Review of the RAA25 and Higher School of Economics Joint Seminar: "DIAC, LCIA and ICC": different approaches to dispute settlement"

21.05.2015 Review of the RAA25 and Higher School of Economics Joint Seminar: "DIAC, LCIA and ICC": different approaches to dispute settlement"

22 апреля 2015 года РАА25 совместно с национальным исследовательским университетом Высшая школа Экономики был проведен семинар на тему "DIAC, LCIA и ICC: существующие подходы к разрешению споров". Заметка подготовлена студентами Высшей школы экономики совместно с Организационным комитетом РАА25. 

В мероприятии приняли участие следующие спикеры:

1. Хабиб-аль-Мулла (председатель DIAC)

2. Евгения Федотова (юрист, Simmons & Simmons, Лондон)

3. Степан Гузей (партнер, Lidings, Москва).

Мероприятие проводилось на английском языке.

РАА25 выражает благодарность руководству Высшей школы экономики за сотрудничество в организации и проведении мероприятия.


RAA25 AND HIGHER SCHOOL OF ECONOMICS JOINT SEMINAR

RAA25 is a youth organization which has been established in the middle of the last year and is aimed to promote arbitration among students and young specialists. RAA25 has four main areas of activity: international arbitration mootcourts, study tours, career opportunities and round tables.

London Court of International Arbitration (LCIA)

Jane Fedotova, solicitor in Simmons & Simmons, London, UK

The LCIA is a leading international arbitration institution administering disputes from all over the world regardless of location and under any legal system of law. Its international offices are located in Dubai, India, Mauritius and Seoul, yet the proceedings can take place elsewhere. The structure of the LCIA is three-fold: the Court, the Secretariat and the Company. The Secretariat, which is headed by Registrar Sarah Lancaster, is responsible for the day-to-day administration of all disputes. The LCIA Court is the final authority for proper application of the LCIA Rules: it appoints the tribunal, decides challenges made to arbitrators and determines the costs of arbitration. The President of the LCIA Court is William W. Park, Professor of Law at Boston University.

What questions should you consider while choosing the arbitration institution:

·        Reputation;

·        How much will it cost to initiate arbitration;

·        How quickly can you initiate arbitration;

·        What is the manner of administration of the disputes by the LCIA;

·        Composition of the Arbitral Tribunal;

·        Are emergency interim measures available?

·        What is the time for rendering the award?

Answer to these questions with reference to the LCIA rules:

The costs of commencement of arbitration in the LCIA

·        LCIA arbitration is based on fee-structure (1750 pounds);

·        The fee-structure is claimant-friendly because it is not based on the value of the claim and the claimant is not required to pay a large sum of money for initiating the arbitration. This is a big advantage of the LCIA with regards to high value arbitrations, which can cost enormous sums to initiate, for example, in ICC or SIAC; and

·        Deposits from both parties to cover first costs of different procedural steps

Commencement of arbitration in the LCIA

·        The arbitration can be initiated on the same day provided that the Request for Arbitration is submitted with the confirmation of payment of the Registration Fee (cheque/banking transfer)

·        Online submission of the Request is as well available;

·        Only brief summary of the claim is required.

The manner of the LCIA in administration of the disputes

·        Generally, the style is light-touch: the LCIA does not interfere into processes, it allows the parties and the Tribunal to move the case forward and would only interfere if the timetable is not complied with, i.e. if the deadlines are not met;

·        The LCIA actively seeks to moderate the costs. It monitors the process, identifies delays and encourages procedural efficiency; and

·        The LCIA Rules encourage the Tribunal and the Parties to make contact no later than 21 days from receipt of notification of formation of the Tribunal.

Composition of the Arbitral Tribunal

·        The parties nominate the arbitrators and the LCIA Court appoints the Tribunal.

Emergency  interim measures under the LCIA Rules

·        Parties can at any time prior to formation of the Tribunal request the LCIA Court to appoint the Emergency Arbitrator who may grant necessary emergency relief. Such decision shall be made within 14 days of the appointment.

·        The Tribunal has the power to grant interim measures once it is constituted; and

·        The LCIA Rules allow the parties to reserve this right to seek such relief from national courts.

Time for rendering the  Arbitral Award

·        The Parties may agree on specific timetable in the arbitration agreement;

·        The LCIA Court may change the period of time under the arbitration agreement or other agreement of the parties;

·        Expedited Formation of the Arbitral Tribunal is available;

·        The nominated arbitrator must sign a declaration which confirms his availability for the particular case; and

·        No scrutiny of the Arbitral Award, unlike in the ICC arbitration.


Dubai International Arbitration Centre (DIAC)

Dr. Habib Al Mulla, Chairman, Dubai International Arbitration Centre; Chairman, Baker&McKenzie, Dubai, United Arab Emirates

Dubai has made an extensive economic progress over the last few years, which has led to the establishment of the truly international business community based in Dubai.

The UAE has taken several steps to strengthen the arbitration practice:

·        It has entered into several multilateral and unilateral agreements concerning finance, protection of investments, and enforcement of foreign judgments

·        It has established several arbitration institutions including the Dubai International Arbitration Centre, the Abu Dhabi International Arbitration and Conciliation Centre etc.

The DIAC

·        It was established by the Dubai Chamber of Commerce in 1994 under the Rules of Commercial Conciliation and Arbitration (1994);

·        The advantage of the DIAC is that the DIAC Rules were enacted as law;

·        By December 11 of 2007 the new Dubai international Arbitration Centre Rules came into effect;

·        DIAC is supervised by the DIAC’s Board of Trustees, comprised of experienced local and international arbitration specialists;

·        The DIAC’s Executive Committee, which is similar to the ICC Court, is composed of five members of DIAC’s Board of Trustees;

·        The DIAC`s Secretariat is composed of qualified and experienced lawyers;

·        The DIAC has 2000 cases, which volume amounts to several billion dollars and 70% of which is international.


The International Court of Arbitration (ICC)

Stepan Guzey, Partner, Lidings Dispute Resolution practice and head of the tax&Custom practice, Moscow, Russia

ICC has created the structure which has well-established representation all over the world.

In 2012 new revision of the ICC Rules entered into force/. The ICC Rules 2012 are now considered as the most developed Rules among existing arbitration institutions as the Rules cover various aspects of arbitration proceedings, which have been previously missing and, in fact, are still missing in the Rules of the other arbitration institutions.

The ICC Rules are very formal: the ICC is said to be the only body that is competent to administer cases. Furthermore, both Secretariat and the Court are truly involved in the decision-making process during the arbitration proceedings, in the correction of the arbitral award and in the encouragement of the arbitrators to act in accordance with the Rules.

The aforesaid formality is mostly determined by the French legal system that is proarbitral and  that quietly differs from all other European and common law systems .

ICC Rules provide the option of granting the interim measures.

ICC arbitration is the most expensive arbitration in the world. There is also a possibility to choose the place of the proceedings, which is an essential feature of the international proceedings with the complicated burden of jurisdiction choice.

It is quite crucial to mention that arbitrators' appointment and control over their actions are subject to very serious attention of the Secretariat and the ICC International Arbitration Court. If the case is considered by three arbitrators, parties are free to nominate their own candidates, yet the President of the Tribunal is more likely to be appointed by the ICC International Arbitration Court, being a national of the third country which is not a party to these proceedings. Under the ICC Rules the arbitral award is passed by the unanimous vote of the Tribunal, however, if there is any discrepancy, the President of the Tribunal will take the decision by himself. This is why it is crucial to examine rigorously the biography, academic views and experience of the arbitrators before proposing the arbitrator for nomination in the arbitration proceedings.


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