consolidation of arbitrations arising under different contracts. This may not be possible for an ad hoc arbitration without consent of both parties or court involvement. e. Emergency procedure. Sophisticated institutional rules provide for the appointment of an emergency arbitrator who can issue interim relief pending the formation of the tribunal. This is simply not possible for an ad-hoc arbitration and recourse to a national court becomes mandatory. f. It can take considerable time to cover all eventualities using ad hoc rules. Parties risk having ambiguous terms if their contracts or clauses are not properly drafted. Are there any particular kinds of dispute – such as investor disputes or those within the construction sector, for instance – that might be more drawn to ad hoc arbitration than others? Usually, state parties are concerned that a submission to institutional arbitration may devalue their sovereignty, particularly when the disputes involve public interest and large sums of public money. Thus, in disputes within any such sector where a state is a party, ad hoc arbitration is preferred. However, for construction arbitration I believe that institutional arbitration under the ICC rules is very common. What should less experienced legal counsel be mindful of when preparing to engage in ad hoc arbitration? I think there are two major things that should be considered: First, while nominating arbitrators, counsel should advise its client to nominate a sufficiently experienced arbitrator. This is to ensure that the tribunal’s experience can guide the process in the absence of institutional rules. Second, legal counsel should also make sure that they inform the tribunal of any important legal requirements for an award to be considered valid. This is particularly important if the tribunal is comprised of individuals qualified in like the ICC do their own internal review of the awards with the tribunal. This helps in ensuring that the awards are not made with glaring procedural errors. There is no such process for an ad hoc arbitration. d. Consolidation of related disputes. Many institutional rules provide for 98 LAWYERMONTHLY SEPTEMBER 2022 I would suggest that parties try to adopt institutional arbitration as much as possible, particularly for highvalue cases.
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