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MEZZLE’S DROPS OF ARBITRATION #4

The first step: requesting arbitration and choosing the arbitrator.

In this drop, we shall deal with the first procedural step: requesting arbitration and choosing an arbitrator.

Those two issues are usually dealt with together, but it is not always true. It depends on the applicable rules and the composition of the arbitral tribunal.

For instance, if the parties – in the arbitration agreement – opted for a sole arbitrator, an appointing Authority will likely deal with the choice of the arbitrator.

Which is the content of a Request for Arbitration (sometimes called a Notice of Arbitration)?

It depends on the relevant arbitration rules.

For instance, in an arbitration under the HKIAC[1] rules, “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 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” (Article 4.3 HKIAC Arbitration Rules 2018).

If we have an arbitration administered by the SCCA[2], “the Request for Arbitration shall include:

  1. A statement that the dispute be referred to SCCA arbitration;
  2. The names and contact details of the parties and, if known, of their authorized representatives;
  3. A copy of the contract(s) or legal instrument(s) out of which or in relation to which the dispute arises, and a copy of the arbitration agreement(s) invoked by the Claimant to support its claims if not part of the contract(s) or legal instrument(s);
  4. A description of the claim and a concise summary of the facts supporting it;
  5. A statement of the relief or remedy sought and any amount claimed; and
  6. A proposal as to the number of arbitrators, language of arbitration, and place of arbitration, if the parties have not previously agreed thereon” (Article 5.2 SCCA Arbitration Rules 2023).

Basically, in your first procedural step, you have to include:

  • Your willingness to refer the dispute to arbitration;
  • Details of the parties involved;
  • The material and procedural “root” of the dispute: the contract and the arbitration agreement;
  • A summary of your claim and the remedy sought;
  • The appointment of “your” arbitrator or your views on the requirements of the arbitrator to be appointed by the institution;
  • Every other detail is required by the relevant arbitration rules and law.

One hot issue is choosing (and appointing) “your” arbitrator.

Is the arbitrator really “yours”?

Of course, not, if he (or she) is a good one.

Please, consider that every arbitrator - regardless of the source of its appointment – is (and must be) independent and impartial, arbitrators are not “additional counsels” in the arbitration panel.

How to choose the “right” arbitrator?

This is not an easy task.

Maybe you have a friend (or an acquaintance) who is a reputable arbitrator, but this fact should be disclosed and could give rise to a challenge of the arbitrator (see the IBA Guidelines on Conflict of Interest, Orange List 3.3.6 “A close personal friendship exists between an arbitrator and a counsel of a part”) as well as multiple appointments by the same party or counsel (“The arbitrator has, within the past three years, been appointed as arbitrator on two or more occasions by one of the parties, or an affiliate of one of the parties” Orange List 3.1.3 and “The arbitrator has, within the past three years, been appointed on more than three occasions by the same counsel, or the same law firm” Orange List 3.3.8).

Otherwise, you can pick up your arbitrator from selected databases (many institutions have their own roster of arbitrators, otherwise you can refer to the CIArb database or Arbitrator Intelligence) or surf the internet to look for someone that has previous experience on the subject matter and has written papers on it.

Another key factor, in choosing an arbitrator, is to find someone who can dedicate an appropriate amount of time to the dispute.

Some prominent arbitrators must deal with a lot of appointments at the same time and can pay little attention to every single matter.

It is better to choose someone less famous, but more focused on your matter.

Follow our next drop of arbitration to know how to reply to a notice of arbitration and select the arbitrator.

Bernardo Cartoni, FCIArb

If you want to know something more about our services or if you have questions regarding Arbitration and ADR, send an e-mail to: arbitration@mezzlelaw.com

 

[1] Hong Kong International Arbitration Centre.

[2] Saudi Center for Commercial Arbitration

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