International Commercial Arbitral Institutions and Other International Bodies

A. International Commercial Arbitral Institutions and Their Arbitration Rules

1) Introduction

The last chapter looked briefly at international commercial arbitration, including the United Nations Commission on International Trade Law (UNCITRAL) Model Arbitration Law and the New York Convention. Part A of this chapter looks at a number of the international commercial arbitral institutions and their arbitration rules, Part B considers the Arbitration Rules of UNCITRAL and Part C looks at arbitration under the Rules of the Chartered Institute of Arbitrators.

It is obviously not possible in this Manual to consider all of the international arbitral institutions: there are many, and only a small selection can be looked at in the space available.81 Moreover, because their rules tend to follow a similar pattern, it is unnecessary to look in detail at each and every one of them. Instead, only the rules of the first institution considered - the London Court of International Arbitration (LCIA) - will be looked at in any detail.

The structure of the arbitration rules of the institutions considered includes:

* commencement of the arbitration;

* constitution of the arbitral tribunal: number of arbitrators, appointment, challenge and replacement of arbitrators;

* duties of arbitrators;

* powers of the tribunal, including competence / competence and interim and conservatory measures;

* place and language of the arbitration;

* governing law, and whether the tribunal may decide ex aequo et bono or act as amiable compositeur;

* pleadings: statement of case, statement of reply, etc;

* documentary evidence and factual and expert evidence;

* provisions as to hearings, which may include provisions relating to the examination of witnesses;

* provisions as to the award, including correction and interpretation and finality of the award.

However, the rules of different institutions have their particular features. For example:

* The LCIA Rules contain a provision for the expedited constitution of the tribunal in cases of exceptional urgency. The Rules also lay emphasis on the general duty of the tribunal, a reflection of provisions in the English Arbitration Act, and include the warning that arbitrators shall not "act in the arbitration as advocates for any party". The Rules are unusual in that, in the provisions relating to pleadings, there is an express requirement that a Reply be served.

* The International Chamber of Commerce (ICC) Rules provide for Terms of Reference and for the scrutiny of the draft award by the ICC Court.

* The International Rules of the American Arbitration Association's (AAA) international division, the International Centre for Dispute Resolution, contain a very useful provision for a preparatory conference with the parties "for the purpose of organizing, scheduling and agreeing to procedures to expedite the subsequent proceedings". The Rules also contain a provision excluding the award of punitive damages, as well as a unique provision that permits a party to seek emergency relief through the appointment of an emergency arbitrator (who will be appointed within one day of a request for such relief).

* One of the significant features of the China International Economic and Trade Arbitration Commission (CIETAC) Rules is the emphasis on the "combination of arbitration with conciliation".

The next section will consider in some detail the LCIA Arbitration Rules, thus enabling the other institutional rules to be dealt with more briefly.

2) London Court of International Arbitration

i) Introduction

The LCIA is one of the longest established of the major international commercial arbitral institutions and is a truly international organisation. Although it is based in London, there is no more reason for an LCIA arbitration to be held in that city than there is for an ICC arbitration to be held in Paris.

The LCIA operates under a three-tier structure, comprising the Company, the Arbitration Court and the Secretariat. The formation of the Arbitration Court in 1985 is regarded by the LCIA as a major step towards its internationalisation:

"The LCIA Court is made up of up to thirty-five members, selected to provide and maintain a balance of leading practitioners in commercial arbitration, from the major trading areas of the world. UK membership of the LCIA Court is restricted to 25 per cent. Other members are drawn from as far afield as Hungary and Australia, Nigeria and the United States, Tunisia and China.

"The LCIA Court is the final authority for the proper application of the LCIA Rules. Its principal functions are the appointment of tribunals, the determination of challenges to arbitrators, and the control of costs. The functions of the LCIA Court are performed, in the name of the LCIA Court, by the Presid...

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