3.01  This chapter addresses the commencement of arbitration proceedings under the Rules and the initial steps taken thereafter, which are covered by Articles 1 and 2 of the Rules, dealing with the Request for Arbitration and the Response, respectively. We also cover Article 4 in this chapter, relating to notices and periods of time.

3.02  An arbitration under the Rules is started by filing a Request for Arbitration with the Registrar. While the Request is not intended to contain full particulars of the claimant’s case, as a statement of case and supporting documents are usually submitted at a later stage,¹ the Request is intended to comprise more than a bare (p. 28) notice of arbitration. As discussed in more detail below, the Request should set out brief particulars as to the nature and circumstances of the dispute, including the claims advanced by the claimant. The Request should also deal with matters relating to the conduct of the arbitration, such as the language and the seat of arbitration, and the number of arbitrators, including any agreed or proposed method for their nomination. In short, the Request should set out the claimant’s claims and, together with the Response, if submitted,² serves the purpose of defining the dispute referred to arbitration. This is particularly relevant in informing the LCIA Court about the nature of the parties’ dispute, in connection with the Court’s duty to appoint the arbitral tribunal as soon as practicable after the submission of the Request and the Response.³

3.03  Pursuant to Article 1.1, the commencement of an arbitration under the Rules is by means of submission to the Registrar of a Request. The service of the Request should conform to the requirements set forth in Article 4 of the Rules, which are discussed below. As already noted, the Request is intended to be more than a bare notice of arbitration, and should cover the various elements set forth in Article 1.1 of the Rules, which are addressed next. This being said, the Rules allow the claimant significant discretion as to how much detail to provide in the Request concerning the merits of its claims, subject to satisfying the minimum requirements of Article 1.1(c).

3.04  Pursuant to the first sub-paragraph of Article 1.1, the Request should contain the names and pertinent contact details of the parties to the arbitration and of their legal representatives. It falls to the claimant therefore, at the outset of the arbitration, and subject only to the power of the tribunal to order the subsequent joinder of third parties,⁴ to determine who shall be the parties to the arbitration. This is an important right with significant consequences for the parties so designated.

3.05  The Request should contain the full contact details (including e-mails, if known) of all the parties to the arbitration, including their legal representatives. There is no requirement under the Rules for the claimant to furnish details of a power of attorney authorizing its representation by legal counsel or any other third party, together with the Request.⁵ Subsequent to its constitution, the tribunal may require from any party proof of authority granted to its representatives.⁶

3.06  Together with the Request, the claimant should provide a copy of the written arbitration clause (or the contract in which it appears) or separate arbitration agreement which is invoked by the claimant, as well as the relevant contractual documentation in respect of which the arbitration arises.⁷ The Rules therefore (p. 30) appear to rule out the prospect of an oral arbitration agreement, which is otherwise valid under English law (and the laws of several other countries), although not subject to the English Arbitration Act 1996.⁸ Although the Rules mandate the submission of a written arbitration agreement, the written requirement is broadly construed by the LCIA Court — in accordance with modern practice in international arbitration⁹ — as part of the LCIA’s initial review of the Request (discussed below). To take, perhaps, the most common such example, an unsigned arbitration agreement that is otherwise evidenced in writing, typically by the parties’ subsequent correspondence or signed minutes of meetings, clearly satisfies the written requirement under Article 1.1(c) of the Rules. The Court therefore adopts a liberal interpretation of this provision. The Court’s decision to set the arbitration in motion is subject, of course, to the tribunal’s determination of the existence and validity of the arbitration agreement, in the event of a jurisdictional objection.¹⁰

3.07  The submission of the relevant arbitration agreement and contractual documentation invoked by the claimant is essential to enable the respondent to determine both the jurisdictional basis for the arbitration and the legal grounds for the claims brought against it, and to prepare its Response to the Request.

3.08  Upon its receipt, the Registrar reviews the Request (and any accompanying documents) in order to determine that it contains the information required to be included in a Request under the Rules, in particular, to determine the existence of an arbitration agreement providing for the adjudication of the parties’ dispute under the Rules. The Registrar’s initial review of the Request is comparable to a similar review conducted by the ICC Secretariat in ICC arbitration. There are, however, important differences. In an ICC arbitration, if the respondent raises a plea of lack of jurisdiction or fails to submit an answer, the ICC Secretariat first conducts a prima facie‎ review of the existence of an arbitration agreement between the parties to the arbitration. Only if it is satisfied that an agreement exists will the debate progress to the second stage, which is the determination by the arbitral tribunal of its own jurisdiction.¹¹ Unlike under the ICC Rules, there is no formal two-stage process for deciding jurisdiction in LCIA arbitration. In practice, though, something rather similar happens, albeit informally. In such circumstances, (p. 31) where the Rules do not contain explicit provisions, it is necessary for the Registrar to exercise his judgment and (in consultation with the LCIA Court) to act in the ‘spirit’ of the Rules, as mandated by Article 32.¹²

3.09  If, on review of the documents submitted, the Registrar (following consultation with the LCIA Court) considers that there is doubt either as to the existence of an arbitration agreement, or as to whether it covers the parties to or the subject-matter of the dispute, the Registrar will invite comments from the respondent and enter into discussions with the claimant to seek to resolve the apparent anomaly. If, following such discussions, there is no glaring or obvious inconsistency, but the LCIA’s jurisdiction remains contested by the respondent, the matter will be referred to the arbitral tribunal for decision under Article 23.1. There are occasions, however, where the LCIA is faced with an obvious or glaring inconsistency, and a recalcitrant claimant who nonetheless insists on proceeding under the Rules. Although it is difficult to summarize the practice of the Court on such occasions, as each case is decided on its facts, unless the Court considers the matter to be clear cut, for example, if the arbitration agreement unequivocally provides for arbitration under the ICC Rules, the Court is likely to decide to proceed with the arbitration proceedings. In so doing, the Court may direct the claimant alone to bear the costs of the arbitration under Article 24.1 until the tribunal has determined the issue of its jurisdiction. The LCIA thus takes the view that, under the Rules, the claimant will bear the financial risk of its insistence to proceed with the arbitration.¹³ There is much merit in this practice, as it requires the arbitrators to rule on their own jurisdiction rather than the institution, which should be focusing on the administration of the parties’ dispute rather than its adjudication. It is only in the most glaring or clear-cut cases, which by their nature are exceptional, that the LCIA Court will refuse to set the arbitration in motion.

3.10  Article 1.1 next requires that the claimant sets out in the Request a brief statement describing the nature and circumstances of the dispute, and specifies the claims advanced against the respondent. The Rules contemplate the provision of (p. 32) a minimum amount of information concerning the parties’ dispute and the claims being advanced, but nonetheless allow the claimant to decide how much detail to provide. As discussed earlier, the Request should contain sufficient detail to enable the respondent party to understand the claims presented against it and to formulate its defences in the Response. The Request should, at a minimum, therefore, set out every cause of action and head of claim pursued by the claimant.¹⁴ The Rules do not require the claimant to provide an indication of the amount in dispute, unlike under the ICC Rules.¹⁵ Indeed, the inclusion of such a requirement was expressly rejected during the drafting process of the Rules.¹⁶ Although an indication of the amounts at stake may be useful to the LCIA Court in its selection and appointment of arbitrators, such information is not strictly necessary since the costs of an LCIA arbitration are not determined on the basis of the amounts at stake, unlike in ICC arbitration.¹⁷

3.11  Further, it is in the interests of the claimant to provide sufficient detail in the Request to assist the Registrar in his task of preparing a summary of the case which is then submitted to the LCIA Court. The Court, in turn, will rely on the case summary to inform its selection of suitable arbitrator candidates and, in the case of party nomination, to ensure the suitability of the nominated arbitrators prior to their appointment. If the Registrar determines that the Request is insufficiently complete in order to prepare a suitable case summary, he will request the claimant to provide a fuller description of the dispute or, as the case may be, the relief sought in the arbitration. Typically, it is the respondent, rather than the Registrar, who is more likely to raise the issue of an incomplete Request. In such circumstances, the Registrar may seek the provision of further and better particulars from the claimant. In so doing, however, and in any ensuing correspondence that may follow, the Registrar must remain neutral and studiously avoid arguing any party’s case.

3.12  In circumstances where there is plainly a dispute between the parties as to the sufficiency of the detail set out in the Request, and the claimant refuses to furnish the additional requested information, the Registrar may seize the LCIA Court. As discussed in the next chapter, the LCIA Court may proceed with the formation of the arbitral tribunal notwithstanding that the Request is incomplete or the Response is missing, late, or incomplete.¹⁸ If the Court decides that it cannot proceed with the formulation of the tribunal on the basis of the Request as submitted, (p. 33) then the arbitration cannot progress further until the missing information is furnished by the claimant. The Court can, and occasionally does, decide to proceed with the arbitration in spite of an incomplete Request, even if this means that the Respondent is, in turn, unable to submit a complete Response. The practice of the LCIA Court is, in this respect, guided by its policy to constitute the arbitral tribunal as soon as practicable and to let the arbitrators adjudicate the parties’ dispute. Consistent with this policy is the fact that the respondent is not prejudiced by a failure to submit a Response. Indeed, as discussed below, Article 2.3 of the Rules explicitly affirms the optional nature of the Response. It follows, moreover, that the deadline of 30 days for the submission of a Response, which runs from the respondent’s receipt of the Request,¹⁹ is not generally disrupted by the submission of an incomplete Request (see the discussion below).

3.13  Article 1.1(d) provides the claimant with the opportunity to address other matters regarding the conduct of the arbitration, such as the language and seat of the arbitration, or the number (and relevant qualifications) of the arbitrators. To the extent that these matters are addressed in the parties’ arbitration agreement, the Request should identify the parties’ agreement in respect of these matters. Conversely, if such matters are not dealt with by a written agreement of the parties, the claimant has the opportunity to submit its proposals as to these matters, which are all matters that the LCIA Court may be required to take into consideration in setting the arbitration proceedings in motion,²⁰ and in appointing the arbitral tribunal.²¹

3.14  As discussed in the next chapter, only the LCIA court is empowered to appoint members of the tribunal. Moreover, there is no default provision under the Rules that provides the parties with the opportunity to nominate arbitrators — unlike the ICC or UNCITRAL Rules, where each party enjoys the right to nominate (or appoint under the UNCITRAL Rules) one arbitrator.²² The default provision under the LCIA Rules provides for appointment of all arbitrators by the LCIA Court. The parties may nonetheless provide in their arbitration agreement that each party shall nominate an arbitrator, subject to the nominee’s appointment (p. 34) by the Court.²³ Alternatively, the parties may seek to agree the process for nomination of arbitrators following the commencement of the arbitration.

3.15  If the arbitration agreement calls for party nomination of arbitrators, then the claimant should designate its nominee in the Request and set out the nominee’s relevant contact details. Although the claimant’s failure to do so does not irrevocably waive the claimant’s right to effect such a nomination at a later time, the LCIA Court may appoint an arbitrator on behalf of the claimant in the absence of such a nomination in the Request and without regard to a later nomination.

3.16  On its face, the power of the LCIA Court to appoint an arbitrator in the absence of a nomination in the Request, or without regard to a late nomination, may appear somewhat draconian.²⁴ This is particularly so, as in a significant number of cases, claimants fail to nominate an arbitrator in the Request, in accordance with the terms of the parties’ arbitration agreement. It is important to note, however, that the LCIA Court has a discretion in the exercise of its power to effect an appointment in place of the claimant. Indeed, Article 5.4 of the Rules represents somewhat of a softening of the previous version of this provision in the 1985 Rules, which was drafted in mandatory form.²⁵ In practice, and in accordance with its policy to encourage party autonomy and participation in the arbitration process, the LCIA Court does not rush to usurp the claimant’s right to nominate an arbitrator and instead encourages the claimant to effect its nomination in a timely fashion. Indeed, our research revealed no instances where the LCIA Court has exercised its discretion to appoint an arbitrator due to a claimant party’s default to effect a timely nomination in the Request. This is discussed in more detail in chapter 4 below.

3.17  The Request should be accompanied by the appropriate registration fee prescribed in the Schedule of Arbitration Fees and Costs (the Schedule of Costs) (p. 35) in force at the time. The Rules include the Schedule of Costs in effect at the commencement of the arbitration, as separately amended from time to time by the LCIA Court.²⁶ According to the current Schedule of Costs, which came into effect in May 2007, the non-refundable registration fee currently stands at £1500. Without the registration fee, the Request is treated as not having been received by the Registrar and the arbitration as not having been commenced.

3.18  It is interesting to contrast this provision with practice under the ICC Rules, where the required advance payment of the ICC’s administrative expenses is not deemed to form part of the Request.²⁷ Therefore, the commencement of the arbitration proceedings can proceed even in the absence of the requisite registration fee, albeit subject to the ICC Secretariat’s mandate to close the file if payment is not forthcoming within the time limit to be specified by the Secretariat. The Registrar enjoys no such power under the LCIA Rules.

3.19  The Request should also contain confirmation to the Registrar by the claimant that copies of the Request and all accompanying documents have been or are being served simultaneously on all other parties to the arbitration. The Request should further indicate the means by which such service is effected. This is different to the practice in arbitrations governed by the ICC Rules, where the ICC Secretariat takes responsibility for serving the request for arbitration and the answer thereto upon the respondent or claimant respectively.²⁸

3.20  The direct service of the Request upon the respondent, and the provision in Article 2.1 of the Rules that the deadline for submission of the Response runs from the respondent’s receipt of the Request, means that the deadline for the submission of the Response may start to run before the formal commencement of the arbitration if, for example, there is a delay in transmission of the Request to the Registrar. Any such time difference is likely to be minimal, however, particularly as Article 1.1(g) requires the simultaneous service of the Request upon the Registrar and the respondent (see discussion below).

(p. 36) 3.21  Article 1.2 establishes the principle that the date of receipt by the Registrar of the Request shall be treated as the date on which the arbitration has commenced for all purposes. This provision appears to be at odds with Article 2.1 which states that the deadline for the submission of the Response, including the possible nomination of the respondent’s arbitrator, runs as of the date of the respondent’s receipt of the Request (which is served directly on the respondent by the claimant) and not from the date of commencement of the arbitration. The Court has clarified any possible mismatch in the Rules by confirming that the deadline for submission of the Response (or nomination of an arbitrator) does not start to run before the formal commencement of the arbitration, which, inter alia, is conditioned on the Registrar’s receipt of the registration fee (discussed above).

3.22  The Registrar reviews the Request upon its receipt in order to determine that it contains the information required to be included in a Request under the Rules. Subject to the circumstances described above in the discussion of Article 1.1, the Registrar will acknowledge receipt of the Request by writing to all parties designated in the Request. In so doing, the Registrar will typically cite the relevant arbitration agreement invoked by the claimant and affirm the parties’ agreement, or the claimant’s proposals, as regards the language and seat of the arbitration and any other matters relating to the conduct of the arbitration, including as to the number and method of nomination of arbitrators. The Registrar will also remind the respondent that it should submit a Response within 30 days of receipt of the Request (or an earlier date in the event of an expedited formation of the tribunal pursuant to Article 9).

3.23  Article 1.2 also specifies the number of copies of the Request (and any accompanying documents) to be submitted in accordance with the number of arbitrators. The Registrar will invite the claimant to provide additional copies of the Request in the event that insufficient copies have been submitted.

3.24  Article 2 deals with the submission of a Response to the Request by the respondent, which should include a brief statement as to the nature and circumstances of any counterclaims advanced by the respondent. The submission of a Response prior to the constitution of the tribunal is an important feature of proceedings under the Rules, which is also common to arbitrations conducted under the ICC and ICDR Rules,²⁹ but not to certain other arbitration rules.³⁰ As discussed below, however, the submission of the Response is not a requirement under the Rules, (p. 37) and there are no adverse consequences to the respondent’s decision not to submit one. The submission of the Response is nonetheless useful, particularly in informing the LCIA Court in its task of selecting suitable arbitrator candidates, or in the case of party nomination, to ensure the suitability of the nominated arbitrators prior to their appointment.

3.25  Article 2.1 establishes the time period for the submission of the Response and sets forth its required contents.

3.26  Article 2.1 provides that the respondent must file its Response within 30 days of its receipt of the Request, or such lesser period as fixed by the LCIA Court. The service of the Response and the calculation of the time period should conform to the requirements set forth in Article 4 of the Rules, which are discussed below.

3.27  In spite of the discussion earlier in the context of Article 1.1, it bears emphasis that although the period of 30 days under Article 1 runs from the date of receipt of the Request, rather than the commencement of the arbitration pursuant to Article 1.2, as a matter of practice, the 30-day time period under Article 2.1 does not start to run before the formal commencement of the arbitration in the event that the respondent were to receive the Request ahead of the Registrar.

3.28  It is also worth reiterating that, unlike under the ICC Rules, there is no scope under the Rules for the respondent to seek an extension of the time period for the (p. 38) submission of the Response from the LCIA Court or the Registrar.³¹ In fact, the LCIA Court has no explicit power under the Rules to extend any of the time periods set forth therein, contrary to the arbitral tribunal.³² The Court is nonetheless empowered to curtail or abridge the period of 30 days under Article 2.1 in the event of a request for the formation of an expedited tribunal.³³ As we saw above, moreover, the time period under Article 2.1 continues to run even if the submitted Request is considered by the Registrar to be incomplete, but sufficiently detailed to enable the Court to proceed with formation of the tribunal.

3.29  The inflexible nature of the Rules in this regard stems from the optional nature of the Response and the LCIA’s concern for combating dilatory tactics by the parties, particularly respondents. As to the optional nature of the Response, and as discussed below, the failure to submit a Response is without great consequence.³⁴ Thus, the respondent is not precluded from defending any claim or pursuing a counterclaim in the arbitration as a consequence of its failure to submit a late Response or one at all. As regards concerns of dilatory tactics, the intention behind the Rules is to enable the LCIA Court to proceed with the formation of the arbitral tribunal as soon as practicable in the face of parties’ efforts to delay the arbitration proceedings under Article 5.4.³⁵ The flexibility of the time limit for the submission of the Response was, in fact, considered during the revision process of the current version of the Rules.³⁶ In light of the two considerations mentioned above, however, no revision of this provision was proposed.³⁷

3.30  While there is considerable merit to the LCIA’s tough stance for combating dilatory tactics by parties, the inflexibility of the time limit under Article 2.1 is likely to penalize parties who might have genuine and reasonable grounds for an extension of time in connection with the submission of the Response, for example, due to the inevitable delay caused by the instruction of external counsel. A degree of flexibility in the LCIA’s approach would therefore be welcome. At present, such flexibility is only possible if the parties agree to an extension of time for the submission of the Response.

3.31  Apart from the nomination of its arbitrator, if so provided in the arbitration agreement, the Rules do not impose any rigid requirements as to the form of the Response or the amount of detail that the respondent should provide with respect to the merits of the case, including as regards any counterclaims advanced. Indeed, it is not unusual for respondents simply to foreshadow the prospect of future counterclaims without further elucidation. The respondent will have additional opportunities to introduce or elaborate upon its defences, or counterclaims, during the arbitration, notably, in its Statement of Defence.³⁸ In practice, how much the respondent chooses to include in the Response will likely depend on the circumstances of the case and the content of the Request.

3.32  Even if the respondent is not inclined to submit a Response dealing with the substance of the parties’ dispute, it should nonetheless endeavour to comment in response to any statements contained in the Request, as called for under Article 1.1(d), relating to the conduct of the arbitration. In particular, if such matters are not covered by the arbitration agreement, it is in the interests of the respondent to respond to any proposals made by the claimant as to the number and possible nomination of arbitrators (as well as the language and seat of the arbitration), or it runs the risk that, when deciding on such matters, the LCIA Court will not have the benefit of the respondent’s view of the case.³⁹

3.33  This Article mirrors the provisions of Article 1.2 as to the numbers of copies of the Response to be submitted to the Registrar. A copy of the Response should separately be served on all the parties to the arbitration, as per Article 2.1(e).

3.34  As already mentioned, Article 2.3 affirms the optional nature of the Response by providing that failure to send a Response does not preclude the respondent from defending claims raised against it or from advancing any counterclaims in the arbitration. Subject to the discussion below as to the nomination of arbitrators, there is therefore no sanction under the Rules for a respondent’s failure to submit a Response on time, or at all. The respondent has further opportunities, such as the Statement of Defence, to submit its defences to the merits of the claims brought against it, or to advance counterclaims. Nor do the Rules require the respondent to raise any jurisdictional defences in the Response. Any such defence must be raised, however, no later than the Statement of Defence, or they are deemed to be irrevocably waived.⁴⁰ It is nonetheless good practice and in the interests of the respondent for it to raise any jurisdictional defences as soon as possible, especially if it wishes the tribunal to determine the issue of its jurisdiction in a preliminary phase of the arbitration and before consideration of the merits of the case.⁴¹

3.35  Article 2.3 establishes that, if the parties’ arbitration agreement provides for the nomination of arbitrators by the parties (subject to their subsequent appointment by the LCIA Court), the respondent’s failure to send a Response or otherwise to nominate an arbitrator within time or at all constitutes an irrevocable waiver of that party’s opportunity to nominate an arbitrator. In order to avoid the severe sanction set forth in this provision, the respondent must either submit a Response, which contains the nomination of an arbitrator,⁴² or, alternatively, if it chooses not to submit a Response, nominate an arbitrator within 30 days of its receipt of the Request. As discussed earlier in the context of Article 2.1, the purpose of this condition is to combat the delaying tactics often employed by respondent parties. Article 2.3 is therefore designed to dissuade parties from abusing opportunities to nominate arbitrators.⁴³ The drafters of the Rules fully recognized the potential seriousness of this provision. They rather hoped that the Rules would seldom have to be applied in their full severity, and that their very existence would (p. 41) ‘cause parties to behave reasonably, and in the process contribute to the development of a generally acceptable deontology of international arbitration’.⁴⁴

3.36  The irrevocable waiver of a party’s right to nominate an arbitrator under Article 2.3 should be considered in conjunction with Articles 7.1 and 5.4 which are discussed in the next chapter. It suffices to note here that Article 7.1 provides that, where the parties have agreed that the respondent is to nominate an arbitrator, the LCIA Court may appoint an arbitrator notwithstanding the absence of the nomination and without regard to any late nomination. Article 5.4 mandates the LCIA Court to appoint the tribunal as soon as practicable after receipt by the Registrar of the Request or after expiry of 30 days following service of the Request upon the respondent if no Response is submitted. Furthermore, the LCIA Court may proceed with the formation of the tribunal in spite of a missing, late, or incomplete Response.

3.37  While both provisions empower the LCIA Court to proceed with the arbitration in the event of a late or absent nomination by the respondent, the Court retains a discretion in proceeding with the formation of the tribunal which provides a welcome degree of flexibility in the Court’s practice in the face of the potentially severe consequences of Article 2.3. As a matter of practice, the Court is likely to be sympathetic to a nomination that arrives only a few days late, whereas a nomination that is received by the Registrar a few weeks late is likely to be too late. As we discuss in the next chapter, our research revealed many instances where the LCIA Court has exercised its power under Article 7.2 in the absence of a timely nomination by the respondent.

3.38  One difficult situation that may arise in this context is when, faced with the nomination of an arbitrator by the claimant in the Request, the respondent disputes the validity of the claimant’s nomination on the basis of an alleged ambiguity in the arbitration agreement. In such circumstances, it falls to the Court to construe the arbitration agreement for the purposes of Article 2.3 and to determine the existence of a prior agreement of the parties providing for the nomination of arbitrators.⁴⁵ Another potentially difficult situation arises in the event that the respondent contends that the Request is defective because the claims are not sufficiently described and that it should not be required to nominate an arbitrator, until the Request has been rectified. As a general rule, the incomplete nature of the Request does not stop the time period under Article 2.3 for the nomination of an arbitrator from running, except if the LCIA Court were to decide not to proceed (p. 42) with the formation of the tribunal due to the incomplete nature of the Request, in accordance with Article 5.4.

3.39  Article 4 sets out in comprehensive detail the procedures to be followed in respect of written communications among the parties, the arbitrators, and the Registrar during the arbitration. This article was introduced for the first time in the current version of the Rules and the text essentially follows Article 4 of the WIPO Arbitration Rules.⁴⁶ The intention of the drafters was to avoid sterile argument (and dilatory practice by parties) over the precise date, time, and method of service of documents, as provided for in the Rules, directed by the tribunal, or agreed between the parties, by setting out ‘chapter and verse’ on means of communication, and on dates of commencement and expiry of time limits.⁴⁷ All modern arbitration rules now contain similar provisions, although none is as detailed as Article 4.⁴⁸

3.40  Article 4.1 contains specific reference to the various means of communication available to the parties, which reduces delay that could be caused by parties’ queries. The inclusion of transmission by facsimile and email also brings the institution up to date with respect to modern means of communication. The only criterion established by Article 4.1 for the valid sending of notices is that the chosen method of communication provide a record of its transmission.

3.41  Pursuant to Article 4.2, a party’s last known residence or place of business during the arbitration constitutes a valid address of a party, in the absence of any (p. 43) notification of a change of such address. The Rules do not require any other particular formalities to be respected in making notifications in the arbitration. There is thus no requirement that notice be made to any particular person, or for the sending party to verify that the notice has been received by a duly-authorized person, provided that delivery has been made at the proper address.

3.42  However, parties should bear in mind such legal requirements that may apply to the enforcement of awards in any given situation. Thus, while notification to a party’s last known address is sufficient under the Rules, the New York Convention provides that recognition and enforcement of an award may be refused if the party against whom the award is invoked was not given proper notice of the arbitration proceedings.⁴⁹ It is therefore good practice for parties to do all that they reasonably can to ensure that notice of the arbitration proceedings is actually received from the start of the arbitration.

3.43  Article 4.3 fixes the effective date of commencement of any time limit, any notification or communication, and is self-explanatory.

3.44  This provision should be read in conjunction with Article 4.6 and affirms that a notice or other communication is deemed to have been sent, made, or transmitted, if despatched in compliance with Articles 4.1 and 4.2 prior to the expiration of the time-limit.

(p. 44) 3.45  Article 4.5 provides an exception to the default provisions set out in Articles 4.1 and 4.2 as to the means of communication available to the parties, which may be eschewed in favour of any alternate means either agreed in writing between the parties (typically specified in the contract giving rise to the dispute), according to the practice followed in the parties’ course of dealing, or as ordered by the tribunal.

3.46  This provision is permissive rather than mandatory. At the start of the arbitration, the Registrar will ordinarily accept the claimant’s indication as to the respondent’s address, subject to inquiry if it appears peculiar to the Registrar. The claimant will bear the consequences of an erroneous indication in terms of delay in proceeding with the arbitration.

3.47  This provision explains how the various time periods under the Rules should be calculated and, as explained earlier, is intended to avoid unnecessary debate and dispute as regards the calculation of time periods during the arbitration.