Part I Commentary on the ICDR International Rules, 28 Article 28—Waiver
Martin F Gusy, James M Hosking
Martin F. Gusy, James M. Hosking
- Arbitrators — Waiver
This chapter assesses Article 28 of the ICDR Rules. It is not uncommon for a party to raise objections to the arbitration based on non-compliance with the relevant institutional rules. However, when not raised promptly, such an objection can derail an arbitral proceeding and create potential grounds on which to challenge the award. Article 28 requires that where a party knows of any non-compliance with the ICDR Rules or the parties’ arbitration agreement, but instead proceeds with the arbitration without promptly objecting in writing, it will be deemed to have waived the right to object. This general principle is also echoed in the ICDR Rules in the specific context of challenges to arbitrators and objections to jurisdiction. Ultimately, the revisions to Article 28 in the 2014 ICDR Rules reflect best practices in international arbitration and potentially broaden the effect of the waiver provision.