INTERNATIONAL ARBITRATION 1/3LY
IN CONVERSATION WITH ADRIAN WINSTANLEY 27
THE ROLES OF THE LCIA COURT, TRIBUNALS, ARBITRATORS AND SECRETARIES: COMPLEMENTARY, COMPETING OR COMPLACENT? BEN What are the key features of the LCIA Court? ADRIAN The Court is the final arbiter on all matters covered by the LCIA rules, including, in particular, the appointment of tribunals, determining challenges, and determining the charges of tribunals and of the LCIA Secretariat. Through its members, the Court is the guardian of the LCIA’s standards, professional and ethical; and author of the institution’s rules; as well as the architect of best practice. The Court is made up of up to 35 members, chosen to provide a geographical balance, and with a limit on the number of UK members permitted. It generally sits in plenary session only once or twice a year, with many key decisions taken on behalf of the Court by the President, a Vice President or by divisions of three or five members. This arrangement facilitates the issuing (uniquely) by the Court of reasoned decisions on challenges to arbitrators; abstracts of which are now published. BEN What type of arbitrator does the LCIA typically look for? ADRIAN Naturally, the LCIA is concerned that any arbitrator should be appropriately qualified as to experience, expertise, language and legal training and that they will produce high- quality awards in a timely fashion. And it is the consistent quality of the tribunals appointed by the LCIA that guarantees quality of the award.
The LCIA does not scrutinise awards in the way, and to the extent, for example, that the ICC does. However, the Secretariat does, at the request of a tribunal, review draft awards for such things as typographical errors and the accuracy of the procedural history. BEN The use of emergency arbitrators is a topical issue at the moment. What do you think of them and how they’re used? ADRIAN This certainly is a topical issue, and there are differing views as to the desirability, and role, of the emergency arbitrator. But, ultimately, it’s a matter of an institution providing the parties that use its services with a comprehensive range of options. So, even though I understand that the emergency arbitrator provisions that are already available from other institutions have not so far been greatly called upon, the new LCIA rules will include provisions for emergency arbitrator proceedings. BEN There’s also much discussion about the role of secretaries in arbitration. What are your thoughts? ADRIAN Acting as a secretary to a tribunal is a great way for a younger lawyer to participate in arbitration, and to ‘learn the ropes’, on the way to becoming an arbitrator in his or her own right. The LCIA is, therefore, happy to support the appointment of secretaries to its tribunals, subject to the usual requirements. Namely, that secretaries sign the same statement of independence as our arbitrators sign; agree a reasonable fee rate; and acknowledge the clear parameters within which they must work, so as not to duplicate the work of the administering institution. And, of course, the tribunal must not delegate any decision-making to the secretary.
Apart from the useful administrative support that they provide, the engagement of a secretary to a tribunal should save the parties costs, because routine matters can be dealt with by the secretary at a considerably lower hourly rate than they would be performed at by a member of the tribunal.. BEN On that theme, the cost of arbitration has become a lively debated topic. What’s your perspective on the costs of arbitration at the LCIA specifically? ADRIAN Providing cost-effective administrative services has always been at the forefront of my mind, and I believe that the LCIA is recognised for doing so. As a not-for-profit company, the LCIA can focus on achieving a modest bottom- line surplus, and not on maximising profits, which undoubtedly contributes to the value we are able to offer to the parties who use our services. With time and cost naturally closely related, we also strive to maintain momentum in all LCIA arbitrations. On the analysis of a recent sample of cases, 55% of those that ran from Request to a final award were completed in 18 months or less, with only 10% running for 24 months or more.
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