Young ICCA Webinars: Commencing an Arbitration: Practical Insight into the Kick-off of an International Arbitration Proceeding
Post Event Report
By Isabella Lorduy (Associate, Zuleta Abogados)
On 2nd March 2022, Young ICCA held the webinar titled “Commencing an Arbitration: Practical Insight into the Kick-off of an International Arbitration Proceeding”. The webinar provided an introduction to drafting and filing a Request for Arbitration (RFA). Young ICCA Events Co-Directors, Ms. Ana Coimbra Trigo and Mr. Rahul Donde, along with Mr. Ivan Bracho Gonzalez, Young ICCA Regional Coordinator for the Americas, and Isabella Lorduy and Aracelly Lopez, Regional Representatives also for the Americas, organized the event. Around 90 participants attended the webinar.
Young ICCA Events Co-Director, Rahul Donde, opened the Webinar with a brief welcome to participants and expressed Young ICCA’s solidarity with the situation in Ukraine. He then gave an overview of ICCA and Young ICCA, their goals and a description of the activities of the latter’s main branches.
Christopher Smith, Senior Associate at King & Spalding (Atlanta) was then introduced as the moderator of the Webinar session. He provided a brief overview of the topic and introduced the speakers.
What is a Request for Arbitration (“RFA”) and why does it matter?
The first speaker, Abby Cohen, Partner at White & Case LLP (Washington DC), gave a presentation on what a RFA is and why it matters. Ms. Cohen began by referring to the consent of the parties (arising from a contract, treaty or law) as the first factor to consider when initiating an arbitration. According to Ms. Cohen, this will properly determine the scope of the dispute. She also recommended that the rules chosen by the parties be taken into account.
Ms. Cohen continued by addressing other factors to examine when drafting a RFA. These factors include (i) the conditions for initiating an arbitration - such as time period, language and forum -, (ii) the governing law, (iii) the scope of the dispute, (iv) the remedies available to the client, (v) whether multiple parties are involved in the dispute, (vi) whether the client needs interim measures, among others.
For Ms. Cohen, initiating an arbitration can be seen as a waiver and an opportunity to consider strategies. Additionally, she explained that the filing of the notice generally commences the arbitration, and other relevant deadlines will start to run.
How to draft a Request for Arbitration?
Mr. Sudhanshu Roy, International Associate at Foley Hoag LLP (Washington DC), was the second speaker of the Webinar. He addressed the question on how to draft a RFA. Mr. Roy started by highlighting three points. First, he pointed out that different rules have different requirements for commencing an arbitration. Second, there is no specific format for drafting an RFA, although some rules provide for specific formats. Third, it is important to be discreet and brief.
Mr. Roy went on to outline the general structure of a RFA as follows: (i) a cover page that should include the names of the parties, the relevant arbitration rules and institution, as well as the name of counsel and date, (ii) an introduction identifying the relevant provision pursuant to which the RFA is submitted, the “demand” that the dispute be referred to arbitration, and the legal basis of the dispute, (iii) the identification of the parties and legal representatives, (iv) reference to the consent to arbitration (exhibit a copy), (v) presentation of the dispute by introducing the issues in dispute (nature and circumstances of the dispute, applicable rules, Respondent’s violations), (vi) conduct of the arbitration, including the place of arbitration, language, venue and any applicable procedures, (vii) the number of arbitrators and the appointment of an arbitrator (if required by the applicable rules) and, (viii) the request for relief.
How to file a Request for Arbitration?
Ms. Luísa Quintão, Foreign Associate at Chaffetz-Lindsey (New York), took the audience step by step through the process of filing a RFA. When filing a request, 5 questions must be answered: (i) What to send? (Usually, the RFA, the arbitration agreement (proof of consent), the power of attorneys, the proof of payment of the registration fee and service accompany the RfA), (ii) To whom? (Directly to the counterparty? Arbitral institution? To a specific person?), (iii) To what address? (To a physical or an electronic address?), (iv) Is there a registration fee? (How much is the fee? How to make a payment?), (v) When to file? (Including legal concerns such as statute limitations, and practical concerns including timing strategies and time availability).
Ms. Quintão stated that most of the answers to these questions can be found in the applicable rules (namely, institutional rules, arbitration agreement, substantive contract, applicable law or treaty). Ms. Luísa Quintão also provided practical examples found in the CAM-CCBC and JAMS rules. She also explained the crucial role of arbitral institutions, which determine the commencement of the arbitration, act as intermediaries, and have a secondary decision-making role.
Ms. Quintão concluded by giving tips for junior lawyers when filing a RFA, including, knowing the applicable rules, having a checklist of requirements, communicating with colleagues, researching when in doubt, and monitoring by keeping track of events.
At the end of the session, there was a Q&A Session where participants asked questions about quantification of damages, pathological clauses and the applicable rules. Mr. Ivan Bracho and Ms. Ana Coimbra Trigo thanked the participants for their participation and informed them about the practical exercise that would follow the Webinar.
Participants were assigned to breakout rooms and joined an interactive discussion around a publicly available Request for Arbitration guided by Facilitators. This was an opportunity to ask questions and discuss the issues presented in the Panel before. The discussion in each room was led by the panel members as well as Victoria Rodriguez De Anda, Associate at White & Case (Mexico), Gladys Sarah R. Bagasin, Senior Associate at Hanotiau & van den Berg (Brussels), John Belinga, Associate at DLA Piper (Paris), Joana Holzmeister e Castro, Senior Associate at Lefosse Advogados (São Paulo), Ishan Maadan, Attorney at DLA Piper (New York), Maria Camila Rincón, Associate at Zuleta Abogados (Bogotá), Ezequiel H. Vetulli, Associate at Freshfields (New York).
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