There are several important aspects to be considered before initiating an arbitration claim to settle a dispute. An arbitration can be disallowed or become stale-dated if not instigated with foreknowledge of the applicable document requirements and time constraints.
It is of central importance to an arbitration that the parties engaged in the dispute be aware of the limitation periods imposed by the jurisdiction where the complaint will be heard. Case law may statute- bar a party’s claim if the arbitration does not commence within the time constraints allowed by the governing Act if the preliminary discussions as to whether a claim is suitable for the arbitration procedure continue past the dictated time limit. The limitation ‘time clock’ can be triggered by a variety of occurrences based on what Act applies and what type of arbitration is being commenced.
The mediation period is not necessarily a required aspect of an arbitration. Some contracts may contain a mediation clause that would affect the limitation period of an arbitration. If mediation is mandatory and proceeds, then the arbitration limitation period would not start until the results of the mediation session are known. If mediation is being considered, but not mandatory – the limitation period commences while the disputing parties are discussing the utilization of mediation versus moving to an arbitration format to settle the dispute.
Commencement of Arbitration
Claimants instigate the start of the arbitration procedure. This is done by serving notice to the respondent advising of the desire to appoint an arbitrator, or serving notice that another party has been required to appoint an arbitrator, or by serving notice directly asking for the arbitration of a dispute. The claimants need to serve the appropriate documents within the limitation period that are stipulated in the Act governing the jurisdiction where the arbitration will be held.
Objections to Jurisdiction
If there are objections challenging that the arbitral tribunal does not have jurisdiction, they must be submitted in a timely way in order to be considered. The time constraints for this type of action vary based on the circumstances and location of the arbitration. Late objections can be considered by the tribunal if it is deemed there are mitigating circumstances that justify the delay.
Appointing the Arbitral Tribunal
When an arbitration is being administered via an arbitration institute, the organization will appoint the arbitral tribunal. The advantage of this process is that it saves time by avoiding involvement of the courts. Although the lack of input in selecting the tribunal is a disadvantage to the involved parties, this disadvantage is share equally. If arbitrators are to be selected via joint agreement, there is an opportunity at this time to customize other procedural rules that will govern the arbitration such as confidentiality constraints or the choice of referencing law.
The pre-hearing meeting is utilized to set forth the rules governing the arbitration procedure which will enable the tribunal to issue a ‘procedural and schedule order’ if required or requested by the involved parties.