Monday, April 2, 2018

Drafting Arbitration Clauses - Part II: Ad Hoc or Administered Arbitration

When drafting an arbitration clause, the choice of “ad hoc” or “administered” arbitration (also known as institutional arbitration) is a critical issue that parties should consider. Both ad hoc and administered arbitrations have their own advantages. This article will outline some of the key characteristics of each of them.

Ad hoc 
Ad hoc arbitration is an arbitration framework that is defined by the agreement between the parties (subject to the law of the place of the arbitration). Ad hoc arbitration is more flexible than administered arbitration as the arbitral framework is based on party autonomy rather than institutional rules. Ad hoc arbitration is also less expensive than institutional arbitration as there is no institution to which fees need to be paid, which is a major reason many people opt for ad hoc arbitration. In ad hoc arbitration the parties must agree on all facets of the arbitral framework that are otherwise provided for under institutional arbitration, including tribunal fees and procedural deadlines.

When parties agree to ad hoc arbitration, they often also agree to a certain set of arbitral rules that will apply and can be used as guidance for the framework for the arbitration, but this is not always the case. When the parties do not agree to a set of arbitral rules to govern the procedure or the parties agree to a set of rules that does not address a particular aspect of an arbitration, the law of the seat of arbitration (the legal jurisdiction to which the arbitration is tied) will be used in conjunction with the agreement of the parties. For example, in Oman if parties fail to agree on an arbitrator, the statutory appointing authority is the Oman courts. Much can be said for the flexibility and party autonomy to define the procedural framework of each arbitration.

Administered arbitration
Administered arbitrations are arbitrations that are administered by an arbitration centre. Arbitration centres play a number of roles when administering arbitrations and offer various services to the parties aimed at providing efficiency to the arbitral process. Each arbitration centre has its own set of rules that guide the arbitral procedure. Each centre has a secretariat in place to assist with administrative and logistical tasks, as well as a body which deals with high-level issues such as challenges to the appointment of arbitrators when parties cannot agree on who will be appointed. 

Most sets of arbitral rules provide a fee scale or other mechanism setting out how much tribunals are to be paid.** Often, the fixed fees for arbitrators are calculated based on the amount in dispute. These fees can be advantageous to parties in terms of the certainty of the costs of arbitration. Similarly, ad hoc arbitrations in Oman are often based on fixed fees.

Another important role that the arbitration centres fulfil is the mechanism for collection of fees for arbitrators. At various stages throughout the arbitration, a centre will ask the parties for advances on arbitrator fees that are held in escrow and paid to the arbitrators. Collecting these fees removes the burdensome administrative task of collecting and holding funds from the jurisdiction of the arbitrators in an ad hoc arbitration.

Another major advantage of administered arbitration is the scrutiny of arbitral awards, which is a service provided by some arbitration centres including the International Chamber of Commerce and the Singapore International Arbitration Centre. Following the tribunal issuing its award, the secretariat of the arbitration centre will review the award for any major errors. This is done for various reasons including quality control and to ensure that an award is not set aside. While this may seem to be a minor feature that is provided by an arbitration centre, it drastically reduces the likelihood that an award will be unenforceable.

Further considerations 
One of the most significant factors parties ought to consider when deciding whether to opt for ad hoc or administered arbitration is the degree of supervision that may be required over the arbitration. 

While ad hoc arbitration provides for a greater degree of party autonomy and flexibility, this can also lead to a higher risk of the arbitration proceedings getting derailed by a party that does not want to participate in the proceedings. For example, in institutional arbitration, if a party is engaging in dilatory tactics the arbitration centre in its supervisory capacity will be able to step in and ensure that the arbitration stays on track. This does not always hold true in ad hoc arbitration. It can be said that administered arbitration follows a tried and tested framework while ad hoc arbitration is based on flexibility, and relies to a greater degree on party consent. In most cases administered arbitration is preferred over ad hoc arbitration.

In Oman both ad hoc and institutional arbitration are used. Given the significant differences between the two, parties should carefully consider whether to choose ad hoc or administered arbitration when drafting their arbitration clauses, having regard to each contract’s circumstances and nature.

**The London Court of International Arbitration Rules use hourly rates, and under the Hong Kong International Arbitration Center Rules parties can opt for hourly rates or fixed fees.

Click here to read Drafting Arbitration Clauses - Part I
Click here to read Drafting Arbitration Clauses - Part III