A RESPONSIVE AND DYNAMIC INSTITUTION
Initial steps _ Constitution of the Tribunal _ Arbitration costs and the DELOS Time Notice _ The proceedings _ The Award _ Post-Award
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 a set time-limit provided in the Delos Rules of Arbitration (the "Rules")to submit a 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 a set time-limit also provided in the Rules 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). For smaller disputes, this will typically be a sole arbitrator, while a three-member tribunal may be more appropriate for cases of high value or complexity.
The parties must inform Delos of their arbitrator nominations within a set time-limit indicated in the Rules. If they fail to do so, Delos will nominate the Tribunal. This step is more fully described at Article 11 of the Rules (see also here).
If a party believes that a nominated arbitrator may not be independent or impartial, that party has 14 days from the date of nomination to raise its concerns and/or a formal objection, and the other side then has 14 days to comment. In case of a formal objection, Delos will decide the objection in accordance with the Rules. If no formal objection has been submitted in a timely manner 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 14.4 and Article 13.3 of the Rules).
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 12.3 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 seat or legal place of arbitration (see Delos's Guide to Arbitration Places).
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 (see Article 11.10 of the Rules).
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, and to make an additional Award to decide any claim within the scope of the arbitration that was not decided in the relevant Award.
Finally, in order to help the parties settle their dispute, parties 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 13.7 of the Rules). Parties may also settle their dispute and request the Tribunal for a consent Award (see Article 13.8 of the Rules).
The resolution of a dispute is not necessarily achieved with the rendering of a final Award: a party may fail to comply with the Award, in whole or in part. Delos has introduced a 'Compliance Reinforcement Mechanism'. This allows an Award creditor to obtain the publication on Delos's website of a Compliance Failure Notice once the time-limits for all forms of recourse against the Award have expired at the seat of the arbitration. The procedure provides the possibility for the Award debtor to comment on the application, and for the parties to comment on the draft notice, and publication is not automatic but a question to be decided by Delos.