LCIA India Symposium in Bangalore
I am looking forward to visiting Bangalore later this week to attend the LCIA India Symposium on ‘Innovation and Technology in Arbitration’. This will be LCIA India’s first international arbitration symposium in Bangalore and they’ve clearly lined up an impressive panel of speakers to address important topics such as technical innovation in arbitration, hot tubbing in arbitration, third party funding of international arbitration claims and the relationship between arbitration and mediation.
LCIA India Arbitration Rules
Leading up to the Symposium, I thought this might be a good time to alert followers of our blog to the LCIA India Arbitration Rules which came into force on 17 April 2010. These Rules are largely based on the LCIA Rules, but they incorporate some very sensible changes so that they interface with the Indian Arbitration and Conciliation Act and also address a number of practical issues relating to the conduct of arbitration in India.
Before I address some of the key differences between the two sets of rules (improvements, in my view), it is perhaps worth mentioning that whilst the LCIA India Arbitration Rules are directed at parties doing business in and through India, they are an international set of rules and can also be applied outside of India – the LCIA India Arbitration Rules can operate under any system of law and regardless of the seat or venue of the arbitration. In that regard, I should point out that:
- The LCIA India Arbitration Rules differ from the LCIA Rules when it comes to the default seat of the arbitration. Article 16.1 of the LCIA Rules provides that if parties fail to agree the seat of the arbitration, London will be the default seat of the arbitration (unless and until the LCIA Court determines in view of all the circumstances that another seat is more appropriate). The LCIA India Arbitration Rules do not specify a default seat of the arbitration. Instead, Article 16.1 of the LCIA India Arbitration Rules allows the LCIA Court to determine the seat of the arbitration after considering all the circumstances and the written statements made by the parties.
- Article 32.6 of the LCIA India Arbitration Rules provides that where the place of the arbitration is not India, Part 1 of the Indian Arbitration and Conciliation Act (with some exceptions) is excluded. This is significant because Part 1 of the Indian Arbitration and Conciliation Act confers extensive powers on Indian courts regarding the appointment and removal of arbitrators, the ordering of interim measures and the right to hear challenges to arbitration awards.
The main improvements introduced in the LCIA India Arbitration Rules can be grouped under two broad categories: (i) provisions aimed at ensuring that parties and tribunals conduct proceedings fairly, efficiently and expeditiously; and (ii) provisions which give the LCIA Court greater powers to ensure a fair and efficient administration of the arbitration.
(i) Provisions in the LCIA India Arbitration Rules aimed at ensuring that parties and the tribunal conduct proceedings fairly, efficiently and expeditiously:
- Article 14.2 obliges parties to “do everything necessary for the fair, efficient and expeditious conduct of the arbitration including complying without delay with any determination of the Arbitral Tribunal and the LCIA Court as to procedural or evidential matters, or with any order or directions of the Arbitral Tribunal and the LCIA Court.”
- Article 5.3(b) requires each arbitrator to “confirm his ability to devote sufficient time to ensure the expeditious conduct of the arbitration” prior to being appointed by the LCIA Court.
- Article 28.4(b) stipulates that the tribunal shall make its orders on both arbitration and legal costs on the general principle that costs should reflect the parties’ “…conduct and cooperation during the arbitration and any undue delays or unnecessary expense caused by or attributable to a party or its representatives.”
(ii) Provisions in the LCIA India Arbitration Rules which give the LCIA Court greater powers to ensure a fair and efficient administration of the arbitration:
- Article 5.6 provides that in the case of a three-member tribunal, the Chairman (who shall be neither party-nominated, nor nominated by the parties’ nominees or by any third party) “shall in all cases” be selected by the LCIA Court.
- Article 5.7 lends further support to Article 5.6 by stipulating that in situations where the arbitration agreement provides that the Chairman is to be nominated by the parties or their nominees, or by any third party, “it shall be treated for all purposes as a written agreement by the parties for the selection of the Chairman by the LCIA Court.” Articles 5.6 and 5.7 ultimately allow the LCIA Court the opportunity to appoint a Chairman who will ensure a fair and efficient administration of the arbitration.
Followers of this blog who are interested to find out more about LCIA India or the LCIA India Arbitration Rules can use the relevant links that we’ve added to our homepage. We’ve also updated our Guidance Note on ‘Costs in Arbitration Proceedings’ to reflect LCIA India’s guideline fees in the comparison table.