PROCEDURE TO COMMENCE ARBITRAL PROCEEDINGS

INTRODUCTION

In the International Commercial Arbitration, the commencement of arbitration is a procedural matter. Such procedure flows from the arbitration agreement executed between the parties. ?If such agreement refers to an ad hoc arbitration (i.e., without referring to any specific institution), the applicability of UNCITRAL Arbitration Rules (we will refer to it as AR) is invoked if the parties did not specify any other rule in the agreement. The parties are free to adopt the AR as it is or with modifications if they so wish with mutual consent. ?However, the key factor is keeping the rules simple to avoid delay in completing the arbitration. ?The parties can also resort to UNCITRAL Notes on Organizing Arbitral Proceedings, 2016 (Revised), for conducting the arbitral proceedings in the absence of any institutional rules. The Notes are not binding on the parties or the arbitrators, but they can act as guidelines and resorted to by the practitioners with the consent of both parties.

STEPS FOR COMMENCEMENT

The following steps are required to be taken to commence the arbitral proceedings:

Article 2 (1) of AR provides that a Notice of arbitration or a letter is to be sent to the other party by a recorded delivery. It can be through any means of communication which provides for a record of its transmission. There is no fixed form for a Notice of Arbitration. Parties are free to choose the form. ?

Article 2 (6) of AR stipulates that for the purpose of calculating a period of time under these Rules, such period shall begin to run on the day following the day when the notice is received. Article 3 (1) & (2) of AR, i.e Sending notice and Receipt of notice respectively, trigger the commencement of the arbitration.

WHAT IS CONTAINED IN THE NOTICE?

Article 3 (3) states that the notice shall contain the following:

(i)????????????? A demand that the dispute be referred to arbitration,

(ii)???????????? The names and contact details of the parties,

(iii)?????????? Identification of the arbitration agreement that is invoked,

(iv)?????????? The general nature of the claim and an indication of the amount involved, if any.

(v)??????????? The relief or remedy sought,

(vi)?????????? A proposal as to the number of arbitrators, language and place of arbitration, if the parties have not agreed previously.

Once the decision is taken to start the arbitral proceedings, the appropriate form of notice or request is delivered by the Claimant to the Respondent. The next step is to constitute the arbitral tribunal.

CONSTITUTION OF ARBITRAL TRIBUNAL

It is to be noted that in the case of a national court, which is a permanent body, no action is required from the parties, other than initiating litigation proceedings in the appropriate court. Whereas in the case of an arbitral tribunal, there is no permanent standing body of arbitrators, it is the combined efforts of the parties to establish a tribunal in accordance with applicable rules referred to in the arbitration clause, before it can exercise any jurisdiction over the parties.

LIMITATION PERIOD TO COMMENCE ARBITRATION

The time limit for instituting legal proceedings by way of litigation or arbitration is imposed by the law of most countries. Time will "stop running" for the purpose of any limitation period upon the service of the notice of arbitration to the other party. Article 21 of the UNCITRAL Model Law (we will now refer to it as ML in short) provides that "unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent". The Arbitrator should be alert to the consequences of the relevant legislation on the limitation of the seat of the arbitration.

For example in the case of Singapore jurisdiction, the Singapore International Arbitration Act 2001 (2020 Rev Edn), the Singapore Limitation Act 1959 (2020 Rev Edn) and the Foreign Limitation Periods Act 2012 (2020 Rev Edn) shall apply to arbitral proceedings. If an arbitration is initiated after the limitation period, the claimant's claims would be time-barred.

CONCLUSION

The Model Law (ML) does not prescribe any method for commencing arbitration proceedings. Once the arbitration has commenced, any limitation statute that applies to the dispute will be interrupted. ?Articles 2, 3, 4, 5, 6, 7 & 8 of AR deal with the procedure of commencement and the appointment of the sole arbitrator. In case there is a challenge to the arbitrator, Articles 11,12,13,14, of AR are to be resorted to.

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