Previously we saw the steps that you will take under a commercial arbitration. Having a roadmap can give you a perspective of what lies ahead so you can plan accordingly, and preparation in Arbitration is a key component, planning ahead will do wonders.
Well, let’s get back to business. So you received the request for arbitration, and with that what you have to do first, is not to panic, and avoid an attitude of not answering, I have seen lawyers not acquainted with arbitration, that one of the first strategies given to clients is to do nothing and not answer the request for arbitration.
Believe me, it will harm the case of your client, avoid such path.
So, in order to give a proper answer, you first need to locate if the type of arbitration is institutional or ad hoc, if it is institutional go directly to the rules agreed by the parties so you can establish a time-frame for the answer. T minus 30 days is a possible time for your answer. But sometimes clients take longer to decide what to do with the request for arbitration and to find a lawyer who is keen to the dispute and to the arbitration process.
The days that you may have are not that many, so plan accordingly in your answer, with that the best advice is not to overwork an answer, as said before, you will have time for that. So if you feel that you are against the ropes, review the arbitral rules and ask for an extension, it is possible to do it and most of the times it is granted.
The attitudes that you can take on your answer are the following: neglect the actual claims directed at your client, whether you agree or not that there is an actual dispute, to accept or neglect the existence of an arbitration agreement, and to agree or not with the appointment of a sole arbitrator or to appoint your arbitrator at that stage or on a later stage, and finally to counter claim.
The structure to be implemented for your answer to the request of arbitration is the same as to the request of arbitration, you can find it here.
As you discovered with the answer and the request for arbitration, there will be the need for you to appoint an arbitrator, if it is a sole arbitrator you will need to agree with your counter party on this issue, and if you don’t agree, then it will be up to the judge by the request of one of the parties under an ad hoc arbitration, and if it is institutional arbitration this will be done by the Institution who administers the arbitration.
However, if it is a three member tribunal, then you are free to appoint your arbitrator, with this, you will need to make a conscious choice, you will perform what is called in the industry as a beauty pageant or beauty contest, meaning that you will have interviews with possible arbitrators in order to be appointed to the dispute at hand.