Comparison of AAA, JAMS, ICDR, and ICC Arbitration Rules

Transcription

1 Comparison of AAA, JAMS, ICDR, and ICC Arbitration Rules Domestic Application of the Rules Where the parties have provided for arbitration by the AAA under its Commercial Arbitration Rules, or they have provided for arbitration of a domestic commercial dispute by the AAA without designating particular rules. (Rule 1(a)). The parties, by written agreement, may adopt modifications to the AAA rules. After appointment of the arbitrator, any modifications may be made only with the arbitrator s consent (Rule 1(a)). The JAMS rules govern binding arbitrations of disputes or claims where (1) the dispute(s)/claim(s) are administered by JAMS and (2) the parties agree to use the JAMS rules or, in the absence of such an agreement, any disputed claim/counterclaim that exceeds $250,000, not including interest or attorneys fees, unless other JAMS rules are prescribed (Rule 1(a)). Where the parties have agreed in writing to apply the ICDR rules, or they have provided for arbitration of an international dispute by the ICDR or AAA without designating particular rules (Article 1(1)). Application of rules is subject to modification by the parties written agreement (Article 1(1)). Where the parties have agreed to submit to arbitration under the ICC Rules (Article 6(1)). Arbitrator Selection Selected by agreement of parties, or if parties fail to agree, AAA will send an identical list to each party and the parties are encouraged to agree on an arbitrator (Rule 11(b)). If the parties fail to agree on any persons named, AAA will have the power to appoint from among other members of the National Roster (Rule 11(b)). If arbitrator not previously selected by agreement of the parties, JAMS may attempt to facilitate agreement regarding selection. (Rule 15(a)). If parties do not agree on an arbitrator, JAMS will submit candidate list to the parties for ranking. If this process does not yield an arbitrator or a complete panel, JAMS will The parties may agree on any procedure for appointing the arbitrator(s) (Article 6(1)). By agreement of the parties or, after 45 days of arbitration commencement, on request of any party, the administrator will appoint the arbitrator(s) and designate the presiding arbitrators (Article 6(3)). In multiparty arbitrations, if In sole-arbitrator cases, if the parties cannot agree on the arbitrator or fail to timely nominate an arbitrator, the ICC Court appoints the arbitrator (Article 12). In three-arbitrator cases, subject to party agreement to another procedure, each party submits a candidate for confirmation at the time of commencement or 1 AAA Fee Schedule amended and effective June 1, ICDR Fee Schedule amended and effective June 1, 2010.

2 designate sole arbitrator or as many as are necessary to complete the panel (Rule 15(d)). the parties have agreed within 45 days of the arbitration s commencement, the administrator will appoint all the arbitrators (Article 6(5)). answer, as applicable. The president/chair is appointed by the ICC Court, unless the parties have agreed on another appointment procedure. The ICC Court also will appoint party arbitrators if a nomination is not timely made by one or both parties (Article 12). Number of Arbitrators Absent the parties agreement, one arbitrator unless the AAA determines three to be appropriate (Rule 15). One arbitrator unless all parties agree otherwise (Rule 7(a)). Absent the parties agreement, one arbitrator, unless the administrator decides in its discretion that three is appropriate because of the size, complexity, or other circumstances of the case (Article 5). If the ICDR s Procedures for Large, Complex Commercial Cases apply and the parties do not agree as to the number of arbitrators, claims/ counterclaims involving less than $1 million are decided by a sole arbitrator, and claims/ counterclaims involving $1 million or more are decided by a tribunal of three arbitrators (Procedure L 2(a)). Either a sole arbitrator or a tribunal of three arbitrators, as provided in the arbitration agreement or otherwise agreed by the parties (Article 12(1)). Absent parties agreement, a sole arbitrator is appointed unless it appears to the ICC Court that the dispute warrants the appointment of three arbitrators (Article 12(2)). Venue of Arbitration The parties may agree on the locale where the arbitration will be held (Rule 10). Determined by arbitrator after consulting with the parties (Rule 19(a)). The parties may agree; if not, administrator makes initial determination, but final decision is with tribunal Fixed by the ICC Court unless agreed on by the parties. (Article 18(1)). 2

3 Location of Hearings Language Choice of Substantive Law Discovery If a party requests a particular locale, the other party must object within 15 days after the AAA sends it notice of the request; otherwise, the request will be granted. If a party objects to the locale requested by the other party, the AAA has the power to determine the locale, its decision final and binding (Rule 10). The arbitrator sets the location for each hearing (Rule 22). The arbitrator, after consulting with the parties that have appeared, determines the location of the hearings (Rule 19(a)). within 60 days of its constitution. (Article 13(1)). The tribunal may conduct hearings and meetings at any location it deems appropriate (Article 13). The tribunal may hold conferences or hear witnesses at any place it deems appropriate (Article 13(2)). Silent Silent Absent parties agreement, tribunal determines language(s) having due regard for all relevant circumstances, including the language of the contract (Article 20.) Silent. At the request of any party or at the discretion of the arbitrator, the arbitrator may direct the production of documents and Determined by arbitrator if not designated by the parties (Rule 24(c)). The parties must complete an initial exchange of all relevant, non-privileged documents; arbitrator may Determined by tribunal if not designated by the parties (Article 21(1)). The tribunal may order parties to deliver a summary of documents and other evidence it intends to rely on to support Tribunal may conduct hearings and meetings at any location it considers appropriate, subject to the parties agreement (Article 18 (2); see also Article 26(1)). Absent parties agreement, the language of the document containing the arbitration agreement will be used, subject to tribunal power to determine otherwise. Tribunal may also order translation of submitted documents (Article 14). Determined by tribunal if not designated by the parties (Article 28 (1)). Silent. 3

4 other information. The direction should be consistent with the expedited nature of arbitration. (Rule 21). modify obligations at preliminary conference (Rule 17(a)). its claim/defense (Article 19(2)), but also may order parties to produce other documents, exhibits or other evidence it deems necessary or appropriate (Article 19(3)). Administratio n Fees Sliding scale based on the amount of the claim/ counterclaim, subject to a percentage of the amount in controversy for disputes involving more than $10 million and a cap of $65,000 (AAA Administrative Fee Fee may be paid in a twopayment or three-payment schedule (three-payment schedule offers lower initial filing fees but potentially higher approximately 12% to 19% total administrative fees for cases that proceed to a hearing) (AAA Administrative Fee Silent Sliding scale based on the amount of the claim/ counterclaim. For disputes involving more than $10 million, a percentage of the amount in controversy also applies (ICDR Administrative Fee Fee capped at $65,000 (ICDR Administrative Fee Fee may be paid in a twopayment or three-payment schedule (three-payment schedule offers lower initial filing fees but potentially higher approximately 12% to 19% total administrative fees for cases that proceed to a hearing) (ICDR Administrative Fee Where amount in dispute is $50,000 or less, $3000 flat fee applies (Article 4 of Appendix III). Where amount in dispute exceeds $500 million, $113,215 flat fee applies (Article 4 of Appendix III). Where amount in controversy falls between $50,000 and $500 million, base amount keyed to the amount in controversy, plus a percentage of any amount in controversy above certain specified thresholds (Article 37; Article 4 of Appendix III). Arbitrator Compensation Neutral arbitrators compensated at a rate consistent with the arbitrator s stated rate of Silent Arbitrators compensated based upon their amount of service, taking into account their stated Determined by the ICC Court, not the arbitrators. The ICC Court uses a published scale 4

5 compensation (Rule 51(a)). Made through the AAA, not directly between the parties and arbitrator (Rule 51(c)). compensation rate, and the case s size and complexity (Article 32). Rate is set by negotiation through the administrator as soon as practicable after the commencement of the arbitration or, if no agreement is reached, it is set by the administrator (Article 32). (Appendix III(B)), but it may deviate from it in exceptional circumstances (Article 37(2)). Confidentiality of Proceedings Arbitrator(s) and AAA: No express provision on confidentiality, but the rules provide that the arbitrator and the AAA will maintain the privacy of the hearings unless the law provides otherwise (Rule 23). The Parties: Silent on confidentiality as between the parties. Arbitrator(s) and JAMS: Unless otherwise required by law or judicial decision, the arbitrator(s) and JAMS must maintain the confidential nature of the arbitration proceeding, including the hearings, except in connection with a judicial challenge to or enforcement of an award (Rule 26(a)). The Parties: No duty of confidentiality imposed on the parties, though the arbitrator may issue orders to protect the confidentiality of proprietary information, trade secrets, or other sensitive information (Rule 26(b)). Arbitrator(s) and Administrator: The arbitrator(s) and administrator must not divulge confidential information disclosed during the proceedings by the parties or by witnesses, and unless otherwise agreed by the parties or required by applicable law, must keep confidential all matters relating to the arbitration (Article 34). The Parties: Silent on confidentiality as between the parties. Arbitrator(s) and ICC Court: No express provision on confidentiality, though Appendix I provides that [t]he work of the [ICC] Court is of a confidential nature which must be respected by everyone who participates in that work in whatever capacity. The Parties: No duty of confidentiality imposed on the parties. On the request of a party, however, the tribunal may issue orders concerning the confidentiality of the arbitration proceedings or of any other matters in connection with the arbitration, and may take measures for protecting trade secrets and confidential information (Article 22(3)). 5

6 Confidentiality of Award Arbitrator(s) and AAA: Silent. The Parties: Silent. Arbitrator(s) and JAMS: Unless otherwise required by law or judicial decision, the arbitrator(s) and JAMS must maintain the confidential nature of the arbitration award, except in connection with a judicial challenge to or enforcement of an award (Rule 26(a)). The Parties: No duty of confidentiality imposed on the parties, though the arbitrator may issue orders to protect the confidentiality of proprietary information, trade secrets, or other sensitive information (Rule 26(b)). Arbitrator(s) and Administrator: Under the rules, the arbitrator(s) and administrator must keep confidential all matters relating to the... award, unless otherwise agreed by the parties or required by applicable law (Article 34). But unless the parties agree otherwise, the administrator reserves the right to publish awards, rulings, and decisions that have been redacted to conceal parties names or other identifying details, or that have been made publicly available in the course of enforcement or otherwise (Article 27(8)). The Parties: Silent on confidentiality as between the parties. Arbitrator(s) and ICC Court: No express provision on confidentiality, though Appendix I provides that [t]he work of the [ICC] Court is of a confidential nature which must be respected by everyone who participates in that work in whatever capacity. The Parties: Silent. On the request of a party, however, the tribunal may issue orders concerning confidentiality the confidentiality of the arbitration proceedings or of any other matters in connection with the arbitration, and may take measures for protecting trade secrets and confidential information. (Article 22(3)). Time Limit for Rendering Award Promptly, no later than 30 days after arbitration hearings have closed (Rule 41)). Within 30 days after arbitration hearings have closed (Rule 24(a)). No express provision, though the rules state that the award is to be made promptly (Article 27(1)). 6 months from signature of the terms of reference, extendable by the ICC Court on a reasoned request from the tribunal or on its own initiative (Article 30). Types of Award Final, interim, interlocutory and partial, and the arbitrator may make other decisions, including orders and awards. In an interim, Final award or partial final award (Rule 24(d)). The arbitrator also may make other decisions, including Final, interim, interlocutory, and partial awards (Article 27 (7)). In the case of a settlement Interim, partial, and final awards are specified (Article 2(v)), as well as award by consent (Article 32). 6

7 interlocutory, or partial award, the arbitrator may assess and apportion fees, expenses, and compensation related to each award, as the arbitrator deems appropriate (Rule 43). interim or partial rulings, orders, and awards (Rule 24(d)). during the pendency of the proceedings, at the request of the parties, an award on agreed terms may also be made (Article 29(1)). Rules also contemplate other types of awards (see inter alia in Article 2(v)). On the request of settling parties, the arbitrator may set forth the terms of the settlement in a consent award (Rule 44). Form of Award The arbitrator need not render a reasoned award, except upon written request before the arbitrator s appointment (Rule 42). Reasoned unless the parties agree otherwise (Rule 24(h)). Reasoned, unless the parties agree otherwise (Article 27(2)) or award is issued upon parties settlement (Article 29(1)). Reasoned; no exceptions (Article 31(2)). Award of Attorneys Fees The arbitrator may award attorneys fees if all parties have so requested, or if the award is authorized by law or the parties arbitration agreement (Rule 43). May be awarded at the arbitrator s discretion if provided by the parties agreement or allowed by applicable law (Rule 24(g)). At the tribunal s discretion, reasonable costs tor legal representation by the successful party may be included in costs. (Article 31(d)). Shall be included in costs awarded. (Article 37(1)). 7