How are arbitral proceedings commenced in your country? Are there any key provisions under the arbitration laws relating to limitation periods of which the parties should be aware?
Unlike many institutional rules, statutory rules neither expressly state the commencement of the proceedings nor of lis pendens. Prevalent authority suggests that service of the reasoned statement of claims with respondent effects lis pendens and hence bars parallel court proceedings in that matter.
Art 7(1) Vienna Rules states that the arbitral proceedings commence after the VIAC secretariat receives a statement of claim complying with the stipulated minimum requirements. As regards ad-hoc proceedings, arguably the proceedings commence with the service of a reasoned request for arbitration with respondent including the appointment of an arbitrator and the request to the respondent equally to appoint an arbitrator.
There are no specific arbitration related limitation periods under Austrian law. Hence, the statutes of limitations stipulated in the substantive law applicable to the dispute are highly decisive for the timing of the initiation of the proceedings. As regards Austrian law, in institutional arbitrations, the commencement of proceedings in accordance with the applicable rules and the delivery of the initial writ to respondent suffice to stay limitation periods.
There are no default rules governing the commencement of arbitral proceedings in France. Parties must follow the procedure set out in their arbitration agreement, in particular if they have subscribed to institutional rules that prescribe necessary steps for commencing proceedings. Otherwise, arbitral proceedings are usually initiated by unequivocal service of a notice of arbitration on the other party.
Limitation periods are normally regarded as substantive rather than procedural. Substantive rules are those applicable to the merits of a dispute, whereas procedural rules regulate the conduct of the proceedings. Therefore, the law applicable to the underlying dispute or claim will also be applicable to the relevant statute of limitation.
When French law is applicable to the merits of a dispute, a general five-year limitation period applies to contractual and tortious matters, with a few exceptions, such as for some construction contracts (see Article 2224, Civil Code). In general, this period commences from when the parties become aware (or should have been aware) of the event giving rise to the dispute. Commencing arbitration proceedings normally interrupts the limitation period (see Article 2241, Civil Code; Court of Cassation, Second Civil Chamber, 11 December 1985, No. 84-14.209).
The arbitral proceedings in respect of a particular dispute shall commence on the date on which a request that such dispute be referred to arbitration is received by the respondent. Such request is not subject to any specific deadline, except for the general applicable time limits regarding the forfeiture of rights.
Following that and within the period of time agreed by the parties or determined by the arbitral tribunal, the claimant shall submit its claim.
In order to commence arbitration a party must submit to the arbitral tribunal its written request for arbitration. If the parties have agreed on ad hoc arbitration, the first step is to establish the composition of the arbitral tribunal. If the composition is not stipulated in the arbitration agreement, the party requesting arbitration shall invite the other party in writing to proceed with the procedure to appoint the arbitrators. Where the arbitration is held under the purview of an arbitral institution, the parties shall follow the procedural rules of that institution. In the majority of cases (including before CICA), the party which wishes to commence arbitration must first file the request for arbitration with the secretariat of the arbitral institution. A fixed filing fee is generally required.
The statute of limitation is subject to the determination of the applicable law by the arbitral tribunal. Under Romanian law, the statute of limitation is a matter of substantive law; therefore, where the arbitral tribunal will assess that the statute of limitations is a substantive matter and that the dispute is governed by substantive Romanian law, it may allow any defence regarding the time bar of the claims submitted to arbitration applying the Romanian law on the statute of limitations. As a rule, claims having a pecuniary object are subject to the statute of limitations. The time limits for bringing civil claims differ, according to the nature of the claim and the subjective right at the basis of the claim. Generally, these limits range from six months to 10 years, the general term being three years.
As a general rule, the time bar term starts to run when the holder of the right to claim knew or was supposed to know, under the circumstances, the coming into being of the right to claim. The doctrine The doctrine has explained that the date when this right (i.e. the right to claim) comes into being is the date: when the right is infringed, denied or contested, or, the date when such right, even not contested or infringed, had to be exercised.
According to a constant case law to this effect, the parties arbitrating under FIDIC rules should be aware that the undergoing of the multi-tier dispute resolution procedure (DAB procedure, 56 days amicable settlement period) is not considered to affect the starting date of the time bar course, but may only lead to a suspension of the limitation period.
Finally, the statute of limitations does not operate ex officio, instead, the objection of limitation can only be invoked within the applicable deadline.
Under the Arbitration Act, the parties may agree on how the arbitral proceedings shall be commenced. In absence of such agreement, the Arbitration Act provides that the proceedings are commenced when the respondent receives a written request for arbitration from the claimant (including an express and unconditional request for arbitration, a statement of the issue covered by the arbitration agreement which is to be resolved by the arbitrators and a statement of the party’s choice of arbitrator).
Subsequently, the respondent has 30 days from the request for arbitration to appoint its arbitrator, failing which the claimant may request that the respondent’s arbitrator be appointed by the district court.
Any other limitation periods are governed by the applicable substantive law.
New Zealand’s provisions on the commencement of arbitral proceedings are derived from the UNCITRAL Model Law (article 21 of Schedule 1 of the Act). Unless parties agree otherwise, proceedings commence when a request for that dispute to be referred to arbitration is received by the respondent. The limitation periods are governed by the substantive law. Where the substantive law is New Zealand, New Zealand limitation rules will apply, and under New Zealand law claims made in New Zealand-seated arbitrations have the same limitation periods as claims made in civil proceedings (section 39 of the Limitation Act 2010). Where the substantive law is foreign, they are subject to that foreign law’s limitation law (section 55). The High Court may override section 55 in the interests of public policy (or hardship), unless the foreign law is Australian (section 56). New Zealand law also specifies a limitation period for the enforcement of an arbitral award, being six years from the date on which the award became enforceable in New Zealand (section 36).
In accordance with art. 181 PILA and art. 372 CPC arbitral proceedings are deemed commenced from the moment one of the parties seizes the arbitral tribunal designated in the arbitration agreement or, in the absence of such designation in the arbitration agreement, when one of the parties initiates the procedure for the constitution of the arbitral tribunal or requests to conduct conciliation proceedings agreed upon by the parties to precede the commencement of arbitral proceedings.
There are no procedural provisions relating to limitation periods under the Swiss arbitration laws. Swiss law does not qualify limitation periods as procedural but rather as a matter of substance and limitation periods are therefore subject to the lex causae. Hence, the law applicable to the substance of the contract in dispute determines the duration of a limitation period as well as the procedural actions that will toll limitation periods.
Arbitral proceedings are typically commenced by serving a request for arbitration on the respondent directly in ad hoc proceedings, or by way of the relevant arbitration centre in institutional arbitrations. The request for arbitration should satisfy any form requirements of the applicable arbitration rules.
Arbitrations against Dubai governmental entities require the claimant to follow a process of first notifying the Dubai Legal Affairs Department.
Under the DIFC Arbitration Law and the ADGM Arbitration Regulations, unless the parties agree to the contrary, arbitral proceedings commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent.
Arbitral proceedings are commenced by the communication of a written request to arbitrate on the responding party. Where an arbitration is conducted pursuant to the KLRCA Arbitration Rules, the written request is to be communicated to the Director of the KLRCA along with:
- A copy of the Notice of Arbitration served on the respondent.
- A copy of the written arbitration clause and contractual documentation in which the arbitration clause is contained or in respect of which the arbitration arises.
- Confirmation to the Director of the KLRCA that the Notice of Arbitration has been or is being served on all other parties to the arbitration by one or more means of service to be identified in such confirmation.
- A non-refundable registration fee (currently USD500.00 in an international arbitration as defined in Rule 4(4)(c), KLRCA Arbitration Rules 2013 or RM1000.00 in a domestic arbitration).
The arbitral proceedings in respect of a particular dispute shall commence on the date of receipt of the written request by the respondent. This legal effect of the written request may be modified by the parties (section 23, AA).
The FAA does not contain default rules regulating the commencement of arbitral proceedings. Courts generally find that parties are bound by the dispute resolution procedures to which they have agreed. For example, if parties have agreed to multi-tiered dispute clauses with a period of negotiation or mediation before arbitration, courts typically enforce such agreements.
Limitations, if any, are prescribed by the law governing the substance of the claim. In the United States, the limitations periods for distinct causes of action are governed by state law and thus vary by state. Generally, for the purpose of limitations, an arbitration is considered commenced at the time it is filed. However, this determination may vary based on the provisions of the applicable arbitration rules and substantive law.
Under the IAA, subject to any agreement to the contrary (including institutional rules), arbitration proceedings will commence on the date on which the respondent receives a request for the dispute to be referred to arbitration. IAA, First Schedule, Article 21.
The Singapore Limitation Act applies to arbitration proceedings in the same way as to Singapore court proceedings. IAA, Section 8A(1). Consequently, for contract or tort cases governed by the substantive law of Singapore, the statutory limitation period for the commencement of claims is six years. Singapore Limitation Act, Section 6(1)(a).
The Singapore Foreign Limitation Periods Act 2012 also applies to arbitral proceedings as it does to court proceedings. IAA, Section 8A(1). This provides that foreign limitation periods are applicable to cases involving foreign substantive law, unless such application conflicts with public policy or causes undue hardship to a person who is a party to the proceedings. Singapore Foreign Limitation Periods Act 2012, Sections 3–4.
Article 19 of Law nº 9.307/96 provides that arbitration be considered established when it is accepted the appointment by the arbitrator, if single, or by all the arbitrators, if several. The paragraph 1 of that Article 19 provides that established arbitration and understanding the arbitrator or the arbitral court that there is need for explicit question exposed in the arbitration convention, shall be drawn up together with the parties an addendum signed by all, which will become part member of the arbitration convention. Paragraph 2 provides that the arbitration interrupt the limitation period, retroactive to the date of application of arbitration’s establishment, although extinct arbitration for lack of jurisdiction. There are not in Law nº 9.307/96 provisions about limitation periods, so will be observed the limitation periods provided by Civil Code.
The parties may agree on a procedure to commence proceedings. If the parties have not agreed, pursuant to Article 21 of the Model Law, the arbitral proceedings commence on the date the respondent receives the request from the claimant for the dispute to be referred to arbitration.
Generally, arbitration statutes do not address limitation periods. Limitation period laws in Canada are determined at the provincial level. Limitation periods under provincial statutes apply to arbitral proceedings in some provinces and territories. Limitation periods are considered substantive under Canadian private international law, but procedural for the purposes of enforcing a foreign arbitral judgment pursuant to the Convention. Consequently, provincial limitation statutes apply to the enforcement of an award from a foreign jurisdiction in Canada. The applicable periods vary considerably across the country. When and if implemented, the ULCC uniform law on international arbitrations will harmonize the limitation period for enforcement at 10 years from the date on which proceedings concluded or, if no proceedings took place, the date on which the time limit expired for commencement of such proceedings.
Under the Panama Arbitration Law, arbitral proceedings are deemed to be commenced once the defendant has been served with the request for arbitration.
In Panama, the limitation period for arbitration claims is not determined by the Panama Arbitration Law. It is governed by the general laws on statutes of limitations or prescription. Therefore, the limitation periods will vary from case to case.
There is no special provision. The proceedings begin by the submission of a request by the claimant under the terms agreed by the parties. There are no provisions related to limitation periods. Art. 29 of the Arbitration Law just refer to the terms agreed by the parties.
Unless otherwise agreed by the Parties, the arbitration proceeding commences by submitting the request to the court or the person, institution or organization for the appointment of the arbitrators according to the agreement; or if the parties will appoint their arbitrators, by appointing the arbitrator(s) of the claimant and notify the counterparty to appoint its own arbitrator(s); or, if the names of the arbitrators are specified under the agreement, by receiving the request for resolving the dispute through arbitration by the counterparty. If one party has the preliminary injunction or provisional seizure decision given by the court, this party has to initiate the arbitral proceeding within thirty days (two weeks according to the Law No. 6100). Otherwise the interim measure or provisional seizure will be automatically removed. Unless otherwise agreed by the Parties, the award will be constituted within one year by the sole arbitrator or the arbitral tribunal as of the appointment of the sole arbitrator or the first meeting minutes of the arbitral tribunal. The period of the arbitral proceeding can be extended by the mutual agreement of the parties or by the court with the application of the one party in case there is no compromise. The court decision is final and cannot be appealed in this regard.
If German arbitration law applies (i.e. if the arbitration seat is in Germany) and if the parties did not agree otherwise, arbitral proceedings commence on the date on which an arbitration request is received by the respondent (section 1044 ZPO). The request for arbitration is effective if it contains the names of the parties, the subject matter of the dispute and a reference to the arbitration agreement (section 1044 ZPO). From that point in time on, the limitation period is suspended.
The parties are free to agree on a different commencement date. For example, arbitral proceedings under the DIS Rules commence upon receipt of the statement of claim by the DIS Secretariat (section 6.1 of the DIS Rules).
Arbitration proceedings are considered to be commenced at the date on which the other party is served with the notice of appointment of arbitrator or of the request for appointment of arbitrator.
There are no special limitation periods for arbitration proceedings; the ordinary terms of limitation apply. The limitation period is interrupted once the above mentioned notice is served.
Arbitral proceedings commence (section 14) when service is effected, of a written request to (a) refer a matter to a pre-selected arbitrator (b) require the appointment of an arbitrator or (c) a third party requesting the appointment of an arbitrator.
Arbitral proceedings are deemed to have commenced either on the date that the parties to an arbitration agreement agree to its commencement or on the date when a written request to refer the matter to arbitration made by one party, is received by the other party. A written communication is deemed to have been received on the day it was delivered to a respondent.
Limitation periods for arbitration are governed under Statute of Limitations 1957 (as amended) where a limitation period governing specific arbitral proceedings depends on the substantive nature of the claim. The limitation period is typically six years where the arbitral proceeding concern claims for breach of contract.
Under the arbitration law, arbitration proceedings may be commenced by serving a request for arbitration on the respondent, designating the parties, the dispute, and the arbitration agreement, and also appointing an arbitrator if the party is entitled to do so. Unless otherwise agreed, the date of service is deemed to be the time of commencement of the arbitration.
The Rules of the Court of Arbitration at the Polish Chamber of Commerce provide for two alternative ways of initiating proceedings, by filing either a request for arbitration or a statement of claim with the Court of Arbitration.
The arbitration law does not provide for any special limitation periods. The statute of limitations in Poland is governed by substantive law. Under those rules, applicable when Polish substantive law applies, the statute of limitations is interrupted by any action before a state court or in arbitration which is aimed at pursuing, declaring, satisfying or securing a claim.
Thus, in arbitration, effective service of the request for arbitration or statement of claim on the other party or the arbitration institution (as provided under the Rules of the Court of Arbitration at the Polish Chamber of Commerce), as the case may be, will be deemed to interrupt the statute of limitations, but only if the arbitral tribunal is competent to hear the case.
Consequently, a party commencing an arbitration must be aware of the risk that if it turns out that the arbitral tribunal does not have jurisdiction in the matter, the statute of limitations will not be deemed to have been interrupted but will continue to run until the case is brought to the state court.