Introduction

With the advancements in the field of Alternative Dispute Resolution, a lot of matters are referred to arbitration and the use of international arbitration is rising. There are a number of arbitral institutions which provide services when it comes resolving international disputes and with the advancements in technology and artificial intelligence, a lot of firms are resorting to unique ways when it comes to conducting Arbitration proceedings via the Internet. Due to the current pandemic situation, a lot of international arbitration proceedings were hindered, however, in the increasingly crowded market, innumerable efforts have been taken by arbitral institutions when it comes to understanding its party’s needs. A lot of arbitral institutions have issued their own arbitral rules which ensure that the international arbitration proceedings are conducted with utmost efficiency and transparency, thereby maintaining its fairness and legitimacy.

Issues Concerning Arbitral Rules

Arbitral Rules take under its ambit innumerable issues which deals with aspects pertaining to the appointment of arbitrators, the evidentiary powers conferred upon arbitrators and also deals with matters concerning to the final award passed by the arbitral tribunals. With regards to the arbitral rules pertaining to international arbitration, various institutions have their own sets of rules which they have concurred and enumerated upon after years of accumulated knowledge and experience whilst dealing with arbitration proceedings and it is interesting to note that a number of these institutions adhere to similar rules or there are striking resemblances between the rules that they follow. For instance, a lot of arbitral rules enumerate that parties can, at their own conjecture, select the applicable “rules of law”. This can be deemed to be regarded as a formula that allows the parties the flexibility to choose the applicable law as per their choice and it also includes soft law instruments like the UNIDROIT Principles.[1] If a party to the dispute is not present, then under such circumstances, the consent with regards to the application of laws lies in the hands of the arbitrators who have enough powers conferred upon them to adhere and apply the provisions of law that they consider “appropriate”. The arbitrators are thereby under no obligation to adhere to a strict analysis of any applicable conflict of laws.

Unique Features of the Arbitral Rules

Certain arbitral rules have features which can certainly be deemed to be regarded as unique in nature. Some of these features are specifically aimed towards providing fair solutions to complicated procedural questions that may pop up during the pendency of an arbitral proceeding. It is imperative to highlight that the International Cent for Dispute Resolution rules have certain unique provisions enumerated under Article 22.[2]  The provisions of Article 22 enumerate that if the case at hand deals with different rules pertaining to the legal privileges granted to the parties, their counsel, or the documents filed by them, then under such circumstances the arbitrator presiding over the matter should adhere to and apply to the highest level of protection. This basically means that, “The arbitral tribunal shall take into account applicable principles of privilege, such as those involving the confidentiality of communications between a lawyer and client. When the parties, their counsel, or their documents would be subject under applicable law to different rules, the tribunal should, to the extent possible, apply the same rule to all parties, giving preference to the rule that provides the highest level of protection.” [3]  However, under other occasions, it is imperative as per provided under the rules that the arbitrators need to consider the balance that they wish to maintain between maintaining the efficiency of the proceedings or whether they wish to adhere and protect the autonomy of the parties to the dispute. In fact, certain arbitral institutions have also made innovations when it comes to implementing rules pertaining to the number of arbitrators that need to be appointed in cases which have been expedited. In certain cases, the agreements between the parties do require the appointment of three arbitrators, however, certain arbitral institutions have come up with rules wherein the institutions have the power with regards to the appointment of the number of arbitrators who need to be assigned to a particular case.

Perception of the Parties to the Dispute

The changes which certain arbitral institutions have made with regards to the rules that they adhere to, could be deemed to be regarded as a way forward, however, whether these rules and changes will be proven to be successful depends upon the parties’ perception of them. If these changes are welcomed with open arms, then they could be adhered to and applied by other arbitral institutions as well. It is imperative to understand that the idea of the appointment of an emergency arbitrator is one such successful idea which has been incorporated in the laws of a lot of countries as well. The International Centre for Dispute Resolution was the first organization to adopt the provisions pertaining to the appointment of an emergency arbitrator in the year 2006, which did not require an express opt-in by the parties to the dispute. It is imperative to note that the provisions pertaining to the appointment of an emergency arbitrator was surely a way forward and in fact a lot of arbitral institutions have been incorporating these provisions in their rules.

Conclusion

In a nutshell, it is imperative for arbitral institutions to constantly make an attempt in order to adjust their rules and incorporate new ideas with regards to how it could conduct arbitral proceedings in swiftly thereby maintaining its fairness and transparency. A lot of parties prefer Alternative Dispute Resolution as a way to resolve their disputes expeditiously and the entire scenario revolving around institutional arbitration is thoroughly changing and evolving. Therefore, for an arbitral institution which majorly presides over International Arbitration proceedings, needs to make rules and regulations which could prove to be an upper edge for such institutions in the long run.

References