WilmerHale
6 Experts
13 Contributions by WilmerHale
PRACTICE NOTES
Arbitration is commonly presumed to be confidential because proceedings take place in private. Many users identify ‘confidentiality’ as a key benefit when compared with court litigation. Yet there is an important distinction between privacy, which concerns the closed nature of the hearing, and confidentiality, which may or may not cover the information, materials and documents exchanged between the parties, including the award. Here, confidentiality denotes an obligation on the parties not to disclose information about the arbitration to third parties. National legal systems adopt differing approaches to whether arbitration is confidential by default and to the breadth of any implied duties. How far confidentiality applies in any case will turn on:
the agreement reached by the parties;
the applicable law;
the chosen arbitral institution or any ad hoc procedural
Arbitration
PRACTICE NOTES
UNCITRAL rules on costs Tribunal's fees and expenses
This Practice Note addresses matters concerning costs in arbitrations under the United Nations Commission on International Trade Law Arbitration Rules (the UNCITRAL Rules). For an overview of the UNCITRAL framework, including the role of appointing authorities in such proceedings, see Practice Note: UNCITRAL Rules—background and introduction.
Where an appointing authority (often an arbitral institution) constitutes an UNCITRAL tribunal, the parties may also agree that the institution’s schedule for arbitrators’ fees applies. In that event, the tribunal will consider that schedule when fixing its remuneration (UNCITRAL Rules, Article 41, para 2).
Promptly after it is formed, the tribunal must tell the parties how it intends to set its fees and expenses, including any rates it proposes to use. A party may, within 15 days of receipt, submit this proposal to the appointing authority for review. The authority then has 45 days to
Arbitration
PRACTICE NOTES
The Transparency Rules—background and purpose
Adopted on 1 April 2014 by the United Nations Commission on International Trade Law (UNCITRAL), the Transparency Rules sit alongside UNCITRAL’s suite of instruments. Among its activities, UNCITRAL issues arbitration rules designed for ad hoc international proceedings—that is, cases not run by an arbitral institution. First promulgated in 1976 and updated in 2010, the UNCITRAL Arbitration Rules are widely relied upon for commercial disputes and investor–state cases under investment treaties. The 2013 iteration of those rules incorporates the Transparency Rules as paragraph 4 of article 1, while otherwise mirroring the 2010 text—see: UNCITRAL arbitration—overview. The Transparency Rules were crafted to respond to worries about the default confidentiality attaching to arbitrations under the UNCITRAL Rules when used in investor–state contexts. Such investor–state arbitrations arise under bilateral investment treaties (BITs) (ie treaties between two states conferring rights on
Arbitration
PRACTICE NOTES
This Practice Note examines how tribunals are appointed under the United Nations Commission on International Trade Law Arbitration Rules (the UNCITRAL Rules). For a primer on these Rules, refer to Practice Note: UNCITRAL Rules—background and introduction. A key benefit of UNCITRAL arbitration (indeed, arbitration generally) is the parties’ liberty and independence to select their arbitral tribunal. Articles 8–10 of the UNCITRAL Rules describe the mechanism for constituting the tribunal, whether the parties have opted for a sole arbitrator or a three-member panel, and apply irrespective of the structure chosen. The UNCITRAL Rules also prescribe what occurs if the parties cannot agree on one or more arbitrators, or if either party seeks to substitute an arbitrator, setting out a clear procedure.
Use of an appointing authority
UNCITRAL is not an arbitral institution and does not administer or supervise arbitrations conducted pursuant to the UNCITRAL Rules.
Arbitration
PRACTICE NOTES
This Practice Note reviews evidential matters in arbitrations conducted under the United Nations Commission on International Trade Law Arbitration Rules (the UNCITRAL Rules). For an overview of the UNCITRAL Rules, see Practice Note: UNCITRAL Rules—background and introduction. Under Article 17(1) of the UNCITRAL Rules, the tribunal may manage the arbitration in whatever manner it considers suitable. Each party carries the burden of proving the facts on which it relies (Article 27(1)), and the tribunal decides on the admissibility, relevance, materiality and weight of any evidence presented (Article 27(4)).
Documentary evidence
The notice of arbitration should specify the arbitration agreement relied upon and any contract or other legal instrument out of, or in relation to, which the dispute has arisen (Article 3(3)(c)–(d)), copies of which should be included with the statement of claim where that is filed separately from the notice of
Arbitration
PRACTICE NOTES
This Practice Note provides an introduction to the overall structure of the United Nations Commission on International Trade Law Arbitration Rules (the UNCITRAL Rules).
The UNCITRAL Rules occupy a significant role in contemporary arbitration practice. They are crafted for ad hoc international commercial arbitrations—proceedings not administered by an arbitral institution and, typically, not conducted under that institution’s rules. The Rules may likewise be employed in investor–state arbitrations commenced under a treaty, such as a bilateral investment treaty, where the treaty permits arbitration conducted under those rules. Unless the parties stipulate otherwise, the UNCITRAL Rules govern arbitration agreements concluded on or after 15 August 2010, ie the date the revised Rules took effect. The earlier 1976 UNCITRAL Rules continue to apply to all arbitration agreements entered into before that date. Both the 1976 and 2010 UNCITRAL Rules are separate from UNCITRAL’s Model Law on
Arbitration
PRACTICE NOTES
This Practice Note reviews how arbitrations proceed under the United Nations Commission on International Trade Law Arbitration Rules (the UNCITRAL Rules). For an overview of the UNCITRAL Rules, consult Practice Note: UNCITRAL Rules—background and introduction. Designed as a flexible ad hoc framework, the UNCITRAL Rules allow parties choosing arbitration as their dispute resolution method to adapt the process to their particular requirements. In this context, ‘procedure’ under the UNCITRAL Rules is not fixed; it will differ according to the parties’ specific needs and the discretion exercised by the arbitral tribunal. Nevertheless, certain general provisions apply and are considered below.
UNCITRAL model arbitration clause
The UNCITRAL Rules state that where parties agree to refer their dispute to UNCITRAL arbitration, the dispute will be determined in accordance with the UNCITRAL Rules (UNCITRAL Rules, Article 1(1))...
Arbitration
PRACTICE NOTES
This Practice Note
This Practice Note explains how to address a notice of arbitration (Notice) served under the United Nations Commission on International Trade Law Arbitration Rules (the UNCITRAL Rules). For an overview of the UNCITRAL Rules, refer to Practice Note: UNCITRAL Rules—background and introduction. To initiate arbitration pursuant to the UNCITRAL Rules, the claimant is required to formally deliver a Notice to the respondent—see Practice Note: UNCITRAL Rules—starting an arbitration...
Arbitration
PRACTICE NOTES
This Practice Note examines the powers of the arbitral tribunal under the United Nations Commission on International Trade Law Arbitration Rules (the UNCITRAL Rules). For an introduction to the UNCITRAL Rules, see Practice Note: UNCITRAL Rules—background and introduction. For guidance on appointing the tribunal, see Practice Note: UNCITRAL Rules—appointment of the arbitral tribunal. A core feature of the UNCITRAL arbitration framework is the authority vested in the tribunal. The UNCITRAL Rules grant the arbitral tribunal extensive powers over the management and timetable of the proceedings, evidence, the making of awards, interim measures and the allocation of costs.
General power of the arbitral tribunal
The tribunal may conduct the proceedings in such manner as it deems appropriate, provided it treats the parties equally and affords each party a reasonable opportunity to present its case (UNCITRAL Rules, Article 17(1)). The broad discretion conferred on the tribunal is a
Arbitration
PRACTICE NOTES
This Practice Note considers how to commence arbitration proceedings pursuant to the United Nations Commission on International Trade Law Arbitration Rules (the UNCITRAL Rules)
This Practice Note explains how to commence arbitration under the United Nations Commission on International Trade Law Arbitration Rules (the UNCITRAL Rules). For an introduction to the UNCITRAL Rules, see Practice Note: UNCITRAL Rules—background and introduction. For guidance on responding to an UNCITRAL arbitration claim, see Practice Note: UNCITRAL Rules—responding to a Notice of Arbitration.
When a dispute arises, it is crucial for the parties and their advisers to examine the dispute resolution clause in the applicable contract. Where arbitration is specified, they should confirm:
any time limit (contractual or statutory) by which the arbitration must be initiated
any pre-arbitration steps (particularly any ADR) that must be undertaken before commencing arbitration
which
Arbitration
PRACTICE NOTES
An introduction to witness conferencing in arbitration
Witness conferencing (often referred to as ‘hot-tubbing’ or ‘concurrent evidence’) describes a method of taking evidence in which two or more factual or expert witnesses address overlapping questions simultaneously, a practice increasingly prevalent in international arbitration. Used appropriately, witness conferencing can reduce time and expense and promote a streamlined assessment of the merits of a dispute. Conversely, if mishandled, it can muddle the parties’ cases and introduce avoidable delay and cost. As outlined below, a proposal to employ witness conferencing may come from the arbitral tribunal or the parties, and there is wide latitude in designing the process. The format can be tailored to the particular issues contested, the size of the witness pool and the nature of the evidence to be presented. In some matters, witness conferencing occurs alongside counsel’s
Arbitration
CHECKLISTS
This Checklist
This checklist reviews the procedural and related issues the tribunal is expected to address at a preliminary meeting in arbitration, whether the process is ad hoc or under an arbitral institution. Matters typically cover jurisdictional objections, applications for interim measures or the trial of preliminary points, setting schedules for the progress of elements of the reference, and organising how all the evidence will be exchanged and presented. Whatever the forum—ad hoc or institutional—and whichever institutional rules govern, the tribunal will usually convene a preliminary meeting soon after it is formed. The parties themselves (rather than their advisers) are generally not obliged to attend this session, although it is advantageous if they do, as they will meet the tribunal and confront the opposing team at an early juncture. In international cases, it may also be one of the few chances for everyone
Arbitration
CHECKLISTS
This Checklist
This Checklist outlines the key matters to weigh before consenting to or starting witness conferencing (often called ‘hot‑tubbing’) in arbitration:
How much notice have you received? To secure a fair chance to present its case, counsel should fully agree core rules for witness conferencing with the arbitral tribunal well before the hearing. Tribunals may sometimes propose witness conferencing after the hearing has begun, and parties can feel under pressure to accept at that late point in proceedings...
Arbitration
10 Contributions by WilmerHale Experts
PRACTICE NOTES
This Practice Note
This Practice Note outlines the narrow bases on which a party to international arbitration may seek the correction, review or interpretation of an award from either the arbitral tribunal or the administering institution, under institutional rules including:
International Court of Arbitration of the International Chamber of Commerce (ICC)
London Court of International Arbitration (LCIA)
Hong Kong International Arbitration Centre (HKIAC)
Singapore International Arbitration Centre (SIAC)
Dubai International Arbitration Centre (DIAC)
International Centre for Dispute Resolution (ICDR)
United Nations Commission on International Trade Law (UNCITRAL) arbitration rules
It also considers whether, under these frameworks, parties may challenge or appeal arbitral awards before tribunals or institutions, where applicable, and concludes that such avenues are generally unavailable within the institutional process and must instead be pursued before the courts at the seat of
Arbitration
PRACTICE NOTES
This Practice Note explains how arbitration costs are to be set in proceedings under the PCA Arbitration Rules 2012 (with Optional Protocols adopted in 2024) (PCA Rules), and addresses the following:
the assessment of arbitrators’ fees and expenses
the allocation of the parties’ legal costs
how and when deposits towards the costs of the arbitration are to be paid
Definition of costs
PCA Rules, art 40 deals with the costs of the arbitration. It broadly mirrors the corresponding provision in the UNCITRAL Arbitration Rules (UNCITRAL Rules), but PCA Rules, art 40(2)(f) also captures the 'fees and expenses of the International Bureau' within the meaning of 'costs'. Under PCA Rules, art 40(1), the tribunal will fix the costs of the arbitration in the final award or, where it considers it appropriate, in a separate decision. PCA Rules, art 40(2) then sets out an exhaustive list of the possible fees and
Arbitration
PRACTICE NOTES
This Practice Note explains how a tribunal reaches a decision or award under the PCA Arbitration Rules 2012 (with Optional Protocols adopted in 2024) (the PCA Rules). It summarises provisions concerning:
the form and effect of the award,
applicable law or amiable compositeur,
settlement or termination of proceedings in circumstances other than the issue of an award.
It also outlines how a party may apply for interpretation or correction of an award, and how a party may seek an additional award.
Decisions
PCA Rules, art 33(1) states that, where there is more than one arbitrator, awards or decisions are made by a majority. Under PCA Rules, art 33(2), on procedural matters the presiding arbitrator may decide alone if there is no majority, or if the tribunal so authorises, with that decision remaining subject to revision by the tribunal. This mirrors the UNCITRAL
Arbitration
PRACTICE NOTES
Appointing authority
This Practice Note outlines the automatic designation of the Secretary-General of the Permanent Court of Arbitration (PCA) as the appointing authority under the PCA Arbitration Rules 2012 (the PCA Rules), the specific manner in which a tribunal is formed under the PCA Rules, and the procedures for both challenging and replacing arbitrators. It further addresses the exclusion of liability for the tribunal and any persons it appoints. Under PCA Rules, art 6(1), the Secretary-General of the PCA is designated to act as appointing authority under the PCA Rules. The appointing authority’s central and primary function is to facilitate the constitution of an appropriate tribunal, by resolving difficulties that occur in putting the tribunal in place, for example when the parties fail to agree on a nominee for a sole or presiding arbitrator. In that capacity, the PCA
Arbitration
PRACTICE NOTES
This Practice Note explains how proceedings are run under the PCA Arbitration Rules 2012 (including the Optional Protocols adopted in 2024) (the PCA Rules). It identifies the core provisions governing the presentation of parties’ submissions and evidence, the handling of jurisdictional challenges and requests for interim measures, the conduct of hearings, and the steps for closing the proceedings...
General provisions
Under PCA Rules, art 17, the general framework for the conduct of arbitral proceedings is prescribed, mirroring to a large extent art 17 of the UNCITRAL Arbitration Rules (UNCITRAL Rules). Article 17(1) of the PCA Rules authorises the tribunal to manage the arbitration as it considers suitable, provided the parties are treated equally and each is afforded a reasonable chance to present its case. The same provision further requires the tribunal to run the case so as to prevent unnecessary delay and cost, and to secure a fair and
Arbitration
PRACTICE NOTES
This Practice Note explores the role of the Permanent Court of Arbitration (PCA) as an appointing authority and, by default, as a designating authority in international arbitration, as well as its other administrative functions, including registry support, in cases not conducted under the institution’s own arbitration rules. For guidance on arbitration proceedings pursuant to the PCA Arbitration Rules, see: PCA arbitration-overview.
History of the PCA and its institutions
Before examining the PCA’s present, practical contribution to resolving international disputes, it is useful to consider aspects of its background.
The PCA originated in the late 1880s, a turbulent period marked by mounting international frictions and advances in weaponry, when recourse to armed force was widely regarded as the principal method for states to pursue objectives and settle disputes (S Rosenne, The Hague Peace Conferences of 1899 and 1907 and International
Arbitration
PRACTICE NOTES
What is the PCA?
The Permanent Court of Arbitration (PCA) is the oldest intergovernmental organisation devoted to enabling the peaceful settlement of international disputes. Based in The Hague, it was created by the 1899 Convention for the Pacific Settlement of International Disputes, signed at the close of the first Hague Peace Conference in 1899. Initially centred on state‑to‑state arbitration, the PCA now administers and offers related services for matters involving states, state‑controlled entities, intergovernmental organisations and private parties...
The PCA Arbitration Rules
In December 2012, the PCA issued its Arbitration Rules (the PCA Rules). These Rules superseded and replaced four earlier PCA rule sets:
1992 Optional Rules for Arbitrating Disputes between Two States (PCA State/State Rules)
1993 Optional Rules for Arbitrating Disputes between Two Parties of Which Only One is a State (PCA
Arbitration
PRACTICE NOTES
An introduction to the SIAC Investment Arbitration Rules (2017)
From 1 January 2017, the Singapore International Arbitration Centre (SIAC) Investment Arbitration Rules (SIAC IA Rules) took effect, applying—where agreed—to investment arbitrations begun on or after that date. Although tailored for disputes involving states, state-controlled entities or intergovernmental organisations, the SIAC IA Rules draw on features of SIAC’s international commercial arbitration rules to make investment proceedings more straightforward and efficient. They seek to respond to common user concerns, notably the belief that cases last too long and that the process can lack openness. The SIAC IA Rules also introduce several novel provisions tackling current themes, including third-party funding and emergency interim relief. These Rules emerged from a wide public consultation launched on 1 February 2016, when SIAC circulated a draft of the SIAC IA Rules for feedback—see News Analysis: Draft SIAC Investment
Arbitration
PRECEDENTS
Between : [ Insert name of CLAIMANT ] Claimant - and - [ Insert name of RESPONDENT ] Respondent
Claimant’s proposed agenda and submissions for preliminary meeting to be held on [ insert date ]
1 Before this preliminary hearing, the parties have endeavoured, through correspondence, to reach agreement on diverse procedural issues. [ Refer to any key correspondence copied to the tribunal on these matters...
Arbitration
PRECEDENTS
Following duly received submissions from representatives of the [ Claimant OR Claimants ] and the [ Respondent OR Respondents ] (the Parties) at the preliminary meeting on [ date ], the Tribunal directs as follows:
1 Applicable arbitration rules
1.1 The arbitration will be conducted under [ insert applicable arbitration rules ] as in effect on [ insert date ].
1.2 The Parties and the Tribunal may consult the IBA Rules on the Taking of Evidence in International Arbitration (the IBA Rules) for guidance; they are not binding, and the Tribunal retains discretion at all times over the procedural management of the arbitration.
1.3 [ [ Where appropriate, include a statement on the law governing the substantive dispute and/or the arbitration ]. ]
2 Seat and language of the arbitration
2.1 The juridical seat of the arbitration is [ insert place ].
Arbitration
If you expected to see yourself on this page, click here.
