How are arbitral proceedings commenced? Are there any key provisions under the arbitration laws relating to limitation periods or time bars of which the parties should be aware?
International Arbitration (2nd Edition)
The International Commercial Arbitration Rules of the Santiago Arbitration and Mediation Center (CAM Santiago), state that an arbitral proceeding commences upon the sending by the claimant of the request of arbitration to both the respondent and CAM Santiago. The claimant shall also accompany the payment of the advance or proof thereof, of part of the administrative fees of CAM Santiago (Articles 5(1) and 5(2)).
Under the International Commercial Arbitration Law No 19.971, the arbitration proceeding commences on the date the respondent receives the claimant’s request of arbitration, unless otherwise agreed by the parties (Article 21).
As for the limitation periods, parties shall comply with the statues of limitations established in the law applicable to the substance of the dispute.
Arbitral proceedings are formally commenced with the reception by the Respondent of the request for arbitration submitted by the Claimant (except if the parties agree otherwise).
There are no particular provisions in the LAV regarding limitation periods or time bars. There are however several limitation periods foreseen in other statutes such as the Civil Code, the Commercial Code and other specific legislation. For instance, the Civil Code establishes a limitation period of three years for non-contractual civil liability and a limitation period of twenty years for contractual civil liability.
LAV also determines that the arbitrators should notify the parties of the final arbitral award within a period of 12 months counting from the date of acceptance of the last arbitrator (except if the parties agreed differently). Although this period can be extended by agreement of the parties or by the arbitral tribunal, if the award is not issued within the maximum term, the arbitral proceedings shall terminate automatically and the arbitrators will no longer have jurisdiction to decide on the dispute conferred to them (art. 43 (3) LAV).
The law states that unless otherwise agreed by the parties ‘the rules applying to the judicial proceedings will apply’ (article 1230 of the NCPC). This includes the rules regarding the commencement of proceedings and limitation periods, if nothing has been provided regarding arbitration proceedings. Usually the arbitration process is started by sending an arbitration request to the opponent, and the limitation periods will depend on the law applicable to the substance of the case.
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.
Generally, the parties are entirely free to agree on a specific commencement mechanism in line with the principle of party autonomy. Only absent such agreement, the commencement will be subject to section 1044 ZPO. According to this provision, the proceedings commence when the respondent has received the request for arbitration (contrary to section 6.1 DIS Arbitration Rules under which the proceedings commence when the institution has received the request for arbitration). Section 1044 ZPO further stipulates that the request for arbitration must designate the parties, the subject matter of the dispute and make reference to the applicable arbitration agreement.
Once the respondent (or the institution) has received the request for arbitration, the applicable limitation period is suspended. German arbitration law does not provide for any limitation period. Instead, the statute of limitation depends on the substantive law.
However, the arbitration law does impose procedural time bars that are relevant for the initial stage of arbitration proceedings. Absent any diverging party agreement, the claimant shall present its claim in the time agreed upon by parties or determined by the tribunal. The same applies to the respondent’s reply (section 1046 ZPO). In the event that the claimant fails to comply with such time limit, the proceedings shall be terminated pursuant to section 1048 (1) ZPO. The respondent’s failure to comply with such time limit will not be considered as an acknowledgment of the claimant’s assertions (section 1048 (2) ZPO).
Under the Arbitration Act the arbitral proceedings commence on the date on which a request for arbitration is received by the respondent provided that the parties did not agree otherwise. If the dispute is referred to arbitration under the ICAC Arbitral Rules, than the arbitral proceedings are deemed to be commenced upon receipt of the duly filed statement of claim and after the full payment by the claimant of the arbitration fee. Notably, the issues of initiation and commencement of arbitral proceedings are distinguished under the ICAC Arbitration Rules.
Under Ukrainian law the limitation periods in commercial matters are a matter of substantive law. The general limitation period is three years and it applies equally to the contractual and non-contractual claims as well as both to the companies and the natural persons. The extended or limited limitation periods are also applicable to certain types of disputes. Under the general rule the case is admitted for consideration but dismissed on the merits if the claim is filed outside the limitation period. So, it is advisable for the parties to be prudent about filing the claim timely if Ukrainian substantive law governs the dispute.
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 and time bars for arbitration claims are not determined by the Panama Arbitration Law. They are governed by the general laws on statutes of limitations or prescription. Therefore, the limitation periods and time bars will vary from case to case.
How an arbitration is commenced is subject to the rules of the relevant arbitral institution which is to govern the arbitration process or those rules and procedures that an ad hoc tribunal may choose to adopt.
Where there is no specific time limit in the arbitration agreement, for the issue of the final award, Article 210 of the UAE CPC provides for a period of six months (from the date of the ‘initial arbitration hearing’) to issue the final award.
The parties may however agree either “implicitly” or “explicitly” to extend the date for issue of the final award which was ‘prescribed by law or by agreement’. The parties may also empower the Arbitral Tribunal to extend the date for issue of the final award to a particular date.
Subject to the request of the Arbitral Tribunal or one of the parties, the granting of further extensions of time to issue the final award is at the discretion of the Court.
Pursuant to the DIAC Rules (Article 36), an Arbitral Tribunal has six months from the date the sole arbitrator or chairman (where three arbitrators are appointed) received the file, to issue the final award.
The above period may be extended by a further six months, at the Arbitral Tribunal’s discretion. The Executive Committee of the DIAC may further extend this period, pursuant to a reasoned request from the Arbitral Tribunal or on the Executive Committee’s own initiative, should it ‘decide that it is necessary to do so’.
The ADCCAC Rules (Article 27) also provide for an initial period of six months from the date the file is received, for an arbitrator or panel of arbitrators to issue the final award.
The Arbitral Tribunal may, on its own initiative or at the request for one of the parties, extended the time to issue the final award by up to three months.
The Committee (the body in charge of administrating commercial arbitration cases) may grant a further extension of time to issue the final award, upon the reasonable application of either the Arbitral Tribunal or the one of the parties.
UAE Off-Shore Jurisdictions
Neither the DIFC-LCIA Arbitration Rules (for a DIFC seated arbitration) nor the DIFC Arbitration Law provide for a time limit for the issue of the final arbitral award.
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 receipt of 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 and there are no other explicit time bars in the Arbitration Act connected to the commencement of the proceedings.
According to Section 27 of the SAA, unless otherwise agreed by the parties, arbitration will commence on the date on which a request to submit the dispute to arbitration is received by the respondent.
Section 5 of the SAA, determines that except as otherwise agreed by the parties and excluding communications issued as part of court proceedings, the following provisions will apply:
- Any written communication is deemed to have been received on the day it is delivered to the addressee personally or to his place of business, habitual residence or mailing address.
- The time limits defined under the SAA will be counted from the day after receipt of the notification or communication. If the last day of the period is a holiday at the place of receipt, the time limit will be extended to the next business day. When a document is to be submitted within a given time obligation, that obligation will be regarded as met if it is sent within that time, regardless of when it is received. For these purposes, days will be understood to mean calendar days.
Regarding the delivery of the award by the arbitrator/s, Section 37.2 of the SAA establishes that, subject to any contrary agreement by the parties, the arbitrators must deliver the award within 6 months of the date of submission of their statement of defence. Unless otherwise agreed by the parties, this term may be extended by the arbitrators for a period no longer than 2 months under a duly justified decision. Subject to any contrary agreement between the parties, failure to deliver the award within the time limit will not affect the validity of the arbitration agreement or of the award delivered, without prejudice to the liability that may be incurred by the arbitrators.
As to the correction and interpretation of the award rendered by the arbitrator, Section 39 SAA establishes that within 10 days of notification of the award, unless another time limit has been agreed upon by the parties, a party may request the arbitrators for any of the following:
- Correction of any error contained in the award, for example, mathematical and/or typing errors;
- An interpretation of a specific point or part of the award;
- A supplement to the award on claims requested in the proceedings and omitted from the awards; and,
- The rectification of the award when the final decision rendered by the arbitrator has dealt with matters which were not subject to the arbitral clause and/or non-disposable matters.
Finally, Section 43 SAA establishes that arbitral awards constitute res judicata. Therefore, arbitral awards may only be set aside through an annulment action. Adittionaly, arbitral awards may also be subject to review according to Section 512 of the Spanish Civil Procedural Act. The referred rule determines that in no case may the review be sought after five years since the date of publication of the judgment (award) intended to challenge.
Concerning the subject matter of the arbitration, the applicable statute of limitations should be there awarded under the substantive law governing the dispute.
Arbitration proceedings are commenced by filing the request for arbitration or a statement of claim. The arbitration proceedings are deemed to have commenced on the day that that the institution receives the request for arbitration or statement of claim (in case of institutional arbitration) or on the day when the respondent receives the request for arbitration or statement of claim notice on appointment of arbitrator (in case of ad hoc arbitration).
As for limitation periods/time bars, they are not provided under arbitration laws; however, rules of statute of limitation contained within substantive laws apply and are of relevance when deciding on the timing of filing of the request for arbitration. If the request for arbitration or statement of claim is filed prior to statute of limitations, the statute of limitation is suspended.
For domestic arbitration, in the case of a contract to arbitrate future controversies, through the service by either party upon the other of a demand for arbitration in accordance with the contract. In the case of a submission of an existing controversy, by the filing of the submission agreement with the clerk of the Philippine court having jurisdiction.
For international commercial arbitration, unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commence on the date on which a request for referral to arbitration is received by the respondent.
Philippine law does not provide for default rules governing the commencement of arbitral proceedings. The parties are free to agree on the rules governing the commencement of arbitral proceedings. However, arbitration must commence by service to the other party of a demand for arbitration.
As to limitation periods or time bars, there is no specific Philippine legal provision that governs limitation periods in arbitration proceedings. However, as the right to arbitrate arises from a written contract between the parties, the general law of limitation may apply, which states that proceedings must be commenced within ten years from the date the right to institute arises under the written contract of the parties.
Further, nothing prohibits the parties from agreeing on a different period of limitation as well as the grounds for suspension of the time limits. The usual causes like force majeure are applicable and contracting parties can establish such stipulations, clauses, terms and conditions as they deem convenient, provided they are not contrary to law, morals, good customs, public order, or public policy.
The Philippine Supreme Court also recognizes the equitable defense of laches (that is, the failure or neglect, for an unreasonable and unexplained length of time, to do that which, by exercising due diligence could or should have been done earlier).
In India, arbitration is commenced by serving a notice of dispute to the opposite party inter alia invoking arbitration. For commencement of any arbitration, there has to be existence of dispute between the parties, which can be determined through arbitration. However, for the institutional arbitrations, the party need to follow the process as per the particular Rules of such institution.
As per section 21 of the Arbitration and Conciliation Act, 1996, unless otherwise agreed by the parties, the arbitral proceedings, in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent.
The limitation prescribed under the Limitation Act 1963 is three years from the date on which the cause of actions arose. Meaning thereby, a party can invoke arbitration within three years from the date on which dispute arose between the parties.
Arbitral proceedings begin with the claim filed with the director of the relevant arbitration center or, in the case of independent arbitration, with the independent arbitrator or arbitrators, by one of the parties to an arbitration agreement. The claim must contain: a) name of the arbitration center at which the claim is filed; b) names and address of the plaintiff and respondent; c) factual and legal grounds of the claim; d) subject, amount or fact matter of the claim; e) the determination of the amount of the claim; and, f) place where the respondent and plaintiff are to be served notice. Under the provisions of the LAM, the requirements for claims outlined in the Organic Code of Procedures must also be fulfilled. In addition, the claim must attach the evidence and include request of the production of evidence during the arbitral proceeding.
The arbitration court must resolve the dispute between the parties within 150 days from the filing date of the claim. This term may be extended for a like period by the arbitration court only when strictly necessary.
In addition, the tribunal in the arbitration hearing (audiencia de sustanciación) sets the term for the production of evidence, as requested by the plaintiff in the claim and by the respondent in the answer to the claim.
The Arbitration Law provides default procedural rules. Arbitral proceedings are commenced by a request for arbitration served by the claimant on the respondent. In ad hoc arbitrations, the request for arbitration must be served formally through a court process server.
The arbitration process is normally initiated by the issuance of a “notice to arbitrate”. This is a formal letter from one of the parties to the other where particulars of the dispute are given, and a request to resolve the dispute by arbitration is made. A particular point to note is that such notice will prevent prescription of a claim.
Unless otherwise agreed by the parties, if the arbitral proceedings are organized and administered by an arbitral institution, the arbitration proceedings commence on the date when arbitral institution receives the statement of claim. In other cases where the arbitration proceedings are not organized and administered by the arbitral institution, the arbitration proceedings commence on a day when the respondent receives notice that the opposing party appointed an arbitrator or proposed a sole arbitrator, accompanied by the statement of claim and an invitation to appoint the other arbitrator or to declare whether it accepts the sole arbitrator.
The Arbitration Act does not contain provisions on the statute of limitation, thus, the statute of limitation is regulated by the substantive law applicable to the subject matter of dispute.
Unless otherwise agreed by the parties, arbitral proceedings are initiated on the day when the Reference to Arbitration is notified to the person to whom it refers to.
The limitation periods which are applicable to actionable rights before the Courts, are applicable to arbitration as well. The limitation period relevant to the actionable right, ceases to run once the arbitration proceeding is initiated. In the event where an arbitral award is set aside or the arbitration agreement ceases to exist in relation to the dispute referred to in arbitration, the Court may order that the period between the initiation of the arbitration proceeding until the issue of the order for the setting aside of the award, is excluded from the limitation period.
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 opted for 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).
Unless otherwise agreed by the parties, arbitral proceedings are commenced by written notice containing the appointment by the claimant of its arbitrator and the invitation to the respondent to designate its arbitrator. Pursuant to Article 810 CCP if the respondent fails to designate its arbitrator within 20 days after the receipt of the claimant’s notice, the claimant may request to the President of the Court of First Instance at the seat of the arbitration to proceed with the appointment in the place of the respondent.
The limitation periods to bring a claim in arbitration are the same applicable to proceedings before national courts. Generally, the relevant period is 10 years from accrual of the cause of action with respect to contractual claims and 5 years with respect to tortious claims.
The procedure for the commencement of arbitral proceedings is set out in Article 3 of the Arbitration Rules. To commence arbitration, the claimant must serve a notice of arbitration on the respondent. The arbitral proceedings are deemed to commence on the date on which the notice of arbitration was received by the respondent, unless otherwise agreed by the parties. See Section 17 of the ACA. Arbitrations are to commence within six (6) years of the accrual of the cause of action just like the commencement of actions concerning contracts.
The limitation period within which to bring an application to enforce an arbitral award is six (6) years. This six-year rule, however, applies to an award pursuant to an arbitration agreement which is not under seal or where the arbitration is pursuant to any statute other than the ACA. An application to enforce an arbitral award in the categories referred to above must be brought within six (6) years. This provision has been interpreted to mean that the six-year limitation period starts to count from the day of the accrual of the cause of action resulting in the arbitral award and not from the day the arbitral award was delivered. See Murmansk Steamship Line v Kano Oil Millers (1974) 12 SC 1; City Engineering Nigeria Limited v. Federal Housing Authority (1997) 9 NWLR (Pt. 520) 224. This implies that the accrual of the cause of action, the arbitration proceedings, the award and application for enforcement of the award must all occur within six years.
In a bid to ameliorate the hardship that may arise from the decision in Murmansk Steamship Line and City Engineering Nigeria Limited (supra), the Lagos Law provides that in computation of the time for the commencement of proceedings seeking to enforce an arbitral awards, the period between the commencement of the arbitration and the date of delivery of the award shall not be reckoned with. This means that under the Lagos Law, the six-year limitation period starts to run from the day the award is delivered.
The Austrian Code of Civil Procedure is silent on when arbitral proceedings are to be considered commenced (lis pendens). Generally, the service of a (reasoned) statement of claim on respondent and appointment of an arbitrator is seen as triggering lis pendens (and barring parallel court proceedings). Institutional rules typically contain more specific provisions on the issue (such as Article 7 of the Vienna Rules providing that the arbitral proceedings commence already with the VIAC secretariat receiving a statement of claim complying with the Vienna Rules requirements).
The Austrian arbitration law does not set out specific (limitation) periods. Therefore, the service of a (due) statement of claim on respondent within any applicable (general civil law) statute of limitation period(s) generally suffices to protect own claims against time bar arguments.
The FAA does not contain default rules regulating the commencement of arbitral proceedings. Instead, this issue will be decided by reference to the dispute resolution procedures to which the parties have agreed or, in the absence of such agreement, by the law of the state of the seat of arbitration. For example, if parties have included a mandatory and precise period prior to the arbitration during which they agree to attempt negotiation or mediation, courts typically enforce such ‘tiered’ agreements.
There is no statute of limitation on the right to commence an arbitration. Instead, any limitations on a party’s claims arise from the law governing the substance of each claim.
As regards domestic arbitration, the commencement of arbitral proceedings is not regulated in the GrCCP. The prevailing view is that commencement of arbitral proceedings may be perceived differently depending on the legal issue for which it becomes crucial. Hence, for the procedural and substantive legal consequences pegged to the filing of the Request, such as lis pendens and interruption of the statute of limitations, the arbitral proceedings are deemed commenced once the Request together with the appointment of claimant’s arbitrator is notified to the respondent. The same holds true as to the question of applicable law in case a change in legislation occurs. On the contrary, for the application of time limits imposed upon the arbitral tribunal as regards the issuance of its award, the first hearing before the tribunal is identified as commencement of arbitration proceedings.
In international commercial arbitral proceedings having their seat in Greece, the issue is regulated by article 21 L. 2735/1999 which incorporates verbatim the respective rule of the Model Law: Unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent.
The most notable exception to the above arrangements, both in domestic as well as international commercial arbitration, is when the parties have agreed to the application of institutional arbitration rules which provide otherwise, mainly that the arbitration commences once the Request is received by the Secretariat of the arbitral institution.
There are no limitation periods or time bars as regards commencement of arbitration proceedings. Substantive law statutes of limitation obviously apply in any event.
The Israeli law does not include any reference to the question of how arbitral proceedings should be commenced nor does it provide for any time bars that the parties should meet in order to commence an arbitral proceeding.
As a matter of principle, arbitral proceedings normally commence by means of a notice served by one of the parties to the arbitration agreement to the other party informing it that it has commenced arbitral proceedings in accordance with the agreement between the parties. It is noted that where, for instance, there is hindrance to the appointment of the agreed upon arbitrator or where the parties fail to reach an agreement as to the identity of the arbitrator when this was not agreed in advance, the arbitral proceedings will commence upon the appointment of the arbitrator by the court or by another entity of which the parties agreed for the appointment of the arbitrator.
According the addendum to the Arbitration Law and unless otherwise provided for in the arbitration agreement or between the parties in a later stage, the Arbitrator should render the arbitration award within three months from the day on which the dispute has begun to be debated or from the day on which the arbitrator was requested to deliberate, the sooner to occur. However, the arbitrator may extend the period up to an additional three months, and in addition the court has the power to extend the arbitration period, on the request of a party or the arbitrator.
The 1996 Act requires service of written notice in accordance with s.14. Further, it states that the Limitation Acts 1980 and the Foreign Limitation Periods Act 1984 apply to arbitral proceedings as they apply to legal proceedings (s.13(1)). In summary, in contractual and tortious claims the relevant period will be six years from accrual of the cause of action.
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.