Author: Kathleen Paisley*
Published: December 1998
Responsibility of Arbitrators
Law Applicable to Procedure
Practice and Procedure
Description: In choosing between competing arbitral fora for deciding an actual or potential dispute, an important issue to be considered, and one which greatly impacts the parties during the course of the arbitration (for better or worse), is the procedure that will be applied to actually decide the dispute under the relevant rules. Although there are increasing similarities among the various arbitration rules used for international disputes, especially since the recent amendments to many of these rules, differences remain.
In comparing procedures, it is useful to consider the following basic issues: (i) How involved is the arbitral institution in the procedure? (ii) How detailed are the procedures established by the rules? (iii) How flexible is the arbitrator in applying the procedure? (iv) How predictable is the procedure for the parties and the arbitrator? (v) How much control do the parties have over the procedure?
One way of thinking about international arbitration procedures is to consider the role of the arbitral institution during the process. On the one hand are ad hoc procedures (such as those under the UNCITRAL Rules) where there is no institution involved, on the other are the more hands-on procedures where the arbitral institution retains a certain degree of control over the arbitral process throughout the proceedings (of the rules most commonly considered for international arbitrations, the ICC Rules could be seen to fall in this category).
*Kathleen Paisley is a partner in the Brussels office of Morrison & Foerster LLP, where her practice focuses on international dispute resolution, particularly in the intellectual property field, including litigation, arbitration and mediation; formerly legal assistant to the arbitrators appointed by the United States at the Iran-United States Claims Tribunal; law clerk to the Honorable Gilbert S. Merritt, United States Court of Appeals for the Sixth Circuit; J.D., Yale Law School (1986); M.B.A., Florida Atlantic University (1984); B.S., Florida State University (1981). Ms. Paisley is a member of the bars of the State of New York and the District of Columbia and has successfully completed the C.P.A. examination in the State of Florida. The author thanks Claire Smith Yamauchi, legal assistant in the Brussels office of Morrison & Foerster LLP, for her invaluable assistance in preparing this article.