A RESPONSIVE AND DYNAMIC INSTITUTION

DELOS COMBINES QUALITY AND FLEXIBILITY WITH TIME AND COST EFFICIENCY TO HELP REDUCE RISK FOR BUSINESSES GLOBALLY

PROCEDURE

Initial steps _ Constitution of the Tribunal _ Arbitration costs and the DELOS Time Notice _ The proceedings _ The Award

Initial steps

A Delos arbitration starts when the party(-ies) making a claim (the "claimant") delivers a Notice of Arbitration to the party(ies) who will be responding to the claim (the "respondent") and to Delos, and pays the filing fee. This step is described more fully here and will typically come after a period of unsuccessful discussions to settle the dispute (see our model clauses for pre-arbitration negotiations).

The respondent then has about 7 days to submit any Notice of Defence and to raise any counterclaims (a model document is available here). A counterclaim is a claim raised by the respondent against the claimant. In case of counterclaims, the claimant has about 7 days to submit any Notice of Response to Counterclaim (a model document is available here).

Constitution of the Tribunal

The parties can nominate the arbitrator(s) who will decide their dispute. The number of arbitrators will usually have been provided in the arbitration clause (see the Delos model arbitration clause and the notes that follow it). For smaller disputes, this will typically be a sole arbitrator, while a three-member tribunal may be more appropriate for cases of particularly high value or complexity.

The parties must inform Delos of their arbitrator nominations within about 10 days from the start of the arbitration. If they fail to do so, Delos will nominate the Tribunal. This step is more fully described at Article 6 of the Delos Rules of Arbitration (the "Rules") and here.

If a party believes that a nominated arbitrator may not be independent or impartial, that party has 7 days from the date of nomination to raise its concerns and/or a formal objection. In case of a formal objection, Delos will decide the objection in accordance with the Rules. If no formal objection has been submitted within the 7 days and Delos has no reservation, the appointment of the prospective arbitrator will be confirmed. 

Once the appointment of the arbitrator(s) has been confirmed, the Tribunal is constituted and Delos will provide it with the case file to decide the dispute.

Arbitration costs and DELOS Time Notice 

Following the due date for receipt of the Notice of Defence, Delos will fix the arbitration costs (for more detail, see here). The arbitration costs cover Delos' administration costs and the Tribunal's fees and expenses.

Each party is initially required to pay half of the arbitration costs, although either party may ultimately be ordered to bear a greater proportion of the costs when the Tribunal makes its final decision about the dispute. If the respondent refuses to pay its half at the outset, Delos may ask the claimant to pay the respondent’s half so that the proceedings can continue.

Once each party has paid its share of the (instalment on the) arbitration costs, Delos shall notify the Tribunal and the parties of the time it grants to the Tribunal to submit to Delos its draft Award (the "DELOS Time Notice") (see Article 9.5 and Article 8.3 of the Rules).

The proceedings

As soon as practicable after receiving the DELOS Time Notice, the Tribunal will conduct a case management meeting to consult the parties on the procedure and provisional timetable for the arbitration (see Article 7.3 of the Rules).

The sort of questions that may be discussed at this meeting include whether any issues are uncontested or should be decided first, the extent of further written submissions for the parties to plead their case, the scope of any document production, whether a hearing is necessary, how detailed an Award the parties wish to receive and the scheduling of adequate time for deliberation and drafting of the Award (see, further, Delos Principle 1 as developed in the article Activating Arbitration). 

Importantly, if hearings in person are required (as opposed to by phone or video call), these can be held anywhere and do not need to be held at the legal place of arbitration provided in the Delos model clause (see also Delos Principle 2 as developed in the article Activating Arbitration).

In this manner, the Tribunal, with the help of the parties, can tailor the procedure and timetable to the specific needs of the case so as to ensure that it is dealt with fairly, expeditiously and at proportionate cost. 

Finally, if a party comes to believe during the arbitration that an arbitrator is no longer impartial or independent, it may object to the arbitrator continuing in the case. Such an objection should be made to Delos within 7 days (see Article 6.8 of the Rules).

The Award

Tribunals are required to set out in writing their decisions on the issues in dispute, and provide reasons for their decisions (the "Award"). Depending on the procedure adopted for the case, an Award may be interim, partial or final.  

Once the Tribunal has completed its draft Award, it sends it to Delos for review. Delos will provide any comments to the Tribunal for its consideration. The Tribunal will then finalise the Award and deliver it to Delos for Delos to provide to the parties. An Award is binding as between the parties and should be enforceable in most jurisdictions around the world.

Subsequently to the issuance of the Award, it is possible for the Tribunal to correct clerical and typographical mistakes.

Finally, in order to help the parties settle their dispute, they may request the Tribunal, at any time before the Award is issued, for a non-binding indication of its likely decision on all or part of the issues in dispute (see Article 8.7 of the Rules).

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For further information, whether in anticipation of a case, during an arbitration or following its conclusion, you can write to us at secretariat@delosdr.org. Additional information can also be found in Hafez R Virjee's article Activating Arbitration (Delos, 2017) (also available in a Spanish translation, under the title Activación de Arbitraje (Delos, 2017)).