Chapter 4

Chapter-IV: Growth of Institutional Arbitration : An Overview of Indian & off-Shore Arbitral Institutions
CHAPTER-IV
GROWTH OF INSTITUTIONAL ARBITRATION: AN OVERVIEW OF INDIAN &

OFF-SHORE ARBITRAL INSTITUTIONS
Arbitration is the generic term for a form of binding dispute resolution outside the national court
system. Basically there are two forms of the commercial arbitration and the parties in a dispute
have the freedom of choosing either of the two forms if the parties choose arbitration as a mode
of dispute resolution mechanism. These are ad-ho arbitration and institutional arbitration. Parties
have the freedom to select self –administered (ad-hoc) or institutional-administered arbitration.
In every dispute it is pertinent for the parties to decide which form of arbitration is appropriate or
relevant for their case. Choice of the form of arbitration is important and the parties are supposed
to decide and incorporate the form of the arbitration in the very arbitration clause of the
underlying contract or in the submission agreement of the commercial arbitration.1
An ad hoc arbitration is an arbitration whereby the parties have the freedom of choice of drafting
their own rules and procedures for the conduct of the arbitration. The rules which determine the
conduct of the arbitration, the appointment of the arbitrator, the venues etc. are those which fit
the needs of the parties and as per the nature of the dispute. For this reason, in an ad hoc
arbitration the parties have the maximum degree of flexibility to agree and specify those aspects
of procedure which they wish to be followed, of course, subject to the mandatory law of the seat
of the arbitration. 2 In this type of arbitration parties are also required to make their own
arrangements regarding secretarial services etc. Where the parties do not decide any such
procedure to be followed, it is the arbitral tribunal which needs to determine the procedure.3
1
An arbitration agreement can be in the form of a clause in a commercial contract which is known as a „clause
agreement‟. In a clause agreement the parties agree to refer a future dispute, which might arise in the transaction, to
arbitration. There can also be a „submission agreement‟ where the parties agree to refer an existing dispute to
arbitration. In submission agreement the parties make an exclusive agreement for arbitration for the dispute at hand.
2
Law of the seat of the arbitration is also known as lexarbitri. Any law chosen by the parties for conducting the
arbitration is subject to the mandatory procedural law of the seat of the arbitration. For details, see Redfern and
Hunter, Redfern and Hunter on International Arbitration (5th ed.),New York: Oxford University Press, 2009
3
Default procedural discretion of the arbitral tribunal. See article 19(2) of the UNCITRAL Model law, 1985
138
Where the parties are silent and there is no reference of any institution for administering/
conducting the arbitration, the arbitration will be an ad hoc arbitration.4
Institutional arbitration, on the other hand, is the one in which a specialized institution with a
permanent character intervenes and assumes the functions of aiding and administering the
arbitral process, as provided by the designated rules of such institutions. These arbitral
institutions do promulgate sets of procedural rules which become applicable when the parties
have agreed to conduct the arbitration pursuant to such rules. Among other things, institutional
rules set out the very basic procedural framework and the time table for the arbitral proceedings.
These institutional rules also typically authorize the arbitral institutions to serve as „appointing
authority‟, to resolve any challenges to arbitrators, to designate the place of arbitration where the
arbitration shall be conducted, to fix or influence the fees payable to the arbitrator and also to
review the award given by the arbitrator in order to reduce the risk of unenforceability on formal
grounds. Each arbitral institution has a staff (with the size which varies significantly from one to
the other institution) and a decision making body.
Basically the contours and the procedures of the arbitral proceedings are determined by the
institution as designated by the parties in their arbitration agreement. Most of the institutions
which are administering arbitration do have a standard arbitration clause and it may be
convenient for the parties to adopt and incorporate the standard clause from the arbitration rules
of the designated institution into their agreement. 5 Besides this, these institutions can also be
nominated in an ad hoc arbitration where the parties are unable to agree and can therefore select
an institution with the authority and responsibility of selecting and appointing arbitrator. Several
of the major arbitral institutions provide a service of this kind.6
1. Relative Advantages & Disadvantages of Ad-hoc arbitration and Institutional

Arbitration:
One distinct advantage of ad hoc arbitration lies in the fact that it may be shaped to meet
the wishes of the concerned parties and also the facts of the particular dispute. Although
4
Julian DM Lew et al , Comparative International Commercial Arbitration 32( Wolters Kluwer ( India) Pvt. Ltd. ,
New Delhi, 2007)
5
Visit the following for SIAC Model Clause : (http://siac.org.sg/model-clauses) ( lat visited on 27/10/2016)
6
All major arbitral institutions like ICC, SIAC can be designated by the parties in an ad-hoc arbitration as
an appointing authority. In such cases these institutions shall appoint arbitrators when the parties fail to do so.
139
party cooperation is of the most essence for this to be done, but if there is such party
cooperation, the difference between ad hoc arbitration and institutional arbitration is just
like the difference between a tailor made suit and one that is bought „off the peg‟. 7 There
is much to be said in favour of ad hoc arbitration especially in cases where the state or
any state entity is involved and issues like public policy and sovereignty are likely to
arise. In an ad hoc arbitration, it would be possible for an experienced tribunal and the
counsel to devise a procedure which is sensitive to the particular status and requirement
of the State party, whilst remaining fair to both the parties.
A further advantage of ad hoc arbitration is the cost that the parties generally do incur.
Parties will have to pay fees for the arbitrators, lawyers or representatives and the costs
incurred in conducting the proceedings. Parties have the freedom to negotiate and settle
the fees of the arbitrator and this would allow the opportunity of negotiating reduction in
fees. Unlike institutional arbitration, parties in an ad hoc arbitration are not required to
bear the expenses of administrative services and facilities.8
Confidentiality is an arguably advantage of ad hoc arbitration.9 This is a perceived and

may not be necessarily correct advantage.
2. Institutional Arbitration and its Edges over Ad-hoc Arbitration
There are certain well known and well accepted advantages of conducting arbitration
under the aegis of an institution especially in cases if the institution is a reputed one. The
following are some of the strengths of the institutional arbitrations:
2.1 Reputation:
A strongly perceived advantage of institutional arbitration is the cachet behind the

name of the institution. It can be easily perceived that an award which is issued
by such reputed, prestigious institution (Like ICC, LCIA, SIAC, and ICA) is
7
Supra note 2 at 53.
8
Arbitral institutions will charge fees for its services to cover the expenses of its premises, its staff, its publications
and so on. Administrative fees for services and use of facilities may be high in disputes over large amounts,
especially in cases where fees are directly related to the amount in dispute. For lesser amount in dispute, the
institutional fees may even be greater than the amount in controversy. Institution‟s bureaucracy may also lead to
added cost.
9
Supra note 4.
140
helpful in terms of enforcement. It is only natural for the state courts faced with
the enforcement of an award from a reputed institutional arbitration to be more
accommodating considering the institution‟s reputation in running a well
administered and supervised arbitration. In the context of international
commercial arbitral award, in countries where there is political interference or the
national courts or the national law is not always arbitration friendly, parties
consider it beneficial when do initiate to enforce an award which carries the name
of an internationally respected institution.10
2.2 Tested Arbitration Rules to conduct the Proceedings:
Rules drafted by the various institutions for conducting commercial arbitration are
generally proved to work well in practice. The Rules are well tried and tested and
undergo periodic revision in consultation with experienced practitioners in order
to incorporate new developments in the law and also in the practice of
international commercial arbitration. The rules are generally set out in small
booklet. Incorporation of these rule books is one of the best advantages of
institutional arbitration. These rules and procedure undoubtedly produce
consistent and predictable results because of the institution‟s long driven
experiences and better anticipation of unexpected and diverse circumstances and
thereby provide greater resources to facilitate arbitration. Suppose there is a
challenge to the arbitrator on the ground of independence and impartiality or there
is a dead lock in the constitution of the tribunal as one of the parties being
reluctant for arbitration does not cooperate in the appointment of arbitrator or a
challenge to the arbitrator on the ground of qualification or a tribunal facing a
challenge of exceeding its jurisdiction….The book of Rules will provide an
elucidation for all these situations.11
10
Id. at 36.
11
For example Art.14 of the ICC Arbitration Rules ( As in effect from 1 st January,2012) says that any challenge to
the arbitrator whether on an alleged lack of impartiality or independence or otherwise shall be made to the
Secretariat by the submission of written statement …. The ICC Court of Arbitration shall decide the admissibility
and the merits of a challenge after giving reasonable opportunity to the affected parties to present their case. Art.15
141
2.3 Administration of the Proceedings:
Another significant advantage of institutional arbitration is the availability of

trained staff to administer the arbitration entrusted to be conducted under the aegis
of the rules of that institution. The Institution‟s administrative staff will ensure
that the tribunal is properly appointed; advance payments are made in respect of
the fees and expenses of the arbitrators and also to ensure that the arbitration is
conducted within the stipulated time. All these administrative works, being done
by trained staffs of the institution, does definitely help arbitrator to focus on its
prime responsibility of arbitrating the dispute at hand.
2.4 Supervision of the Award:
Many arbitral institutions are having an experienced committee to scrutinize the

award given by the arbitrator before the award gets published to the parties.12 This
ensures that the reasoning and content of the award deal with all the claims and
counterclaims and the principles of due process have been adhered to throughout
the proceedings. Therefore the possibility of the award being set aside by the
national court becomes likely to be minimal.
2.5 Quality of the Arbitral Panel:
This is a harsh but undeniable fact that some national courts are distressingly
inappropriate choices when the matter comes for the resolution of international
commercial disputes.13 Arbitration as a mode of resolving commercial disputes
of the said Rules deal with the situations of replacement of arbitrator in the event of death or resignation of one
arbitrator.
12
E.g. Rule 28(2) of the 2013 SIAC Rule says that before making any award, the tribunal shall submit it in draft
form to the Registrar……………….. The Registrar may suggest modification of the award and may also draw its
attention to points of substance. No award shall be made by the tribunal unless the award has been approved by the
Registrar as to its form. Not until the release of the 2007 SIAC Rules that the SIAC Secretariat began to play a
hands-on role in the conduct of the arbitration. Those and the subsequent SIAC Rules have required the Registrar to
scrutinize the award in draft form before the award is issued to the parties. This approach is consistent with ICC
approach.
13
No doubt that in few jurisdictions like the courts of New York, England, Switzerland, japan, Singapore and some
few other jurisdictions the national judiciaries include very talented judges with considerable experience in resolving
technical issues in international disputes but it is fundamental in most national legal traditions that judges are
142
has been favored by commercial users because it offers a more expert &
experienced means by the way of tribunal‟s commercial expertise and
experienced arbitrator. This is truer in case of institutional arbitration because the
institution does maintain a panel of international arbitrators having expertise in
diverse emerging fields in commerce (Construction, investment, Intellectual
property, petro chemicals, shipping). Parties get the best arbitrator in the field
which suits the dispute as well as the business.14
Both ad-hoc and institutional arbitrations have some strengths and weaknesses.
When the matter is for international commercial arbitration and not a domestic
arbitration, institutional arbitration can have certain upper hands. Party autonomy
and flexibility can be argued for ad hoc arbitration but this advantage does have
some inherent flaws in the practices of international commercial arbitration.
Parties from different jurisdiction and the dispute being of a complicated/
technical nature, the parties may not be in a position to device the best mechanism
of conducting the arbitration. For example if the dispute is in relation to
intellectual property rights, parties may not be very well versed with the nuances
involved in a proceeding of like nature. Institutional arbitration with experts in
each field and with their continuous evolving rules can serve the purpose in the
best possible way. Since the ad hoc arbitrations are totally unregulated and un-
administered, there is no uniformity in the entire dispensation. 15 Sometimes the
cost of an institutional arbitration16seems to be high but in reality one must look
into some hidden costs of an ad hoc arbitration. In an ad hoc arbitration
infrastructure facilities for the conduct of the arbitration becomes a problem and
selected regardless of their experience or aptitude in the underlying matter and without any specialization in
complex commercial matters. For details Gary G Born, International Commercial Arbitration Kluwer Law
International Vol I PP78-79 ( Commercial Competence and Expertise of Tribunal)
14
See the arbitrator panel of SIAC which constitutes of arbitrators from almost 40 different countries and also a
different panel for IPR disputes, available at ( http://www.siac.org.sg/our-arbitrators/siac-panel) (last visited on
5/10/2016)
15
D Sengupta, „International Commercial Arbitration in India: Issues and Concerns‟ XLXIII ICA Arbitration
Quarterly 20 (2012)
16
As it has already been stated that the fees of an arbitral institution for its service shall include the expenses of its
premise , its staff, its library etc and these fees shall add on to the cost of arbitration.
143
there is a temptation to hire facilities of expensive hotels.17 Unlike institutional

arbitration, parties, in an ad hoc arbitration, don‟t need to pay the administrative
and secretarial fees but it cannot be ignored the crucial role played by these
administrative and secretarial services of the institutions in order to finish the
arbitration within the stipulated time limits. It is evident that the supervising role
of institution exerts a high level of administrative control of the arbitral process
and thereby ensures not only the timely disposal of the proceedings but also on
the expenses involved including arbitrator‟s fees.18 The danger that can be posed
by an ad hoc arbitration has been aptly depicted by Mr. K.N. Bhatt, Sr. Advocate
in one of his scholarly article19 and this need to be reproduced to consolidate the
fact that institutional arbitration is better in commercial arbitration. Mr. Bhatt
referred an instance where a contract was entered between an Indian party and a
foreign party wherein it was specified that the arbitration will be held in U.K. in
accordance with laws of England. The English law on arbitration clearly states
that such an arbitration agreement does not compel the arbitration proceedings to
be held only in U.K. According to the English law, the seat of arbitration as being
specified is only for the jurisdiction purpose and the venue of arbitration
proceedings could be elsewhere as per the convenience of the concerned parties
keeping in view the principle of expeditious resolution of the dispute, saving of
expenditure, convenience of the parties etc. An application, was, therefore made
by one of the parties for holding the arbitration in any place in India because the
witnesses would be from India, both the parties being represented by the Indian
lawyers and so are all the three arbitrators. Therefore the costly spectacle of three
arbitrators along with lawyers from each side and one representative of each
party- all travelling by the same flight and staying in the same hotel in London
and conducting proceedings for a few minutes to give some innocuous direction
could be easily avoided if India would have been chosen the venue for the
17
Dr. Brahm AvtarAgarwal, „Institutional Arbitration in India‟ 176 ICA Arbitration Quarterly (2013)
18
Justice M.R. HariharanNair,‟Why Arbitration is not Popular in India ? Shall we introspect?‟ 178 ICA Arbitration
Quarterly 1 ( 2013)
19
Mr. K.N. Bhatt,‟Ad-hoc Arbitration or Institutional Arbitration- Which is better for India?‟ XLIII ICA Arbitration
Quarterly ( 2009)
144
arbitration. One wonders what these arbitrators would have done if the agreement
would have stipulated Buckingham Palace being the venue for the arbitration!!!!
Such a situation would definitely not happen if the arbitration agreements specify
that the conduct of the arbitration agreement would be in accordance with ICC
Rules or SIAC Rules or LCIA Rules. This example illustrates that how dangerous
an ad hoc arbitration could have been had there been no discipline or proper
regulations. But at the same time the legitimacy of an ad hoc arbitration must not
be doubted as UNCITRAL Model Law on International Commercial Arbitration
does recognize it and defines arbitration as any arbitration whether or not
administered by a permanent arbitral institution.20 Anticipation of the pitfalls and
the eventualities in an ad hoc arbitration is quite cumbersome, if not impossible,
especially in cases where the parties come from wholly divergent cultures and
they are holding dramatically opposed viewpoints of the same situation. The 2015
International Arbitration Survey conducted by Queen Mary School of
International Arbitration, University of London has established the fact that for
the resolution of cross border disputes institutional arbitration is preferred mode
of arbitration than an ad hoc arbitration.21
3. Functioning of some World Renowned Arbitral Institutions
It would be judicious, at this juncture, to put forth an overview of some of the world
renowned institutions which are committed to provide quick and inexpensive settlements
of commercial disputes by means of arbitration and other modes of ADR (Alternative
Dispute Resolutions) and also to ensure that the services they provide are relevant,
accessible and inclusive. All these major arbitral institutions are established and exist to
serve the legal and business communities, to foster the adoption of alternatives to the
20
Article 2(a) of the UNCITRAL Model Law defines arbitration as follows: “arbitration means any arbitration
whether or not administered by a permanent arbitral institution.”
21
The 2015 Survey Report highlights that 90% respondents preferred institutional arbitrations either as a standalone
method(56%) or combined with any other form of ADR (34%) than ad-hoc one. This result is also consistent with
the findings in the previous surveys. For details see the Survey Report at
http://www.arbitration.qmul.ac.uk/research/2015/index.html (last vsited on 19/7/2016)
145
resolution of disputes and to help lubricate the engine of global market. All operate on a
not for profit basis.22
3.1 INTERNATIONAL CHAMBER OF COMMERCE (ICC)
International Chamber of Commerce (ICC) has been, through its long existence,23
a steadfast rallying point for those who believe that strengthening commercial
ties among nations is not only good for business but it is good for Global living
standards and also good for Peace !!!24 To this end, while policy advocacy is a
major part of ICC‟s work, ICC is also devoted in promoting international trade
and investment. Much of its work is focused on making it easier for business to
operate internationally. ICC is not an interstate organization as it is being run by
private enterprise. Nor is it an interstate Chamber of commerce and Industry. In
fact, ICC is much more than this!! This is a body that represents the interest of the
international business community.25
3.1.1 ICC Arbitration:
ICC Arbitration is a flexible and efficient procedure for resolving

domestic and international commercial disputes. The ICC arbitral awards
are binding, final and also susceptible of enforcement anywhere in the
26
world. The diligent and timely conduct of ICC arbitration of
international/ national disputes owes its allegiance to the institution which
is the most experienced and renowned international arbitration institution
in the world- i.e. the ICC International Court of Arbitration (the Court).
Being established in 1923 pursuant to the ICC Rules of Arbitration, 1922,
this institution is the world‟s leading body for the resolution of
international disputes through arbitration. Working closely with its
Secretariat, the ICC Court of Arbitration‟s primary role is to administer
22
Ibid.
23
International Chamber of Commerce was set up on the initiative of a handful of entrepreneurs in Paris in 1919,
shortly after the First World War.
24
John Danilovich, Secretary General, International Chamber of Commerce.
25
Verbist, Schafer et al., ICC Arbitration in Practice (Kluwer International, 2nd edn., 2015)
26
(http://www.iccwbo.org/products-and-services/arbitration-and-adr/arbitration/) ( Last visited on 13/7/2016)
146
ICC arbitration whether conducted under the ICC Rules of Arbitration or

any other Rules like UNCITRAL. It does perform the functions which are
entrusted to in under the ICC Rules of Arbitration and continually strives
to assist parties and arbitrators to overcome any procedural obstacles that
arise in the arbitration process. The International Court of Arbitration and
it‟s Secretariat is an independent body within ICC. Although part of the
institution is known as ICC but in practice the Court along with its
Secretariat run as an independent body which ensures confidentiality. This
is clearly stated in the Statutes of ICC International Court of Arbitration:
As an autonomous body, the Court carries out the functions in complete
independence from the ICC and its organs.27 The members of the Court
are independent from ICC National Committees. The following figure
shows that ICC has been considered as the most preferred institution in the
2015 survey report of “International Arbitration Survey : Improvements
and Innovations in International Arbitration” conducted by the Queen
Mary School of Arbitration, University of London followed by LCIA
being the second most preferred. These two institutions have remained
leaders in the field of international commercial arbitration since last 10
years. 28 In the following chart, it is seen that ICC tops by a significant
margin. The said Report also discloses that when the respondents were
being asked for the dominance of ICC as being the most preferred
institutions, the „internationalism‟ of ICC and its „high-quality service‟ in
almost all jurisdictions have been stressed being the attributes to its
success.
27
Article 1, paragraphs 2 and 3 of Appendix I to the ICC Rules of Arbitration.
28
The same survey conducted in the year 2006 and 2010 show these two institutions , ICC and LCIA, remained in
the first two positions respectively.
147
International Arbitration Survey: Improvements and Innovations in

International Arbitration
Most Preferred Arbitral Institutions (2015)
Source: Queen Mary School of Arbitration, University of London
There have been ten revisions of ICC Rules of arbitration since the
original version of 1922. The current version is in force since 1 January,
2012 and does contain significant changes although the structure of ICC
arbitration proceedings remains unchanged. The term „Rules‟ and „ Rules
of Arbitration „ should be understood to mean 2012 version of ICC Rules.
3.1.2 The International Court of Arbitration and Its Secretariat:
The ICC International Court of Arbitration does consist of a President,

Vice-President and other members. The President is elected by the ICC
World Council29 upon the recommendation of the Executive Board of the
ICC. The Vice-Presidents are appointed by the ICC World Council and
may be chosen from the members of the ICC International Court of
Arbitration or elsewhere. As far the members of the ICC Court are
concerned, each national committee and group shall propose one name
and the members to be appointed by the ICC World Council. The
29
World Council of ICC is the supreme authority in ICC and ensures the implementation of ICC Constitution and
Charter. The World Council exercises all the prerogatives with which it is vested. This is equivalent to the General
Assembly of any intergovernmental organization. For details see, (http://www.iccwbo.org/about-
icc/governance/world-council/)( Last visited on 14/7/2016)
148
members shall remain independent from the national committee in the

discharge of their functions. The ICC Court is not actually a court in its
judicial sense. The determination of disputes as well as „who wins and
who loses‟ in an arbitration are the matters for an independent arbitral
tribunal to decide. The Court does not itself decide all these issues. It does
not even award damages or any costs. The Court does perform the
following specific functions under the Rules:
i. Fixing the place of arbitration
ii. A determination regarding the prima facie existence of the ICC

arbitration agreement
iii. The Court shall decide certain complex multi-party or multi-contract

issues
iv. Confirming, appointing and replacing arbitrators
v. Deciding any challenge as to the independence and impartiality of the

arbitrator
vi. The Court shall monitor the arbitral proceedings starting from the
filing of the request up to the publication of the final award and would
thereby ensure that the arbitral proceeding is as per the ICC Rules and
it is diligently and efficiently conducted.
vii. Scrutinizing the arbitral award in order to ensure the quality and
enforceability of the award
viii. Costs effective arbitration is the key source for the popularity of an
arbitration institution. ICC Court does perform this important task of
adjusting and managing ICC arbitration costs including the
administrative expenses and the fees and expenses of the arbitrator.
ix. Overseeing the emergency arbitration proceedings.
Due to the unprecedented rise in the number of cases in each succeeding

year, it was found that holding the Plenary meeting of members of
149
national committees (the members of ICC Court) from a large number of

countries (some eighty at the present time) for the task of making delicate
and often difficult decisions, once in a month is not an efficient way of
working. Therefore a committee to make routine decisions such as
appointment of arbitrator or its confirmation etc. was constituted. The
committee consists of two rotating members of the ICC Court along with
the President or any of the Vice-Presidents. The decision of the
committee is taken unanimously. But in cases where no such unanimous
decision has been taken or in cases that have given rise of unexpected
difficulties, the matters are referred to the next plenary session of the
Court. At present the committee meets four times a month. The regular
decisions of the committee are presented before the Court at its next
plenary session.
Again, when a decision is too urgent to be taken and cannot even wait for
the ordinary committee session, the decision can be taken by the President
or by any of the Vice-Presidents with the authorization of the President.
The decision is, of course, conveyed to the Court in its next plenary
session. No other but only the members of ICC Court can attend the court
sessions whether it is ordinary committee session of the court or its
plenary session. The arbitrator, parties and their representatives are not
allowed in any session of the court. 30 The members who are due to attend
either the plenary session of the Court or the Committee meeting are
provided with the file of documents which is prepared by the Secretariat.
This contains a brief summary of the cases which are to be considered
along with an explanatory note and a recommendation as to the decision to
be made. All decisions along with the reports are discussed thoroughly
which might take even hours and the decision is generally taken
unanimously. If not, then on the basis of majority.
30
Herman Verbist, Erik Schafer, et.al., ICC Arbitration in Practice 13-21( Kluwer Law International, 2nd edn., 2015)
150
The Court‟s Secretariat is headed by a Secretary General. The Secretary

General is assisted by a Deputy Secretary General. Being equipped with
other specialist staffs, Secretariat is responsible for the day to day running
of the Court and assist the Court in the discharge of its functions. The
Secretariat is further divided into nine case-management teams. Each team
is led by a Counsel who is assisted by two/three co-counsel and
administrative assistants. Seven of the teams are based in Paris, the eighth
one is in Hong kong and the ninth one is in New York. 31
Through the introduction of ICC Rules 1998, the Secretary General has
been given certain administrative decision making powers. Since onwards,
all issues are not required to be presented before the ICC Court and the
routine decisions like confirmation of the appointment of the arbitrators
who is already being nominated by the parties or the appointment of a sole
arbitrator on the basis of the joint proposal of the parties or in accordance
with the mutually agreed procedure etc. can be made quickly by the
Secretary General. In all these cases the proposed arbitrator must provide
an unqualified statement as to the independence and impartiality. Besides
this power of appointment, the Secretary General can fix an amount as an
advance and can ask the claimant to make the payment of the amount so as
to cover up the costs of arbitration until the terms of the reference are
being drawn up by the Court. 32 In case of nonpayment, the Secretary
General can ask the Arbitral Tribunal for the suspension of its work and
the claimant‟s request for arbitration shall be considered as withdrawn if
the payment is not further made within the deadline fixed by the Secretary
General. 33
31
Source: „‟(http://www.iccwbo.org/About-ICC/Organization/Dispute-Resolution-Services/ICC-International-
Court-of-Arbitration/Secretariat-of-the-Court/)‟‟( Last visited on 14/10/2016)
32
Article 36(1) of the ICC Rules, 2012
33
Article 36(6) of the ICC Rules, 2012
151
3.1.3 ICC Arbitration Rules 2012 – Heralding A New Direction Towards The
Cost-Effective, Speedy Resolution of Business Disputes:
To keep pace with the development of commercial arbitration, due to the

increase of multi party and multi contract arbitration in an unprecedented
way, aiming to make the arbitration more cost effective and speedy in this
globally competitive market and to consolidate its own position as a
pioneer in providing the best mechanism for resolving the commercial
disputes, the International Chamber of Commerce released a revised set of
arbitration Rules( ICC Arbitration Rules) on September,12, 2011 which
comes in force from 1 january,2012. This new sets of Rules pave the way
for more expeditious and cost effective arbitration and “represent the
culmination of the work of over 175 individuals of a special task force on
revision of the rules and 20 members of the drafting sub-committee,
following extensive global consultation”. 34 The following commentary
shall highlight the key changes from the 1998 Rules.
A. Introductory Provisions: One of the aims of the 2012 Rules is to

make an evident application of the Rules to the disputes which are
arising under investment treaties and free trade agreement.
Consequently the 2012 Rules has deleted the reference to the function
of ICC Court, as it was stated, to provide for the settlement of business
disputes of an international character and has, thereby, diminished the
possibility of any argument to the effect that any dispute arising under
the bilateral investment treaty and free trade agreement are not
business disputes, rather represents a claim under public international
law. To open up the application of this Rule to such investment
disputes, the revised Rule has tailored the scope of the tribunal‟s
power in relation to the determination of applicable rules of law in the
substance of the disputes. Under the 1998 Rules it was stated that the
arbitral tribunal while dealing the issue of applicable rules of law shall
34
ArshadGhaffar,„Legislative Comment- The 2012 ICC Arbitration Rules‟ 78(2) Arbitration 171-178 ( 2012)
152
take into account the provisions of the contract. Investment arbitration

being based on bilateral investment treaty and not on contract, now
under the revised rule tribunal shall take into account the provisions of
the contract‟‟ if any‟‟( added through 2012 edition), therefore giving a
clear indication that there is arbitration under ICC Rules which might
not , in every likelihood, be based on contract !! This is nothing but the
presupposition of investment arbitration under the new revised ICC
Rules of Arbitration, 2012. Another notable and significant
modification in the introductory provision of the 2012 Rules is to
authorize the ICC Court of Arbitration as the only body which is
authorized to administer arbitration under the ICC Rules. Article 1(2)
of ICC Rules on Arbitration 2012, thus, states “The Court does not
itself resolve disputes……. The Court is the only body authorized to
administer arbitration under the Rules, including the scrutiny and
approval of awards rendered in accordance with the Rules. And it
continues……”. This addition clearly intends to negate the ongoing
practices of incorporation of pathological clauses 35 in a commercial
contract and its enforcement in different jurisdictions. A „Hybrid
Arbitration‟36 is the incidence of a pathological clause.
B. The Request for Arbitration: Parties wishing to initiate an ICC

Arbitration can submit its request not only with the head office of the
35
A defective arbitration clause: When an arbitration clause deviates from the essential elements of an arbitration
clause; the clause is badly drafted which will create confusion in the enforcement of that clause and it shall increase
uncertainty, time and costs for the parties involved.
36
The term Hybrid Arbitration refers to a case where the parties agree that the arbitration shall be governed by the
Rules of one institution but shall be conducted by some another institution. For example if the parties agree that the
arbitration shall be as per the ICC Rules but shall be conducted by LCIA. By this the parties mean that the
proceedings of the arbitration shall be as per the ICC Rules and the arbitration shall be administered by LCIA. A
good example of this Hybrid Arbitration is found in the case of Insigma Technology Company v Alstom
Technology Ltd. ( A decision of Singapore High Court). In this case the parties incorporated the arbitration clause in
their licence agreement which stated that any dispute in the transaction shall be resolved through arbitration before
the Singapore International Arbitration centre, Singapore and the arbitration shall be governed by the ICC Rules of
arbitration. Disputes being arisen and Alstom initiating an ICC arbitration, this was opposed by Alstom on the
contention that not ICC but it was SIAC which shall hold the arbitration. After reviewing the parties‟ agreement, the
tribunal decided to conduct the arbitral tribunal of SIAC decided to conduct the arbitration as per the ICC Rules,
1998, to the exclusion of SIAC Rules. This arrangement was approved by the Singapore High Court.
153
Secretariat which is in Paris. Following ICC‟s expansion in other

different jurisdictions ( Like Hong Kong, ) the 2012 Rules mention
that the notice can be submitted to the Secretariat at any of the offices.
Further the applicant is required to give some additional information
than it was required under the 1998 Rules. The claimant is now
required to include his „‟ other contact details‟‟ along with address.
Further the particulars which are required to be furnished must also
include similar details of the persons representing the parties. This was
absent in the previous Rules. Additionally, the „‟ basis on which the
claims are made‟‟ now has to be specified as does the amount of any
quantified claim as well. Previously the requirement was to provide an
indication of the amount to the extent it was possible. These additional
requirements shall apprise the respondent with much more information
and would also help the court decide some vital issues like an amount
which is to be paid as an advance on costs, whether there shall be one
arbitration against several claims arising from different contracts and
thereby shall expedite the arbitration proceedings.
C. Jurisdiction: Like Art. 1(2) of the new Rules, Art.6 (2) also say that the
arbitration shall be administered by the ICC Court of Arbitration once
the parties agree to have their arbitration under ICC Rules.
Jurisdictional challenge is an important issue in international
commercial arbitration. Generally a challenge to the jurisdiction of the
arbitrator is based on the existence, validity and scope of the
arbitration agreement. In the previous Rule, such a challenge to the
jurisdiction of the arbitrator was to be decided by the ICC Court and if
the Court was prima facie satisfied that the arbitration agreement may
exist, the arbitration would proceed. 37 Thereafter the tribunal would
decide the jurisdictional challenge. Now under the revised Rules, any
such jurisdictional question including any objection that whether all
37
Jacob Grierson and Annet Van Hooft, Arbitrating Under the 2012 ICC Rules 5-22 ( Kluwer Law International,
2012 ) (http://www.kluwerarbitration.com/book-toc?title=Arbitrating%20under%20the%202012%20ICC%20Rules)
154
the claims shall be determined in single arbitration or not shall be

decided by the arbitral tribunal unless the Secretary General decides
otherwise. This change is purely to accelerate the proceedings.
D. Multiple Parties, Multiple Contracts and Consolidation: Before the

2012 Rules, there was only one provision which dealt with multiparty
arbitration. That was Art. 4(6) which basically dealt joinder or
consolidation of request for arbitration. However in practice numerous
issues like joinder of parties, consolidation of arbitration and claims
which are filed under different arbitration agreement etc had to be
dealt by the Court and the Secretary and the existing provision was not
found to be adequate enough to be made applicable in all these cases.
On the other hand there was a stiff growth in commercial arbitration
and an evolutionary growth in the number of ICC arbitration since
1998. There was around30% of ICC arbitration cases which involved
more than two parties. The ICC statistical Report regarding multiparty
claim is as follows: “29% in 2008, see „2008 Statistical Report‟
published in ICC International Court of Arbitration Bulletin, Paris,
Vol. 20/Nr. 1 – 2009, p. 9; 31% in 2011, see „2011 Statistical Report‟
Vol. 22/Nr. 1 – 2012, p. 7; 33% in 2013, see „2013 Statistical Report‟
Vol. 25/Nr. 1 – 2014, p. 7”.38 It was therefore felt that keeping in view
the practice of the ICC Court and the Secretariat, it would be
appropriate to keep more than one provisions on the issue of multi
party claim and joinder. The revised Rules presently contain four
different provisions39 on the issue of multiparty arbitration.
E. The Appointment of Arbitrator: This is a general principle that the

arbitrators must remain independent and impartial while conducting
38
Supra note 30.
39
Article 7 : “Joinder of Additional Parties”; Article 8 : “Claims between Multiple Parties”; Article 9 : “ Multiple
Contract” and Article 10: “ Consolidation of Arbitration”.
155
arbitration, whether domestic or international, and whether the

arbitrator has been appointed by the parties or by an institution or any
other authority. The 1998 Rules contained a general provision
requiring the arbitrator to remain independent. The additional
requirement of conducting the arbitration fairly and impartially was
another attribute to the general requirement of arbitrator to remain
independent and impartial in the arbitration proceedings. It is to be
noted that the previous 1998 Rules did not specifically use the term
impartial in any of its provisions. Under the 2012 Rules, it is for the
first time that there is a formal requirement for the arbitrator to remain
independent and impartial.40 To this end, the prospective arbitrator is
required to sign a statement of acceptance, impartiality, independence
and their availability. Coming down to the issue of the appointment of
arbitrator, under the 1998 Rules the arbitrators had to be appointed by
the ICC Court with the recommendation of the National Committees
of ICC except in a situation where the appointment had to be made
from a country where there was no such National Committee. There
were some inherent problems in this system of National Committee
recommendation which can be summed up in the following words:
1. While the proposal or the recommendation of many of the National

Committees could easily be relied on as proposing excellent impartial
names, some of the recommendations of some National Committees
were invariably not to be.
2. Owing to some very urgent situations where the arbitrator had to be

appointed , there was every likelihood that under those situations
sufficient time was not available to make contact and obtain the
recommendation even from the most efficient Committee.
40
Clause 1 of Art.11 of the 2012 Rules says that every arbitrator must be and remain independent and impartial of
the parties involved in the arbitration. Clause 2 of the same Article says that a prospective arbitrator must disclose in
writing the circumstances which are likely to create doubts as to the independence of the arbitrator in the minds of
the parties and also the circumstances which would give reasonable doubts as to the impartiality of the arbitrator
concerned.
156
3. In an investor-state dispute, a national committee was never being

considered appropriate.
In order to address the aforesaid issues and also to equip the ICC Court
with the means to appoint the best available arbitrators efficiently and
quickly, the 2012 ICC Revised Rules empower the ICC court to go
with direct appointment of arbitrators in the following situations:
i. Where the ICC Court does not accept the recommendation of

the Committee or any group
ii. Where the National Committee or the ICC Group fails to make
the appointment within stipulated time
iii. Where one of the parties in the arbitration is State or claims to

be State entity
iv. Where the Court considers to appoint arbitrator from such

territory/country where there is no such National Committee or
ICC group
v. Where there President of the ICC Court is of the opinion that

the circumstances exist where direct appointment is necessary
and appropriate.
F. Speed and Cost Effectiveness: Costs and delay have been a major
concern in the international commercial arbitration community.
Realising the need of the ICC arbitration users, ICC Commission on
Arbitration published the guidelines entitled “Techniques for
Controlling Time and Costs in Arbitration” and thereby ventured into
addressing the concerns of its user vis a vis prospective users.
According to the released „Techniques‟, to sum up, the unnecessary
long and complicated proceedings (e.g. unfocused request for
disclosure of documents, holding proceedings for unnecessary witness
and expert evidence etc.) were considered to be the main cause for
long duration and high costs in many international arbitrations. The
157
longer the proceedings the more expensive they will be!!! The ICC
Commission‟s Technique recommended the following two underlying
principles to combat such menace.
“First, whenever possible, the parties and the arbitral tribunal should
make a conscious and deliberate choice early in the proceedings as to
the specific procedures suitable for their case. Second, the arbitral
tribunal should work proactively with the parties to manage the
procedure from the outset of the case.”41 Based on these two general
principles, the Techniques came up with certain proposals as to how to
reduce the cost and increase the speed in an international commercial
arbitration. The 2012 ICC Rules, in this regard, can be said to be an
extension of the existing practices of ICC Techniques.
Article 22(1) requires that the parties and the arbitral tribunal shall
endeavor every effort to make the arbitration cost effective and the one
being efficiently conducted. To this end the complexity and the value
of the arbitration are some important factors to be taken into
consideration in their effort because the procedure which shall be
agreed by the parties or which shall be adopted by the arbitrator is to
be proportionate to the complexity and value of the commercial
arbitration. What might fit a complex and high valued arbitration must
not fit for a less expensive less complicated arbitration dispute.
According to Article 24(1) the arbitral tribunal while drawing the

terms of the reference or soon thereafter shall convene a „ case
management conference‟ with the parties in order to device the
procedural measures to be adopted in pursuance to Article 22(1). The
measures which may be adopted are prescribed in Appendix IV to
2012 Rules.42
41
Supra note 37.
42
Some examples of case management techniques which are enumerated in Appendix IV of the ICC Rules on
Arbitration,2012 include bifurcating the proceedings , rendering one or more partial awards on key issues,
158
Further Article 24(4) empowers the arbitral tribunal to make a request

to the concerned parties for attending such case management
conference in person or through any internal representatives who are
likely to have full authority to take procedural decisions. This could be
a better option than sending outside counsel and can be an incentive to
reduce time and cost.
Article 27 requires that the arbitral tribunal as soon as the arbitration

proceedings gets over shall communicate not only the Secretariat of
the Court (As it was the requirement under 1998 Rules) but at the
same time the parties too shall be communicated the expected date by
which the tribunal shall submit its draft awards to the Secretariat for its
approval.
Article 37(5) empowers the Arbitral Tribunal during its decision on

costs to take into consideration such circumstances as the tribunal
deems fit including the extent to which each party has conducted the
arbitration in an expeditious and effective manner.
Most of the Rules in this regard are not an innovation because these
are already in practice since the inception of the Techniques by the
ICC Commission on Arbitration. Still “spelling out these points in
2012 Rules is clearly a good thing particularly where inexperienced
arbitrator and parties are involved”.43 One appreciable innovative rule
finds its place in Article 27 of the latest Rules which requires the
arbitral tribunal to communicate the parties along with the Secretariat
the date by which it expects to submit the draft award for the approval.
This has resulted a much quick drafting of the award than the past.
G. Emergency Arbitrator: The introduction of new provisions in relation

to emergency arbitrator in the 2012 Rules is a major step of ICC to
identifying issues that does not require a decision and can be resolved through agreement, identifying issues that can
be decided on the basis of the documents and don‟t require any oral evidence or legal hearing , Limiting the length
and scope of written submission, oral witness evidence etc.
43
Supra note 37.
159
continue with the glory of world‟s leading arbitral institutions. Most of

the arbitral institutions empower their arbitrator to order interim or
conservatory measures. But there are circumstances when the parties
may be looking for some urgent measures even before the constitution
of the arbitral tribunal. Obviously national court could be an option
where the parties have the liberty to approach for such urgent
measures but mostly parties would be reluctant to step into the
courtroom and at this stage it is needless to highlight the reasons for
this reluctance. Since mid -2010, quite a few arbitral institutions
started incorporating such emergency arbitrator provision permitting
urgent request for conservatory or interim measure to be issued by an
„‟emergency arbitrator‟‟. Art 29 along with Appendix V of the ICC
Arbitration Rules 2012 contains the same. 44
It is important to note that although there was no such „emergency

arbitrator‟ provision in the 1998 Rules but the 1998 Rules contained a
„Pre-Arbitral Referee Procedure‟ and this procedure still continues to
exist. The procedure is similar to emergency arbitrator but there are
some important differences between these two. 45 The pre-Arbitral
Procedure applies only when the parties to arbitration agree so in
writing. Whereas the application of the provisions of emergency
arbitrator is automatic once the agreement for arbitration is made after
1 January, 2012 (Subject to some exceptions). The former applies even
in cases where there is no arbitration agreement. The emergency
arbitrator( ICC Rules on Emergency Arbitrator) provision applies
when the parties have referred the dispute to ICC. There is an
44
The provisions relating to the Emergency Arbitrator under the 2012 Rules do not intend to curtail the right of the
parties to seek interim or provisional measures from the judicial authority at any time before the filing the
application under the said Rules and also in certain circumstances after such application being filed under the ICC
Rules. Such an application before the judicial authority shall not be deemed to be an infringement of the arbitration
agreement between the parties and the Secretariat of ICC must be immediately informed of any such measures being
taken by the judicial authority.
45
. Supra note 34.
160
exhaustive list of the Referee‟s power in the Pre-Arbitral Procedure.

The emergency arbitrator is entrusted with a more generally defined
power of ordering conservatory measures that cannot await the
constitution of the arbitral tribunal. Further Emergency Arbitrator
provides tighter time limits than Pre-Arbitral Procedure. Basically “the
intention is to hold the ring until the tribunal is formed‟‟ 46and it has
been expressly provided that the emergency arbitrator‟s order shall not
bind the arbitral tribunal. The tribunal can also modify, annul or
terminate the order as it deems fit. This is also to be noted that a
number of limitations are put on the applicability of the emergency
arbitrator provisions. This provision being applicable to the parties
who are either signatories or successor to such signatories, this
excludes the possibility of being made applicable in a proceeding
brought under the treaties with a State party. Further the provisions do
not apply where the arbitration agreement has been formed prior to the
date this 2012 Rule has come into force, i.e., 1 January, 2012. Also
when the parties agreed to opt out of this provision or the parties have
agreed another pre arbitral procedure which provides for granting of
similar measures.
3.1.4 Recent Steps to Maintain Transparency and Greater Efficiency in the

Resolution of Commercial Disputes:
ICC Court Announces New Policies to Foster Transparency and

Efficiency (5TH January, 2016)
Expeditious resolution of disputes being one of the top priorities of ICC,

the International Court of Arbitration of ICC announced two landmark
policies which were unanimously taken at the Court‟s Plenary Session
held on 17th December, 2015. These policies, which are intended to
46
Ibid.
161
enhance the efficiency and transparency of ICC arbitration, are as

follows:47
“Promoting Transparency for Users and other Stakeholders” - The Court

will, from now onwards, publish on its websites the names of the
arbitrators, their appointments whether being made by the Court or by the
concerned parties, the name who is acting as a chairperson of the tribunal
etc. This policy shall apply to all the cases which are registered from
1january, 2016 onwards. This information will remain on the website once
the case is terminated. This information published will show the quality of
ICC Arbitral Tribunals and will provide an additional incentive to promote
regional, generational and gender diversity in the appointment of the
arbitrators”.48
“Consequences for Unjustified Delays in Submitting Awards” - In another

landmark move, the ICC Court has laid down information regarding the
“cost consequences for unjustified delays in submitting draft arbitral
awards to the ICC Court”. 49 Basically an ICC arbitral tribunal is expected
to submit its draft awards within three months after the last substantive
hearing of the matters which are to be decided in the award. This time
frame is for two months for an arbitration of sole arbitrator. If such draft
award is not submitted by the tribunal/sole arbitrator as the case may be,
the court shall lower the fees of the arbitrator unless the court is satisfied
that the cause of the delay is beyond the control of the arbitrator or due to
some exceptional circumstances.
By bringing such measures, ICC intends to send a clear signal to the

arbitral tribunal that unjustified delays will not be tolerated. This
47
For details visit : (http://www.iccwbo.org/Training-and-Events/ICC-s-recent-transparency-and-efficiency-
measures-what-impact-for-the-MENA-region-/) ( Last visited on 1/10/2016)
48
“ICC Court Announces New Policies to foster Transparency and Ensure Greater Efficiency” Source :
(http://www.iccwbo.org/News/Articles/2016/ICC-Court-announces-new-policies-to-foster-transparency-and-ensure-
greater-efficiency/) ( Last visited on 1/10/2016)
49
Ibid.
162
consolidates ICC‟s Stand that “expeditious resolution of disputes is one of

the top priorities of ICC”.
Release of Practices on Fees and Administrative Expenses (18th May,

2016): 50
The International Court of Arbitration of ICC has published its internal

practices regarding the calculation of fees and administrative expenses in
new ICC cases. Set out in a revision to the ICC note to parties and arbitral
tribunals, the measures provide greater transparency to parties and
tribunals on the way in which fees are to be fixed by the ICC Court. A
new ICC form for statements of time and travel has also been published
for arbitrators to provide periodic reports on the time spent and activities
performed in all new cases to assist the ICC Court in fixing fees. Finally,
the Court will retain more flexibility, in absence of an agreement between
the co-arbitrators, to allocate the fees within the arbitral tribunal. ICC
system is based on ad valorem system schedule but the Court in order to
assess whether the fee to be fixed below or above the average, often takes
into account the actual time spent by the arbitrator. Therefore it is
necessary for the arbitrator to remain transparent in their communication
in this regard. Commenting on these new practices, ICC President of the
Court Alexis Mourre said, “These measures aim at providing our users
with more transparency as to how fees are fixed by the Court. At the same
time, we are encouraging greater rigour on the part of arbitrators in their
communication of time spent”.51
ICC Augments Transparency in Scrutiny Process (28th June, 2016): 52
In its Plenary Session dated 17th December,2015, the ICC Court

introduced imposition of financial sanctions on the arbitrators in case there
was any delay in the submission of the draft arbitral award to the ICC
50
Source: (http://www.iccwbo.org/News/Articles/2016/ICC-Court-releases-practices-on-fees-and-administrative-
expenses/) ( Last visited on 1/10/2016)
51
Ibid.
52
Source: (http://www.iccwbo.org/News/Articles/2016/ICC-augments-transparency-in-scrutiny-process/)
163
Court. Moving ahead with its commitment to bring more transparency in

the arbitration process and with the imperative to lead by example, this
latest amendment (adopted by the Bureau of the Court on 28th June, 2016,
Hongkong) to the note (ICC Note to Parties and Arbitral Tribunals on the
conduct of Arbitration) has now initiated measures to reduce the
administrative fees of the arbitration in cases of unjustified delays in the
Court‟s scrutiny process itself. This is in response to the calls for greater
transparency for the parties and the arbitral tribunals in relation to the
arbitral process. The new measures ensure that the Court itself becomes
accountable for any delays relating to scrutiny.
To sum up it is pertinent to note that in response to users‟ needs and the

development of international commercial arbitration, ICC arbitration has
emerged as the global leading arbitral institution. It‟s unrivalled
geographic reach is evident from the report published on its website,
disclosing the fact that the cases filed in 2015 involved parties from 133
countries and independent territories- far outstripping the global reach of
any other arbitral institutions. It has also bagged the glory of continued
growth in the number of appointment of arbitrator from the emerging
economies. Any prospective users of ICC arbitration must take note of the
followings:
(i) Over the course of almost 100 years, ICC has the credit of
handling more cases than any other institutions.
(ii) It has a very well staffed secretariat, consisting of talented, multi-

lingual lawyers, who follow all cases on a day to day basis, take
the initiative to submit cases to the ICC Court for any decision
considered necessary and prepare such decisions. They are also
readily available for general questions about the ICC Rules.
(iii) The only institution engaging itself in a through revision of a draft

award of the arbitral tribunal. This ensures the high quality of the
164
award which becomes easily susceptible to enforcement in any

other country.
(iv) As it has already been explained above, ICC does have well-
thought Rulesto conduct arbitration which goes ahead steadily with
all the developments of international commercial arbitration which
is continuously evolving.
Recording its second highest number of new cases in its 93-year history(
801 cases have been filed during the year 2015),53 involving around 2,283
parties across the world in the various multi-party disputes which are
being administered by the ICC Court, raising the average „monetary value
in disputes‟ from US$ 63 million to US $ 84 million in the year 2014 and
2015 respectively54 and through its various landmark moves including its
successful effort to expand the geographical presence of ICC Court, the
International Chamber of Commerce is enjoying its strong and steady
growth in a fiercely competitive market. Mr. Alexis Mourre, the present
President of ICC International Court of Arbitration, has rightly said that „‟
as a world leader in commercial dispute resolution, it s imperative for ICC
to lead by example and take steps to improve transparency and
accountability wherever appropriate”. 55
3.2 LONDON COURT OF INTERNATIONAL ARBITRATION (LCIA):
The London Court of International Arbitration is probably the oldest continuously

established international arbitral institution in the world.56 The LCIA does offer a high-
quality, cost effective and efficient administrative services for arbitrations (conducted
under the aegis of LCIA Rules of Arbitration) seated all over the world involving parties
of different nationalities. Despite its name, LCIA is not an exclusively English
53
See the Statistics of ICC Arbitration available at (http://www.iccwbo.org/Products-and-Services/Arbitration-and-
ADR/Arbitration/Introduction-to-ICC-Arbitration/Statistics/) ( Last visited on 1/10/2016)
54
Ibid.
55
See the Article section of Arbitration chapter in ICC official website.
(http://www.iccwbo.org/News/Articles/2016/ICC-augments-transparency-in-scrutiny-process/) ( Last visited on
1/10/2016)
56
PeterTurner& Reza Mohatashami, A Guide to the LCIA Arbitration Rules 1 ( Oxford University Press, 2009)
165
organization57 and LCIA, in fact, does administer cases arising under any system of law
and in any venue worldwide. By making its rules available in nine languages 58 and more
that 80% of the pending cases in LCIA not involving English parties 59 , LCIA does
unequivocally consolidate its truly international character.
3.2.1 Evolution of LCIA:
The Court of Common Council of the city of London set up a committee on 5th
April, 1883 and the committee was charged with establishing an arbitration
tribunal which shall adjudicate both domestic and transnational commercial
disputes arising within the ambit of the city of London. In 1884 the committee
submitted its plan for a tribunal that shall be administered by the City Corporation
in co-operation with London Chamber of Commerce. The scheme was finally
adopted in 1891 with the constitution of the tribunal in the name of „London
Chamber of Arbitration‟. The chamber was formally inaugurated in November,
1892. It was hoped that the tribunal would expedite the resolution of business
disputes and its foundation, thus, was reported in a now famous commentary:
This Chamber is to have all the virtues which the law lacks. It is to be expeditious
where the law is slow, cheap where the law is costly, simple where the law is
technical, a peacemaker instead of a stirrer-up of strife.60
In 1903 it was renamed as London Court of Arbitration and the adjective‟

international‟ was added in 1981 to name it „London Court of International
Arbitration‟ emphasizing its worldwide vocation and to reflect the nature of its
work which became, by that time, predominantly international.
In 1985 new and innovative rules were promulgated and the LCIA arbitration
Court was established in order to achieve the ideals of international commercial
arbitration in any of its manifestations. LCIA Court is responsible for all key
functions under the LCIA Rules.
57
Many LCIA arbitrations have a seat other than London and numerous Non LCIA arbitrations are conducted in
London each year.
58
http://www.lcia.org/Dispute_Resolution_Services/ARBPrintable_versions.aspx ( Last visited on 8/10/2016)
59
http://www.lcia.org/LCIA/introduction.aspx (Last visited on 8/7/2016)
60
(1893) IX LQR 86 accessed through http://www.lcia.org/LCIA/history.aspx ( Last visited on 8/10/2016)
166
In 1986, the corporate structure of LCIA changed as LCIA was registered as a

fully independent of its founding bodies ( London Chamber of Commerce and
Corporation of the City of London) and a private not for profit company limited
by guarantee. These changes are often seen as cornerstones of the world class
institution that the LCIA has since become, allowing it to meet the requirements
of increasingly global international arbitrations.61
3.2.2 The LCIA Today:
Significant structural changes and important developments continued in

subsequent decades as LCIA expended both internally and externally
significantly. Internally there is a steep increase in the number of new cases
requiring LCIA to expand its secretariat‟s workforce and office space. The total
number of cases referred to LCIA doubled between 1997 and 2007.62 As a result
of financial crisis the figure doubled again between the beginning of 2008 and end
of 2009. The subsequent two years of 2010 and 2011 saw a decline owing to the
fact that the global economy continued its sometimes faltering recovery. It was
reported 63 that a decrease of 9.5% in the number of arbitrations as between 2009
and 2010 was not considered to be a sharp decline as it was anticipated. However
the institution saw a healthy increase in its core casework in 2012 and 2013. The
year 2013 was earmarked as reaching its record high in the number of referrals. 64
61
Julian D.M. Lew, Harris Bor, et al.(eds), Arbitration in England, with Chapters on Scotland and Ireland 51-74
( Kluwer Law International, 2013) (http://www.kluwerarbitration.com/book-
toc?title=Arbitration%20in%20England%2C%20with%20chapters%20on%20Scotland%20and%20Ireland
62
Maxi Scherer, Lisa Richman, et al., Arbitrating under the 2014 LCIA Rules: A User‟s Guide 1-10 ( Kluwer Law
International 2015)
63
Director General‟s Report 2010 available http://www.lcia.org/LCIA/reports.aspx ( last visited on 9/7/2016)
64
Registrar‟s Report 2013 available at http://www.lcia.org/LCIA/reports.aspx ( Last visited on 9/7/2016)
167
LCIA Case Load – 2013

2012/2013 Biennial Monitoring period: 578
2013 Annual Period: 301
Source: Registrar’s Report 2014 (Available at www. lcia.org)
A total number of 290 arbitration cases were referred in 2013. This was in
addition to 11 requests for mediation and other form of ADR and thereby bringing
the total number to 301. These figures are ahead of previous all time high of 2009.
This represents an increase of 10% in the number of arbitrations referred to LCIA
as compared to 2012. The 578 disputes being referred in 2012-2013 biennial
monitoring period represent an increase of nearly 15% as compared to last 24
months in which the total number of cases referred was 504. 2014 has seen the
introduction of new LCIA Arbitration Rules. The LCIA Arbitration Rules does
apply to all the arbitrations commenced on or after 1st October, 2014 unless the
parties‟ agreement provides for the application of 1998 Rules. This 2014 is an
improved version of the 1998 Rules retaining many its features and also
introducing new and innovative measures. There is a slight increase in its
casework in 2014. A total of 296 arbitrations are referred along with 6 cases for
Mediation or any other form of ADR and this brings the total number to 302, one
ahead of 2013.65
65
Registrar‟s Report 2014 available at http://www.lcia.org/LCIA/reports.aspx ( Last visited on 9/7/2016)
168
LCIA Case Load

2013/2014 Biennial Monitoring Period: 603 Disputes
2014 Annual Period: 302 Disputes
The 603 disputes which are referred during the biennial monitoring period
(2013/2014) represent an increase of over 4% as compared to the previous 24
months period ( 2012/2013) during which a total of 578 disputes were referred to
LCIA.
The LCIA saw a further increase in its casework in 2015 reaching a new all time
high in the number of referrals. A total 326 arbitrations have got referred along
with another 6 requests for mediation or any other form of ADR and brings the
total to 332, representing a 10% increase on 2014. The 326 arbitrations included
256 arbitrations under its own LCIA Rules and the balance were arbitrations
under the UNCITRAL Rules where LCIA acted as an appointing authority or in
169
respect of which LCIA extended full administration services or provided fund

holding services.66
LCIA Case Load

2014/2015- Biennial Monitoring Period- 634 Disputes
2015 Annual Period: 332 Disputes
The 634 disputes which are referred during the recent biennial monitoring
period (2014/2015) represent an increase of another 5% as compared to
previous 24 months period ( 2013/2014) during which a total of 603 disputes
were referred to the LCIA.
In following chart the international nature of LCIA caseload and profile remains
evident in the nationalities of parties to arbitration under the LCIA Rules in
2015. A statistics of the year 2014 is also shown for comparison.
66
The arbitrations referred before LCIA can be divided in two categories. There are cases which shall be governed
by the LCIA Rules and there are non LCIA cases like UNCITRAL and ad hoc cases where LCIA is acting as an
appointing authority or a fund holder. Also see Registrar‟s Report, 2015 available at
http://www.lcia.org/LCIA/reports.aspx ( Last visited on 9/10/2016)
170
Nationalities of parties to LCIA Arbitration
2015
Bermuda, 2.00%
United
British Virgin Islands, 6.40% States,
5.90%
China, 1.80%
United Kingdom, 15.60%
United Arab Emirates,
2.20%
Ukraine, 3.10%
Cyprus, 7.40%
Eastern Europe, 0.90% Switzerland, 4.10%

Germany, 2.20% Singapore, 1.50%
Hong Kong, 1.80% Russian Federation, 10.30%
Latin America, 2.50%
Netherlands, 3.60%
Nigeria, 2.10% Other

Western
Other, 0.60% Europe, Pakistan, 2.80%
Other Africa, 4.30% 7.10%
Other Asia, 3.70%
Other Asia Pacific, 0.70%
Other Middle East,
Other Caribbean, 3.10% Other CIS countries, 1.40% 2.90%
2014
United States, 3.30%

Brazil, 2.90%
Africa,
5.60%
United Arab Emirates, United Kingdon,

2.60% 10.60%
Switzerland, 2.10%
British Virgin Islands,
Saudi Arabia, 3.70% 13.60%
Saint Kitts and Nevis, 1.90%
Russian Federation, 4.40% Cyprus, 8.10%
Pakistan, 2.70%
Other Western Europe, India, 3.00%
9.60%
Ireland, 1.90%
Israel, 1.60%
Itlay, 1.70%
Other Middle East, 1.90% Marshall Islands, 3.30%
Other Latin America, 1.80% Other, 0.40%
Other Eastern Europe, Other Asia, 2.70%

2.40% Other CIS Countries, 1.90% Other Caribbean, 2.40% Othar Asia Pacific, 3.90%
171
3.2.3 Key Changes introduced by the 2014 LCIA Rules:
The 2014 LCIA Rules are the product of the long review process which originated
within the secretariat of LCIA in 2009 that is to say almost 5 years before the
Rules actually came into effect.67 What is most striking while reading the 2014
Rules is the extent of the apparent changes made to these Rules. Every one of the
32 articles of the 1998 Rules including the Preamble has been subjected to some
amendments. Though on a closer examination of the new Rules it becomes
apparent that in number of cases the changes which are brought are of cosmetic
nature but it cannot be said that the new Rules do not contain any innovative
changes. Some significant changes that have been brought through the 2014 Rules
are as follows:
Counsel Conduct:
The most visible and ambitious change is found at Article 18 and Annex 1 which
is in the line of the IBA Guidelines on Party Representation as approved in 2013.
The LCIA is the first international institution to incorporate changes as per the
IBA Guidelines. Art. 18 is designed to introduce a mechanism which aims to
equip the arbitral tribunal with the tools to handle the poor conduct by a party‟s
legal counsel. Some of the key features of Art 18 include:
Each party is to ensure that all its legal representatives have agreed as a condition
precedent to comply with the direction/ guidelines which are enumerated in
Annex 1 of the LCIA Rules, 2014. (Rule 18.5)
The arbitral tribunal shall decide whether the legal representative of a party has
violated these guidelines and in the affirmative, to order sanctions against these
representatives. These sanctions shall range from a simple reprimand to any other
67
The process started with an informal review of the 1998 Rules by the then Registrar and the Director General.
Owing to their day to day involvement with LCIA proceedings, they were arguably best placed to identify the
provisions which required modifications. However, very quickly, the secretariat passed the baton to the LCIA Court
which in turn set up a drafting committee. The committee worked over the following four years to produce a series
of successive drafts which formed the basis of several discussions amongst the members of the committee and a
wide range of LCIA Court members. The LCIA Rules 2014 were finalized on 9 th may, 2014.
172
measure which becomes necessary for the tribunal to fulfill its general duties of
providing a fair, efficient and expeditious process.
The combination of ethical guidelines with the tribunal‟s power to take sanctions
in case of violation is considered a remarkable change in the 2014 Rules.
Multi-party Arbitration:
The LCIA Rules 1998 ventured into new territory with the provision of then Art
22. 1 (h) on joinder. This provision allowed the tribunal to join a third party in the
on-going proceedings even if one of the parties objects so. However there was no
such express provision in 1998 Rules in this regard. By 2013 all other major
institutions except SIAC had incorporated rules on consolidation. This was an
obvious step in the light of the growing number of multi party and multi contract
disputes referred to international commercial arbitration. The new express
provisions of 2014 LCIA Rules of consolidation are found at Article 22 and the
rules contemplate three possibilities.
Where the parties agree on writing, the tribunal may order for consolidation with
the approval of the LCIA court. This provision confirms the existing practice of
LCIA under the 1998 Rules.
Secondly the LCIA Court may now consolidate two or more arbitrations if the
two arbitrations commenced under the same arbitration agreement between the
same parties. Court can do such consolidation of two sets of proceedings without
the agreement of all the parties.68
Third tribunal can also order consolidation without the parties‟ agreement in cases
where there are multiple arbitrations between the same parties and one tribunal
has been appointed. This still requires the approval of the LCIA Court. 69 The
latter two approaches are a welcome addition and bring the LCIA Rules in the line
of the modern international commercial arbitration practices.
68
Article 22(6) of the LCIA Arbitration Rules 2014
69
Article 22(I)(IX) of the LCIA Arbitration Rules 2014
173
Emergency Arbitrator: This is another visible modification in the latest 2014

Rules. This allows the party to make an application for the appointment of a sole
emergency arbitrator prior to the appointment of arbitral tribunal that shall decide
the dispute ultimately. The unique provisions of Art.9 of the 1998 Rules which
permitted the expedited formation of the arbitral tribunal in cases of exceptional
emergency offered a very effective tool for the parties who were in need of
emergency injunctive relief during exceptional emergency circumstances.
70
Perhaps this could be the reason that LCIA had managed to resist the adoption
of Emergency Arbitrator provision. However because of the marketing deficit in
the absence of provision of Emergency Arbitrator, LCIA, ultimately, had to
change its stand and it incorporated in its LCIA 2014 Rules provisions for the
appointment of emergency arbitrator under Art.9B of the Rules.71 From this point
of view the 2014 LCIA Rules are now in the line of other leading institutional
Rules like ICC, SIAC and HKIAC.72
The Default Seat:
One of the critical decisions that the parties need to take during the drafting of the
arbitration agreement is the determination of the seat of arbitration. Law of the
seat of arbitration 73 plays a major role in the outcome of the arbitration
proceedings. By operation of Art.16.1 of the then 1998 Rules, in case the parties
failed to designate the legal seat of the arbitration, London used to be the seat of
the arbitration by default unless the LCIA Court determined that some other place
would be the legal seat in the given circumstances of the particular case. This
provision of making London as a default seat had been envisaged a s a „safety net‟
70
Maxi Scherer, Lisa Richman et. al., Arbitration under the 2014 LCIA Rules : A user’s guide ( Kluwer Law
International, 2015) ( Accessed through http://www.kluwerarbitration.com/book-
toc?title=Arbitrating%20under%20the%202014%20LCIA%20Rules%3A%20A%20User%27s%20Guide
71
9B of LCIA Rules 2014 : In case of emergency at any time prior to thr formation and expedited formation of the
arbitral tribunal ( under Articles 5 and 9A) any party may apply to the LCIA Court for the immediate appointment of
a sole arbitrator to conduct emergency proceedings pending the formation or the expedited formation of the arbitral
tribunal.
72
This is to be noted that LCIA did not receive any application for the appointment of emergency arbitrator during
the year 2014 &2015. For details see the Annual Reports of LCIA .
73
Law of seat of arbitration is called lexarbitri. Lexarbitri determines the scope of judicial intervention in ongoing
arbitration proceedings. In general lexarbitri governs the relationship of national court and the arbitral tribunal.
174
and it contributed to the somewhat antiquated reputation of LCIA as an English

Institution. 74 It was expected that through its new Rules LCIA shall get rid of its
reputation of being Anglo-centric but it has not. With the introduction of its new
Rules parties agree their seat at any time prior to the formation of arbitral tribunal
and in the period of post appointment, the decision of the parties need to be
approved by the arbitral tribunal. In the absence of any agreement between the
parties as to the seat of the arbitration, London still continues to be the default seat
but with the modification that it continues to be so unless the arbitral tribunal (as
opposed to LCIA Court under the 1998 Rules) decides otherwise. This
modification of empowering arbitral tribunal and not the LCIA court seems
logical because the tribunal is at a better place than the LCIA Court to decide the
issue because of the proximity with the case. In practice, most of the times the
parties decide their seat of arbitration and the cases where the LCIA Court had to
decide or the Tribunal is now required to decide seems to be negligible.75
3.2.4 Key Reasons for Choosing LCIA Arbitration:
One very crucial decision which attributes the success of international commercial
arbitration especially in cases of trans- border disputes is the choice of institution
which shall administer the dispute. A few decades ago the choice was not a tough
one because the number of institutions was limited. However over the past
decades the number has increased dramatically. But only a few have achieved
universal recognition. The LCIA is routinely considered to be part of this rather
exclusive club of arbitral institutions which have achieved global acceptability.76
Following are some of LCIA‟s strengths based on which it has achieved its global
recognition.
A. Experience: The LCIA traces its origin back to the end of the 19th century
and is referred as the world‟s oldest continuous arbitral institution. Its current
2014 Rules are the product of long evolution. Starting from 1981 up to 2014,
74
Supra note 61.
75
Chapter 2: key Changes introduced by the 2014 LCIA Rules, Supra, note 62
76
Ibid.
175
its Rules have gone successive revision and at each revision it has tried to
accommodate the new best practices of international commercial arbitration.
As rightly said that perhaps each revision has taken the lessons learnt during
the administration of hundreds and hundreds international cases. 77 The latest
2014 Rules, therefore, can be said to offer tried and tested set of procedural
rules aimed to resolve commercial disputes in an outstanding expeditious way.
B. Cost Effectiveness: In order to ensure cost effective services, the LCIA‟s

schedule of arbitration costs provide for an hourly rate system as opposed to
an ad valorem system.78 This means that the administrative charges and the
fees charged by the arbitrator are not based on sums in issue. A registration
fee is payable with the request for arbitration and thereafter the arbitrator and
the secretariat shall charge for the time which is actually spent dealing with
the arbitration. In effect this means that the fees of the arbitrator and the
Secretarial fees shall be proportional to the complexity of the claim.79
LCIA through its comprehensive analysis of cases and in order to help its
users in making informed choices, do publish data regarding its cost and
duration of arbitration. Following are some of the cost effective measures
which the institution (LCIA) has admired:80
Default system is that LCIA selects and appoints sole arbitrator though in
practice in 60% of cases of appointment of arbitrator, parties themselves
appoint arbitrator and out of this around 40% of the tribunals comprise a sole
arbitrator and 60% comprise of three arbitrators.
The maximum hourly rate that an arbitrator can charge is capped. At the time
of writing, the hourly rate as shown on the report is 450 per hour and
administrative charges are largely determined on the basis of the hourly rate,
either directly or indirectly.
77
Ibid.
78
Ibid.
79
Ibid.
80
Details of this Costs and Duration Data which LCIA has published on 3 rd November,2015 is available at the
following link: ( http://www.lcia.org//News/lcia-releases-costs-and-duration-data.aspx) ( Last visited on 11/11/2016)
176
Another practical consequence of hourly rate system is that the parties can go
for staged deposits as the case develops and does not require the parties to pay
the full cost of arbitration upfront.
Costs are controlled by the LCIA Court. The arbitrators are required to
provide fee notes which shall include details of the time spent on a case and
this shall be reviewed by the LCIA Court.
At the time of writing, the average costs of LCIA arbitration as shown in the
LCIA released Cost and Duration Data are as follows: 81
Mean Costs of LCIA Arbitration82 US$ 192000
Median Costs of LCIA Arbitration83 US$ 99000
A comparison of LCIA Arbitration Costs with some other leading institution‟s

arbitration costs show that LCIA‟s hourly system is competitive with the costs
schedules of the institutions which are operating on an ad valorem basis. A
particular feature of LCIA in this respect is that the Secretariat does employ
alongside its counsels „casework administrator‟ who are supposed to deal
exclusively with questions relating costs. The following chart displays an
overall comparison of mean and median costs of LCIA and three other world
famous arbitral institutions- ICC, SIAC and HKIAC.
81
LCIA Arbitration Costs was produced by using the following methodology: All arbitrations during the period 1 st
January 2013 to 15 June 2015 which progressed for the final award and were for a quantified claim were identified
and for each arbitration the costs of the arbitration were recorded. For details of this costs and Duration data, visit
(http://www.lcia.org//News/lcia-releases-costs-and-duration-data.aspx#_ftn4) (12/7/2016)
82
Ibid.
83
Average duration can be expressed by both mean and median numbers. At the time of writing, the median
duration of LCIA arbitration is 16 months and the median costs are calculated accordingly.
177
Comparison of mean and median arbitration costs of institutions
The analysis confirms that based on overall comparison, the LCIA Arbitration
Costs are substantially below those of ICC and SIAC and comparable to those of
HKIAC when using median values.
C. Speed: the following measures of LCIA are worth noting which aim to
ensure a speedy disposal of arbitration cases. These are
(i) Most decisions of LCIA are made by its President alone or by its Vice-
President without resorting to convene physical meeting of the LCIA
Court.
(ii) Default time table of Art. 15 of the LCIA Rules with only three rounds of
submission84
(iii) No mandatory scrutiny of arbitral award85
(iv) An express imposition of duty on arbitral tribunal to provide a speedy and

expeditious resolution of the disputes requiring that the arbitral Tribunal
84
Art 15 of LCIA Rules 2014: Unless otherwise agreed by the parties, the written phase of the proceedings shall
follow the timetable set out in Art.15 of the Rules. This contemplates the filing of three submissions only. A
statement of claim( due within 28 days from the date of notice of appointment), a Defence and a Reply ( Each is due
within 28 days from the earlier submission) ( Substance supplied)
85
The LCIA awards are subjected to rapid review of the Secretariat and the LCIA court is not required to scrutinize
them. This means that many LCIA award can be dispatched within a couple of days of the tribunal finishing its
drafting.
178
makes contact with the parties not later than 21days of the constitution of
the Tribunal86 and also
(v) Requirement of the award to be rendered as soon as reasonably possible

and also a timetable for making the award in its Rules.87
D. A ‘Lighter Touch’ Approach to Case Administration: Different arbitral

institutions do adopt varying approaches to case administration. The LCIA is well
known for its „Light Touch‟ approach.88This seeks to give the arbitral tribunal and
the concerned parties the maximum flexibility in shaping the conduct of the
arbitral proceedings to the specific circumstances of the case. This is in line with
the consensual nature of the arbitral process. However, this light touch approach
is counterbalanced with the LCIA‟s concern to conduct the arbitral proceedings as
expeditiously as possible. A a result of this a large proportion of the work of
Secretariat revolves around the initiatives to control the cost of arbitration,
constitution of the arbitral tribunal and ensuring that the arbitration proceeds
expeditiously in accordance with the Rules of LCIA.
E. Logistical and Administrative Assistance: There is an excellent logistical

and administrative assistance which includes ensuring that lines of
communication among parties, counsel and the tribunal are kept open,
maintaining an up to date record of contact details and general supervision to keep
the process moving . The secretariat does also retain the services of translators,
interpreters and court reporters and arrange video recording services at the request
of the parties and the arbitrator. If required, the Secretariat shall also facilitate
entry visas for the purpose of the hearings & arrange accommodation for the
arbitrators.
With the creation of LCIA court and incorporation of LCIA as an independent ,

non- profit company during in 1980s‟ and with the introduction of its latest Rules
of 2014, LCIA, the world‟s oldest arbitral institution has been able to re-emerge
86
LCIA Rules 2014 , Article 14.1 & 14 (4) (ii)
87
LCIA Rules,2014, Article 15(10)
88
Supra note 61.
179
as one of the world‟s most popular arbitral institutions. The past few years have
been marked to witness a significant increase in number of referrals, the
expansion of the London Secretariat along with the opening of foreign offices and
more importantly a growing recognition of the institution all over the world. Its
proactive and robust approach throughout the arbitration vis a vis the tireless
approach to produce a diligent and timely conduct of arbitration has consolidated
the LCIA‟s aim to fulfill the rigorous expectation of the legal community.
3.3 SINGAPORE INTERNATIONAL ARBITRATION CENTRE (SIAC):
The enormous growth, economic development and the increasing wealth of China and
India are well known to the global business community but this sharp rise of these two
big giants in Asia has witnessed a parallel growth of a tiny state- „state of Singapore‟ as a
hub of commerce and finance. 89 One of the areas of commerce which has seen a
phenomenal growth in Singapore is the international commercial arbitration. Singapore
is the most popular seat for international arbitration in Asia and the fifth most popular
venue for arbitration globally based on the number of new cases filed. 90 The ICC Report
(2015) also confirms Singapore as a leading Asian Arbitration Hub. In 2015, over 6% of
all new ICC cases names Singapore as the seat of arbitration and thereby upholds the
City‟s ranking as the number one seat ofICC arbitration in Asia. The Survey Report of
Queen Mary School of International Arbitration (as shown in the figure below) reveals
Singapore as the fourth most preferred institutions worldwide. 91
89
Mark Mangan, Lucy Reed et al., A Guide to the SIAC Arbitration Rules (Oxford University Press, 2014)
90
Ibid.
91
Available at (http://www.arbitration.qmul.ac.uk/docs/164761.pdf) ( Last visited on 9/10/2016)
180
What are your or your organization’s

preferred seats (if any)?
2015 International Arbitration Survey: Improvements & Innovations in International

Arbitration
Source: Queen Mary School of International Arbitration, University of London
There are number of reasons for the impressive growth of Singapore as a hub of commercial
arbitration92 and the existence of the world repute arbitration centre, i.e. „Singapore International
Arbitration Centre‟ (SIAC) is the most significant among those 93 which attribute the fame of
Singapore as a preferred destination of international commercial arbitration not only in Asia but
worldwide. As it is seen in figure (), survey report of the 2015 International Arbitration Survey
has revealed SIAC- the fourth most preferred institution of arbitration worldwide . 94
92
Active support of the arbitration by the Govt. of Singapore, pro-arbitration approach of the Judiciary, Singapore‟s
common law heritage fused with civil law arbitration principles, the neutrality of Singapore as a venue of arbitration,
increased regional trade and investment etc are some of the attributing factors. For details see supra, note 89
93
Supra note 89.
94
Supra note 91.
181
What are your or your organization’s three

preferred institutions?
2015 International Arbitration Survey: Improvements & Innovations in International

Arbitration
Source: Queen Mary School of International Arbitration, University of London
3.3.1 The Rise of SIAC:
SIAC received two cases in the first year of its incorporation. But it has seen a
phenomenal growth in its subsequent years. Remarkably 89 cases were filed in
the year 1998 and with the publication of its 2007 Rules, it started getting its
recognition as a leading arbitral institution. SIAC registered 235 new cases in
2012 which represented 25% increase as compared to 2011. This was the largest
increase during that period of time amongst all the reported increases by all the
major arbitral institutions. (ICSID, LCIA, PCA). During that period of time some
other world reputed institutions like ICC, Stockholm Chamber of Commerce
(SCC) HKIAC etc. reported a decline in the number of new registered cases. The
year 2015 saw a new milestone achievement of the SIAC record. SIAC had the
highest ever number of cases filed (271), a 22% increase as compared to 2014,
182
highest ever number of administered cases (244) and highest ever total sum in
dispute(S $ 6.23 billion) in the history of SIAC since its time of operation.
Source: 2015 Annual Report, SIAC

Available at www.siac.org.sg
SIAC ARBITRATION:
One criticism of international arbitration is that it sometimes fails to live up to its

potential for the expeditious resolution of disputes. 95 International commercial
arbitration is preferred to litigation and its attraction lies in speed, cheapness,
expertise and secrecy but it must be said that speed and cheapness are not always
manifest in the process to which the parties agree. SIAC has responded to these
oft-repeated concerns with rules designed to achieve expedition and cost
efficiency in all cases. In particular:
1. The SIAC Rules require the Tribunal, the SIAC president, the SIAC Court and
the Registrar to conduct proceedings to ensure the fair, expeditious and the
95
JE Beerbower, „International Arbitration : Can we Realise the Potential? „ 27(1) Arb Intl 75 (2011)
183
economical determination of every dispute which is conducted under the

SIAC Rules.96 And
2. The SIAC Code of Ethics for an Arbitrator (2009) requires that an arbitrator
shall accept an appointment only if the arbitrator is able to give to the
arbitration the time and attention which the parties are reasonably entitled to
expect.97
Arbitration under SIAC does require that a preliminary meeting shall be held
in person or by some other means as soon as practicable after the appointment
of all arbitrators, for the parties and the tribunal to discuss the procedures
which deem to be most appropriate and efficient for the case. 98 The SIAC
Rules empower the tribunal to direct the order of the proceedings which
includes excluding cumulative or irrelevant testimony and directing the parties
to focus their presentation on issues the decision of which could dispose of all
or part of the case. 99
However, in addition to these general provisions, the introduction of two new and
innovative provisions in 2010 by introducing the 4th edition of the SIAC Rules
2010, SIAC brought a new direction of commercial dispute resolution in Asia.
One is the Expedited Arbitration and the other one is Emergency Arbitrator.
Both these two methods have been proved to be remarkably successful in
providing the concerned parties the alternative means to obtain immediate relief
and reduce time and cost.
96
SIAC Rules (2013), Rule 16.1 & 37.2
97
SIAC Code of Ethics for an Arbitrator (2009). Para 1.1
98
Rule 16 of the SIAC Arbitration Rules, 2013
99
Ibid.
184
3.3.2 Expedited Arbitration:
Rule 5 of the 2010 and 2013 SIAC Rules provide for an Expedited Procedure100
which is intended to facilitate the rendering of an award by a tribunal within six
months from the date the tribunal is being constituted.
Circumstances in which the Expedited Procedure is Appropriate:
The expedited procedure is available only when the parties request so. Any such
request must be made prior to the full construction of the arbitral tribunal and
does typically form a part of the Notice of Arbitration or response to notice of
arbitration. The SIAC President does consider the parties‟ views before approving
the request for the expedited procedure. Therefore it can be inferred that an
application cannot be made ex parte. There are three circumstances in which the
application for expedited procedure gets the nod from the President.
1. Firstly the application may be made if the aggregate amount in dispute

including the claim, counter claim and any set off defence does not exceed
S$5 million.101
2. Alternatively an application for expedited application can be made with the

agreement of all the parties concerned. Such an agreement may be
incorporated in the underlying contract102 or reached after a dispute has arisen.
3. An application can also be made in exceptional urgency. 103 The term

exceptional emergency has not been defined in the SIAC Rules and left on the
discretion of the President to decide the emergency situation on case to case
basis. If so decided, a case can be fast tracked even if it does not satisfy the
above mentioned conditions.
100
The Expedited Procedure is a time-cost saving option which is available to the parties who agree their disputes to
be arbitrated under the SIAC Rules. Since its introduction in 2010, the expedited procedure has proved to be very
popular. In 2015, SIAC received 69 requests for the Expedited Procedure of which SIAC accepted 27 requests. For
details visit http://www.siac.org.sg/images/stories/articles/annual_report/SIAC_Annual_Report_2015.pdf (last
visited on 30/8/2016)
101
Rule 5(1)(a) of the SIAC Rules,2013
102
Expedited procedure model clause, available at http://www.siac.org.sg/model-clauses/expedited-procedure-
model-clause (last visited on 30/6/2016)
103
Rule 5(1)(c) of the SIAC Rules, 2013
185
The SIAC Expedited Procedure:
When a party has applied to the Registrar for the expedited procedure and the
same being approved by the President104, the following procedure shall apply:
1. The Registrar may shorten any time limits
2. The case shall be referred to a sole arbitrator unless the President determines
otherwise
3. Unless the parties agree that the dispute shall be decided on the basis of the
documentary evidence, the tribunal shall hold a hearing for the examination of
witnesses and expert witnesses
4. The award shall be made within six months from the date when the tribunal is
constituted. In exceptional cases the registrar may extend the time. Such
circumstances include any agreement of the parties to extend the time limit or
a reasoned request from the tribunal for such extension.
5. The tribunal shall state the reasons upon which the award is based in summary
form. The parties may, by an agreement, exempt the tribunal from the
requirement of reasons in the summary award.
6. All other procedural issues which might arise during an expedited arbitration
need to be determined in accordance with the remaining provision of the
SIAC Rules. All this need to ensure the very purpose of the SIAC arbitration
which is meant to resolve the dispute fairly, expeditiously, economically and
in a manner that will lead to a final determination of the dispute.
3.3.3 Emergency Arbitrator:
The emergency arbitrator provisions were introduced in order to address a

situation where a party is in need of some emergency interim relief before the
104
Rule 5.2 of the SIAC Arbitration Rules 2013
186
tribunal is constituted. SIAC was the first international institution in Asia to

introduce emergency arbitrator provisions it its arbitration rules.105
As per the SIAC Rule, if a party wants to make an application for the emergency
arbitrator, he will have to apply either concurrent with or following the filing of a
notice of arbitration. The President of SIAC Court of Arbitration decides shortly
thereafter, precisely in a matter of hours, whether the application to be accepted
and if so, proceeds to appoint the arbitrator from the panel of the arbitrator. The
Rules require that this appointment be made within one business day and once the
arbitrator is so appointed, the emergency arbitrator sets out a schedule for
consideration of the application within two business days.
The SIAC emergency arbitrator enjoys the same powers as a normal arbitrator
does which includes the power to determine his own jurisdiction, to award interim
relief in his discretion and to apportion costs. Unless parties agree, the emergency
arbitrator cannot form the part of the main tribunal and the order of the emergency
arbitrator ceases to have effect if the tribunal is not constituted within 90 days.
From 1st July, 2010 to 1st June, 2016, total numbers of applications which are
received for emergency arbitrator are 50 out of which all 50 have been accepted.
Out of these 50 applications, relief has been granted in 21 cases, in 4 cases relief
with the consent, relief granted in part is in 4 cases, 14 applications have been
rejected and at the time of writing 1 is pending. 106
3.3.4 The SIAC Rules 2016:
The SIAC Rules 2013 when it was compared with the Rules of other world‟s
leading arbitral institutions, the SIAC Rules lacked a number of provisions that
have become increasingly important in the commercial arbitration context, such
as, for example, provisions regulating multi contract and multi party arbitrations,
joinder and consolidation etc. These changes have brought the institution at par
with other leading arbitral institutions and thereby caught up with these
105
Source : http://www.siac.org.sg/2013-09-18-01-57-20/2013-09-22-00-27-02/articles/420-the-emergency-
arbitrator-and-expedited-procedure-in-siac-a-new-direction-for-arbitration-in-asia ( last visited on 30/6/2016)
106
Source: http://www.siac.org.sg/2014-11-03-13-33-43/facts-figures/statistics (last visited on 1/7/2016)
187
institutional best practices and also drawing inspiration from investor state
arbitration to tailor what are fundamentally new mechanisms to be applied in the
context of commercial arbitration.
Multiple Contracts, Joinder and Consolidation:
The new 2016 Rules are three-pronged and contains mechanisms for regulating
(I) disputes arising out of multiple contracts (ii) joinder of additional parties and
(III) consolidation of several arbitration proceedings.
Rule 6 says filing of a single notice in relation to disputes arising out of multiple
contracts and in that scenario only single filing fee shall be charged by SIAC. The
Registrar is required to treat such notice of arbitration as a request to consolidate
the disputes under the relevant arbitration agreements.
Under Rule 7 of the 2016 Rules the SIAC court is empowered to decide the
joinder application and joinder of additional parties can be done prior to the
constitution of arbitral tribunal. The SIAC court retains the power to revoke any
arbitral appointment made prior to its decision on a joinder. The tribunal when
constituted retains the power to decide any jurisdiction question arising out of the
SIAC court‟s joinder decisions.
Consolidation to SIAC arbitration is being dealt in Rule 8 and the mechanism is

largely in line with institutional best practices worldwide. The SIAC court is
empowered to deal the consolidation application prior to the constitution of the
arbitral tribunal. The request for consolidation is likely to be granted in the
following circumstances:
(i) When the consolidation has been agreed by all the parties or
(ii) the claims are made under the same agreement or
(iii) the claims are made under compatible arbitration agreements, and if the
disputes arise out of the same legal relationship or out of the same
transaction or series of transaction.
This is important to note that a party applying for consolidation or joinder has
essentially „two bites on the Cherry‟ …. Even when an application for joinder or
188
the consolidation is rejected by the SIAC court, it could still be raised before the
arbitral tribunal, once the tribunal gets constituted.
Early Dismissal of Claims and Defences
Rule 29 of 2016 Rules deserves special mention which provides a party to file an
objection to dismiss a claim on the basis that the claim is “manifestly without
legal merit” or “manifestly outside the tribunal’s jurisdiction”. If an objection to
this effect is raised, the tribunal is to decide whether such objection shall be dealt
and if is to be dealt, it has to be within 60 days from the filing of such application.
This new provision of early dismissal of claims is designed on the model of

investor-state arbitration and its origin is traceable to Rule 41(5) of ICSIID
Arbitration Rules.107 However the scope of early dismissal of claims is wider
under the SIAC Rules as compared to ICSID Rules because the SIAC rules also
allow such application on the basis of the tribunal‟s manifest lack of jurisdiction.
This new provision has brought a three step objection process under the SIAC
arbitration. First, under Rule 28.1, the SIAC Registrar and the SIA Court are
empowered to have a prima facie screening whether the arbitration shall proceed.
Second, under Rule 28, jurisdictional objection can be filed by any party after a
matter falls manifestly outside the jurisdiction of the arbitrator and finally the
objecting party may have a shot at the same objection through the early dismissal
mechanism. The problem with this three stage objection process is that it is
effectively a no-risk proposition for the respondent and none of these mechanisms
would result in a decision that would have res judicata effect.
Seat Delocalisation
Singapore no longer remains a default seat of arbitration as envisaged I Rule 21 of

the 2016 SIAC Rules. This attempt has been for the purpose of elevating
Singapore above the earlier “local” default preference for Singapore as a seat.
SIAC captures a more global reach and stands along with other delocalisaed
107
Rule 41(5) of ICSID Arbitration provides a party with a right to file an objection on the basis of that a claim is
“manifestly without legal merit”.
189
arbitral institutions like ICC and the SCC. Now in case parties are silent as to the
seat, there will be a contest before the SIAC arbitral tribunal regarding the
juridical seat of arbitration as SIAC has come out of local default seat theory.
The SIAC Rules 2016 emerge as a result of an extensive public consultation

process and through the 2016 Rules, SIAC has made commendable, impressive
efforts to revamp its arbitration laws and to stand as one of the world‟s leading
arbitral institutions.
4. Growth of Institutional Arbitration In India (Indian Position)
In terms of cost benefit, expediency, efficiency and hassle –free mechanism for dispute
resolution, the institutional arbitration has its edges over ad-hoc arbitration. Surprisingly
ad-hoc arbitration, in spite of its inherent flaws, continues to dominate in India. The law
Commission of India in its 246th Report has clearly stated that institutional arbitration is
minimal in India and “has unfortunately not really kick-started”. “Parties adopting ad-hoc
arbitration in India seem to be driven by certain misconceived notions about the cost
factor, which is perceived to be less expensive than the institutional arbitration.”108In a
study “Corporate Attitudes and Practices towards Arbitration in India” conducted by
Price Waterhouse Coopers (PWC), it has been revealed that “majority of the companies
in India that experienced arbitration preferred ad-hoc (47%) over institutional arbitration
(40%).”109The following figure shows the same.
108
D. Sengupta, Additional Director, ICA, Indian Council of Arbitration Quarterly, Vol XLXIII, January – March
2012
109
Available at (https://www.pwc.in/assets/pdfs/publications/2013/corporate-attributes-and-practices-towards-
arbitration-in-india.pdf) ( last visited on 9/8/2016)
190
Source: Corporate Attitudes and Practices towards Arbitration in India, 2013
Survey Conducted by Price Waterhouse Cooper, India
The Indian corporate houses which are experienced with arbitration have always
expressed their concern regarding the constitution of arbitral tribunal which seems to be
one of the top most reasons contributing to the length of the arbitration. 110In this regard
this is important to note that institutional arbitration does contain a mechanism and a time
frame for the constitution of the arbitral tribunal. However the persisting disbelief in
institutional arbitration in India becomes abundantly clear in the said study. Respondents,
in the said survey, being asked about their preferences of institutions for arbitration, the
Singapore International Arbitration centre has emerged as the most preferred arbitral
institutions in the Indian corporate culture. SIAC was followed by London Court of
International Arbitration (LCIA) and as it can be seen from the following figure that
Indian institutions were less preferred.
110
Ibid.
191
Source: Corporate Attitudes and Practices towards Arbitration in India, 2013

Survey Conducted by Price Waterhouse Cooper, India
Althoughthe Indian arbitration Act (The Arbitration and Conciliation Act, 1996) defines
arbitration as “arbitration whether or not administered by permanent arbitral
institution”,111 the Act gives the concept of “tribunal” which is otherwise an institutional
concept and also in case of a deadlock, the appointment of arbitrator can be done by an
institution if the court designates such,but these are not sufficient to promote
institutionalism of Indian arbitration. The Act neither promotes nor discourages the
parties to consider institutional arbitration.112Feeling the need to inculcate a culture of
institutional arbitration in India which can make India‟s dream of becoming a „global
arbitration hub‟, the Law Commission of India in its 246th Report made the following
recommendations in this regard. The recommendations are as follows:
111
Sec. 2(1) (a) of the Act
112
See the 246 Law Commission Report available at (http://lawcommissionofindia.nic.in/reports.htm)
192
1. Explanation 2 should be added to sec 11(6A) of the Act so that the High Court or the
Supreme Court while performing their functions of appointment of arbitrator, should
encourage the parties to refer the matter to institutional arbitration. The Commission also
sought legislative sanctions of institutional rules for recognizing „emergency arbitrator‟.
2. The Commission in its Report noted the establishment and working of some arbitral
institutions in India like Delhi High Court International Arbitration centre, Indian Council
of Arbitration which is associated with FICCI, NaniPalkhivala Arbitration Centre,
Chennai etc. The Report suggests for more arbitral institutions to be established by
different chamber of commerce and trade bodies.
3. Govt. to take initiative and encourage the establishment of institutional arbitrations by

providing fund, land etc.
4. Govt. to consider establishment of a specialized body like an Arbitral Commission of

India which must play an active role in the promotion of institutional arbitration.
Surprisingly the Law Commission Report in relation to the institutionalizing the

commercial arbitration in India does not find any place in the recent Arbitration and
Conciliation (Amendment) Act, 2015. It does not take into account some of the recent
developments in the field of international commercial arbitration like emergency
arbitrator, hybrid arbitral process which are gaining significance world over. In fact the
recognition of institutional arbitration in the 2015 Amendment Act remains as
insignificant as in 1996 Act. A cursory look at thearbitration laws of the two nations-
Singapore and India- the former one which has emerged as the most preferred
destination of arbitration amongst the Indian corporate houses and the latter which is still
considered at its nascent stage and yet to glorify itself as an emerging hub of commercial
arbitration, shall help us comprehend the idea that how a national legislation plays a
crucial role in the emergence of an institution of that nation as a world leading
international institution for arbitration. The statutory recognition of Singapore
International Arbitration Centre (SIAC) in the International Arbitration Act of Singapore
has been instrumental in bringing all success to SIAC. Below are some of the relevant
provisions in this regard which I produce by making a comparison with the Indian
counterpart.
193
1. Sec 2(1)(d) of the Indian Arbitration Act defines Arbitral Tribunal as follows:
“Arbitral Tribunal means a sole arbitrator or a panel of arbitrators”
Sec 2(1) of the Singapore Arbitration Act (IAA) defines Arbitral Tribunal as follows:
“Arbitral Tribunal means a sole arbitrator or a panel of arbitrators or a permanent arbitral

institution and includes an emergency arbitrator appointed pursuant to the rules of
arbitration agreed to or adopted by the parties including the rules of arbitration of an
institution or organization”.
2. Sec 11 of the Indian Arbitration Act talks about the appointment of arbitrator. In case
there is a deadlock as has been enumerated in different sub-sections, the Act provides that
the appointment shall be done by the High Court or the Supreme Court as the case may
be or by any such person or institution as may be designated by such court.
Singapore International Arbitration Centre, on the other hand, has been statutorily
recognized as the appointing authority in case the parties can not appoint the arbitrator.
The relevant provisions are as follows:
Default Appointment of Arbitrators:
“9A- (1) Notwithstanding Article 11(3) of the Model Law, in an arbitration with 3
arbitrators, each party shall appoint one arbitrator, and the parties shall by agreement
appoint the third arbitrator.
(2) Where the parties fail to agree on the appointment of the third arbitrator within 30
days of the receipt of the first request by either party to do so, the appointment shall be
made, upon the request of the party, by the appointing authority.”
Article 8(2) of IAA:
“The Chairman of the Singapore International Arbitration centre shall be taken to have
been specified as the authority competent to perform the functions under article 11(3) and
(4) of the Model Law.”
So in Singapore, the whole appointment of the arbitral tribunal, in case there is a dispute
in relation to the said appointment, has to be with the intervention of SIAC. This is what
we desire as legislative steps to speed up the growth of institutional arbitration in India.
194
There is no denying that institutional arbitration is superior to its counterpart but in India,
there is an inherent and systematic malaise that has adversely affected the popularity of
institutional arbitration especially the national arbitral institutions.
It would be wrong to say that this preference to offshore arbitral institutions is because of
their superiority in facilities and expedite procedures only. Of course those having world
class facilities and much embattled procedure but this is also undoubtedly true that
institutions in India too are equally competent as their global counterparts. If we draw our
attention to the newly revised rules of Indian Council of Arbitration (ICA) which
becomes effective from 1st April 2016,113the rules also make provision for emergency
arbitrator and also take into consideration the other developments in the field of
commercial arbitration.Arbitration conducted by ICA seems to be cost-effective as
well.114
In fact there are factors other than the competency of the rules of procedure which are
pragmatically impeding the growth of Indian institutions. The fewer number of arbitral
institutions in India than in other Asian countries can be one such factor. If we look at the
Indian scenario, it is the Indian Council of Arbitration which is engaged in majority of the
arbitrations and a large amount of case load is on ICA. “The problem of understaffing
may also arise owing to such increased back log of cases as there exists virtually no other
arbitral institutions of worldwide repute in India.”115 In addition to this the recent closing
of LCIA India aggravates the situation. In this regard we must welcome the opening of a
new branch of SIAC in Mumbai.116 This is also to be noted that the institutions can reach
beyond national frontiers when it involves people from different nationalities in its
dispute resolution mechanism. If we look at SIAC, it has engaged more than 300
arbitrators from outside of Singapore excluding the 125 arbitrators of their own
113
See at http://www.icaindia.co.in/International.pdf ( Last visited on 12/10/2016)
114
See the fee schedule which is given in Article 36 of the Rules of international Commercial Arbitration of INDIAN
Council of Arbitration.
115
Nagham Ghei, „Challenges to Institutional Arbitration in India: An Asia Pacific perspective,‟ 189 ICA Arbitration
Quarterly 2016
116
India being a strong contributor to SIAC‟s international caseload, SIAC established its first overseas liaison
office in Mumbai, India in 2013.
195
nationals.117 In India, ICA being the Apex Arbitral Institution, it has engaged around 50
118
international arbitrators. No other arbitral institution has even initiated to make it
international by engaging arbitrators from other jurisdictions in true sense. To have an
international reach, one needs to add on international flavor!!!!
Another extremely important factor is the element of time. In most of the arbitrations we
tend to appoint retired judges as arbitrators. In ICA itself, there are around 250 retired
judges in the panel of arbitrators( at the time of writing). These judges have got the
tendency to treat the arbitration proceedings as courtroom proceedings and therefore keep
allowing long adjournments. In this regard the 176th Report of the Law Commission of
India deserves special mention. The Report said that in India, the first occasion for
considering any question of jurisdiction does not normally arise until the arbitral tribunal
has issued at least six adjournments. 119 This has a direct impact on the costs of the
arbitration. The Indian arbitral institutions should start behaving professionally. The
institutions should try to avoid judges as their arbitrators. There is another cause which
can be attributed to this. Engagement of courtroom lawyers in the arbitration who remain
busy throughout the day in their litigation matters. The lawyers take arbitration as their
evening engagement. Therefore the lawyers who are being engaged in arbitration must be
trained so that they stop viewing arbitration as the step-brother of litigation. So many
times the stakeholders due to their lack of experience and awareness hardly know about
the proceedings of arbitration. Barring ICA, there are no such remarkable engagements of
other Indian arbitral institutions which are actively engaged in promoting awareness
regarding arbitration. In India, there is a strong need to conduct numerous workshops to
demonstrate the proper conduct of arbitral proceedings. Along with its well designed
rules of arbitration which should match international standard, the arbitral institutions
must sensitize the Indian crowd regarding the advantages of institutional arbitration.
Every institution in India must come up with a strict time limit of arbitration because
117
In SIAC, at the time of writing, 57 arbitrators are from UK,24 from USA,24 from China, 20 from India, 10
Malaysia,23 Hongkong,13 France , 9 are from Switzerland amongst others. For details, see
(http://www.siac.org.sg/our-arbitrators/siac-panel) ( last visited on 4/9/2016)
118
Source: (http://www.icaindia.co.in/htm/arbitrators.htm) (last visited on 4/9/2016)
119
See the 176th Law Commission Report available at (http://www.lawcommissionofindia.nic.in) (last visited on
9/9/2016)
196
costs and time are the two important factors which dissuade parties from choosing Indian
arbitral institutions. Costs and time are directly proportional too. Even if the arbitral
institutions may have clearly laid down schedules to costs, but the increase in number of
hearings shall increase the lawyers‟ and arbitrators‟ fees and this would certainly increase
the cost.
Another extremely important factor for the less popularity of Indian institutional
arbitration is the judicial apathy. The Chief Justice of India, Justice T.S. Thakur in his
address in an International Conference pointed out that without judiciary, the institutional
arbitration cannot succeed. 120Learned Chief Justice further stated that the Judiciary must
be sensitized regarding the importance of institutional arbitration. The hangover of judge
dominated arbitration should not persist. A reference may be had to the decision of the
Supreme Court which is considered as a setback to the growth of institutional arbitration.
The judgment is in relation to the nature of the power exercised by the CJI or the Chief
Justice of High Courts under section 11 of the Arbitration and Conciliation Act, 1996.121
Section 11 talks about the appointment of arbitrator.While interpreting the phrase, “the
Chief Justice or any person or institution designated by him” in the said provision, the
Court interpreted that any person to mean any judge and the interpretation of any
institution was ignored.
The relevant part of the majority judgment reads: “In this context, it has also to be
noticed that there is an ocean of difference between an institution, which has no judicial
functions and an authority or person who is already exercising judicial power in his
capacity as a judicial authority. Therefore, only a Judge of the Supreme Court or a Judge
of the High Court could respectively be equated with the Chief Justice of India or the
Chief Justice of the High Court while exercising power under Section 11(6) of the Act as
designated by the Chief Justice. A non-judicial body or institution cannot be equated
with a Judge of the High Court or a Judge of the Supreme Court and it has to be held that
the designation contemplated by Section 11(6) of the Act is not a designation to an
120
Inaugural address at the International Conference on Arbitration in the Era of Globalization, New Delhi ( 11 th&
th
12 December,2015)
121
S.B.P.& Co v. M/s Patel Engineering ltd (2005) 8SCC 618
197
institution that is incompetent to perform judicial functions.” This interpretation has made
the role of the institutions almost redundant. Therefore the very intention of the
legislature to involve the institutions in the appointment of the arbitrator has been buried
under needless legal literature. Although the 2015 Amendment of the Act has brought
several changes in section 11 and the expression „Chief Justice of India/ Chief Justice of
High Court‟ is substituted with the phrase “Supreme Court‟ or „High Court‟ respectively,
but that does not improve the situation that SBP has created!!
A choice to an arbitral institution is invariably a choice to the country where that

institution is situated. Therefore the judiciary must ensure its significant role for the
country‟s pro-arbitration image. Certainly if FICCI/ICA or any other equivalent
institution is designated by the CJI/SC as the case may be for the appointment of an
arbitrator to deal with a power-project dispute, probably an expert in this field would be
nominated and not a retired judge… !!
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Chapter-IV: Growth of Institutional Arbitration : An Overview of Indian & off-Shore Arbitral Institutions

GROWTH OF INSTITUTIONAL ARBITRATION: AN OVERVIEW OF INDIAN &

1. Relative Advantages & Disadvantages of Ad-hoc arbitration and Institutional

Confidentiality is an arguably advantage of ad hoc arbitration.9 This is a perceived and

2. Institutional Arbitration and its Edges over Ad-hoc Arbitration

A strongly perceived advantage of institutional arbitration is the cachet behind the

2.2 Tested Arbitration Rules to conduct the Proceedings:

2.3 Administration of the Proceedings:

Another significant advantage of institutional arbitration is the availability of

2.4 Supervision of the Award:

Many arbitral institutions are having an experienced committee to scrutinize the

2.5 Quality of the Arbitral Panel:

there is a temptation to hire facilities of expensive hotels.17 Unlike institutional

3. Functioning of some World Renowned Arbitral Institutions

3.1 INTERNATIONAL CHAMBER OF COMMERCE (ICC)

3.1.1 ICC Arbitration:

ICC Arbitration is a flexible and efficient procedure for resolving

ICC arbitration whether conducted under the ICC Rules of Arbitration or

International Arbitration Survey: Improvements and Innovations in

Source: Queen Mary School of Arbitration, University of London

3.1.2 The International Court of Arbitration and Its Secretariat:

The ICC International Court of Arbitration does consist of a President,

members shall remain independent from the national committee in the

i. Fixing the place of arbitration

ii. A determination regarding the prima facie existence of the ICC

iii. The Court shall decide certain complex multi-party or multi-contract

iv. Confirming, appointing and replacing arbitrators

v. Deciding any challenge as to the independence and impartiality of the

ix. Overseeing the emergency arbitration proceedings.

Due to the unprecedented rise in the number of cases in each succeeding

national committees (the members of ICC Court) from a large number of

The Court‟s Secretariat is headed by a Secretary General. The Secretary

To keep pace with the development of commercial arbitration, due to the

A. Introductory Provisions: One of the aims of the 2012 Rules is to

take into account the provisions of the contract. Investment arbitration

B. The Request for Arbitration: Parties wishing to initiate an ICC

Secretariat which is in Paris. Following ICC‟s expansion in other

the claims shall be determined in single arbitration or not shall be

D. Multiple Parties, Multiple Contracts and Consolidation: Before the

E. The Appointment of Arbitrator: This is a general principle that the

arbitration, whether domestic or international, and whether the

1. While the proposal or the recommendation of many of the National

2. Owing to some very urgent situations where the arbitrator had to be

3. In an investor-state dispute, a national committee was never being

i. Where the ICC Court does not accept the recommendation of

iii. Where one of the parties in the arbitration is State or claims to

iv. Where the Court considers to appoint arbitrator from such

v. Where there President of the ICC Court is of the opinion that

According to Article 24(1) the arbitral tribunal while drawing the

Further Article 24(4) empowers the arbitral tribunal to make a request

Article 27 requires that the arbitral tribunal as soon as the arbitration

Article 37(5) empowers the Arbitral Tribunal during its decision on

G. Emergency Arbitrator: The introduction of new provisions in relation

continue with the glory of world‟s leading arbitral institutions. Most of

It is important to note that although there was no such „emergency

exhaustive list of the Referee‟s power in the Pre-Arbitral Procedure.

3.1.4 Recent Steps to Maintain Transparency and Greater Efficiency in the

ICC Court Announces New Policies to Foster Transparency and

Expeditious resolution of disputes being one of the top priorities of ICC,

enhance the efficiency and transparency of ICC arbitration, are as

“Promoting Transparency for Users and other Stakeholders” - The Court

“Consequences for Unjustified Delays in Submitting Awards” - In another

By bringing such measures, ICC intends to send a clear signal to the

consolidates ICC‟s Stand that “expeditious resolution of disputes is one of

Release of Practices on Fees and Administrative Expenses (18th May,

The International Court of Arbitration of ICC has published its internal

ICC Augments Transparency in Scrutiny Process (28th June, 2016): 52

In its Plenary Session dated 17th December,2015, the ICC Court

Court. Moving ahead with its commitment to bring more transparency in

To sum up it is pertinent to note that in response to users‟ needs and the

(ii) It has a very well staffed secretariat, consisting of talented, multi-

(iii) The only institution engaging itself in a through revision of a draft

award which becomes easily susceptible to enforcement in any

3.2 LONDON COURT OF INTERNATIONAL ARBITRATION (LCIA):

The London Court of International Arbitration is probably the oldest continuously

3.2.1 Evolution of LCIA: