed
observer, having considered the facts, would consider that there was a real possibility
that the tribunal was biased. This is an objective test, which was approved by the House
of Lords in
Porter v Magill [2002] 2 AC 357.
31
(cont.)
In Halliburton Co v Chubb Bermuda Insurance Ltd (formerly Ace Bermuda
Insurance Ltd)
[2020] UKSC 48, the UK Supreme Court rejected an appeal to
remove an arbitrator under section 24(1)(a) of the AA 1996 in circumstances
where the arbitrator had accepted multiple appointments in overlapping cases.
The court found that the arbitrator’s failure to disclose those other appointments
breached a legal duty of disclosure, but that a fair-minded and informed observer
would not infer from that a real possibility of unconscious bias on the part of the
arbitrator.
The decision provides a summary of the law, and guidance on the duty to disclose
in the context of multiple appointments. Acceptance by an arbitrator of
appointments in multiple references concerning overlapping subject matter with
only one common party might have to be disclosed, depending on relevant
customs and practice.

32
(cont.)
In France, under Article 1456 of the Code of Civil Procedure (CCP), an arbitrator
must disclose any circumstances which may give rise to a challenge. French case
law indicates that these circumstances include situations likely to create a definite
risk of bias in favour of one of the parties (Judgment of 2 June 1989, 1991 Rev
arb 87 (Paris Cour d’Appel)). The French courts have held that this general duty
applies to arbitrators in both domestic and international arbitrations.
An arbitrator can be challenged on any of the following grounds:
Any circumstance that can affect his independence or impartiality (Article 1456, CCP).
Legal incapacity, refusal to act or resignation (Article 1457, CCP).
Unanimous consent of the parties (Article 1458, CCP).
The extent of an arbitrator’s duty to disclose information to parties was considered
in
X et Y v SAS Prodim et SAS Logidis, Cour d’appel de Reims, Chambre Civile,
section 1, no. 10-03288. In that case, the Reims Court of Appeal set aside an
award due to the arbitrator’s failure to disclose the extent of his previous
appointments by one of the parties.

33
(cont.)
In Switzerland, under Article 180(1) of the Private International Law Act (PILA),
an arbitrator may be challenged if:
He does not meet the qualifications agreed on by the parties.
There is a ground for challenge under the rules of arbitration agreed on by the parties.
Circumstances exist that give rise to justifiable doubts as to his independence.
A party may challenge an arbitrator in whose appointment it participated only if it
became aware of the ground for challenge after appointment (Article 180(2),
PILA).
In Germany, Article 1036 of the (Zivilprozessordnung) ZPO provides that an
arbitrator may be challenged only if circumstances exist that give rise to justifiable
doubts as to his impartiality or independence, or if he does not possess
qualifications agreed by the parties. Justifiable doubts exist if, from the
perspective of the parties, there are objective grounds that would raise doubts in
the mind of a circumspect and reasonable person (
Docket No. 34 SchH 008/10). A
party may challenge an arbitrator whom it has appointed, or in whose appointment
it has participated, only if it became aware of the grounds for challenge after the
appointment.

34
Costs and organisation of the arbitral tribunal
The costs involved in pursuing or defending a claim in arbitration can be
considerable. Even in cases where significant sums are claimed, it is not unusual
for the combined costs of the parties to amount to a meaningful proportion of the
amount in dispute.
Costs generally includes:
The costs of the arbitration, including:
tribunal fees and expenses;
fees charged by the tribunal’s secretary or assistant;
fees charged by arbitral institutions;
room hire;
translations; and
transcripts.
The parties’ costs (including legal fees, fees paid to expert witnesses and witness costs).
35
(cont.)
Where the parties have engaged an institution to administer the arbitration, this
institution requires the payment of certain fees. These costs may be paid up front
but still must be allocated in the award at the end of the proceedings.
Even if an arbitration is not administered by an institution, the parties may use an
appointing authority (which would effect tribunal appointments but would not
otherwise administer the arbitration). This could be an industry body or an arbitral
institution. Different appointing authorities have different charges for this service.
For example, with the LCIA, there is a registration fee of £1,950 payable with the
Request for Arbitration. Administrative charges are payable at the following hourly
rates:
£280 an hour for a Registrar, Deputy Registrar or Counsel (£250).
£195 an hour for Case administrators.
The LCIA charges an appointment fee of £1,250 for any appointments made. The
tribunal’s fees are set at rates of up to £500 an hour for each arbitrator.

36
(cont.)
The LCIA consists of three main bodies:
The company. The company is concerned with the operation and
development of the LCIA’s business and with its compliance with applicable
company law. The company does not have an active role in the administration
of dispute resolution procedures.
The LCIA Court. The LCIA Court is the final authority for the proper
application of the LCIA Rules. Its key functions are: (a) appointing tribunals;
(b) determining challenges to arbitrators; and (c) controlling costs. Although
the LCIA Court meets regularly in plenary session, most of the functions to be
performed by it under LCIA Rules and procedures are performed, on its
behalf, by the President, its Vice Presidents, Honorary Vice-Presidents or
former Vice-Presidents, or by a Division of three or more members of the
court appointed by its President or Vice-President (Article 3.1).
The Secretariat. The Secretariat is headed by the Registrar. The LCIA
Secretariat is based at the International Dispute Resolution Centre (IDRC) in
London and is responsible for the day-to-day administration of all disputes
referred to the LCIA. The functions of the Registrar set out in the LCIA Rules
may be conducted by the Register or any Deputy Registrar (Article 3.2).

37
(cont.)
An LCIA arbitration is conducted under the auspices of the LCIA and is governed
by the LCIA arbitration rules. The tribunal will consist of arbitrators approved and
appointed by the LCIA, and the LCIA Secretariat will administer the day-to-day
conduct of the arbitration.
Until the tribunal is formed, the parties should send all communications to the
LCIA Registrar, save that, unless the parties agree otherwise, any arbitrator who
is required to participate in the selection of the presiding arbitrator may consult
any party in order to obtain its views as to the suitability of a candidate (Article
13.5). Once the tribunal has been formed, it will determine the future conduct of
the reference, and the procedures to be adopted.
The parties are entitled to be represented by one or more authorised legal
representatives appearing by name before the arbitral tribunal (Article 18). Until
the arbitral tribunal is formed, the LCIA Registrar may request written proof of the
authority granted by a party to any legal representative(s) designated in its
Request or Response, along with written confirmation of the names and
addresses of the legal representative(s) (Article 18.2).

38
(cont.)
Another example would be the ICC. The ICC charges an initial non-refundable
administrative fee of US$5,000 payable by the claimant when filing the Request
for Arbitration. The advance on costs to be paid for the future fees of the tribunal
is established on an ad valorem basis (that is, fixed by reference to the sums in
issue). Like the LCIA, costs are usually paid in advance and a positive balance
retained on the case account.
Fees are fixed according to the value of the arbitration and that substantial fees
are required up front. Although these costs are supposed to be shared between
the parties, the arbitration is not allowed to proceed until they are paid. It is not,
therefore, unusual for a respondent to fail to pay, leaving the claimant to pay the
full amount.

39
(cont.)
The ICC is a non-profit private association established in 1919 to promote
international commerce. Its headquarters are in Paris and it has offices in Hong
Kong, New York, São Paulo and Singapore and Abu Dhabi. It also has
approximately 90 national committees, which may be requested to assist the
International Court of Arbitration (ICC Court) in selecting the best-suited candidate
when appointing arbitrators.
The ICC Court is the arbitral body attached to the ICC in Paris which organises and
supervises arbitrations. It is not a “court” in the ordinary sense, but rather an
administrative body that oversees the arbitration process. It is composed of a
President elected by the ICC World Council upon the recommendation of the
Executive Board of the ICC, multiple Vice-Presidents and other members appointed
for three-year terms by the ICC World Council, based on recommendations from
the national committees or groups.
Under the 2012 / 2017 / 2021 ICC Arbitration Rules, only the ICC Court can
administer an arbitration (Article 6(2)). This generally involves assisting in the
appointment of arbitrators and confirming the appointment of the tribunal.

40
(cont.)
The Court Secretariat is based at the ICC headquarters in Paris and is
responsible for administering all ICC arbitrations. In essence, it monitors the
day-to-day running of arbitrations by:
Dealing with communications between the parties and arbitrators.
Preparing all the documentation required by the ICC Court.
Providing advice and information about ICC arbitration practice.
Each case is assigned to one of eight case-management teams within the
Secretariat, each composed of a counsel, two or three deputy counsel and three
administrative assistants. The ICC Court also has case management teams in
Hong Kong, Singapore, New York, Sao Paulo and Abu Dhabi.
Article 3(1) requires each party to submit all pleadings, other communications
and all documents to all other parties, each arbitrator and the Secretariat.
The arbitration is supervised by the ICC Court, which usually meets in plenary
sessions once a month and in committee sessions three times a year. These
sessions are confidential and the parties and arbitrators cannot attend. After
receipt of the respondent’s Answer, if necessary, the case is submitted to the
ICC Court, which makes the decisions necessary to set the arbitration in motion

41
Q&A
Any Questions?