The Chartered Institute of Arbitrators is a representative body for arbitrators in the UK founded as early as 1915. It has branches throughout the UK and also in countries such as Kenya, India, Cyprus, Malaysia etc. the principal object of the Chartered Institute of Arbitrators is to promote and facilitate the determination of disputes by arbitration. Recently, it has expanded that object to include Mediation. It also performs other functions namely it appoints suitably qualified persons to act as arbitrator on request. It also maintains and provides upon requests names and CV’s of suitably qualified persons to act as arbitrators or as mediators. It also sometimes provides facilities for Arbitration References. The Kenya Branch is just a branch of that body.
Other arbitral institutions
1. London Court of International Arbitration - previously called the London Court of Arbitration. It is one of the oldest Arbitral Institutions in the World and was inaugurated in 1892. It aims to provide a comprehensive service of arbitration, conciliation and mediation for settlement of international commercial disputes of any nature and parties are at liberty to appoint or nominate the London Court of International Arbitration as the appointing authority in the even of the parties not agreeing on an arbitrator and they also have arbitration rules which again parties are at liberty to incorporate for purposes of their references.
2. International Court of Arbitration of the International Chamber of Commerce (ICC) International Court of Arbitration - this was established in 1923 and deals with disputes relating to International Trade and it has rules of arbitration that one can adopt. It is important that one is cautious about the fees structure one is committing to before adopting this. For instance if a reference is to be adjudicated on the basis of these rules there will be the arbitrators fees which are pegged to the value of the subject matter and other fees.
3. The International Centre for Settlement of Investment Disputes (ICSID) This was established by the convention on the settlement of disputes between the States and Nationals of other States and was signed in Washington in 1965. It provides facilities for conciliation and Arbitration of investment disputes between contracting parties and Nationals of other States.
4. The Permanent Court of Arbitration established by the Hague conventions.
5. American Arbitration Association (AAA) - this is the principal arbitral institution in the USA.
6. Hong Kong International Arbitration International Centre
All these institutions basically discharge the following functions
1. They are involved in the promotion of arbitration in general. They do this by holding seminars, publish newsletters and basically spread the gospel of arbitration.
2. They administer arbitrations: like they can appoint arbitrators at the request of the parties, they ensure strict observance of the rules of arbitration, they make arbitration.
3. Publication of Arbitration Rules
4. Training of Arbitrators - Award writing calls for skills and these institutions should give guidelines on award writing that is both independent and objective, principles of natural justice.
5. They provide a forum for research and information and publication of periodicals and so on.
Order for Directions is something to the effect that you document the proceedings of the day and put them in writing and state the following for example
1. Claimant will submit to the arbitrator and to the other party a statement of claim or points of claim or a summary of the claim by a certain date.
2. The second direction will be the Respondent to submit its points of defence to the arbitrator and to serve on the claimant by a certain date.
3. Each party to prepare and submit to the other a bundle of documents for use at the hearing on or before 15th April.
4. Arbitrators fees are agreed at KShs. 10,000 an hour, each party to pay an initial deposit to the Arbitrator of Kenya Shillings 20,000/- before …
At the onset you need a direction stating that the arbitrator will not release the award unless and until all arbitrator’s fees are paid.
5. At the meeting you should address how costs will be handled i.e the cost of arbitration including the arbitrators fees and expenses shall be borne by the unsuccessful party. Costs shall follow the events.
To safeguard against one party writing to you while the other party does not know, you direct that all communication with the arbitrator must be disclosed and copied to the other party.
The hearing of the reference will take place on the 1st June commencing at 10.00 a.m until 5 pm at the Professional Centre or whatever venue is agreed upon. You are then supposed to date the Order the Date you met or the date when all this was agreed and send it to both parties.
There is a statutory obligation when you are approached to be an arbitrator to make full disclosure of any circumstances that may give rise to justifiable doubts as to your impartiality or independence.
Section 13 - when a person is approached in connection with his possible appointment as an arbitrator, he shall disclose any circumstances likely to give rise to justifiable doubts as to his impartiality or independence.
(2) from the time of his appointment and throughout the proceedings the arbitrator shall without delay disclose any such circumstances to the parties unless the parties have already been informed of them by him.
Some advantages of choosing the rules of an arbitral institution:
1. one of the advantages of incorporating institutional rules is that the reference to an arbitral institution as the appointing authority will ensure that an arbitrator is appointed without the need to refer the matter of appointment to court under Section 12 of the Arbitration Act for example.
2. The adoption of the rules of that institution will ensure that the proceedings are conducted in a relatively predictable fashion.
3. The powers and jurisdiction of the Arbitrator are defined and this avoids a situation where the arbitrator has to seek the express agreement of the parties on sticky points at a later stage.
4. If an institution provides for administration of the reference then the parties are able to utilise those resources.