How can we improve the arbitral process?

How can we improve the arbitral process?

4pmIn the recent QMUL/White & Case survey ‘Improvements and innovations in International Arbitration’ study one of the most popular potential innovations from  respondees was a requirement that tribunals commit to, and notify parties of, a schedule for deliberations and delivery of a final award. If the institutions, or legislation, enforced strict timetables on tribunals could parties have a better experience of arbitration?

What do the institutions say?

The London Court of International Arbitration (LCIA) had already identified this issue and  provide for the tribunal to seek to make its final award as soon as reasonably possible following the last submission from the parties (whether made orally or in writing), in accordance with a timetable notified to the parties and the Registrar as soon as practicable (if necessary, as revised and re-notified from time to time). Further, when a tribunal (other than a sole arbitrator) sets establishes a time for what it contemplates will be the last submission from the parties (whether written or oral), it will set aside adequate time for deliberations as soon as possible after that last submission and notify the parties of the time it has set aside (LCIA, art 15.10).  The LCIA therefore doesn’t go so far as to set a timetable for the tribunal but it is a step in the right direction. That said, there is no evidence as to whether this has been effective in reducing the time spent deliberating and producing an award but hopefully the mere existence of the rule will focus tribunals and parties mind and, at very minimum, give the parties some ground to nudge the LCIA to nudge the tribunal along if the award is not produced as promised.

The International Chamber of Commerce (ICC) has long had a rule that the award will be produced within 6 months of the last signature by the tribunal or the parties on the Terms of Reference. If this has happened in anyone’s experience (save for in expedited situations) please do let me know (!) as in the usual course of things the deadline is routinely extended or falls by the wayside.

Developments in legislation

In the recent proposed amendments to the Indian Arbitration and Conciliation Act 1996, the drafters provided for an award to be rendered within 12 months of the arbitrator(s)’ appointment which the parties may agree to extend by six months or may be further extended by the court. While it remains to be seen how the Ordinance will be implemented in practice, this does seem to follow the trend and reflect what parties actually want.

Will things change?

The difficulty with this issue is that we want the award to be right (and preferably in our favour).Chivvying the tribunal for an award risks annoying them and, while this should of course never influence the outcome of the award, it is not too far-fetched to imagine that a party who riles the tribunal is not going to have presented themselves in the best light. That said, one of the benefits of institutional arbitration is that it can act as the intermediary between the tribunal and the parties to avoid this concern.

If, however, there is a ground-swell of opinion that awards should, save in exceptional circumstances be produced within a set period and the tribunal should be required to set aside time for deliberations after the hearing (and for the parties to be know when those deliberations are taking place and, potentially, for how long) maybe it would make the whole agonizing process of waiting for an award a little easier to bear. There would also be the benefit of certainty for the parties themselves. The outcome of an arbitration can have major impacts on their business and it would assist them to plan if they knew when their fate would be decided.

It will be interesting to see whether other institutions introduce a requirement on tribunals to set aside time for deliberations and indicate when the award will be delivered (the Stockholm Chamber of Commerce (SCC)  has already said that it will revise its rules in 2017 though not specifically on this issue). While the costs of the arbitration are, to some extent, inevitable (the other major grips of respondees from the QMUL survey), maybe this is an area where legislation and institutions can improve parties’ experience of the arbitral process.


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