Activity and Considerations Prior to Commencing an Arbitration

There are several matters which a prospective claimant may need to consider prior to the commencement of an arbitration. Apart from the nature of the arbitration clause itself ¹ and deciding on a nominated arbitrator(s) if applicable, ² these include whether:

the matter is sufficiently urgent that if the rules permit, or by agreement, an expedited formation of the tribunal and hearing should be sought;

any application should be made to the English court even before the request is sent, for example, for a restraining order to preserve assets;

it is necessary to stay any pending or threatened litigation;

the case is suitable for mediation or another form of dispute resolution;

any time limits for commencing an arbitration have been complied with;

the claim will be met by a counterclaim and whether this will be covered by the arbitration clause and, if not, the implications of potentially two different procedures and conclusions. Additionally, a small claim met by a large counterclaim can skew the advance on costs, particularly in ICC cases;

the respondent is likely to participate and the impact particularly in ICC cases on the advance on costs if the sum at stake is large;

adequate costs have been obtained from the client on account for the matter going forward;

the remedies will be adequate, for example, an arbitrator cannot award an injunction backed by penal sanction;

if successful, the claimant will be able to enforce the award, otherwise the result could be a pyrrhic victory—whether it should seek, for example, a freezing order; and

 there are any limitation problems relating to the cause of action which could affect the process and need to be catered for?