Choosing best set of arbitration rules not a straightforward decision

It is paramount that parties entering into a contract with an arbitration clause should carefully consider the set of arbitration rules to be adopted. Given the myriad of arbitration rules worldwide, such a question by no means has an easy answer.

In this article, we reflect on three sets of rules that are commonly seen in arbitration agreements involving an Australian counterparty, and highlight some salient features that parties should consider when choosing between them. The rules we will consider are: the 2011 Arbitration Rules of the Australian Centre for International Commercial Arbitration (ACICA) rules; the 2010 ACICA expedited arbitration rules; the 2012 International Chamber of Commerce (ICC) arbitration rules; and the 2010 United Nations Commission on International Trade Law (UNCITRAL) arbitration rules.

Institutional or ad hoc?

Parties to an arbitration may choose to designate an arbitral institution such as ACICA or the ICC to administer their arbitration, usually in accordance with that institution’s own set of arbitration rules (institutional arbitration). By choosing institutional arbitration, the parties can avoid the time and expense of drafting their own arbitration rules. However the fees of the institution may be a consideration.

Michael Sheng is a partner at Ashurst in Shanghai, and Mark Elvy is a partner at Ashurst in Sydney