REUTERS | Tobias Schwarz

Thoughts on specialist arbitration: centres, rules and arbitrators

Much attention is often given to the rise of regional arbitration centres and the competition that they provide to the established arbitration centres in Europe and North America. Perhaps less is said about the relationship between the “generalist” (for want of a better word) centres, such as the International Chamber of Commerce (ICC) and the London Court of International Arbitration (LCIA), and the more specialist centres that cater to particular industries or types of disputes.

Specialisation is, of course, inevitable as certain areas of economic activity or relations are subject to specific laws and regulations and/or develop particular customs and conventions. In the arbitration context, such specialisation has manifested itself in a number of ways. As alluded to above, there are a number of specialist arbitration institutions that have been set up with the aim of facilitating arbitration (and various forms of ADR) in a particular industry. For example, the Court of Arbitration for Sport (CAS) administers sport-related arbitrations, the Chambre Arbitrale Maritime de Paris administers maritime arbitrations, and the WIPO Arbitration and Mediation Centre caters for intellectual property disputes. One of the obvious advantages of such arbitration centres is that they are likely to possess specialist expertise in administering certain types of arbitration that might not be readily available elsewhere.

However, one could also take the view that so long as the arbitrators (rather than the administering institutions) possess the necessary expertise, it might not matter much whether the dispute is proceeding in a specialist arbitration centre or in one of the major “generalist” arbitration centres, or, indeed, on an ad hoc basis. Moreover, in cases where the main issues in dispute concern legal questions of general nature, such as contract formation, no or limited specialist industry expertise is likely to be required, and to the extent there is a need for such expertise, the tribunal may rely on expert evidence.

Nevertheless, it is generally true that professional qualifications and expertise of the arbitrators are likely to be of significant importance in specialist arbitrations. In this regard, professional groupings of arbitrators practising in a particular field, such as the Society of Construction Arbitrators or the London Maritime Arbitrators Association (LMAA), are of particular value, as they act as a peer review and provide a selection mechanism helping to ensure that the arbitrators appearing on their rosters possess the necessary specialist expertise and skills. A similar idea is behind the specialist rosters maintained by some “generalist” arbitration centres, such as the recently launched Hong Kong International Arbitration Centre (HKIAC) Panel of Arbitrators for Intellectual Property.

Another sign of specialisation in arbitration is the drawing up of specialist arbitration rules adapted to the specific needs of the industry in question. Examples include the JCT Construction Industry Model Arbitration Rules (CIMAR) and the LMAA Terms (both of which are used in ad hoc arbitrations). Specialist arbitration centres, of course, also tend to have their own arbitration rules. At the same time, some of the “generalist” arbitration centres also have specialist rules, such as the American Arbitration Association (AAA) Accounting or Construction Industry Arbitration Rules.

Such bespoke rules might provide the parties with greater certainty and convenience of having a set of rules that is designed for a particular type of dispute and has proved to work well in the past. This might help save time and costs at the stage of drafting the first Procedural Order, as less tinkering with a more “generalist” set of arbitration rules might be required.

However, one might also take the view that any modern set of “generalist” institutional rules is likely to provide a sufficient degree of flexibility to accommodate any quirks that might arise in certain industries or types of dispute. Indeed, one might question whether the variations (to the extent they exist) between various sets of arbitration rules are in truth distinctions without a difference, given that all major arbitration rules are based on the same fundamental principles, such as arbitrator independence and impartiality, party autonomy and a high degree of flexibility in questions of procedure.

In short, whilst specialisation within arbitration is inevitable and, indeed, desirable, there does not appear to be any compelling reason why it cannot be accommodated within the general framework of existing “generalist” arbitration centres and rules. It might be that some form of specialist arbitrator rosters, rules and/or guidance could be introduced by such institutions, but their practical utility might still be quite limited. Parties would more likely rely on their own knowledge, or that of their specialist counsel, in nominating/appointing arbitrators, whilst for the institutions themselves it might be more efficient to cooperate with specialist arbitrators’ associations rather than maintain their own rosters.

There are, of course, powerful arguments in favour of specialist arbitration centres, which bring together and foster the development of specialist expertise, and some of which have been operating very successfully for decades. Equally, many specialist arbitrations are conducted on an ad hoc basis, such as in the maritime and commodity trading industries. And, indeed, it is that very success that could potentially pose a long-term challenge to the “generalist” centres.

The overall position, therefore, seems to be that specialist disputes can be equally well resolved through specialist or generalist arbitration centres/rules, or on an ad hoc basis. Although specialist rules and/or administrative support might represent a competitive advantage, the most important factor in ensuring that an arbitration is efficiently run and a proper award is rendered is the selection and appointment of appropriate arbitrators. In that regard, competition between specialist and generalist centres, and, indeed, between various regional centres, is probably more apparent than real. Nevertheless, to the extent that such competition can contribute to improved efficiency and efficacy of international arbitration, it should be encouraged and commended.

King & Spalding Grigori Lazarev

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