The London Court of International Arbitration (LCIA) published an updated set of rules in 2014 (the Rules). The LCIA has recently published detailed guidance notes to aid both parties and arbitrators in negotiating the Rules. This also notably clarifies certain aspects of the roles of the arbitrators and the LCIA Secretariat which were not addressed in the Rules.
The guidance is published in three parts: Notes for Arbitrators, Notes for Parties and Notes on Emergency Procedures.
Each one provides useful insight into the LCIA's approach, both in the way that it offers parties various options to influence appointments and in its concern that the Secretariat should be kept informed of and support the work of the tribunal.
LCIA Notes for Arbitrators
The Notes confirm the LCIA's preference that parties should attempt to agree their own procedural timetable under Article 15 of the Rules rather than falling back on the LCIA's default timetable outlined in Article 14.2. Agreed timetables should be kept under review by the Arbitrators to avoid delays caused by last-minute requests to extend deadlines.
In a bid to address the issue of delays with the publication of tribunal awards, Arbitrators are advised that they may refer draft awards to the LCIA Secretariat for review, and that the Secretariat can provide comments on non-substantive matters. This brings LCIA practice a step closer to that of the International Chamber of Commerce ("ICC") arbitrations, although the latter allows its secretariat to go further; remitting draft awards back to tribunals where it considers this necessary.
To improve confidence in its appointments procedure, forms of availability are being introduced alongside the existing declarations of independence and impartiality. Candidates for arbitral tribunals must give details of actual or anticipated hearings, outstanding awards and any other commitments that may prevent them from devoting sufficient time to an arbitration. In this regard, the LCIA now places more stringent requirements on its arbitrators than does the ICC.
The Notes also provide for secretaries to be appointed with the consent of parties, to help with the "internal management" of cases. Their role is clearly confined to organising papers, collating legal authorities, updating chronologies and providing other administrative support to the tribunal.
LCIA Notes for Parties
The Notes explain that fees are calculated with reference to an hourly rate, which the LCIA recommends to be capped at £450. (The ICC's fees are in contrast related to the value of the claim, which often results in much higher fees than the LCIA.) Arbitrators must submit fee notes to the Secretariat, allowing costs to be monitored. Fees are payable in a series of staged deposits rather than up front. According to the Notes, this reflects the LCIA's view that fees should be based on time spent rather than on the value or complexity of the dispute.
The position on appointment of arbitrators is also clarified: unless the parties agree to nominate arbitrators, the LCIA will make appointments. This default position does not preclude the parties from involvement in appointing arbitrators, however. If they agree to do so, they may select from a list of suitable candidates as provided by the Secretariat. They may alternatively submit to the LCIA any attributes or qualifications they consider that the arbitrator should have.
LCIA Notes on Emergency Procedures
These Notes explain the two procedures available for constituting a tribunal in exceptional circumstances. Articles 9a and 9B of the Rules respectively allow for expedited appointment or replacement of an arbitrator (on a permanent basis), and appointment of a (temporary) emergency arbitrator to determine an interim application for relief. A different standard applies to each measure and the LCIA advises in the Notes that it will produce further guidance once it has decided sufficient applications, but it points out that cases are decided on their merits. In an appendix to the Notes, case studies are included to give an indication of the sort of circumstances in which applications under Article 9A are deemed to have met the standard of "exceptional urgency". For applications under 9B, the standard is "emergency". The LCIA reminds parties that they should give advance notice to the LCIA and to other parties when filing applications.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
