Understanding institutional and ad hoc arbitration

What is institutional arbitration?

This Practice Note introduces what it means for a dispute to be referred to arbitration under a set of institutional rules. It gives details of the main institutional arbitration bodies and links to bespoke content about them. The note also discusses when institutional arbitration would be appropriate and sets out the advantages and disadvantages of arbitrating under institutional rules.

See Practice Note: Institutional arbitration—an introduction to the key features of institutional arbitration

What is ad hoc arbitration?

This Practice Note gives information about arbitrations that are conducted without the supervision of an arbitral institution, known as ad hoc arbitration. Arbitration under national legislation such as the Arbitration Act 1996 (AA 1996), or under the UNCITRAL Rules which are not administered by an institution would fall into this category. The note sets out the advantages and disadvantages of choosing ad hoc arbitration and gives a precedent ad hoc arbitration clause that may be used as an arbitration agreement.

See Practice Note: Ad hoc arbitration—an introduction to the key features of ad hoc arbitration

Comparing institutional and ad hoc

To view the latest version of this document and thousands of others like it, sign-in with LexisNexis or register for a free trial.

TAKE A FREE TRIAL

Latest Arbitration News

Challenges to institution administrative decisions—(DMZ v DNA)

Arbitration analysis: The High Court of Singapore refused to interfere with a decision of the Registrar of the Singapore International Arbitration Centre (SIAC) to amend the deemed date of commencement of an arbitration under Rule 3.3 of the SIAC Rules. The court agreed that the relationship between the parties and the SIAC was a contractual one and that the Registrar was required to exercise the power in a lawful manner and in accordance with the SIAC Rules. However, it held that Rule 40.2 expressly prohibited appeals from or reviews of decisions of the President, Court or Registrar of SIAC. By seeking a declaration that the date of commencement was different from that decided by the Registrar, the plaintiff was mounting a back-door appeal. The plaintiff’s only remedy was to await the award and apply to set it aside on the basis of the incorrect commencement date. The challenge to the decision was therefore in breach of the parties’ agreement and an abuse of process attracting an order for indemnity costs. Written by Dr Cameron Ford OAM SC is a arrister at William Forster Chambers.

What constitutes consent to execution against state assets? (General Dynamics United Kingdom Ltd v The State of Libya)

Arbitration analysis: The Court of Appeal upheld the High Court’s finding that Libya’s agreement in a Swiss-law governed contract, that an arbitral award would be ‘final, binding and wholly enforceable’, constituted written consent for the purposes of section 13(3) of the State Immunity Act 1978 (SIA 1978). This waiver of execution immunity allowed an interim charging order against Libya’s property in London to be made final. The decision re-affirms the importance of contractual wording in arbitration agreements involving state entities and provides guidance on the construction of state immunity waivers under English law. Written by Brandon Malone, advocate, barrister and arbitrator at Ampersand Advocates.

Federal Court Opines on Correct Formulation of Orders Enforcing Specific Performance of an Arbitral Award (Roadpost Inc v Beam Communications Pty Ltd)

Arbitration analysis: In a recent Federal Court judgment, Justice Stewart refused to make consent orders which sought declaratory relief. Justice Stewart stated that ‘the making of a declaration in terms of an award is not “enforcement” of the award and not an appropriate order to make…’. Justice Stewart resolved the issue of the declaratory order sought by deleting the struck out text in the orders proposed by the parties as follows: It is ordered and declared that the Respondent is required to sell its shares … to the Applicant…Justice Stewart considered that there would be no purpose in making orders in terms of a declaration given that the arbitrator had already made the declaration. He also removed the words ‘is required to’ as he considered that they ‘serve to detract from the force of the order for specific performance by introducing something in the nature of a declaration of rights’. Written by Erika Williams, independent arbitrator at Williams Arbitration.

Swedish Court of Appeal rejects challenge to arbitral award on investment criteria under BIT (Komaksavia v The Republic of Moldova)

Arbitration analysis: The Svea Court of Appeal (Court of Appeal) has dismissed a challenge of an arbitral award under the Cyprus-Moldova bilateral investment treaty (BIT). The claimant, Komaksavia Airport Invest Ltd (Komaksavia), challenged the award on the basis that the Tribunal had wrongly dismissed Komaksavia’s claims for lack of jurisdiction by failing to apply the so-called doctrine of assertion. The ruling clarifies that the arbitration clause in the BIT constitutes a standing offer from the contracting states to submit disputes to arbitration, but only to those who qualify as investors under the agreement and who have made an investment. Whether a party requesting arbitration has made an investment is primarily a matter of consent to arbitration, and the so-called doctrine of assertion is not applicable to establish jurisdiction of an arbitral tribunal. Accordingly, the mere assertion of an investment under a BIT is insufficient to establish jurisdiction of an arbitral tribunal. Written by Andreas Johard, partner at Hammarskiöld’s arbitration team, and Zack Norén, associate at Hammarskiöld.