Frequently Asked Questions
About the Institution
- What is LCIA India and what is its function?
- Is LCIA India a government body, or a government funded body?
- Must I be a member of LCIA India before I can use LCIA India’s dispute resolution services?
- Can I refer my dispute to LCIA India if there is no LCIA India clause in my contract?
- How do I become eligible for appointment in LCIA India arbitrations/mediations?
LCIA India arbitration – general questions
- Will LCIA India accept jurisdiction if my arbitration clause provides for disputes to be referred for arbitration to “LCIA”?
- Is it sufficient if my arbitration clause provides simply for arbitration in India?
- What about clauses that refer to some Indian institution that appears not to exist?
- Does LCIA India act as appointing authority under the UNCITRAL Arbitration Rules?
- Does LCIA India also administer cases conducted under the UNCITRAL Arbitration Rules?
- What is LCIA India’s position on the appointment of administrative secretaries to Tribunals?
- Can I obtain information about pending or completed arbitrations from LCIA India?
- Does LCIA India publish Awards?
- How long does the average LCIA India arbitration last?
- Can I obtain a list of LCIA India arbitrators?
- Does LCIA India administer arbitrations with a non-Indian seat?
- Can two international parties, not having any connection with India refer a case to LCIA India for administration?
- Does LCIA India have rules for fast-track arbitration?
- Does LCIA India’s policy of paying its arbitrators by the hour not reward inefficiency?
LCIA India arbitration – questions about the LCIA India Rules
- Is there a standard form for the Request for Arbitration?
- Must the registration fee be physically enclosed with the Request?
- Is there a standard form for the Response to the Request for Arbitration?
- What is the status and role of the LCIA Court in LCIA India administered arbitrations?
- What does a party do if it is required to nominate an arbitrator, but does not know who to nominate?
- Does LCIA India favour one arbitrator or three?
- Can a party always appoint its own arbitrator?
- How quickly does LCIA India appoint a Tribunal?
- What if a Claimant needs urgent conservatory measures?
- If a party elects to treat its Request for Arbitration as its Statement of Case at the time of filing the Request, when must the Respondent serve its Statement of Defence?
- Do the parties have to instruct lawyers to represent them in an LCIA India arbitration?
- Does LCIA India scrutinise the Awards rendered by the Tribunals it appoints?
LCIA India mediation and ADR
- Does LCIA India publish rules for ADR, other than for mediation?
- Does LCIA India act as appointing authority only, to appoint neutrals for the various ADR options?
- Are the parties to a mediation bound by the agreement that they reach?
Answers
1. What is LCIA India and what is its function?
LCIA India is a neutral and independent arbitral institution, providing administrative services only under its own, and under ad hoc, rules and procedures, and neither practises law, nor renders legal services. No written or oral statement made by or on behalf of LCIA India shall be interpreted or relied upon as any form of legal advice.
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2. Is LCIA India a government body, or a government funded body?
LCIA India is a private company, incorporated in India, and is entirely neutral in its outlook and operation. It is not a government body, nor is it linked to, funded by, or associated with, the government of any jurisdiction.
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3. Must I be a member of LCIA India before I can use LCIA India’s dispute resolution services?
No. Any contracting party may provide for LCIA India arbitration and/or mediation and/or other forms of ADR in their contract, without the prior agreement of LCIA India. No fees are payable to LCIA India for its dispute resolution services until, and unless, an arbitration or ADR process is commenced.
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4. Can I refer my dispute to LCIA India if there is no LCIA India clause in my contract?
Arbitration and ADR are consensual processes. Absent an express agreement between them, if one party wishes to refer a dispute to LCIA India, but the other does not, LCIA India has no jurisdiction to determine the dispute. The best course is always to write a clear and unequivocal LCIA India clause into your contract (click here for recommended clauses). However, if there is no such clause, or if you wish to vary a clause to provide for LCIA India’s services, it may be possible to obtain the other side’s agreement to do so. In that case, LCIA India will be pleased to provide a separate arbitration agreement.
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5. How do I become eligible for appointment in LCIA India arbitrations/mediations?
LCIA India does not have a panel of neutrals, as such. It has a database of neutrals from around 90 jurisdictions including India. Should you wish to be included on the database, you should submit your CV along with the completed LCIA India Neutrals Database Form (click here for the Form) and, assuming that you meet our criteria for inclusion, nothing further is required for you to be placed on our database. It is important to understand, however, that appointments are made strictly on the basis of the most appropriate qualification for the specific case. There is no way of predicting if and when an appointment might be forthcoming.
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LCIA India arbitration – general questions
6. Will LCIA India accept jurisdiction if my arbitration clause provides for disputes to be referred for arbitration to “LCIA”?
No. LCIA India only assumes jurisdiction when there is a specific reference to “LCIA India”.
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7. Is it sufficient if my arbitration clause provides simply for arbitration in India?
A clause referring only to arbitration in India does not provide for LCIA India arbitration, though it may provide for ad hoc arbitration in India, almost certainly in accordance with the Indian Arbitration and Conciliation Act, 1996. Should parties arbitrating pursuant to such a clause wish to adopt the LCIA India Rules and/or to have the LCIA India act as administrator, they may apply to the LCIA India for that purpose.
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8. What about clauses that refer to some Indian institution that appears not to exist?
If a Claimant asserts that it was the parties’ intention to refer to LCIA India, and if LCIA India is, prima facie, satisfied that a case can be made for the jurisdiction of LCIA India, it may accept jurisdiction, on the understanding that it will be for the Claimant to satisfy the Tribunal, in due course, that LCIA India, and the Tribunal, do, indeed, have jurisdiction. Please see Articles 2.4 and 23 of the LCIA India Rules.
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9. Does LCIA India act as appointing authority under the UNCITRAL Arbitration Rules?
Yes. This is a role that can be undertaken by LCIA India, for which the parties may expressly prov
ide in their contract.
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10. Does LCIA India also administer cases conducted under the UNCITRAL Arbitration Rules?
This is a role that can be performed by LCIA India. Click here for the advantages of administered arbitration.
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11. What is the LCIA India’s position on the appointment of administrative secretaries to Tribunals?
LCIA India will provide the Tribunal (and, of course, the parties) with the administrative support that they require.
However, LCIA India has no objection, in principle, to the appointment of an administrative secretary to the Tribunal, provided that the parties agree in writing, and subject to the usual conflicts checks.
The duties of the administrative secretary should neither conflict with those for which the parties have contracted with LCIA India, nor constitute any delegation of the Tribunal’s authority. Whilst LCIA India is prepared to liaise with the administrative secretary on administrative matters, the LCIA India Secretariat will finalise arrangements for hearing venues, transcripts and so on; provide any reminders that may be required on the procedural timetable; and deal with all matters required of it under the LCIA India Rules.
Administrative secretaries should therefore, confine their activities to such matters as organising papers for the Tribunal, highlighting relevant legal authorities, maintaining factual chronologies, keeping the Tribunal’s time sheets and so forth.
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12. Can I obtain information about pending or completed arbitrations from LCIA India?
Confidentiality is still generally regarded as one of the primary underpinnings of arbitration. Nobody who is not a proper party to an arbitration, or a legal representative of a party, may obtain information about pending or completed arbitrations from LCIA India. Our response to any such request will be that we cannot comment, irrespective of whether we have any knowledge of the matter about which we are being asked.
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13. Does LCIA India publish Awards?
For the same reasons of confidentiality to which the answer to question 11 refers, and by virtue of Article 30 of the LCIA India Rules, LCIA India does not publish Awards, or parts of Awards, even in redacted form.
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14. How long does the average LCIA India arbitration last?
There is no such thing as an “average” arbitration. Sums in issue, and technical complexity, may vary greatly between one case and another, as may the volume of evidence, oral and written, that may be required to determine the dispute.
However, on a recent survey of cases conducted in London, 50% of those that ran their course from Request for Arbitration to Final Award were conducted in 12 months or less, and more than 75%, in 18 months or less.
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15. Can I obtain a list of LCIA India arbitrators?
Please see the answer to question 4 regarding LCIA India’s database, which is not publicly available. However, if the parties agree, once an arbitration has been commenced, LCIA India will provide both sides with a list of the names of arbitrators who it would be prepared to appoint to determine the dispute, from which the parties may seek to agree the arbitrator(s).
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16. Does LCIA India administer arbitrations with a non-Indian seat?
Yes. LCIA India will administer any arbitration referred to it, regardless of either the seat/legal place, of the arbitration, or the venue for any meetings or hearings.
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17. Can two international parties which do not have any connection with India refer a case to LCIA India for administration?
The LCIA India Rules are an international set of rules that can be used by parties of any nationality, notwithstanding the absence of a connection with India.
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18. Does LCIA India have rules for fast-track arbitration?
Whilst there are no separate rules for fast-track arbitration, the LCIA India Rules may be readily adapted to achieve an expedited process. Should the parties wish to provide, in their contract, for fast-track arbitration, LCIA India will provide recommended clauses for this purpose.
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19. Does LCIA India’s policy of paying its arbitrators by the hour not reward inefficiency?
No. LCIA India carefully monitors the charges levied by all arbitrators. Arbitrators are required to provide fee notes, including, or accompanied by, details of the time spent on a case.
Every payment on account of arbitrators’ fees will be notified to the parties in advance and accounted for on disbursement. Parties may call for financial summaries at any time to keep track of costs.
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LCIA India arbitration – questions about the LCIA India Rules
20. Is there a standard form for the Request for Arbitration?
There is no standard form. The Request must be addressed to the LCIA India Registrar and must contain, or be accompanied by, all of those elements listed at Articles 1.1(a) through 1.1(h) of the LCIA India Rules.
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Some Claimants use the wording of those Articles as the headings to the requisite sections of the Request. Beyond these requirements, the form and format of the Request is a matter for the Claimant.
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21. Must the registration fee be physically enclosed with the Request?
No. The Claimant may wire the registration fee direct to an LCIA India account, details of which will be provided, on request, by the LCIA India Secretariat. However, it is vital to remember that the Request is treated as not having been received, and the arbitration as not having been commenced, until the fee has been received (Please see Article 1.1(g)).
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22. Is there a standard form for the Response to the Request for Arbitration?
No. As for the Request, the only strict requirement is that the Response should deal with each element of Article 2.1(a) through 2.1(f). Furthermore, the Response is not a mandatory submission, though, if the Respondent is required to nominate an arbitrator and fails to do so within the time for the Response (if no other time is specified in the arbitration agreement) the Respondent will lose the opportunity to nominate an arbitrator.
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23. What is the status and role of the LCIA Court in an LCIA India administered arbitration?
The LCIA Court is a body of eminent international arbitrators whose key functions under LCIA India Rules and procedures are appointing Tribunals, determining challenges to arbitrators and controlling costs. There is no connection between the LCIA Court and any State Court.
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24. What does a party do if it is required to nominate an arbitrator, but does not know who to nominate?
Please see the answer to question 14.
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25. Does LCIA India favour one arbitrator or three?
LCIA India will follow the express agreement of the parties as to the number of arbitrators. However, if there is no agreement, the presumption in the LCIA India Rules (Article 5.4) favours a sole arbitrator, unless the circumstances of the case demand three. These circumstances will include, for example, the sum in issue and the legal or technical complexity of the case.
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26. Can a party always appoint its own arbitrator?
The parties themselves may not appoint arbitrators. They may, however, nominate arbitrators for appointment by the institution, which retains the discretion not to appoint a nominee that it considers not to be independent or impartial, or to be otherwise unsuitable.
Under Article 5.6 of the LCIA India Rules, in the case of a three-member Arbitral Tribunal, the Chairman (who shall be neither party-nominated, nor nominated by the parties’ nominees or by any third party) shall in all cases be selected by the LCIA Court.
27. How quickly does LCIA India appoint a Tribunal?
Article 5.4 requires that the Tribunal be appointed “as soon as practicable” after service of the Response, or, if there is no Response, after the elapse of the prescribed 30 days from the date of the Request.
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Where LCIA India is selecting the arbitrator(s) itself, or the Chairman of the Tribunal, if the parties have nominated the first two arbitrators, we would hope to constitute the Tribunal within 7 working days of the Response. However, the process may be more protracted, when, for example, it proves difficult to identify an arbitrator who is not conflicted vis-à-vis one or more of the parties. There can also be a delay if the parties themselves have agreed to select the sole arbitrator.
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28. What if a Claimant needs urgent conservatory measures?
Under Article 9, the Tribunal may be constituted on an expedited basis, in cases of exceptional urgency. Applications under Article 9 are most commonly accompanied by an application for urgent interim relief under Article 25. Once the grounds for exceptional urgency have been prima facie established, the arbitrator(s) may be appointed within as short a time as 48 hours from the date of the application under Article 9. In all cases, however, the Respondent will have been given an opportunity to reply to the Claimant’s application, though if it fails to do so, the Tribunal may, nonetheless, be constituted on an expedited basis.
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29. If a party elects to treat its Request for Arbitration as its Statement of Case at the time of filing the Request, when must the Respondent serve its Statement of Defence?
Although Article 15.3 provides that a Respondent shall file its Statement of Defence within 30 days of the Claimant electing to treat the Request as its Statement of Case, that provision takes effect only after the appointment of the Tribunal. Any election for the purposes of Article 15.3 made at the time of the Request will, therefore, be deemed effective as at the date of the appointment of the Tribunal, from which date the Respondent will have 30 days to file its Statement of Defence, unless that period is abridged by the agreement of the parties, or at the direction of the Tribunal.
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30. Do the parties have to instruct lawyers to represent them in an LCIA India arbitration?
No. Article 18 provides that any party may be represented by legal practitioners or any other representatives.
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31. Does LCIA India scrutinise the Awards rendered by the Tribunals it appoints?
LCIA India feels able to rely upon the Tribunals it appoints to draft well written, well reasoned and enforceable Awards without its intervention. There is, therefore, no formal scrutiny of draft Awards under the LCIA India Rules. However, if the Secretariat is requested by a Tribunal to review a draft for typographical and similar errors, it will do so.
In all events, Article 27 of the Rules provides for the correction of Awards and for the making of additional Awards, in the event either may be required.
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LCIA India mediation and ADR
32. Does LCIA India publish rules for ADR, other than for mediation?
LCIA India does not publish separate rules for ADR, other than mediation; for example expert determination, early neutral evaluation, or adjudication. Our view is that these forms of ADR are fluid and flexible processes for which there should be the minimum of regulation. Our approach, therefore, is to recommend clauses for this type of ADR, which deal with appointment, timeframe for proceedings and conclusion only. These clauses are provided on an ad hoc basis, tailored in accordance with specific contract requirements. Should you require such a draft clause, contact the LCIA India Secretariat.
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33. Does LCIA India act as appointing authority only, to appoint neutrals for the various ADR options?
LCIA India does act as appointing authority for these purposes, subject to the parties’ agreement as to our charges and to an indemnity in terms that will be provided on request.
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34. Are the parties to a mediation bound by the agreement that they reach?
Mediation does not lead to a binding decision that is enforceable in its own right. A mediated settlement is, however, likely to be made in the form of a contract, the breach of which will allow a party to seek to enforce the contract by whatever means have been provided for in the settlement agreement.
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