Arbitration may be defined as the process by which a dispute or difference between two or more parties as to their mutual legal rights and liabilities is referred to and determined judicially and with binding effect by the application of law by one or more persons (the arbitral tribunal) instead of by a court of law. Arbitration is only an alternative to litigation and it does not replace the judicial machinery in all aspects, rather it co-exists with it.
The object of arbitration is to provide fair and impartial resolution of disputes without causing unnecessary delay or expense and at the same time, it allows freedom to the parties to agree upon the manner in which their disputes should be resolved, subject only to safeguards imposed in public interest. Today, arbitration is a very popular mode of alternate dispute resolution in the commercial world and one can find an arbitration clause incorporated in the majority of business contracts. The project deals with two forms of arbitration namely, ad hoc and institutional arbitration, their advantages and disadvantages over each other.
Parties are entitled to choose the form of arbitration, which they deem appropriate in the facts and circumstances of their dispute. This necessarily involves the consideration & evaluation of the various features of both forms of arbitration and this can be a daunting task, as both forms have their own merits and demerits.
Ad hoc arbitration
An ad hoc arbitration is one which is not administered by an institution and therefore, the parties are required to determine all aspects of the arbitration like the number of arbitrators, manner of their appointment, procedure for conducting the arbitration, etc.
Ad hoc arbitration is a proceeding that is not administered by others and requires the parties to make their own arrangements for selection of arbitrators and for designation of rules, applicable law, procedures and administrative support. Provided the parties approach the arbitration in a spirit of cooperation, ad hoc proceedings can be more flexible, cheaper and faster than an administered proceeding. The absence of administrative fees alone make this a popular choice.
The arbitration agreement, whether arrived at before or after the dispute arises, might simply state that "disputes between the parties will be arbitrated", and if the place of arbitration is designated, that will suffice. If the parties cannot agree on arbitral detail, all unresolved problems and questions attending implementation of the arbitration, for example "how the arbitral tribunal will be appointed", "how the proceedings will be conducted" or "how the award will be enforced" will be determined by the law of the place designated for the arbitration, i.e., the "seat" of the arbitration. Such an abbreviated approach will work only if the jurisdiction selected has an established arbitration law. The ad hoc proceeding need not be entirely divorced from its institutional counterpart. Oftentimes the appointment of a qualified and/or impartial arbitrator (actual or perceived) constitutes a sticking point in ad hoc proceedings. In such case, the parties can agree to designate an institutional provider as the appointing authority. Further, the parties can at any time in the course of an ad hoc proceeding decide to engage an institutional provider to administer the arbitration.
Parties wishing to include an ad hoc arbitration clause in the underlying contract between them, or seeking to arrive at terms of arbitration after a dispute has arisen, have the option of negotiating a complete set of rules, establishing procedures which fit precisely their particular needs. Experience has shown that this approach can require considerable time, attention and expense without providing assurance that the terms agreed will address all eventualities.
Other options available to parties wishing to proceed ad hoc, who are not in need of rules drawn specially for them, or of formal administration and oversight, include: (i) adaption of the rules of an arbitral institution, amending provisions for selection of the arbitrator(s) and removing provisions for administration of the arbitration by the institution, (ii) incorporating statutory procedures such as the United States Federal Arbitration Act (or applicable state law) or the English Arbitration Act 1996, (iii) adopting rules crafted specifically for ad hoc arbitral proceedings such as the UNCITRAL Rules (U.N. Commission on International Trade Law) or CPR Rules (International Institute for Conflict Prevention and Resolution), which may be used in both domestic and international disputes, and (iv) adopting an ad hoc provision copied from another contract. Risks accompanying two of the available options are worthy of particular note.
Incorporating rules drawn by an institutional arbitration provider, amending provisions for appointment of the arbitrator(s) and excising provisions requiring administration by the provider, carries with it the risk of creating ambiguities in the institutional rules as amended, despite efforts to redraw them to suit an ad hoc proceeding. It is also possible that in the adaptation process the parties may inadvertently create an institutional process. Copying an ad hoc arbitration clause from another contract may also result in later grief if the purloined clause was originally crafted for a particular, possibly unique, set of circumstances and/or was drafted taking into account different applicable arbitration law.
Properly structured, ad hoc arbitration should be less expensive than institutional arbitration and, thus, better suit smaller claims and less affluent parties. Ad hoc arbitration places more of a burden on the arbitrator(s), and to a lesser extent upon the parties, to organize and administer the arbitration in an effective manner. A distinct disadvantage of the ad hoc approach is that its effectiveness may be dependent upon the willingness of the parties to agree upon procedures at a time when they are already in dispute. Failure of one or both of the parties to cooperate in facilitating the arbitration can result in an undue expenditure of time in resolving the issues. The savings contemplated by use of the ad hoc arbitral process may be somewhat illusory if delays precipitated by a recalcitrant party necessitate repeated recourse to the courts in the course of the proceedings.
1. The primary advantage of ad hoc arbitration is flexibility, which enables the parties to decide upon the dispute resolution procedure. This necessarily requires a greater degree of effort, co-operation and expertise of the parties in determination of the arbitration rules. Very often, the parties may misunderstand each other since they are of different nationalities and come from different jurisdictions, and this can delay the arbitration. Also, once a dispute arises, parties tend to disagree and lack of co-operation required may frustrate the parties’ intention of resolving their dispute by ad hoc arbitration.
Such situations can be avoided, if the parties agree that the arbitration should be conducted under certain arbitration rules. This results in reduced deliberation and legal fees and also facilitates early commencement of the arbitration, as the parties do not engage in the time consuming process of determining complex arbitration rules. There are various sets of rules suitable to ad hoc arbitration, of which the UNCITRAL rules are considered most suitable.
2. By reason of its flexibility, ad hoc arbitration is preferred in cases involving state parties who consider that a submission to institutional arbitration devalues their sovereignty and they are therefore reluctant to submit to institutional control. Ad hoc arbitration also permits the parties to shape the arbitration in a manner, which enables quick and effective resolution of disputes involving huge sums of public money and public interest. In the Aminoil arbitration, conducted ad hoc, the flexibility permitted the parties to define issues in a manner, which enabled quick resolution of the dispute. Further, the adopted procedure provided that the parties would file their pleadings at the same time. Consequently, neither party was a respondent, a title that parties resent when they believe that they have justifiable claims against the other party. Also, the tribunal directed the state party to lead the case on some issues and Aminoil to lead on other issues, depending on whom the onus of proof laid11.
3. Another primary advantage of ad hoc arbitration is that it is less expensive than institutional arbitration. The parties only pay fees of the arbitrators’, lawyers or representatives, and the costs incurred for conducting the arbitration i.e. expenses of the arbitrators, venue charges, etc. They do not have to pay fees to an arbitration institution which, if the amount in dispute is considerable, can be prohibitively expensive. In order to reduce costs, the parties and the arbitrators may agree to conduct arbitration at the offices of the arbitrators. It can be argued that such proposal would not be acceptable to an institution, lest their reputation be tarnished.
4. In ad hoc arbitration, parties negotiate and settle fees with the arbitrators directly, unlike institutional arbitration wherein the parties pay arbitrators’ fees as stipulated by the institution. This allows them the opportunity of negotiating a reduction in fees. But this involves an uncomfortable discussion & in certain cases, the parties may not be able to negotiate a substantial reduction or for that matter, any reduction at all. The arbitrators are the judges in the cause and no party desires to displease the judge, even before the proceedings have commenced.
Ad hoc arbitrations may not be less expensive than institutional arbitration for a number of reasons.
Firstly, the parties are required to make arrangements to conduct the arbitration but they may lack the necessary knowledge and expertise. It has been said that many laymen have to participate in arbitration and many arbitrations have to be conducted by persons who are not lawyers. This would result in misinformed decisions, especially in international commercial arbitration as the parties come from different countries and consequently, in increased costs.
Secondly, where there is lack of co-operation between the parties or delay on part of the tribunal in conducting the arbitration or in writing the award16, a party may seek court intervention and the litigation costs negate not only the cost advantage of ad hoc arbitration but also the parties’ intention to arbitrate.
Thirdly, the tribunal may, in complex cases involving considerable administrative work, appoint a secretary to administer the arbitration, whose fees will be borne by the parties and this adds to the cost burden of the arbitration.
It can therefore, be said of ad hoc arbitration that if the required co-operation is forthcoming and the parties are conversant with arbitration procedures or the arbitration is conducted by experienced arbitrators, “the difference between ad hoc and institutional arbitration is like the difference between a tailor-made suit and one that is bought off-the-peg”. That is to say, ad hoc arbitration is tailored to the needs of the parties and is more cost effective than institutional arbitration.
An institutional arbitration is 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 rules of that institution. It is pertinent to note that these institutions do not arbitrate the dispute, it is the arbitrators who arbitrate, and so the term arbitration institution is inappropriate and only the rules of the institution apply.
Often, the contract between the parties will contain an arbitration clause which will designate an institution as the arbitration administrator. If the institutional administrative charges, which may be substantial, are not a factor, the institutional approach is generally preferred. The primary disadvantages attending the institutional approach are: (i) administrative fees for services and use of facilities may be high in disputes over large amounts, especially where fees are related to the amount in dispute. For lesser amounts in dispute, institutional fees may be greater than the amount in controversy; (ii) the institution's bureaucracy may lead to added costs and delays and (iii) the disputants may be required to respond within unrealistic time frames.
In institutional arbitration, the first issue arising for agreement of the parties is choice of the institution, appropriate for the resolution of disputes, arising out of their contract. Whilst making such choice, there are various factors to be considered i.e. nature & commercial value of the dispute, rules of the institution as these rules differ, past record and reputation of the institution and also that the institutional rules are in tune with the latest developments in international commercial arbitration practice. There are many institutional arbitration administrators, some of which are associated with a trade association and many of which are independent. The London Court of International Arbitration, The Chartered Institute of Arbitrators (UK), The National Arbitration Forum (USA) and The International Court of Arbitration (Paris) are four of many.
Care should be taken in the selection of an arbitral institution. There are approximately 1,200 institutions, organizations and businesses worldwide offering institutional arbitral services. Some are excellent. Some are not as good. Some are bad. Many arbitral institutions are operating under rules not artfully drawn or rules which may be applicable to a particular trade or industry, but not to the existing or prospective needs of one or more of the parties. The greatest threat presented by the less prestigious arbitral institutions is the possibility that the institutional provider will be unable to deliver what motivated the parties to select institutional arbitration over ad hoc proceedings, i.e., a proper degree of supervision, which often is the key to whether the arbitration will prove successful.
The advantages of institutional arbitration to those who can afford it are apparent. Foremost are: (i) availability of pre-established rules and procedures which assure that arbitration will get off the ground and proceed to conclusion with dispatch; (ii) administrative assistance from institutions providing a secretariat or court of arbitration; (iii) lists of qualified arbitrators, often broken out by fields of expertise; (iv) appointment of arbitrators by the institution should the parties request it; (v) physical facilities and support services for arbitrations; (vi) assistance in encouraging reluctant parties to proceed with arbitration and (vii) an established format with a proven record. In detail:
1. A merit of institutional arbitration is that it saves parties and their lawyers the effort of determining the arbitration procedure and also the effort of drafting an arbitration clause, which is provided by the institution. Once the parties choose the institution, all they need to do is incorporate the draft clause of that institution into their contract. This expresses their intention to arbitrate under the institution’s rules, which provide for every conceivable situation that can arise in an international commercial arbitration.
2. Another merit of the draft clause is that it is revised periodically by the institution, drawing on experience in conducting arbitrations regularly and approved by arbitration experts, taking account of the latest developments in arbitration practice. This ensures that there is no ambiguity in relation to the arbitration process. On the other hand, ambiguous arbitration clauses in ad hoc arbitration compel parties to seek court intervention in order to commence or continue the arbitration.
3. Another merit of institutional arbitration relates to selection of the arbitrators. In institutional arbitration, the arbitrators are selected by the parties from the institution’s panel of arbitrators. This panel comprises of expert arbitrators, drawn from the various regions of the world and from across different vocations. This enables selection of arbitrators possessing requisite experience and knowledge to resolve the dispute, thereby facilitating quick and effective resolution of disputes.
Whereas in ad hoc arbitration, the appointment of arbitrators is generally based on the parties’ faith & trust in the arbitrators and not necessarily on the basis of their qualifications and experience. Thus, an incompetent arbitrator may not conduct the proceedings smoothly and this could delay dispute resolution, lead to undesirable litigation and increased costs.
However, it is pertinent to note that the parties do not appoint the arbitrators. They only select and nominate the arbitrators for appointment by the institution, which may refuse to appoint a nominated arbitrator if he lacks the requisite qualifications or impartiality or independence, in order to avoid its reputation being tarnished. Consequently, a party whose nominated arbitrator was refused appointment, being dissatisfied, may turn hostile and refuse to participate or attempt to stall the arbitration.
4. Another merit of institutional arbitration is that the parties and the arbitrators can seek assistance and advice from the institutional staff, responsible for administrating international commercial arbitrations under the institutional rules. Thus, doubts can be clarified or a deadlock can be resolved without court intervention. Whereas in ad hoc arbitration, the parties would be compelled to approach the Court, in order to take the arbitration forward and consequently, the perceived cost advantage of ad hoc arbitration would be negated by the litigation expenses. Also, the institutional staff constantly monitors the arbitration to ensure that the arbitration is completed and an award is made within reasonable time and without undue delay.
One of the advantages of arbitration is that it provides for final & binding determination of the dispute between the parties. In other words, no review or appeal lies against an arbitral award to ensure finality. This involves an inherent risk that mistakes committed by the tribunal cannot be corrected, whereby one party would inevitably suffer. However, some institutional rules provide for scrutiny of the draft award before the final award is issued and some provide for a review procedure. The latter entitles the dissatisfied party to appeal to an arbitral tribunal of second instance, which can confirm, vary, amend or set aside the first award and such decision in appeal is considered to be final and binding upon the parties. Contrasting this to ad hoc arbitration where there is no opportunity for appeal or review and the parties have to be prepared to suffer for the mistakes of the arbitrators, this is a redeeming feature of institutional arbitration as it allows the parties a second chance of presenting their case and also permits the rectification of mistakes made by the tribunal of first instance. It also serves as a check on the actions of the arbitrators and restrains them from making arbitrary awards.
It is also perceived that national courts tend to grant enforcement of awards made in institutional arbitration, though doubts have been raised, since international arbitration institutions enjoy worldwide recognition and their professional expertise adds to the certainty and finality of the proceedings. Courts are more likely to even enforce an award obtained in default of the other party, which they would refuse had it been obtained in ad hoc arbitration, in view of the strict arbitration procedures followed by these institutions. One of the criticism of institutional arbitration is that, parties need to comply with the procedural requirements, resulting in unnecessary delays in the arbitration. One may argue that such requirements, in fact, avoid delay. For instance, the ICC draws up the terms of reference, criticised as being time consuming and unnecessary, containing provisions to ensure that default of a party does not stall arbitration. In default of a party in ad hoc arbitration, the other party may seek court intervention to compel the defaulting party to commence or continue the arbitration and this may result in longer delays, than that involved in complying with these procedural requirements, intended to ensure smooth and effective dispute resolution.