There are a lot of challenges tied to access to international arbitration. This article therefore, wishes to highlight the factors that cause these challenges, as well as present solutions on how they can be fixed.
Factors affecting access to international arbitration
Various factors affect access to international arbitration. These are;
Cost
This is a very prominent factor that affects access to arbitration, internationally. Together with legal fees which constitute the bulk of arbitration fess, there are other fees which tend to increase the total cost of arbitration. Some of these include, tribunal fees as well as institutional fees
Various reports have proven the high cost of arbitration.
Duration
The arbitrary process has been known to take an unnecessarily long time to be completed, usually under the guise of formalization or standardization. These delays usually begin at the start of the arbitral process, right from the issuance of the timetable. They are often caused by a number of factors such as; multiple long drawn-out hearings spread over several months, provisional applications, complex production of documents, just to name a few. Arbitral institutions have also been known to be nonspecific with timelines.
The role of the institutions
As the world evolves, and technology explores new dimensions, it is imperative that arbitral institutions evolve as well, to keep up to speed. Technology, in summary, makes life easier for
the average man. Therefore, arbitral institutions should seek for ways to utilize the power of technology to provide efficient and time-saving procedures for their clients.
Some of the innovative solutions suggested to this end includes: the use of expedited processes, the speedy formation of a tribunal, a ready arbitrator on ground for emergency cases, and provisions for a summarized judgments.
Although these innovative solutions have not become widely known, parties can still opt in to them, but it should be wise to note that these expedited processes are not suitable for all cases, because some cases tend to be more complex, or to have more value tied to them than the others.
Also, there is a tendency for increased costs because of the expedited process. This is because shorter doesn’t necessarily mean cheaper.
How the parties can help themselves
There are a variety of tools that parties can avail themselves to, to increase their access to international arbitration. These are:
Multi-tiered resolution clauses
This should be factored into the agreement at the earliest stages of the project, which is during contract drafting, to prevent any complications coming up later on.
This could give the parties a stipulated time to iron out their differences, after which the time is extended again, by agreement, until the full resolution of the case.
Unanimous agreement on procedure and timetable
A decision should be made by the parties on the desired timetable and procedure they wish to follow; and this may mean cutting out some stages as it is with expedited cases. This ensures clarity and focus to the arbitral process, and erases any tendency for disputes to erupt later on.
Early legal counsel and proactive planning
When a dispute comes up, being proactive is of essence. The parties should seek legal counsel as soon as possible, and should source for funding (if it might constitute a problem), from either third parties – by offering incentives dependent on the success of the process, – or from alternative sources. Also, the choice in the representing arbitrator should be made with relevance to expertise and accessibility as this increases the ease at which the arbitral process is carried out.
The right use of technology
Technology is very important when it comes to increasing efficiency, especially with document review and production, and with hearings.
Digital case management systems can be a great help in the efficient management of an arbitration case and they can also provide a secure platform for the storage of electronic data, especially with cyber security being a particularly hot topic in the arbitration community
Conclusion
Arbitration remains a popular and a viable option when it comes to the resolution of disputes. In a bid to increase access to international arbitration, arbitral institutions regularly put out offers that promises flexibility and saving of costs. But, parties should ensure that they do their part in increasing their chances at gaining more access to international arbitration
International arbitration is becoming the go-to for dispute resolution, but without the required access it cannot be profitable to anyone. Need expert counsel and consultation on how to work out the kinks pertaining to this problem? Or any other matters at all pertaining to international arbitration, then contact us now, let us help you out.
About Rattsakuten
Rattsakuten is a leading law firm focused on Commercial Arbitration and Dispute Resolution. Based in Sweden, Rattsakuten handles dispute resolution and Arbitration matters before the SCC (Swedish Chamber of Commerce), ICC, HKIAC and several other Arbitration tribunals.