Let’s say that one good day at your office, while having a good cup of coffee, which means is like your second cup since you leave house already jacked with coffee beans running through your system racing like F1 cars all over you blood stream like in Montecarlo raceway, and all of a sudden someone knocks on your door, screaming they have released the “moot problem” or, we what a new case!

Whether as it may, you find out that there is an actual dispute between two or more parties involved into a legal relationship, and there is an arbitration clause, you are representing “Horace Fastrack”…., just kidding, well not if you are involved in the Vienna Moot, but well bear with me.

What to do when you are in front of an arbitration clause and a Request of Arbitration? Well, read carefully the arbitration clause, determine the elements of the arbitration clause, and whether or not you are before a possible valid and invalid clause, also locate the seat of the arbitration proceedings, since it will be where the judges will collaborate with the Arbitral Tribunal, and also whether there is an indication of “ad hoc” or “institutional arbitration”.

Things to look for before start writing your first request for arbitration:

  • The substantive law applicable to the contractual relation between the parties.
  • The procedural law applicable to the actual process of arbitration that will be applicable as a back up rule whether in “ad hoc” or “institutional” settings. This law can be different from the substantive law.
  • In case of institutional arbitration the rules of arbitration from such institution.

After you have done your checklist on the possible applicable laws, then you need to have a roadmap of what could occur down the road:

  1. Request of arbitration
    • Directed to the arbitral institution in case of “institutional arbitration”
      • The institution will deliver the request on your behalf, but before doing that, you have to pay an advance on the administrative fees.
    • Directed to the counter-party in case of “ad-hoc”.
  2. Answer the request to arbitration
    • You may answer but also establish possible counterclaims
      • Be wary because this will increase the amount in dispute increasing the costs of the arbitration.
  3. If there are counterclaims, expect the answer to such counterclaims
  4. Then, there is the process of the constitution of the Arbitral Tribunal
    • If there is one member both parties will agree on the appointment of the arbitrator, if there is lack of agreement, the Institution will appoint the arbitrator –in case of “institutional arbitration”–, in case of “ad hoc” will be the judge of the seat.
    • If there is a three member Arbitral Tribunal, each party will appoint their respective arbitrator, and the arbitrators appointed by each party will appoint the president of the Arbitral Tribunal
  5. Then there will be a PO1 (Procedural Order Number 1)
    • In there you will agree on a schedule, how to name the evidence, and the actual disputes between the parties
    • Also there will be the advance on costs
  6. Memorials
    • Claimant
    • Respondent
  7. Hearing phase
    • Pre-hearing conference, to make some arrangements
    • Actual hearing
  8. Post-hearing briefs
  9. Award
    • Tribunal discussions
    • Rendering of the Award

Hopefully this roadmap is helpful to jumpstart yourself in arbitration, and when you are at a Moot Problem, especially in the Willem C. Vis, you will be involved in steps six and seven, the previous elements you will see them within the brief given to the teams.

And if you are someone just starting in your first arbitration case, this might be as well helpful.


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