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Judges Examining Document
Deciding on the Procedural Rules 

Where the parties’ clear intention is absent, the arbitral tribunal will decide the applicable procedural rules according to what the arbitrators consider appropriate to govern the arbitration proceedings. The procedural rules of the country in which the arbitration is taking place (the forum) are perhaps, those most likely to be applied. 


The defenders of the so-called ‘seat theory’ assert that applying the law of the country in which arbitration takes place is inevitable.

There may be several reasons for this. Firstly, there is the matter of the impact of these rules on the enforceability of the final arbitral award. In this respect Article V (1)(d) of the New York Convention indicates that, in the absence of the parties’ choice, enforcement of the arbitral award may be refused if the composition of the arbitral authority and the arbitral procedure “was not in accordance with the law of the country where the arbitration took place.” This may indicate that arbitrators are required to comply with the procedural law of the place of arbitration or at least to consider the mandatory procedural rules of this law as accompanying a national law. Nevertheless, it has been submitted that: “the Convention seems only to regulate the consequences of certain invalidities in the arbitration agreement and of its setting aside by given courts of law. It does not state that the award must be made under a national procedural law, or that an award cannot be recognised if it has not been made under a national procedural law.”


Secondly, the law of the forum may also be applied because of a necessary interrelation between the arbitral tribunal and national courts. In this regard one should recognise the importance of choosing a particular country to be the forum of arbitration procedures since the familiarity of a particular law in a certain place may be effective in helping the arbitration process and in reducing problems which may arise before, during or after an international arbitration.
This can be recognised by considering two aspects of this relationship. Firstly, the law of the forum helps to fill the gaps in the procedural rules of the choice of law if the law chosen by the parties or by the tribunal fails to provide a solution for the prospective procedural deficiency. Secondly, this relationship can be recognised by considering that there are rules of law which provide national courts with the authority to give orders, which reach beyond the parties' agreement and the tribunal’s power, such as, the freezing of Bank accounts or the detention of goods.
It is also essential to have regard to the usual rules and practice of the place in which the arbitration is held, which is likely to include such matters as disclosure of documents, rules of evidence, freedom of the parties to be represented by counsel of their own choice and so on.


Thirdly, a main reason that has been presented to justify the jurisdiction of the forum’s law is the national courts’ right to supervise the arbitration process. This reason is based mainly on the hypothetical theory that once the parties choose a particular country to be the forum of their arbitration they accordingly agree to submit their arbitration to the legal framework of the forum which will both assist and, to some degree, control the arbitration proceedings.

Finally, this relationship could be established upon the concept of “nationality of arbitral awards”, whereby the arbitral award assumes the nationality of the forum.
This trend which calls for the application of the law of the forum, however, conflicts with the ‘delocalisation theory’. This theory calls for detaching of international commercial arbitration from the control of the national legal system of the forum. Its aim is to allow arbitral tribunals to resort to other procedural rules and not to be confined to the national procedural rules of the forum. Under this approach an arbitral tribunal is free to apply the rules of any legal system even if these rules do not belong to a particular national law.*(1)
Contrary to the ‘seat theory’, the ‘delocalisation theory’ argues that selecting a place for international arbitration does not necessarily mean that parties have intended to apply the procedural law of the forum.*(2) In fact parties may wish to avoid the procedural law of the forum, the country they choose to be the forum of their arbitration might not necessarily have any connection with the parties or the dispute. This may frequently happen in international commercial arbitration, as parties may choose the forum for reasons which may be entirely fortuitous, and which bear no relation whatsoever to the dispute submitted to the arbitral tribunal.*(3) Furthermore, as previously stated, parties are allowed to choose the procedural law by themselves, so they can choose procedural rules, which may not relate to any national legal system. Therefore, in the absence of the parties’ choice, arbitrators can act on behalf of the parties select the rules that they may find suitable.
Nevertheless, the “delocalisation theory” may encounter a number of difficulties. This is because states have been unwilling to accept the idea that there is no link whatsoever between arbitral proceedings in their territory and the state’s legal regime, and the idea that arbitral awards made in their territory should be considered national awards.

he real problem is that most legal systems insist on keeping some measure of control over arbitrations conducted in their territory, in order to ensure that mandatory provisions of that law are applicable to arbitrations whose seat is in that country. Thus, if the national law of the place where arbitration is taking place requires that the arbitral tribunal should follow certain procedures then the tribunal should comply with that law, otherwise its award could be challenged under the national law rules of the forum. This may lead to the refusal to enforce the award in other countries under Article V (1)(e) of the New York Convention.
The trend in international commercial arbitration is to allow the arbitral tribunal to enjoy more flexibility than that of a national court when choosing the applicable procedural rules and to free arbitrators from any local rules of procedure, in particular, from the procedural law of the country where the arbitration has its seat.
The arbitrators’ power is derived from the arbitration agreement, and arbitrators are not state judges, therefore, they are not obliged to follow the procedural rules provided for state judges of the state where they are sitting, especially if the parties, arbitrators and the dispute are not related to the place where the arbitration is to take place.
Finally, one should consider that there is no affront to the integrity of the national legal system, if parties or arbitrators decide to apply procedural rules different from the forum rules, because the procedural public policy rules of the place of arbitration will provide a safety net to ensure that the main principles of justice in the national legal system are upheld. It will always remain possible for a state to set the award aside or to refuse recognition and enforcement of an award if this award is contrary to public policy however that may be conceived in that state. Therefore, if the arbitral proceedings take place in a given state, arbitrators must not disregard the mandatory procedural rules of that state, as will be explained later in this chapter.

(1) Article 15 (1) of the ICC Rules of (1998) supports this theory. It provides that: “The proceedings before the arbitral tribunal shall be governed by these rules,… ,whether or not reference is thereby made to the rules of procedure of a national law to be applied to the arbitration.
(2) The place of arbitration, however, may not even be chosen by the parties, but could be designated instead by an arbitration institution. See Article 14 (1) of the ICC Rules of 1998; Article 16 of the LCIA Rules; Article 16 (1) of The Cairo Regional Center for International Commercial Arbitration (CRCICA) which provides that: “Unless the parties have agreed upon the place where the arbitration is to be held, such place shall be determined by the arbitral tribunal, having regard to the circumstances of the arbitration.”
(3) The selection of the place of arbitration may depend on considerations that have no connection with the dispute between the parties. For example, arbitration may take place in a neutral country, in the sense that it is not the home of either of the parties to the arbitration.


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