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.
#DelosGAP #mindtheGAP #safeseats > These refer to Delos’s 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.
#LongView > This refers to Delos’s efforts to take a long view of the evolution of international arbitration in order to remain nimble and not lose sight of the bigger trends as users’ needs, the legal industry and technology keep evolving.
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; (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 focuses on small and medium-sized disputes. In certain jurisdictions or industries, this might correspond to disputes in the EUR 0-10m and EUR 10m-40m range respectively; in others, Delos might target more specifically the disputes in the EUR 500,000-EUR 5m range, as filling the gap between the local domestic institutions and the large international institutions.
Q4.2. Is Delos arbitration adapted for larger cases?
Yes. Even if larger cases are not Delos’s focus at present, Delos has been designed so as to be able to administer disputes irrespective of their size. This can be seen from the cost schedule, which considers dispute amounts of EUR 200m and above.
Q4.3. Is Delos appropriate only for sole arbitrator cases?
No. Delos arbitration is suitable for three-member tribunals as well.
Q4.4. 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. What was the first Delos case about?
Q5.2. How many cases have you administered? How can you explain this?
Delos has administered one case so far. Delos expects to administer various cases in the upcoming years. This delay between the creation of the institution and the beginning of its activities 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.
Q5.3. 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:
1. Delos is strongly supported by the arbitration community, as may be seen: (i) from the members of its Board of Advisors and of its team and committees; (ii) from the list of over 50 leading, reputed law firms that are involved in the Delos Guide to Arbitration Places (GAP), and the 60+ strong group of experienced young practitioners involved in reviewing the chapters of this publication; and (iii) Delos receiving the 2018 GAR Award for Innovation. This is a peer-recognition based honour, underlining the support of the global arbitration community.
2. 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.
The Delos model arbitration clause and the Delos model agreement for submitting existing disputes to Delos arbitration provide a placeholder for parties to indicate their chosen seat of arbitration, and a list of recommended seats of arbitration to support the efficiency of any arbitration (see here).
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 recommends a number of safe seats at Schedule 1 to its Model Clauses (available here). Users and counsel can take their own view of potential seats of arbitration from the Delos Guide to Arbitration Places (GAP) (available here).
Q6.3. Which are the Delos safe seats?
See Schedule 1 to the Delos Model Clauses (available here).
Q6.4. How was the list of Delos safe seats put together?
The list of Delos safe seats is largely based on the Delos Guide to Arbitration Places (GAP) (available here). 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 the list of Delos safe seats includes jurisdictions that are not yet covered in the GAP, and which are understood to meet all of the ten criteria on the basis of their history as seats of arbitration. Conversely, 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 will be 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 would evaluate this on a case by case basis, and may exercise its discretion to apply any time and costs scale to the dispute and/or vary the dispute timetable, as necessary.
Q6.6. What happens if my contract does not indicate a seat of arbitration?
According to Article 5 of the Delos Rules of Arbitration (available here), "If the parties have not agreed a seat of arbitration, the Tribunal shall determine the same from among the seats in the then existing Schedule 1 to the DELOS Model Clauses, 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.
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 in the list of languages proposed by Delos?
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 considers the corresponding arbitration costs in its Time and Cost Schedules (available here; as to which Time and Cost Schedule would apply, this depends on whether the relevant contract was previously registered by Delos. Delos has a flexible approach to the timing for registration of a contract, as explained at Q10.9 below). The costs indicated in the schedules cover both Delos’s costs to administer the dispute and the fees and expenses of the arbitrators (see, further, Q8.5 below).
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, expressed as a percentage of the amount in dispute; for a dispute of average complexity, the costs of the arbitration will likely be around midway between the floor and the ceiling amounts. For the preceding with a three-member tribunal, the costs may be up to double (see Appendix 4, 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 9.7 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 Cost 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 Cost Schedules. (See further, on determining the value of a dispute, Q29 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 day following the date of (deemed) receipt by respondent of the Notice of arbitration and of the Filing Fee payment receipt (see Articles 3.3 and 4.1 of the Delos Rules of Arbitration) and, as such, is within claimant’s control. The time-limit for respondent to submit its Notice of Defence varies between 7 and 21 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 6 of the Delos Rules of Arbitration. By default, the parties have 3 days following the due date for respondent’s Notice of Defence to nominate the members of the tribunal;
(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 Cost Schedules (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 to 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 3-4 months for smaller disputes, 5-7 months for medium-sized disputes, and 10-12 months for larger disputes. Delos’s first arbitration, which fell within the smaller disputes category, lasted just over 3 months from start to finish (see, further, 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. Potential arbitrators can register their interest to serve in Delos arbitrations by filling out the form available here.
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.” Upon receipt of these statements, parties have a set 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.
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 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, 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?
Yes, and the Delos Rules of Arbitration cater for this possibility.
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 4 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 above.
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 other perspective on the triangle is that the distance between the dots can be reduced, and thus greater efficiency achieved without compromising on quality.
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 such a matter 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 13 April 2019 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 Swiss Chambers’ Arbitration Institution (SCAI) and the Singapore International Arbitration Centre (SIAC). 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 2015 and 12 April 2019. For the ICC, its fee schedule for expedited proceedings was used for amounts in dispute up to USD 2m, 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?
Delos strongly encourages parties to register their contracts within 60 days of signing the same. In practice, however, Delos will accept to register a contract at any time, provided that it has been communicated to Delos prior to commencing an arbitration.
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 is setting up a modern hearing and conference centre in London (see LONDAP), which will ensure 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.