ACICA-45 Webinar: Lifecycle of An Arbitration Series — How to Start an Arbitration
On 27 May 2020 the inaugural webinar of the ACICA 45 Lifecycle of an Arbitration Series was held. Guillermo Garcia-Perrote, Senior Associate, Herbert Smith Freehills, moderated the discussion between three experienced speakers on the topic of ‘How to Start an Arbitration’: Gitanjali Bajaj, Partner at DLA Piper, Robert Tang, Counsel at Clifford Chance, and Deborah Tomkinson, Secretary General of ACICA.
The panel addressed the nature, form and content of arbitral pleadings and the key differences to court pleadings. The Notice of Arbitration (or Request for Arbitration) has a similar function to an originating process or statement of claim. That document, along with the payment of the filing fee determines the date of commencement of the arbitration. As explained, there are differences in terms of the stages in arbitration versus litigation, particularly with regard to the centrality of the written submissions. In arbitration, a ‘memorial’ is often used, and there are advantages and disadvantages in using this narrative style of argument to present a case.
The panel discussed key considerations regarding the appointment of arbitrators such as the IBA Guidelines on Conflicts of Interest, conducting a ‘beauty parade’ to find the best candidate (including reaching out to them directly to confirm expertise) and choosing arbitrators with experience. A key consideration for conflicts is the ‘test’ for challenging an arbitrator encompassing the existence of a justifiable doubt as to impartiality or independence. ACICA also has a procedure for the challenge of an arbitrator within the rules.
The key takeaways from the panel for young practitioners in appointing arbitrators were to:
- review the arbitration agreement closely and ascertain if there are any agreed characteristics the arbitrator is required to have;
- review and understand the arbitral rules governing the dispute, from back to front; and
- ensure that if you are nominating an arbitrator, you do not trigger a red or orange list issue under the IBA Guidelines on Conflicts of Interest.
The webinar can be viewed on the ACICA website here: https://acica.org.au/acica-webinars
ACICA45’s Lifecycle of an Arbitration Series will continue on 8 July with ‘Phase 2: Procedural and Interim Measures’ — register here!
Author: Guillermo Garcia-Perrote, Herbert Smith Freehills