What to do when you need immediate protection in the LCIA

A dispute with a counterparty has been referred to the London Court of International Arbitration (LCIA), but it will take several weeks to appoint the arbitrators, and the client needs legal representation immediately? This can be achieved through an emergency arbitrator or expedited tribunal formation.

Senior counsel at the LCIA Secretariat Vasylina Odnorih explained these mechanisms during the webinar «LCIA: how one of the world’s leading arbitration institutions works — a view from the Secretariat». The event took place on October 20 at the initiative of the UNBA Committee on alternative dispute resolution as part of a series dedicated to leading international arbitration institutions.

The meeting was moderated by Committee chairman Olena Perepelynska and Committee Council member Anna Sazhko.

According to V. Odnorig, the 2020 LCIA Rules provide for two mechanisms in situations of exceptional urgency. Article 9A allows for the formation of a permanent tribunal earlier than usual. This is the same tribunal provided for in the arbitration agreement, which will hear the case through to its conclusion and render a final award. An ad hoc arbitrator under Article 9B is a sole arbitrator and serves on a temporary basis. He or she resolves only matters requiring immediate consideration, and his or her authority ceases upon the formation of the tribunal.

Neither mechanism is triggered automatically upon a party’s request; the LCIA Court assesses the appropriateness of each case on a case-by-case basis. The Court issues a decision on an emergency arbitrator within an average of two calendar days. The appointment itself must take place within three days of receiving the request. Expedited tribunal formation takes an average of five days for the decision and another five days to assemble the panel.

The speaker shared an observation: requests for an emergency arbitrator often arrive on Friday afternoons, so the Secretariat and the Court work over the weekend to appoint an arbitrator by Monday. She therefore advised parties who may file such a request to notify the Secretariat in advance so that it can coordinate its resources.

V. Odnorog distinguished between nomination and appointment. Under the LCIA Rules, only the LCIA Tribunal may appoint arbitrators, while the parties, the arbitrators they have nominated, or another agreed-upon person merely propose a candidate. The parties may nominate a sole arbitrator only jointly. If the number of arbitrators has not been agreed upon, a single arbitrator is appointed by default, unless the Court decides that, given the circumstances of the case, three are required.

The speaker also cautioned against including overly detailed requirements for candidates in the arbitration clause. «Sometimes, during the negotiation of an arbitration agreement, it may seem advisable to agree on narrow, specific qualifications or a detailed selection method. But in practice, such conditions, unfortunately, do not facilitate an efficient appointment: they can complicate the search for suitable candidates or delay the appointment of arbitrators», - she noted.

Prior to appointment, each candidate submits a statement to the Secretariat regarding circumstances that may affect their independence and impartiality. If such circumstances exist, the Secretariat forwards the information to the parties prior to the appointment and invites them to raise objections. According to the speaker, this reduces the risk of recusal at a later stage.

Previously the UNBA website explained how to reduce administrative costs in ICC arbitration. It also noted that businesses should review their contracts following the amendments to the Law «On international commercial arbitration».