Introduction

Generally, the arbitration is commenced by submitting the request (notice) of arbitration. The exact time of commencement will vary depending on the applicable laws and rules. There is a difference between institutional and ad hoc arbitration. National arbitration laws usually provide for the regulation of this issue, however the rules are mostly default. Thus, as regards the institutional arbitration, the issue of commencement is regularly governed by the institutional arbitration rules. Concerning ad hoc arbitration, the regulation can be found in the rules chosen or created by the parties (e.g. UNCITRAL Arbitration Rules), otherwise this issue is governed by lex arbitri. At the very early stage of arbitration the parties exchange the request (notice) of arbitration and the answer to this request. The arbitral tribunal must be then constituted. This is also the right stage to raise the objections to jurisdiction of the tribunal.

The aim of this chapter is to deal with the phase of commencement of arbitration. After going through this chapter a student should be able: to explain the regulatory framework of this issue; to identify the moment of commencement of arbitration; to explain the regulation of this issue contained in UNCITRAL Model Law and in selected arbitration rules (e.g. ICC Rules); to analyse the issue of objections to jurisdiction of arbitrators (reasons for such objections, competence-competence principle, the role of national courts).

Presentation

Commencement of arbitral proceedings
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Commencement of arbitral proceedings
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Further recommended sources – books

• BINDER, P. International Commercial Arbitration and Mediation in UNCITRAL Model Law Jurisdictions. Kluwer Law International, 2019. Part A, Chapter V.
• BLACKABY, N., PARTASIDES, C., REDFERN, A., HUNTER, M. Redfern and Hunter on International Arbitration. 6th ed. Oxford: Oxford University Press, 2015, Chapter 6.
• BORN, G. B. International Commercial Arbitration. 2nd ed. Kluwer Law International, 2014, Chapters 14, 15.
• GAILLARD, E., SAVAGE, J. Fouchard Gaillard Goldman on International Commercial Arbitration. Kluwer Law international, 1999, Part 4, Chapter I, II.
• LEW, J.D.M., MISTELIS, L. A., KRÖLL, S.M. Comparative International Commercial Arbitration. The Hague: Kluwer Law International, 2003, Chapter 20.
• MOSES, M.L. The Principles and Practice of International Commercial Arbitration. 3rd ed. Cambridge: Cambridge University Press, 2017. Chapter 7.
• WAINCYMER, J. Procedure and Evidence in International Arbitration. Kluwer Law International, 2012. Part II, Chapters 3, 4.

Further recommended sources – Articles, papers, electronic sources

• EDER, Bernard. The Key Role of State Courts before the Commencement of Arbitral Proceedings: Referral to Arbitration and Provisional and Conservatory Measures. Asian Dispute Review. 2016. Vol. 18, pp. 16–23.
• GRENIG, J. E. International Commercial Arbitral Agreements. Uniform Commercial Code Law Journal. 2018, Vol. 48.
• KluwerArbitration [online]. Available from: http://www.kluwerarbitration.com/
• LAZAREFF, Serge. Terms of Reference. ICC International Court of Arbitration Bulletin. 2006. Vol. 17, pp. 21–32.