Ready, Set, Arbitrate!

Starting the proceedings

A Notice or Request for Arbitration is the formal step by which a claimant begins proceedings under the applicable framework. It informs the respondent that a claim is being pursued and establishes the basic outline of the dispute.

The document’s name, required contents, recipient and effect depend on the agreed rules and applicable law. Check when arbitration is treated as commenced, how service must be effected and whether any limitation issue requires particular attention.

Do not treat the first filing as a purely administrative exercise. It connects the contract, the relevant parties, the claim and the procedure through which a tribunal will be appointed.

What belongs in a Notice of Arbitration?

• The dispute. Identify the parties, the legal relationship, the factual background and the claim clearly.
• The arbitration agreement. Identify the relevant clause, contract or other instrument establishing consent to arbitration.
• The relief sought. Explain what the claimant asks the tribunal to order, such as damages, a declaration or specific performance where available.
• The procedural framework. Identify the applicable rules and any agreed seat and language. Where something remains open, make a clear proposal rather than presenting it as agreed.
• The tribunal. Supply any nomination, appointment information or proposal required by the rules and the agreement.

Precision reduces the risk of objections and delay. A defective notice does not produce the same consequence in every arbitration, but an error in consent, parties, service or commencement can have serious implications. Check the filing requirements before submission.

Choosing the tribunal

Arbitrator selection affects the conduct, quality and efficiency of the proceedings. The appointment mechanism comes first: follow the clause and rules rather than assuming that every arbitration uses the same model.

For a three-member tribunal, parties often nominate co-arbitrators, with the chair selected through the agreed mechanism. A sole arbitrator may be chosen jointly or appointed by the relevant institution or appointing authority. Under some rules, the institution formally appoints members even where parties have nominated them.

Default procedures matter when a party does not participate or agreement cannot be reached. Institutional rules usually provide an appointment mechanism. In an ad hoc case, an agreed appointing authority or applicable statutory route can prevent deadlock.

What to consider

• Subject expertise. Does the dispute involve construction, energy, financial services or another area requiring particular experience?
• Language. Can the arbitrator work effectively in the procedural language and assess the relevant materials?
• Legal background. Would experience with the relevant common-law or civil-law framework help?
• Cultural understanding and impartiality. Can the arbitrator manage an international process fairly, independently of the nominating party?
• Availability. Does the arbitrator have time to conduct the case and deliver decisions within a workable timetable?

The strongest technical background is of limited use if the arbitrator has an unresolved conflict or cannot make time for the proceedings.

Independence, disclosure and challenges

Arbitrators must comply with the independence, impartiality and disclosure requirements of the applicable rules and law. Institutional procedures commonly require declarations before appointment and continuing disclosure of relevant circumstances.

Parties may challenge an appointment on recognised grounds, following the applicable procedure and deadlines. The IBA Guidelines on Conflicts of Interest can be a useful reference, but are not automatically binding rules of law.

Institutional arbitration supplies a designated body to handle appointments and challenges. Ad hoc arbitration gives the parties more responsibility for establishing a workable mechanism. The absence of an administering institution should not mean the absence of a procedure for resolving disagreement.

Terms of Reference and procedural planning

Terms of Reference are historically associated with ICC arbitration, including the rules in use when this primer was first published in 2025. They record core information about the dispute, including the parties, claims, relief and, where appropriate, the issues to be determined. Their purpose and requirements must be distinguished from those of a procedural order or timetable.

The ICC 2026 Rules instead organise this early stage around an initial case management conference and procedural timetable. Do not assume that an earlier Terms of Reference requirement applies to a case under the newer rules. Not every institution requires Terms of Reference, and not every arbitration uses that label. The wider task remains the same: establish a dependable framework for how the case will proceed.

Early procedural planning should address:

• The claims, counterclaims and any questions about the scope of the tribunal’s authority.
• The sequence and timing of submissions, evidence and hearings.
• Document production, witness statements and expert evidence.
• Confidentiality, information security and the handling of sensitive material.
• Any preliminary question that may warrant separate determination, such as jurisdiction.

The arbitration agreement is the foundation of consent. Terms of Reference cannot simply cure the absence of jurisdiction or replace the need to give each party a fair opportunity to present its case.

Why the early framework matters

A clear framework reduces surprises, sets expectations and helps manage time and cost. It gives the parties a reference point when disagreements arise over what has been scheduled or permitted. It can also help show that the parties had a proper opportunity to address the matters that the tribunal decides.

Use the early case-management process to identify the real needs of the dispute, rather than treating it as a formality.

What arbitration rules do

Arbitration rules set out the agreed procedural framework: starting the case, appointing the tribunal, managing submissions and evidence, holding hearings and making an award. They operate alongside the arbitration agreement, the tribunal’s procedural decisions and mandatory applicable law.

Institutional rules generally come with administration by the named institution. The UNCITRAL Arbitration Rules provide a framework commonly used in ad hoc proceedings, without themselves creating an administering institution.

Different frameworks make different choices. Some provide more detailed administration and default mechanisms; others leave more responsibility to the parties, tribunal and appointing authority. Neither institutional nor ad hoc arbitration is automatically faster or cheaper.

The core procedural elements

Appointments and early hearings

Rules provide mechanisms for selecting and challenging arbitrators, including a route when the parties cannot agree. They also give the tribunal powers to organise the case and establish a timetable, after hearing the parties’ views where required.

Submissions and evidence

The rules and procedural orders establish how claims and defences are presented, when evidence is exchanged and how further submissions may be made. The detail is often tailored to the dispute.

Confidentiality and transparency

Read the actual provisions. Some frameworks impose express confidentiality obligations. Others permit the tribunal to make confidentiality orders without creating an equivalent general duty on every party. Investment arbitration may also involve publication or transparency requirements.

A private hearing does not by itself answer whether documents or an award may be disclosed. Check the governing law, the chosen rules and any specific order or agreement.

Costs and fees

Rules and fee schedules address tribunal fees, institutional charges, advances and the allocation of costs. Some institutions use schedules linked to the amount in dispute; others use time-based charging. In ad hoc proceedings, the parties and tribunal need an appropriate fee arrangement, with any applicable review or appointing-authority mechanism.

Security for costs and the eventual allocation of costs are separate questions. Identify the relevant powers and tests instead of assuming that one fee model answers both.

When the rules matter

1. During drafting. Selecting the framework is part of designing the dispute resolution mechanism. An incomplete or incompatible reference can cause uncertainty later.
2. When a dispute arises. The rules govern notices, responses, appointments and the first procedural steps. Diarise the actual time limits.
3. When jurisdiction is challenged. Many frameworks recognise the tribunal’s power to rule on its own jurisdiction, often called Kompetenz-Kompetenz. The relationship with court review still depends on the applicable law.
4. At enforcement. A serious departure from the agreed procedure or denial of a fair opportunity to present a case can create grounds for challenge or refusal of enforcement. The applicable legal test matters; not every procedural irregularity defeats an award.

Comparing ICC, LCIA and UNCITRAL frameworks

The legal and strategic implications

Party autonomy allows significant procedural choice, but it operates within the agreement and mandatory law. Poor drafting can turn flexibility into costly ambiguity.

Institutional frameworks offer tested procedures and an administrative route through disagreement. Ad hoc arrangements can be adaptable, but the parties should plan how gaps, appointments and non-cooperation will be handled.

Procedural compliance matters because the award must survive beyond the hearing room. A clear record of notice, opportunity to respond and adherence to the agreed framework can be important when an award is challenged or enforcement is sought.

Questions for your arbitration journey

1. How do you weigh subject expertise, independence and availability when selecting an arbitrator?
2. What problems can a poorly drafted Notice of Arbitration create, and which checks would prevent them?
3. How can Terms of Reference or an early procedural order provide practical value beyond recording formalities?
4. What should happen when one party refuses to cooperate with appointments or procedural planning?