FREQUENTLY ASKED QUESTIONS
WE HAVE INCLUDED ANSWERS TO THE QUESTIONS YOU MOST LIKELY HAVE BELOW. IF YOU HAVE ADDITIONAL QUESTIONS, WE ARE AVAILABLE AT INFO@DELOSDR.ORG.
Q1.1. What is Delos?
Delos is an international arbitration institution. It helps to reduce risk for businesses globally by promoting time and cost efficiency in the resolution of their disputes. Delos is independent and provides an award-winning innovative approach to commercial dispute resolution, which combines quality with flexibility.
Q1.2. What is Delos not?
Delos is not a low-cost arbitration institution: the greater efficiency offered by Delos supports the quality of the dispute resolution process.
Delos is not a tech solution: Delos improves efficiency by realigning interests and taking a holistic view of arbitration as a dispute resolution mechanism.
Delos is not a State-sponsored arbitration institution, or one set up by a chamber of commerce: it is a private initiative, supported by the international arbitration community.
Finally, Delos is not tied to any given jurisdiction: it serves internationally from its base (in Paris), as do other arbitral institutions.
Q1.3. What hashtags are associated with Delos, and what do they mean?
#ActivatingArbitration >> This translates Delos’s core mission to promote time and cost efficiency in international arbitration.
#AllOfYourHearingServicesNeeds #LONDAP >> This refers to Delos's integrated offering of hearing services, which caters internationally for fully virtual hearings, conventional in-person hearings in Paris, and combinations of the two. LONDAP refers to Delos's plans to set up a hearing centre in London, under the name of 'London Delos Arbitration Point'.
#DelosGAP #mindtheGAP #safeseats >> These refer to Delos’s peer-reviewed practitioner Guide to Arbitration Places (GAP), and Delos’s emphasis on choosing safe seats in arbitration agreements.
#DelosY >> This refers to the platform established by Delos to engage with the younger members of the arbitration community.
#ROAP >> This refers to Delos’s innovative Remote Oral Advocacy Programme, which provides advanced training in oral advocacy.
Q2.1. Why was Delos created?
Delos was created in 2014 as a response to the concerns of users (both small and large companies) and practitioners with the time and cost involved in pursuing an arbitration.
The founders first considered whether there existed suitable solutions they could recommend, and eventually concluded that the most effective solution would be to design a new institution.
See, further, Q3.3 and Q3.4 below for why Delos is innovative and the distinctive features of Delos arbitration. In particular, Delos has considered efficiency for all size disputes, rather than address efficiency by way of exception through expedited rules for lower-value disputes only.
Q2.2. When was Delos created?
Delos was established in January 2014, after a year of research and design.
Q2.3. Why the name ‘Delos’?
The name ‘Delos’ is a historical reference to the neutral island of Delos that served as the dispute resolution forum for the Athenian league. This is one of the oldest recorded arbitration systems.
The full name of the arbitration institution is ‘Delos Dispute Resolution’, as a reminder of the function of an arbitration institution, namely, to support the resolution of disputes.
Q3.1. Who is involved in Delos? / Who is behind Delos?
Delos was established by arbitration practitioners. It is advised by leading figures of the arbitration community, who form its Board of Advisors.
Delos is run by a full-time President and his team, and supported by several independent committees. These members of Delos are all arbitration practitioners. Information about them is available here.
Q3.2. Is Delos for profit or non-profit?
Delos is a non-profit. Delos has been established as a French law association (loi 1901) for the purposes of administering disputes. By its nature as an association, Delos can record profits (given that it is not a charity), but the same cannot be distributed as there are no shareholders.
Outside of the administration of disputes, Delos may in time set up one or more corporate entities, on the example of other well-established arbitration institutions (see, e.g., here).
Q3.3. How is Delos innovative?
Delos is innovative in three different respects:
1. Delos has considered efficiency for all size disputes, rather than address efficiency by way of exception through expedited rules for lower-value disputes only.
2. Delos has considered arbitration as a dispute resolution mechanism as a whole ((a) contract formation stage, pre-arbitration phase, initial claim documents, constitution of the tribunal, conduct of the proceedings, costs of the arbitration, encouraging settlement, compliance with awards; (b) incentives/disincentives of all stakeholders), rather than focus only on discrete stages / procedural matters, typically limited to the conduct of arbitration proceedings once a tribunal has been constituted.
3. Delos makes international arbitration genuinely accessible for smaller-value disputes and for SMEs and start-ups.
Q3.4. What are the distinctive features of Delos arbitration?
Please refer to the short commentary on the Delos Rules of Arbitration available here, which is developed in the article by Hafez Virjee entitled Activating Arbitration. See also the following summary slide:
Q3.5. Does Delos have an ethics committee?
The Delos Board of Advisors notably acts as an ethics committee.
Q4.1. What is Delos’s positioning?
Delos is available to administer disputes irrespective of their size.
Q4.2. Is Delos appropriate only for sole arbitrator cases?
No. Delos arbitration is suitable for three-member tribunals as well.
Q4.3. Can Delos ‘work’ for complex cases?
Yes. In designing Delos, specific attention was given to its suitability for complex cases, such as in construction disputes.
Q5.1. How many cases have you administered? How can you explain this?
Delos's first two cases involved, for one, a tech dispute between two European companies (see more here) and, for the other, "a major management and technology consulting firm [...] in proceedings against an African state entity over the performance of a contract to implement new management software in a hospital" (see more here).
Delos expects to administer many more cases in the upcoming years. This time difference is the result of:
(i) the time involved for practitioners and in-house counsel to become familiar with and adopt a new arbitration system;
(ii) the time involved for the number of contracts containing a Delos arbitration clause to grow, potentially give rise to a dispute, and for such disputes potentially to give rise to arbitrations; and
(iii) in light of the efficiency of Delos arbitration and emphasis on early case preparation, parties are likelier to be able to settle their disputes upfront, prior to initiating action.
Q5.2. Is Delos recognised?
Bearing in mind the absence of a certifying body for arbitration institutions, Delos is a recognised arbitration institution, which can be seen at two levels:
(i) Delos is strongly supported by the arbitration community, as may be seen from:
- the members of its Board of Advisors and team and committees; the 60+ leading, reputed law firms that are involved in the Delos Guide to Arbitration Places (GAP), and the 60+ strong group of experienced reviewers involved in reviewing the chapters of this publication; and the leading faculty members involved in Delos's Remote Oral Advocacy Programme (ROAP).
- Delos receiving the 2018 GAR Award for Innovation for its Rules of Arbitration. This is a peer-recognition based honour, underlining the support of the global arbitration community. In 2019, the GAP was nominated for the GAR Award for Innovation (here); in 2020 Delos was nominated for a special GAR Pandemic Response Award (here); in 2021, ROAP was nominated for the GAR Award for Innovation (here); and in 2022, Delos's Rules of Arbitration were nominated once again for the GAR Award for Innovation following the introduction in November 2021 of the novel 'Compliance Reinforcement Mechanism' (here); and
- the speakers at its events, notably its webinars.
(ii) The continuing increase of contracts containing a Delos arbitration clause.
Q6.1. What is a seat of arbitration?
A seat of arbitration is a location, usually a city, chosen by the parties to a contract to serve as the legal place for their arbitration. This legal place in turn determines the legal framework that will apply in case of arbitration.
Q6.2. What is a ‘Delos safe seat’? / Why does Delos emphasise the use of ‘safe seats’?
The choice of a ‘safe seat’ helps ensure that an arbitration can be run efficiently. In more detail, Delos defines a ‘safe seat’ as “one where the legal framework and practice of the courts support recourse to arbitration as a fair, just and cost-effective binding dispute resolution mechanism,” as opposed to one “that materially increases the cost of arbitrating disputes in that place”. This cost can be borne by the parties directly or indirectly because of the need for arbitrators to temper their efficiency with “due process conservatism and inefficient adjustments”, hence Delos’s focus on ‘safe seats’. (See, further, part 2 of the article by Hafez Virjee entitled Activating Arbitration.)
Delos's Guide to Arbitration Places (GAP) allows users and counsel to take their own view of potential seats of arbitration, notably through its combined traffic lights table. Section 2 of the GAP's Overview & Methodology chapter further provides a list of safe seats according to the analysis in the GAP (see here).
Q6.3. Which are the Delos safe seats?
See section 2 of the Delos Guide to Arbitration Places (GAP)'s Overview & Methodology chapter (see here).
Q6.4. How was the list of Delos safe seats put together?
The list of Delos safe seats is based on the Delos Guide to Arbitration Places (GAP). In the GAP, jurisdictions were assessed on the basis of ten criteria and sub-criteria (available here). Only those jurisdictions that received green traffic lights across all criteria were included in the Delos list, after taking into account their track record and history as seats of arbitration. The traffic lights were assessed by the GAP working group, which is independent of Delos. A table consolidating the traffic lights across all GAP jurisdictions is available here.
Please note that there may be jurisdictions that would qualify as a safe seat for which no chapter is presently available in the GAP and which are therefore not yet included as part of the list of Delos safe seats. The list of Delos safe seats is reviewed and updated on an annual basis, taking into account new GAP chapters.
Q6.5. What happens if I choose a seat of arbitration that is not in the Delos list of safe seats?
Delos will administer your case notwithstanding. Delos will take into account your choice of seat in fixing the arbitration costs (see Article 14.2 of the Delos Rules of Arbitration) and setting the Delos Time Notice (Article 14.4 of the Delos Rules of Arbitration).
Q6.6. What happens if my contract does not indicate a seat of arbitration?
According to Article 8 of the Delos Rules of Arbitration, "If the parties have not agreed a seat of arbitration, DELOS shall determine the same having regard to all of the circumstances of the case."
Q7.1. Who administers Delos cases?
Q7.2. If Delos team members are volunteers with day jobs, how do you ensure the independence and impartiality of Delos in the administration of cases?
The President of Delos and certain members of the Delos Arbitration Consultative Committee are fully independent, and Delos has full-time paid staff as well.
Q7.3. As Delos is Paris-based, does Delos administer cases outside of Paris?
Yes, in the same manner as other international arbitration institutions administer cases seated elsewhere than at the location of their offices.
Q7.4. What happens if I choose a language for the arbitration that is not one of the languages in which the Delos Rules are translated?
Delos will find a solution with the parties and the tribunal in order to administer your dispute regardless of the language of the arbitration chosen by the parties in their arbitration agreement.
Q7.5. How do I calculate the costs of Delos arbitration?
The costs of the arbitration cover Delos’s costs to administer the dispute and the fees and expenses of the arbitrators. These are based on the value of the dispute. This is the sum of the value of the claims and counterclaims. Where a claim has not yet been quantified or only partly been quantified, Delos will attempt to determine a monetary value for the full claim. Where a claim and counterclaim are two sides of the exact same issue, as may happen for example in construction disputes, Delos will take the larger of the two claim amounts rather than count both the claim and the counterclaim.
Once the value of the dispute has been determined, Delos determines the arbitration costs based on its Time and Costs Schedule (available here), taking into account as well the complexity of the dispute and the seat of the arbitration (Article 14.2 of the Delos Rules of Arbitration). The costs indicated in the schedule cover both Delos’s costs to administer the dispute and the fees and expenses of the arbitrators (see, further, Q8.5 below). The costs of the arbitration can be estimated using Delos's costs calculator.
For a straightforward simple dispute with a sole arbitrator, the costs of the arbitration will be close or equal to the floor amount; for a highly complex dispute, the costs of the arbitration will be close to the ceiling amount; for a dispute of average complexity, the costs of the arbitration will likely be around midway between the floor and the ceiling amounts. For a case with a three-member tribunal, the costs may be up to double (see Appendix 7, paragraph 2, of the Delos Rules of Arbitration).
Please note that, “[a]t any stage prior to the issuance of the final Award, DELOS may adjust the arbitration costs to take into account (i) any significant change in the claims of the parties, the complexity of the dispute, the anticipated time and expenses incurred by the Tribunal and/or the conduct of the arbitration, and/or (ii) the termination of the arbitration, including by processing reimbursements to the parties in proportion of their respective payments.” (Article 14.7 of the Delos Rules of Arbitration).
Finally, for information on how the costs of Delos arbitration compare with those of other institutions, see Q9.4 below.
Q7.6. What is the “indicative time” in the Time and Costs Schedule?
It is the amount of time that Delos is likely to grant to a tribunal from the date on which the tribunal is formed – or from the date when an award is rendered – to submit a draft award (be it interim, partial or final) to Delos for scrutiny. This duration varies according to the value of the dispute, as set out in the Time and Costs Schedule. (See further, on determining the value of a dispute, Q7.5 above.)
This feature, applicable to all size disputes, is specific to Delos. Other institutions only apply this technique as part of their expedited rules, meaning that they only address efficiency by way of exception for lower-value disputes.
Q7.7. How long does a Delos arbitration take?
The duration of a Delos arbitration is the sum of:
(i) the time involved for the Notice of Defence from commencement of the arbitration. The time-limit for the Notice of Defence starts running from the first business day at the residence or place of business of Respondent following the date of commencement of the arbitration and (deemed) receipt by Respondent of the Notice of Arbitration and of the Filing Fee payment proof, whichever is latest (see Article 4.1 of the Delos Rules of Arbitration) and, as such, is largely within claimant’s control. The time-limit for respondent to submit its Notice of Defence varies between 14 and 30 days, depending on the value of the dispute (see Article 4.1 of the Delos Rules of Arbitration);
(ii) the time involved for the formation of the tribunal, in accordance with Article 11 of the Delos Rules of Arbitration. By default, parties have 7 days following the due date for respondent’s Notice of Defence to nominate the sole arbitrator or their co-arbitrators, i.e., between three and five weeks from the start of the dispute;
(iii) the time involved for the conduct of the proceedings and submission, by the tribunal, of its draft award to Delos for scrutiny, in line with the indicative time provided in the Time and Costs Schedule (available here);
(iv) the time involved in the award scrutiny process through to issuance of the award to the parties; and
(v) to the extent that said award was not a final award, there is in addition the time involved for further stages of the arbitration through to the issuance of a final award, with each stage being based on the same indicative time as the first stage.
All in all, the average duration of a Delos arbitration if it is conducted within a single phase concluding with a final award would be of about 3-5 months for disputes in a EUR 0-200,000 value range, 6-10 months for disputes in a EUR 200,000 to EUR 40 million value range, and 11-12 months for disputes greater than EUR 40 million. Delos’s first arbitration, which fell within the smaller disputes category, lasted just over 3 months from start to finish (see here).
Q7.8. How does Delos monitor/administer arbitrations?
Delos is proactively involved at every stage of an arbitration (including the initial stages, formation of tribunal, payment of the costs of the arbitration, during the course of the arbitration, scrutiny of the award) to ensure that the arbitration proceeds as smoothly and efficiently as possible through to its conclusion.
The above includes ensuring the proper application of the Delos Rules of Arbitration, liaising with the parties and tribunals, reviewing communications and pleadings, and assisting parties and tribunals with overcoming procedural obstacles.
Q7.9. Does Delos have an online case management platform? What is Delos’s approach to ‘green arbitration’?
Delos strongly encourages tribunals and parties to conduct ‘green’ proceedings, to the extent appropriate in the circumstances of the case. In a ‘green’ arbitration, all exchanges are made electronically only (i.e., no paper filings).
If the tribunal and parties can agree on the use of a suitable and secure cloud storage facility, this can help to simplify matters further, as all of the documents on the record of the proceeding are centrally stored and accessible to all. This is also beneficial for filings, as it limits the need to send multiple e-mails with large attachments: it is enough for a party to e-mail the tribunal, other party(-ies) and Delos to confirm that their submission and all supporting and/or related documentation has been uploaded onto the joint storage space.
Delos does not at present offer such a storage space or online case management system for use by the parties, but plans on doing so in due course.
Finally, in considering the efficiency of an arbitrator for the purposes of determining his/her fees (see Q8.5 below), Delos will take account of the extent to which the proceeding was conducted electronically in the circumstances of the case.
Q8.1. Does Delos have a panel of arbitrators?
Delos does not maintain a list or panel of arbitrators. This ensures that Delos retains full flexibility to designate the best-suited arbitrators for a given dispute.
In this regard, Delos has very extensive networks within the arbitration community and beyond, and therefore access to an extremely large pool of potential arbitrators. A number of these have also registered in the Delos arbitrator database and made their profiles publicly accessible.
To indicate your interest to serve as an arbitrator in Delos arbitrations: (i) register here as a free member of Delos; then (ii) from the drop-down menu, select 'Arbitrator Profile' and edit and update your profile at your convenience (if you are already logged in as a member, click here to go straight to your arbitrator profile page). You can opt in to make your profile publicly accessible and searchable in the Delos arbitrator database (by default, only Delos will see your profile).
Q8.2. How are arbitrators selected?
Q8.3. How does Delos ensure that arbitrators are independent and impartial?
Arbitrators nominated for a case must sign a statement of independence and impartiality and “disclose in writing any circumstances that may, in the mind of any party, give rise to justifiable doubts as to [that nominee’s] independence or impartiality” (Article 11.6 of the Delos Rules of Arbitration). Upon receipt of these statements, parties have a 14-day time-limit within which they can raise any objections, and Delos will decide on any objection.
Once a tribunal has been constituted, its members remain under a continuing duty of disclosure and the parties can also raise objections in case of concern over an arbitrator’s independence and/or impartiality (Articles 11.9 and 11.10 of the Delos Rules of Arbitration).
Q8.4. How does Delos ensure the availability of appointed arbitrators?
Before appointing an arbitrator or confirming the appointment of an arbitrator nominated by the parties, Delos will ask him or her to confirm that they have the availability, within the indicative time-limit (see Q7.6 above), to conduct all or part of an arbitration, hold a hearing and prepare a draft award. If they don’t have such availability, Delos will ask the parties to nominate another arbitrator, or Delos will itself nominate another arbitrator.
Delos thus requests arbitrators to take position on the basis of objective deliverables, whereas other arbitration institutions are largely limited to accepting the subjective view of the potential arbitrator. This is because the indicative time-limit feature is specific to Delos; other institutions only apply this technique as part of their expedited rules (if any), meaning that they only address efficiency by way of exception for lower-value disputes.
Q8.5. Does Delos arbitration involve any financial incentives / disincentives for arbitrators?
Yes. Unlike the fee schedules of other institutions, Delos’s Time and Costs Schedules do not differentiate between the share of the institution to administer the dispute, and the share of the arbitrators for their fees and expenses. This is because, in a Delos arbitration, the final split will depend on the efficiency of the arbitrator in the circumstances and on how much Delos has had to get involved due to a lack of efficiency of the arbitrator.
Q8.6. What guidance does Delos provide arbitrators as to the conduct of a Delos arbitration?
Q8.7. Is it possible to have a three-member Tribunal for a Delos arbitration?
Q8.8. If the Tribunal is composed of three members rather than a sole arbitrator, does this impact the indicative time in the Delos Time and Cost Schedules?
No. See, further, Appendix 7 to the Delos Rules of Arbitration (available here).
Q9.1. How is Delos different from other arbitration institutions?
Delos is different to other arbitration institutions in three key respects:
1. It was founded to respond to a need – see Q2.1 above.
2. It is innovative – see Q3.3 above.
3. It is international – see Q1.2 above for more on what Delos is not.
Q9.2. Most arbitration institutions now offer time and cost-effective expedited procedures. Why should I choose Delos arbitration over such procedures?
Unlike other institutions, Delos does not address efficiency by way of exception for smaller claims. See, further, Q9.1 and Q3.3 above, and Hafez Virjee's article A Circle For A Triangle – Geometry In Aid Of Efficiency In International Arbitration.
Q9.3. It is said that time, cost and quality form the three corners of a triangle: parties can state their priorities by placing a dot within this triangle, but by doing so, they can necessarily only choose two out of the three potential priorities. If Delos is focusing on efficiency, does that mean that it compromises on quality?
No. The triangle is a misleading representation of how these questions balance out both at a systemic level and at an individual case level. Find out more in the article by Hafez Virjee entitled A Circle for a Triangle – Geometry in Aid of Efficiency in International Arbitration.
Q9.4. How do the costs of Delos arbitration compare with those of other institutions?
Bearing in mind that approximately 80% of the costs incurred by parties in an arbitration are their own costs (e.g. legal fees, expert fees, etc.), the arbitrations costs at Delos are lower than at other arbitral institutions, as shown by the charts below.
As further suggested by the charts, the Delos arbitration costs in larger cases are higher than at other institutions as a premium for speed, in order to compensate arbitrators for the additional work involved in handling Delos cases within the imparted time and their reduced availability to take on multiple matters.
The analysis has been performed on the basis of the most recent fee schedules available as of 1 November 2021 for the following leading arbitration institutions: Hong Kong International Arbitration Centre (HKIAC), the International Court of Arbitration of the International Chamber of Commerce (ICC), the Singapore International Arbitration Centre (SIAC) and the Swiss Arbitration Centre (Swiss). Like Delos, these institutions all apply an ad valorem fee schedule (save that the HKIAC also offers the possibility for an hourly rate approach).
Applicable currencies have all been converted into USD on the basis of the average yearly exchange rate between 1 January 2016 and 31 December 2020. For the ICC, its fee schedule for expedited proceedings was used for amounts in dispute up to USD 3m, on the basis that this is lower than the ICC’s ordinary fee schedule.
Q10.1. What is the contract registration feature?
Delos offers parties the opportunity to register their contracts containing a Delos arbitration clause.
Q10.2. What are the benefits of contract registration?
Q10.3. Is contract registration mandatory?
Q10.4. Is there a cost to registering a contract with Delos?
The registration of contracts with Delos is free.
Q10.5. How do I go about registering my contract?
Contract registration can be done by e-mailing your contract to firstname.lastname@example.org. This does not need to be a formal communication. Some parties simply copy Delos when exchanging the final signed copy of the contract. Delos will respond with a contract registration number (“CRN”).
Q10.6. What is a CRN?
The ‘CRN’ stands for ‘contract registration number’. This is the unique identifying number provided by Delos to parties that register their contracts with Delos.
Q10.7. How does Delos ensure the confidentiality of registered contracts?
Contracts registered with Delos are stored securely with very limited rights of access.
Q10.8. By registering a contract, does Delos confirm that the arbitration clause is valid?
No. In this respect, the e-mail confirming registration of a contract with Delos states as follows: “Please note that this e-mail and our registration of the above-referred contract do not constitute evidence or otherwise establish the existence, validity or effectiveness of the registered document as a contract between the parties.”
Q10.9. Is there a set time limit within which a contract must be registered to take the benefit of the reduced fee schedule?
No. However, if the parties want to take the benefit of a reduction on the arbitration costs, they must send their contract to Delos for registration within six months of its signature.
Q11.1. How can I have confidence that Delos will still be around in 10 years’ time?
For three reasons:
1. developing an arbitration institution is a long-term endeavour, to which the members of Delos are committed;
2. Delos has been in existence since early 2014; and
3. Delos provides integrated hearing services and is in the process of establishing a modern hearing services centre, which will contribute to its long-term sustainability.
Q11.2. Will Delos be made available in more languages?
Yes! Delos is currently available in English, French, Portuguese and Spanish. Further languages will be added in due course.