The LCIA and the ICC are among the most widely known international commercial arbitration institutions. The LCIA head office based in London, the history of the LCIA started in 1892. The ICC head office is in Paris, it was established in 1923.
These arbitration institutions administer the arbitrations. Their bodies named the Courts take decisions on the appointment of arbitrators if parties fail to do that. The Courts of the LCIA and the ICC determine challenges to arbitrators and control costs.
When selecting an arbitration institution for the cross-border dispute, we look for the assistance in managing the case that will be impartial, transparent, independent from any external influence and professional.
The information on the difference in administering the arbitration cases, on the distinction between the Rules of Arbitration of the LCIA and the ICC, or on the differences in fee structure is regularly published (1).
The composition of the Courts of the LCIA and the ICC, the diversity of members nationality and backgrounds are also important factors in the estimation of the international arbitration institutions. The serious issue is likewise the procedure and rules of formation of arbitral tribunal.
The LCIA Court consists of forty three members (2). The procedure of entering the membership of the LCIA Court is not published.
Eight members are from the UK, one member has Russian nationality with the UK background and education, seven members come from the USA, six from France, three from Germany, two from Switzerland, two from Singapore, two from Sweden, per one member - from Australia, Italy, Korea, Canada, Ireland, Spain, India, Mexico, Hong Kong, and the Netherlands. Around 40% are women. All members participated in cross-border disputes as councils and arbitrators. Members of the LCIA Court have experience in the major trading areas of the world.
There is no list of recommended arbitrators on the LCIA website or information on who are appointed by the LCIA Court. However, any person may file an application to be included in the database of the arbitrators used by the LCIA Court.
The order of nomination of the arbitrators is envisaged in the LCIA Arbitration Rules (2014). As, for example, in accordance with Clause 5.9 “the LCIA Court shall appoint arbitrators with due regard for any particular method or criteria of selection agreed in writing by the parties. The LCIA Court shall also take into account the transaction(s) at issue, the nature and circumstances of the dispute, its monetary amount or value, the location and languages of the parties, the number of parties and all other factors which it may consider relevant in the circumstances”.
Members of the ICC Court are appointed for three-year terms (3). This is done on the proposal of one member from national committees and other groups. However, the criteria and procedure of admitting the member are not publicly available.
Members of the ICC Court are lawyers - arbitration practitioners from 117 countries of Europe, Asia, America, Australia and Africa. Thus, the ICC represents members from more countries than the LCIA that can be considered if necessary.
All countries are equally presented with one member and in addition, most countries – also with alternate member. About a quarter of the members are women.
It is interesting that currently, in June 2020, Russia is presented by the same person in the ICC Court and the LCIA Court.
In case of an appointment by the ICC Court, the arbitrator has been appointed by the ICC Court either directly or upon the proposal made by an ICC national committee. Paragraph 3 of Article 13 of the ICC Arbitration Rules as amended on 1 March 2017 defines that where the Court is to appoint an arbitrator, it shall make the appointment upon proposal of a National Committee or Group of the ICC that it considers to be appropriate.
The ICC published the Note to National Committees and Groups of the ICC on the Proposal of Arbitrators (4). The Note explains the roles of national committees and groups of the ICC, their duties, rules of the formation of national committees and groups of the ICC and the order for the proposal of arbitrators.
Paragraphs 8, 9 and 10 of Clause II (b) of the Note provide as follows:
“8. Under the ICC Rules, Committees or Groups shall propose the best suited-candidate(s), taking into account the circumstances of the case and bearing in mind that proposals are to be made in the interest of the parties.
9. Committees and Groups enjoy discretion in establishing the process by which they select arbitrators for proposal to the Court, subject to the recommendations made under this Note.
10. The Court enjoys full discretion as to whether or not to appoint any of the candidate(s) proposed”.
Paragraph 17 of the Note determines that Nominations Commission membership (in the national committee) should reflect generational and gender diversity, as well as various components of the local arbitration community. Committees and Groups should make best efforts to achieve and maintain gender parity in their Nominations Commissions.
Currently the national committee ICC Russia is under review or re-organisation.
On the webpage “ICC Arbitral Tribunals” those who are interested may find the Chart with the names of arbitrators appointed since 1 January 2016 (5). This Chart might give some understanding of the background of the appointed arbitrators. The first attempt to analyze this Chart was made in 2016 (6).
In conclusion, it may be useful to research how the international arbitration institutions like the LCIA or the ICC form their bodies, what criteria and rules they follow in appointing the arbitrators, inasmuch the difference may be significant. This difference may be considered in selection of the arbitration institution appropriate for the particular transborder dispute.
References
(1) Comparative table of ICC, ICDR, LCIA and SCC rules // https://uk.practicallaw.thomsonreuters.com/4-387-3629...; Comparative Chart of International Arbitration Rules // https://globalarbitrationnews.com/.../LONDOCS-4148617-v4...; the Guide to International Arbitration (Latham & Watkins) // https://www.lw.com/.../guide-to-international-arbitration...;
(2) https://www.lcia.org/LCIA/the-lcia-court.aspx
(3) https://iccwbo.org/.../icc.../court-members/...
(4) Note to National Committees and Groups of ICC on the Proposal of Arbitrators // https://iccwbo.org/.../Note-to-National-Committees-and...
(5) https://iccwbo.org/.../arbitration/icc-arbitral-tribunals/
(6) Dr. Markus Altenkirch, Malika Boussihmad, ICC publishes arbitrator’s details – A new level of transparency // https://globalarbitrationnews.com/icc-publishes.../