(Disponible uniquement en anglais)
Introduction. An arbitration begins with the service of a notice of arbitration, delivered either to the opposing party or to the administering institution. The notice of arbitration notifies the respondent that a dispute has been referred to arbitration under the applicable arbitration agreement. The required content of the notice to arbitrate varies by statute and institutional rules, but it typically identifies the parties, outlines the dispute, states the relief sought, and refers to the arbitration clause conferring jurisdiction. The notice of arbitration must also include the claimant’s nomination of an arbitrator, unless the rules assign that step to the administering institution. The notice performs several key procedural functions, namely: (a) the notice of arbitration triggers the commencement of the arbitration for limitation‑period purposes; (b) starts the timeline for the respondent’s answer; and (c) may initiate the arbitral tribunal‑appointment process. Where no rules prescribe the content of the notice, reference should be made to the relevant case law which guides the level of detail that is required. A notice of arbitration that fails to meet those requirements may have no legal effect.
A notice to arbitrate may be either brief or detailed in its length. A recurring question for in‑house counsel is whether to file a notice of arbitration that meets only the minimum requirements of the applicable rules or to submit a more detailed document supported by exhibits. A bare‑bones notice preserves flexibility and avoids committing to a detailed narrative before the facts are fully assessed. A more expansive filing can frame the dispute early, signal confidence in the claimant’s position, and influence the procedural direction of the arbitration. The choice depends on the nature of the dispute, the urgency of commencing the arbitration, and the strategic value of shaping the record at the outset, with each approach carrying different implications for how the arbitration will unfold.
All pre-conditions must be satisfied. An arbitration agreement may contain mandatory pre-conditions that must be satisfied before a party can serve a notice to arbitrate. The arbitration clause should therefore be reviewed carefully to confirm that all pre-conditions, including mandatory negotiation or mediation steps, have been fully met. If these requirements have not been satisfied, the arbitral tribunal lacks jurisdiction.
The organization must be arbitration ready. In‑house counsel must also consider whether the claim is sufficiently developed to be articulated in a notice of arbitration. This requires assessing the factual record and the legal basis for the claim, often with input from external counsel. In some cases, even if the claim is not fully developed, there may be compelling reasons to proceed with the notice to arbitrate, such as preserving rights or meeting a limitation deadline.
Jurisdiction or other procedural impediments. In-house counsel must consider potential jurisdictional and procedural impediments before serving a notice to arbitrate. Counsel should confirm that the arbitration agreement is valid and enforceable, that the correct parties have been named, and that the selected institution or rules align with what the agreement prescribes. If the dispute involves a third party not bound by the arbitration clause, in-house counsel will need to work with external counsel to determine how best to advance that claim, whether before the courts or through a parallel arbitration, as appropriate.
Other practical considerations. In-house counsel must also address several practical considerations before issuing a notice of arbitration, including the expected cost of the proceedings, the availability of a litigation budget, and management’s appetite for what may become a lengthy process. Counsel should also consider the broader strategic consequences of commencing arbitration, such as the impact on the commercial relationship, the likelihood of a counterclaim, the risk of reputational harm, and the expectations of senior leadership.