Drafting Arbitration Clauses to Minimise Costs and Delays in ICA: An Asia-Pacific Perspective
The Australian ADR Reporter, Issue 16, July 2011, pp. 35-40
9 Pages Posted: 18 Apr 2012
Date Written: April 17, 2012
Concerns about growing delays and (especially) costs in International Commercial Arbitration (ICA) have spread from West to East, despite the boom in arbitrations in Asia or involving Asia-Pacific parties.
The International Chamber of Commerce (ICC) has produced a useful Report on managing costs and delays in ICA. Yet the ICC distinguishes itself as a 'high-quality, high-cost' arbitral venue. Other arbitral institutions and experts in ICA, especially in the Asia-Pacific region, should consider some potentially more radical approaches. This paper outlines a dozen possibilities originally proposed at an ICC Seminar held in Sydney in 2010, some of which were elaborated at the 'Chartered Institute of Arbitrators’ Asia Pacific Conference 2011 – Investment and Innovation' held in Sydney.
These include: choosing institutional arbitration and appropriate sole arbitrators, maximizing tribunal powers to issue interim measures, limiting documentation in proceedings, innovations in governing law (including UNIDROIT Principles and selective authority for arbitrators to decide cases ex aequo et bono), more use of partial awards, active facilitation of settlement (Arb-Med), time limits, agreements on costs (especially legal fees), compound interest on awards, strict confidentiality requirements, and overarching general principles for conduct of the arbitration.
Keywords: international commercial arbitration, dispute resolution, Asian law, comparative law
JEL Classification: K10, K30, K33
Suggested Citation: Suggested Citation