Initiating international arbitration is a rather simple process, which can be done by lawyers or even non-lawyers:
- In ad hoc arbitrations, normally, it requires only the service of a “Notice of Arbitration” to the respondent.
- In administered arbitrations, usually, it requires submission of a “Notice of Arbitration” or a “Request for Arbitration” before the competent institution along with payment of the filing fee and service of such Notice or Request to the respondent by either the institution or the party initiating international arbitration.
The date of commencement is usually the date of service to the respondent or the date of the filing to the relevant institution. Such date may be critical for the purposes of the statute of limitations.
Initiating arbitration properly will, generally, interrupt the statute of limitations and exclude the jurisdiction of State courts. State courts will, thus, normally decline jurisdiction, discontinue, or stay any identical proceedings pending before them.
The steps to initiate international arbitration are briefly described below.
1. The “Notice of Arbitration” or “Request for Arbitration”
In ad hoc arbitrations, which are usually governed by the UNCITRAL Arbitration Rules, service to the respondent is by default the only available option. In particular, Art. 3(1) of the 2010 UNCITRAL Arbitration Rules provides that “[t]he party or parties initiating recourse to arbitration […] shall communicate to the other party or parties […] a notice of arbitration.”
In administered arbitrations, the party initiating arbitration has to submit the Notice or Request to the competent body of the institution, and then, depending on the institution rules, either the party or the institution itself will transmit a copy to the respondent.
- Under Art. 4(1) of the 2017 ICC Rules “[t]he party wishing to have recourse to arbitration under the Rules shall submit its Request for arbitration […] to the Secretariat […]. ” The ICC Secretariat itself will then deliver the Request for arbitration to the respondent.
- However, under Art. 2(1) of the 2014 ICDR-AAA Rules “[t]he party initiating arbitration (“Claimant”) shall […] give written Notice of Arbitration to the Administrator and at the same time to the party against whom a claim is being made (“Respondent”).”
2. The Form of Submission
It may be sufficient for the Notice or Request to be submitted online to the relevant institution, by email, or by another means of electronic communication. However, hard copies are generally also advised.
The ICC, while it encourages electronic submission, also requires, pursuant to Art. 4(4)(a) of its rules, submission of a sufficient amount of hard copies of the Request for Arbitration. Sufficient, in this case, means as many copies as there are respondents, plus one for each of the three potential arbitrators and one for the ICC Secretariat.
3. Necessary Content of Notice or Request
The necessary content of a Notice or Request varies depending on the applicable institutional rules (if any), the national law and any express stipulations contained in the arbitration agreement.
Normally, only skeletal information is required at this initial stage including the parties’ details, the arbitration agreement, any other relevant contract between the parties, a summary of the dispute, claims and relief sought, as well as a proposal concerning the number of arbitrators, the language and the place of arbitration.
Model Requests and Notices, in PDF format, prepared by Aceris Law, can be found here.
4. Paying the Filing Fee
Major administering institutions require the party initiating arbitration to pay a non-refundable filing fee along with filing its Notice or Request. For instance, in 2020:
- The ICC filing fee amounts to USD 5,000.
- The LCIA filing fee amounts to GBP 1,750.
- The ICDR-AAA filing fee depends on the amount of the claim, ranging from USD 1,000 (for claims of less than $75,000) to more than USD 12,650 (for claims of $10,000,000 and above).
- The SCC registration fee amounts to EUR 3,000 (VAT not included) or EUR 3,750 (VAT included). Only companies with their seat in Sweden pay VAT.
- The SIAC case filing fee is set at SGD 2,000 for overseas parties and at SGD 2,140 for Singapore parties.
5. Date of Commencement of International Arbitration
Parties are free to agree on the date of commencement of the arbitration. This is expressly provided for in Art. 21 of the 2006 UNCITRAL Model Law and most national laws based on it, such as Section 14(1) of the 1966 English Arbitration Act.
However, if the parties have not explicitly agreed on such a date, as is usually the case in practice, but have agreed that their arbitration will be governed by certain arbitration rules, which usually contain provisions in terms of the date of commencement, then those provisions shall apply. The date may be highly relevant, for instance when there are issues concerning the statute of limitations.
For ad hoc arbitrations, under Art. 3(2) of the 2010 UNCITRAL Arbitration Rules “[a]rbitral proceedings shall be deemed to commence on the date on which the notice of arbitration is received by the respondent.”
For administered arbitrations, usually, the date of commencement will be the date on which the Notice or Request is received by the institution.
- Under Art. 4(2) of the 2017 ICC Rules “[t]he date on which the Request is received by the Secretariat shall, for all purposes, be deemed to be the date of the commencement of the arbitration.
- Under Art. 1.4 of the 2014 LCIA Rules “[t]he date of receipt by the Registrar of the Request shall be treated as the date upon which the arbitration has commenced for all purposes (the “Commencement Date”), subject to the LCIA’s actual receipt of the registration fee.”
- Under Art. 2(2) of the 2014 ICDR-AAA Rules “[t]he arbitration shall be deemed to commence on the date on which the Administrator receives the Notice of Arbitration.”
6. Legal Consequences of Initiating International Arbitration
First, as a general rule, the initiation of arbitration proceedings will interrupt the statute of limitations, i.e., the time period within which a particular claim must be brought before becoming time-barred and potentially worthless. The commencement of court proceedings, under most national laws, has exactly the same effect.
Second, State courts are required under Art. II(3) of the NYC to ‘refer the parties to arbitration’, i.e, to decline jurisdiction or to stay proceedings involving the same parties and the same subject matter pending before arbitration, upon finding that a valid arbitration agreement exists. The extent of their review (prima facie or full) in terms of the existence and validity of the arbitration agreement depends on the procedural law of the court in which the proceedings are pending.
Notably, the initiation of court proceedings by the party resisting arbitration does not affect the commencement and conduct of the arbitration proceedings. In other words, court proceedings and arbitration involving the same parties and the same subject matter in dispute can run parallel without affecting each other. In fact, judges and arbitrators may both even reach a final decision on the merits. This rarely happens in practice, however. Usually, courts will respect a valid arbitration agreement and refer the parties to arbitration.
 G. Born, International Arbitration: Law and Practice (2nd ed., 2015, Kluver Law International), §8.07, para. 22.
 D. Girsberger and N.Voser, International Arbitration: Comparative and Swiss Perspectives (3rd ed., 2016, Kluwer Law International), para. 863.
 Id. para. 861.