Procedures to be followed under international arbitration.

 PRELIMINARY

Arbitration is a contract-based form of binding dispute resolution.  In other words, a party’s right to institute a dispute to arbitration depends on the existence of an arbitration agreement, parties must clearly state among their terms in a contract, that the dispute between them may be referred to arbitration. Commercial contracts will commonly include arbitration clause stating how disputes relating to that contract are to be settled. It is proper for parties to include arbitration clause in their commercial contract but it is not mandatory, parties may agree on arbitration after the rise of dispute between them. 

Arbitration is a creature of “arbitration clause” in a commercial contract between parties or as it will be agreed by parties after the dispute. Parties have powers to choose arbitration tribunal, number of arbitrators, mode of hearing, applicable law, arbitration language, arbitration place etc. There is no one single regime governing arbitration, the situation is different from one jurisdiction to another depending on laws of the state . Every state has its own ways through which arbitration are conducted, the United Nation Commission on the International Trade and Law Arbitration Rules  (UNCITRAL Arbitration Rules) are now most accepted rules made under United Nations Commission on International Trade and Law, governing parties through entire procedure of arbitration. 

The UNCITRAL Arbitration Rules provide a broad-ranging set of procedural rules upon which parties may agree for the conduct of arbitral proceedings arising out of their commercial transactions and are widely used in ad hoc arbitrations as well as administered arbitrations. The Rules cover all aspects of the arbitral process, provides a mode through which an arbitration can be held, setting out procedural rules on the appointment of arbitrators and the conduct of arbitral proceedings, and establishing rules in relation to the form, effect and interpretation of the award. 

International arbitration tribunals depends on UNCITRAL Arbitration rules for the legal frame work through which arbitrations are conducted. The procedures for arbitration varies from one jurisdiction to another, but there is key steps which are indicated by UNCITRAL Arbitration rules which cannot be ignored during the process of arbitration. The following are the most known procedures which are followed by international tribunals in filing, hearing and determination of disputes between parties; 

PROCEDURES TO BE FOLLOWED UNDER INTERNATIONAL ARBITRATION

Notice of arbitration or claimant’s request for arbitration, including at least a summary of the claims. A party initiating recourse to arbitration shall give to the other party "respondent" a notice of arbitration which is also required to be filed before tribunal as a request for arbitration. Arbitral proceedings shall commence on the date on which the notice of arbitration is received by the respondent. A notice of arbitration shall include a demand that a dispute be referred to the arbitration, parties names and addresses, a reference to the arbitration clause or the separate arbitration agreement that is invoked, a reference to the cause of action, nature of claim and amount involved, relief sought and a proposal on a number of arbitrators to arbitrate a dispute. Notice of arbitration is provided under Article 3(1),(2), (3), (4) and (5) of UNCITRAL Arbitration rules. 

Statement of claim. For a notice of arbitration which do not disclose a claim, statement of a claim is preferred. If a notice of arbitration provides a summary of a claim only, statement of a claim must disclose the names and addresses of the parties, a statement of the facts supporting the claim, the points at issue and the relief or remedy sought. A claimant may attach any document to statement of claim which support his claims, the requirements on contents of statement of claim are contained in Article 20(1), (2), (3) and (4) of UNCITRAL Arbitration rules.

Statement of defense or respondent’s answer, which will indicate any counterclaims made against claimant. These are answers to the claimant's claims, in addition, a respondent is allowed to arise his claims against claimant on a same defense paper. A respondent is required by Article 21(1)  to serve a statement of defense to a claimant and tribunal within a prescribed time. A respondent may attach to his defense paper any document supporting his claims against claimant. Article 21(2) of the UNCITRAL Arbitration rules.

Amendment of claim or defense and  claimants reply to counter claim if appropriate. Parties may amend their pleadings as they wish, likewise, it is a time for claimant to reply statement of defense and counter claim if exists. A tribunal may determine and allow parties to amend pleadings if necessary to do that, and if it will not destruct the complaint itself. Article 22 of UNCITRAL Arbitration rules.

Procedural hearing setting the steps and timetable for the arbitration. Every party will have to prove the facts supporting his claim or defense , a trial tribunal may order parties to deliver before tribunal and another party, documents and anything which forms part of the exhibits which a party intends to use during the entire proceedings. In case of oral hearing, parties must be served by tribunal, notice indicating time, date and place of hearing. Any party who wish to summon witnesses during hearing, he/she is required to communicate to the tribunal and another party, names and physical address of all the witnesses to be summoned to testify before tribunal.

Hearings shall be held in camera unless the parties agree otherwise. The arbitral tribunal may require the retirement of any witness or witnesses during the testimony of other witnesses. The arbitral tribunal is free to determine the manner in which witnesses are examined. Evidence of witnesses may also be presented in the form of written statements signed by them. The arbitral tribunal shall determine the admissibility, relevance, materiality and weight of the evidence offered. Provided under Article 27 and 28 of the same rules.

During hearing, parties will; state before the tribunal all the facts constituting their claims or defense, adduce evidence before tribunal, disclosure of all documents relied upon, exchange witness statements (sometimes followed by rebuttal statements).

Arbitral award. This is the binding decision by arbitration made after the hearing is concluded, arbitral award has authority as good as court order or decree. The parties from two different states may register arbitral award in their domestic courts with jurisdiction so as to enforce the award. The award shall be in writing, signed and well reasoned, an award shall be signed by the arbitrators and it shall contain the date on which and the place where the award was made. Where there are three arbitrators and one of them fails to sign, the award shall state the reason for the absence of the signature. Article 33 and 34 of the UNCITRAL Arbitration rules.

The procedures for international arbitration as provided by UNCITRAL Arbitration rules are general procedures where parties are allowed to amend some steps as they think fits their dispute. Laws of the forum may apply in disputes when parties agrees to that effect. UNCITRAL Arbitration Rules is not an only legal regime for arbitration, The International Chamber of Commerce Arbitration Rules , International Trade Centre Arbitration Rules, The New York Convention, or the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards , European Convention on International Commercial Arbitration  and Inter-American Convention on International Commercial Arbitration or the “Panama Convention”  are among other international instruments providing on arbitration procedures.

REFERENCE

CONVENTIONS

United Nation Commission on the International Trade and Law Arbitration Rules R:E 2013

International Trade Centre Arbitration Rules of 1970

The New York Convention, or the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958

European Convention on International Commercial Arbitration of 1961

Inter-American Convention on International Commercial Arbitration or the “Panama Convention of 1975.

BOOKS

Mark Batson Baril and Donald Dickey, MED-ARB: The Best of  Both Worlds   or Just A Limited ADR Option, 2010

IFC, Alternative Dispute Resolution Manual : Implementing Commercial Mediation, Small and Medium Enterprise Department, The World Bank Group, November 2006

OTHER SOURCES

https://www.stewartslaw.com/expertise/international-arbitration/arbitration-process/(Accessed June 22 2021)

https://www.swissarbitration.org/centre/arbitration/arbitration-clauses/ (Accessed June 22 2021)

https://www.legalmatch.com/law-library/article/what-is-an-arbitration-clause.html(Accessed June 22 2021)

https://iccwbo.org/dispute-resolution-services/arbitration/arbitration-clause/ (Accessed June 22 2021)

https://uncitral.un.org/en/texts/arbitration/contractual (Accessed June 22 2021)