In this post, I will compare and discuss the expedited procedure rules (“EP Rules”) used by various arbitral institutions in deciding on a default number of arbitrator(s) for such expedited procedure.
A core concern of Article V(1)(d) of the New York Convention is how to weigh between party autonomy and institutional control in arbitration proceedings. Arbitration practitioners may recall the failed attempt by Noble Resources International Pte. Ltd. (“Noble Resources Case”) to enforce a SIAC award a few years back.
That award was rendered under the old SIAC Arbitration Rules’ EP Rules though. In its Arbitration Rules 2016, SIAC made a detailed regulation on EP Rules by adding two new sub clauses [Rule 5.3 and Rule 5.4]. In particular, Rule 5.3 stipulates that “By agreeing to arbitration under these Rules, the parties agree that, where arbitral proceedings are conducted in accordance with the Expedited Procedure under this Rule 5, the rules and procedures set forth in Rule 5.2 shall apply ‘even in cases where the arbitration agreement contains contrary terms.’”1)Under the 2016 Rules, the sole arbitrator is the default in expedited procedure, and parties are deemed to accept the default if they choose SIAC, whose arbitration rules refer to the application of the EP rules if certain conditions are met, albeit their agreement otherwise.
In my view, this approach is a bit too hardline: when parties choose a certain set of arbitration rules, they have to accept all of them, without any deviations by agreeing otherwise. This might be detrimental to party autonomy, which is considered the foundation of arbitration, and the flexibility of arbitration procedure, which is a key factor of arbitration’s success as an internationally preferred method of dispute resolution.
Similarly, the newly revised 2017 ICC Arbitration Rules achieve effectively the same result. The relevant provisions provide that “The court may, notwithstanding any contrary provision of the arbitration agreement, appoint a sole arbitrator.” [Article II Appendix VI of the ICC’s EP Rules]. In particular, Article 30 of the ICC Rules provides that “By agreeing to arbitration under the Rules, the parties agree that this Article 30 and the Expedited Procedure Rules set forth in Appendix VI (collectively the ‘Expedited Procedure Provisions’) shall take precedence over any contrary terms of the arbitration agreement”.2)
As a contrast, the 2018 HKIAC Rules has opted for a different approach. The HKIAC rules provide that “the case shall be referred to a sole arbitrator, unless the arbitration agreement provides for three arbitrators.” [Article 42.2(a)]. Also, “If the arbitration agreement provides for three arbitrators, HKIAC shall invite the parties to agree to refer the case to a sole arbitrator. If the parties do not agree, the case shall be referred to three arbitrators.” [Article 42.2(b)].
Similar to the HKIAC Rules, the CIETAC Rules provides that “Unless otherwise agreed by the parties, a sole-arbitrator tribunal shall be formed in accordance with Article 28 of these Rules to hear a case under the Summary Procedure.” [Article 58]
The above institutional rules demonstrate two different approaches to the procedure of expedited proceeding: SIAC and ICC seem to treat the procedures in EP Rules superior than the arbitration agreement while HKIAC and CIETAC put more emphasis on party autonomy. Although it is unknown whether the Noble Resources Case will be recognized by the Chinese Court if the 2016 SIAC Arbitration Rules applies, Chinese courts attach importance to party autonomy. In Noble Resources Case, the court put a lot emphasis on party autonomy, holding that the parties’ particular agreement on a procedural matter is superior to the provisions in the arbitration rules. It is therefore suggested for foreign arbitrators and arbitration institutions to be cautious about parties’ agreement, especially when the party expressed its concerns on the special arrangement on procedural matters during arbitration proceedings.
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1. | ↑ | Rule 5.2(b) prescribes that “the case shall be referred to a sole arbitrator, unless the President determines otherwise” |
2. | ↑ | Also, in a press release dated 4 November 2016, ICC stated that “Under the Expedited Procedure Rules, the ICC Court will normally appoint a sole arbitrator, irrespective of any contrary term of the arbitration agreement.” |
Credits: http://arbitrationblog.kluwerarbitration.com/2019/03/01/reflections-on-default-number-of-arbitrators-under-expedited-procedure-rules/
Arbitration, and typically commercial arbitration, is an Alternative Dispute Resolution (ADR) which is agreed by parties of the dispute. Arbitration can be used to replace the traditional way of litigation in court.
Derive from arbitration’s dispute settlement principles, arbitration shows many pros and brings many benefits for parties in commercial dispute, specifically as follows:
A Polish appeals court vacated an International Chamber of Commerce (ICC) partial award for alleged irregularities in the arbitrator's appointment (for further details please see " ICC award set aside due to irregularities in arbitrator's appointment "). The sole arbitrator's final award was also successfully challenged and set aside. The first reason to vacate the final award was also the issue of the sole arbitrator's appointment.
It is normal to inspect the goods that have been lost or damaged during the performance of the sales contract and in the contract of carriage. However, improper inspection can lead to significant disputes and damages that you can refer to below.
The ten years of Law on Commercial Arbitration 2010 (LCA) are also the 10-year development period of VIAC - the first institutional arbitration organization in Vietnam, the organization that goes along with the formation and advancement of the legal framework of commercial arbitration in Vietnam.
Law on Commercial Arbitration (“LCA”) enacted in 2010 was considered a major step forward for the development of commercial arbitration in Vietnam. Compared with the previous years and with international standards, LCA has made remarkable progress, namely recognizing enterprises’ freedom of choice, broadening the scope of arbitration, raising the arbitral tribunal’s authority, valuing court assistance (especially interim measures enforcement), encouraging flexibility in language of arbitration, and improving party’s autonomy in arbitration while maintaining proper manners during arbitral proceedings.
Mr. Doug Jones, a leading arbitrator in the international arbitration community, revealed to me his infatuation with the beautiful beach and Vietnamese delicacies after a seminar in Da Nang. He was also inspired by the confidence, assertiveness, competence and the ambition to improve domestic arbitrators to the same level as those working in the international sphere of young arbitrators and VIAC Secretaries.
Law on Commercial Arbitration 2010 (LCA)- the procedural law governing arbitration proceedings whose seat is in Vietnam
Nowadays, as the digital economy emerges, electronic agreements on online websites are becoming more and more prevalent; hence, the legal effect of establishing terms and conditions of service when accessing the website (browse-wrap) and clicking (click-wrap) are of particular interest. The following paper analyzes some of the legal aspects of online agreement conclusion, especially the establishment of the arbitration agreement by means of browse-wrap and click-wrap.
Whether settling disputes in Court or through arbitration, when a party has the burden of proof, it must submit evidence to the arbitral tribunal. The evidence can be in many different forms: Document electronic evidence, audio recordings, video recordings, witness statement, etc. In international arbitration practice, especially in complex disputes, a type of evidence that is frequently used by the parties to defend their opinion/request is testimony/report of "expert witness".
In international commerce and investment, parties to a dispute often select arbitration as an alternative dispute resolution other than litigation in which the court, an authorized state agency, adjudicate disputes. An explanation for this phenomenon is that arbitration may be the optimal means that the parties can exercise their autonomy in writing to select one or several individuals who are not representing state agencies and state power (the so-called private parties) to resolve disputes. However, to prevent the possibility of arbitrators "privatizing" justice, [1] the New York Convention and the ICSID Convention set out the rules for annulment of arbitral award when such award violates arbitral proceeding. Here, questions arise. What rules of procedure are violated? And to what extent is the commercial and investment arbitral award annulled? This article seeks to elucidate the theory and practice of annulment for violations of procedure under the New York Convention and the ICSID Convention.
Goods can be consolidated, batched, packed, sorted, and grouped for a certain period of time before being loaded onto a trailer for carriage to the consignee. Disputes about whether the time to do these things are within the scope of insurance liability or not is an issue worth knowing (through the lawsuit with the documents of a foreign law firm) below for readers’ reference.
Mr. Vu Anh Duong is the Secretary General of the Vietnam International Arbitration Centre (“ VIAC “), which is the leading Vietnamese arbitration and mediation institution . Mr. Duong has contributed significantly to the development of arbitration in Vietnam in various ways; in addition to his role with the VIAC, Mr. Duong has served as a member of various drafting committees dealing with not only the VIAC’s Rules of Arbitration (2017) (“ VIAC Rules ”), but also Vietnam’s arbitration-related legislation. He also regularly lectures on commercial arbitration and sits as an arbitrator in both international and domestic commercial arbitrations.
Abstract: This discourse focuses on a detailed analysis of some theoretical and practical issues about the application of interim emergency measures involving third parties, in the field of domestic and international. Besides, the discourse provides measures to enhance the ability to enforce the decisions applying interim emergency measures with the third parties within the realm of international arbitration law. Subsequently, it extracts experience and recommendations pertaining to the legal framework in Vietnam regarding this matter.
Besides many advantages, arbitration also reveals certain limitations, including the Arbitral Tribunal's limited jurisdiction over third parties. The question arises as to the need for accurately identifying cases of Arbitral Awards related to third parties and the possibility of the Court annulling these awards due to third parties, thereby, drawing lessons to minimize the risk of setting aside Arbitral Awards. Moreover, there is also a need for solutions to improve the mechanism for challenging Arbitral Awards which currently retain many shortcomings.
During arbitral proceedings, the mediation process may cause some certain conflicts that requests the Arbitral Tribunal to seriously consider. Resolving effectively these conflicts based on fundamental legal principles and the arbitration skills of the Tribunal will ensure the rights and interests of disputing parties and third parties. This discourse focuses on analyzing potential conflicts and providing recommendations to the Tribunal to maximize the effectiveness of the mediation process and reduce conflict occurrence.
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According to the Department of Judicial Support , Ministry of Justice, currently , there have been 48 arbitration institutions established in our country, with over 600 arbitrators participating in resolving thousands of commercial disputes each year 1 . An arbitration service has been developed. Along with the growth , the trait of this service became more apparent , includi ng the relevance of third-party interests. Unlike court litigation, in principle, arbitration is a private dispute resolution method , therefore, the involvement of third parties is exceptional. The discourse discusses how the arbitral tribunal considers and guarantee s the third party's interest in the arbitra l proceedings by providing some situations in which disputing parties or the arbitral tribunal may need to consider the interests of third parties. The goal of arbitr ation is to make contributions to resolving disputes fairly, thereby encourag ing parties to fulfill their obligations voluntarily in order to avoid further dispute escalation of disputes . Based on the analysis , the author suggests policy improvements pertaining to third parties that may be considered in the upcoming revision of the Law on Commercial Arbitration.
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