Workshop:: Drafting A Request For Arbitration / Notice of Arbitration
Workshop:: Drafting A Request For Arbitration / Notice of Arbitration
Workshop:: Drafting A Request For Arbitration / Notice of Arbitration
3 November 2016
Scheme of Workshop
• The technical and strategic functions of a Request for Arbitration /
Notice of Arbitration
• Useful headings – a checklist you can use
• Some important considerations when drafting a Request for
Arbitration / Notice of Arbitration
• Practical tips when drafting
• Putting these ideas into practice
– Instructions and pointers
– Breakout into groups / Actual drafting of a Request for Arbitration
– Review of each group’s draft Request for Arbitration
• Final Questions & Answers
Technical & Strategic Functions
Technical functions :
To commence the arbitration, pursuant to the chosen rules.
Fixes date of commencement of the arbitration – impt. for time-bar.
To give notice of the referral to arbitration to the opposing party.
(In investment arbitration : To accept the State’s offer to arbitrate.)
Election not to go to court.
To trigger the arbitral institute’s / centre’s administration of the case.
Strategic functions :
Increases the pressure to resolve the dispute (“shock & awe”).
Timing is often intentional.
Crystallizes the issues in dispute, and relief / remedies claimed.
Framing of case : First chance of persuading the arbitrator / opponent.
Teasing out the other side’s position in the Response / Answer (if applicable).
For non-confidential disputes – may form the basis of a press release.
Useful Headings (1)
(A) DEMAND THAT THE DISPUTE BE REFERRED TO ARBITRATION
(B) THE PARTIES & THEIR REPRESENTATIVES (See also Institution Rules, below)
• Names, registered address(es), place of incorporation (if a company) or
residence, telephone number(s), facsimile number(s) and electronic mail
address(es), if known, of each of the parties to the arbitration and their
representatives, if any.
• For State-Respondents, identify (if any) the relevant department /
governmental body.
3.4 The Claimant shall, at the same time as it files the Notice of Arbitration
with the Registrar, send a copy of the Notice of Arbitration to the
Respondent, and shall notify the Registrar that it has done so, specifying
the mode of service employed and the date of service.
ICC Rules 2012, Article 4
(1) A party wishing to have recourse to arbitration under the Rules shall submit its Request
for Arbitration (the “Request”) to the Secretariat at any of the offices specified in the
Internal Rules. The Secretariat shall notify the claimant and respondent of the receipt
of the Request and the date of such receipt.
2) The date on which the Request is received by the Secretariat shall, for all purposes, be
deemed to be the date of the commencement of the arbitration. …
4) Together with the Request, the claimant shall: a) submit the number of copies thereof
required by Article 3(1); and b) make payment of the filing fee required by Appendix III
(“Arbitration Costs and Fees”) in force on the date the Request is submitted.
In the event that the claimant fails to comply with either of these requirements, the
Secretariat may fix a time limit within which the claimant must comply, failing which the
file shall be closed without prejudice to the claimant’s right to submit the same claims at
a later date in another Request.
5) The Secretariat shall transmit a copy of the Request and the documents annexed
thereto to the respondent for its Answer to the Request once the Secretariat has
sufficient copies of the Request and the required filing fee.
ICSID Convention, Article 36
(1) Any Contracting State or any national of a Contracting State wishing to
institute arbitration proceedings shall address a request to that effect in
writing to the Secretary-General who shall send a copy of the request to the
other party.
(2) The request shall contain information concerning the issues in dispute,
the identity of the parties and their consent to arbitration in accordance
with the rules of procedure for the institution of conciliation and arbitration
proceedings.
(3) The Secretary-General shall register the request unless he finds, on the
basis of the information contained in the request, that the dispute is
manifestly outside the jurisdiction of the Centre. He shall forthwith notify
the parties of registration or refusal to register.
ICSID Institution Rules (1)
Rules of Procedure for the Institution of
Conciliation and Arbitration Proceedings (Institution Rules)
Rule 1 : The Request
(2) The request may be made jointly by the parties to the dispute.
ICSID Institution Rules (2)
Rule 2 : Contents of the Request
(a) designate precisely each party to the dispute and state the address of
each;
(e) contain information concerning the issues in dispute indicating that there
is, between the parties, a legal dispute arising directly out of an
investment; and
(f) state, if the requesting party is a juridical person, that it has taken all
necessary internal actions to authorize the request.
(2) The information required by subparagraphs (1)(c), (1)(d)(iii) and (1)(f) shall be
supported by documentation.
(3) "Date of consent" means the date on which the parties to the dispute
consented in writing to submit it to the Centre; if both parties did not act on
the same day, it means the date on which the second party acted.
ICSID Institution Rules (5)
Optional Information in Request – Rule 3
Agreed number of arbitrators, agreed method of appointment, other agreed
provisions.
Copies – Rule 4
1 + 5 (or more), signed. See also Administrative and Financial Regulation 30 .
Acknowledgment / Transmission – Rule 5
Acknowledgement issued once Request received. Transmission to respondent
only after fee is paid.
Registration / Commencement – Rule 6
Registered / Not registered (with reasons).
Date of registration = Start date of proceedings.
If you have done it correctly …
If you have done it correctly …
https://icsid.worldbank.org/apps/ICSIDWEB/cases/Pages/AdvancedSearch.aspx
Practical tips
• Before you begin drafting, identify the applicable rules (if there are any).
See provisions on Request / Notice. Comply strictly.
• You may want to use a cover letter enclosing Request / Notice. Looks neater.
• Use NUMBERED HEADINGS / SECTIONS.
• Use RUNNING NUMBERED PARAGRAPHS throughout - easier to cross-refer;
avoids repetition.
• Readability, readability, readability. (= effectiveness, persuasive power)
• You can be as general / wide as possible in setting out the basis for your
claim, but you should be specific about what you want (relief / remedy).
• Sign and date the document.
• Pay the prescribed fee! (No fee = no commencement.)
Drafting exercise : Instructions
• We will we using “The Dispute” © SIAA 2016.
• The facts are found up to (and including) para 58 but excluding para
50 and 51. Do not go beyond para 58 for the facts.
• You may choose to use the same ‘breaches’ as found in para 59, or
choose a different approach – it is up to you.
• In drafting, you can (if you wish) use the soft / electronic copy
template provided to you, as well as the soft copy of “The Dispute”
e.g. to cut and paste.
From : Iyam.DaMann@nordicgas.com
To : [You]
Cc : [Your colleagues]
Date : 31 October 2012
Time : 10:00 (GMT+8)
Priority : Immediate
Subject : Commence arbitration immediately!!!
Our “consultations” with those crazy Anchurians have been gong on since June 2012, and there are
no results to speak of, to-date. They are just giving us the run-around. Do they think we are fools?
CEO was not kidding – he said if nothing was sorted out by 29 October, we would sue. It is now two
days after his deadline, and there is nothing from them, at all. We now have to show them we
mean business!! The Board has spoken : SUE THEM NOW.
I am getting on a charter flight to Bora Bora at 11:30 am (SG time) with Alexxa (you met her at the
club – that exotic 22-year-old dancer) and won’t be contactable for at least 72 hours. I need you
to draft whatever we need to initiate arbitration on 1 November 2012 and send me those drafts
not later than 10:50 am today, for my approval. You can surely meet that deadline, right?
CNN / BBC / Fox / SKY have been told that NGC will launch its claim on 1 November 2012, so it
has to happen. Don’t mess this up or we will both be out of a job. Have a Happy Halloween!