New York Convention 1958 UNCITRAL Model Law on ...

MARITIME ARBITRATION

ARUN KASILLB (Hons), LLM, CLP, Barrister (Lincoln’s Inn), FCIArb (London)

Advocate & Solicitor, Malaysia Arbitrator, AIAC, THAC and BICAMC panels

Supp. Member, LMAA (Accepts Appointment as Arbitrator under LMAA Terms)

https://arunkasico.com19/06/2021 1

© Arun Kasi

✓ New York Convention 1958

✓ UNCITRAL Model Law on International Commercial Arbitration 1985, amended 2006

✓ UK Arbitration Act 1996

✓ Arbitration and Law Clauses in Standard Form Maritime Agreements

✓ LMAA ARBITRATION (TERMS 2021, ICP 2021, SCP 2021)

Talk For

https://arunkasico.com/

Arbitration – International Framework

New York Convention 1958

• About 168 member states, including the UK, Malaysia and Singapore.

• Art I: Convention applies to international arbitral awards (made in foreign member state / non-domestic award made in the state where recognition and enforcement is sought).

• Art II: Member states must recognise arbitration agreement in writing to refer present or future disputes to arbitration, whether contractual or not (eg tortious), provided the subject matter is capable of settlement by arbitration.

19/06/2021 2© Arun Kasi https://arunkasico.com




• If a party goes to court in breach of arbitration agreement, court MUST refer parties to arbitration if the other party requests, unless arbitration agreement is null and void, inoperative or incapable of performance – usually by stay or in some states by striking out action.

• Art III: Recognition and Enforcement of NYC awards by courts of all member states.

• Art IV: Recognition and Enforcement by the applying party producing the award and arbitration agreement (with any required translation).





• Art V: Recognition and Enforcement MAY be refused by court only in limited circumstances:• Incapacity of a Party, Invalidity of Arbitration Agreement.

• No proper notice of arbitration/proceedings or unable to present the case.

• Arbitral Tribunal went outside the terms of reference.

• Composition of the Arbitral Tribunal was not according to the agreement/law.

• Award was set aside by the seat court.

• Subject matter not capable of settlement by arbitration.

• Enforcement of award contrary to Public Policy.





• Art VI: Enforcement court MAY adjourn enforcement if application to set aside is pending before seat court.




UNCITRAL Model Law on International Commercial Arbitration 1985, amended 2006

• Art 1: Applies to international commercial arbitration.

• Art 1: ‘International’ widely defined.

• Art 5: Court’s interference limited to provisions made by this law.

• Art 7: Arbitration agreement widely defined.

• Art 8: Subsumes Art II of NYC 1958.

• Art 9: Power of court to order interim measures before/during arbitration.





• Art 10: Number of arbitration – default: 3.

• Art 11: Appointment of arbitrators.• If 3 arbitrators, each party to appoint one. The 2 arbitrators to appoint the 3rd

one. If 2 arbitrators fail to jointly appoint, court/other authority will appoint.

• If sole arbitrator, court/other authority will appoint, if parties can’t agree.

• Arts 12-15: Challenge appointment of arbitrator/substitution.

• Art 16: Competence of arbitral tribunal to determine its own competence.





• Arts 17-17I: Power of arbitral tribunal to order interim measures, enforcement of the order, resisting enforcement.

• Art 17J- Court powers to order interim measures including for arbitration outside its jurisdiction.

• Arts 18-27: Conduct of arbitral proceedings.

• Arts 28-33: Making of the award, etc.

• Art 34: Setting aside award by seat court (substantially on same grounds as Art V of NYC 1985.





• Art 35: Recognition and enforcement - equivalent to Art IV (but requirement for production of arbitration agreement removed in 2006 amendment).

• Art 36: Refusing recognition and enforcement at discretion of court (essentially in terms of Art V of NYC 1985).




Model Law Countries

• 1985 model.

• 2006 model.

• Hybrid model.

• Adopted by about 85 states. Examples:• Malaysia (AA 2005) - hybrid.

• Singapore (IAA).

• Hong Kong (AO).




Model Law Countries

• Not adopted by England and Wales and N. Ireland (AA 1996). • Rules: CPR Part 62. PD 62 para 2.1 – Arbitration claim in High Court/County

Court.




Nature of Model Law/Statutory Provisions

• Most of the provisions are default provisions subject to contrary agreement between parties (non-mandatory).

• Some only are mandatory, ie parties cannot agree otherwise, egsubject matter capable of settlement by agreement (mandatory).

• Some are powers that the tribunal can exercise only if parties have agreed to confer the power on the tribunal.



UK Arbitration Act 1996 (EW & NI)

AA 1996

• Sec 5: Agreement to be in writing (widely defined).

• Sec 7: Separability of arbitration agreement.

• Sec 9: Mandatory stay of court proceedings to refer to arbitration(application must be made after acknowledgment, before defence).

• Sec 11: Retention of ship arrest/security when referring to arbitration.

• Sec 12: Court’s power to extend contractual time limit to commence Arbitration.

• Sec 13: Limitation Act 1980 applies to arbitral proceedings.




AA 1996

• Sec 14: Commencement of arbitral proceedings by arbitration notice (to the other party or to person empowered to appoint).

• Sec 15: Default number of arbitrators: ONE.




AA 1996

• Sec 16: Appointment Procedure:• Sole Arbitrator: parties to appoint within 28 days of request.

• 2 Arbitrators: each party appoints one within 14 days of request.

• 3 Arbitrators: each party appoints one (ORIGINAL/NOMINEE ARBITRATOR) within 14 days. the 2 arbitrators must appoint 3rd arbitrator as CHAIRMAN FORTHWITH.

• 2 arbitrators + umpire: each party appoints one within 14 days of request. The 2 arbitrators must appoint the umpire BEFORE ANY SUBSTANTIVE HEARING/disagreement on any decision.




AA 1996

• Sec 17: Scenario of >2 arbitrators - default by one party to appoint his original/nominee arbitrator.• The other party, after expiry of time, give 7-day notice to appoint his

arbitrator as sole arbitrator.

• Court may set aside such appointment.

• Sec 18: One-arbitrator scenario - parties fail to reach agreement on appointment, either party may apply to court to make appointment.• Same if the 2 arbitrators fail to agree on appointment of 3rd

arbitrator/umpire.19/06/2021 16© Arun Kasi https://arunkasico.com



AA 1996

• Sec 19: Court to have regard to agreed qualifications of arbitrator.

• Sec 20: Three-arbitrators scenario. Decision by majority. If no unanimity or majority, then chairman has the last say on that issue.

• Sec 21: Role of umpire. • Must be given documents.

• Must attend proceedings.

• But not participate in decisions, unless the 2 arbitrators disagree.

• Where 2 arbitrators disagree, umpire replaces the entire tribunal as sole arbitrator.



UK Arbitration Act 1996 (EW & NI)AA 1996

• Sec 23: Revocation of arbitrator’s authority.• By parties jointly.

• By person/institution authorised by parties.

• By court.

• Sec 24: Application to court to remove an arbitrator.

• Sec 25: Application by resigning arbitrator to court for fees, etc.

• Sec 27: Filling of vacancy. • By parties under s 16.

• By Court, upon default, under s 18.

• New tribunal to decide how far previous proceedings to stand.




AA 1996

• Sec 28: Joint and several liability of parties for arbitral tribunal’s fee and expenses.

• Sec 29: Immunity of arbitrators.

• Secs 30-32: Jurisdiction of tribunal to determine its own jurisdiction.• Taking challenge before the tribunal (which may decide now or as part of final

award).

• Taking challenge before the court (with consent of parties / tribunal).




AA 1996

• Sec 33: Duty of tribunal to act fairly and impartially.• Avoid unnecessary delay and expense.

• Sec 34: Tribunal to decide procedural and evidential matters.

• Sec 35: Tribunal’s power to consolidate or order concurrent hearings only if parties have agreed.

• Sec 36: Legal/other representation

• Sec 37: Tribunal may appoint experts/legal advisers/assessors.• Tribunal may allow them to attend proceedings.




AA 1996

• Sec 38: Some important powers of tribunal.• Order claimant to pay security for costs.

• Directions as to property subject of proceedings and as to which a question arises.

• For inspection, photographing, preservation, custody or detention.

• By tribunal/expert/party.

• For taking sample/making observation/conducting experiment.

• Preservation of evidence.

• Order a witness to be examined on oath/affirmation (power to administer oath).




AA 1996

• Sec 39: Tribunal may make provisional award, subject to adjustment in final award, ONLY IF parties have AGREED to that.




AA 1996

• Sec 41: Powers of tribunal upon default by a party.• Claimant’s inordinate and inexcusable delay causing serious prejudice to

respondent – tribunal may dismiss claim.

• Any party fails to attend hearing/tender submission – tribunal may proceed in the absence of such attendance/submission.

• Any party fails to comply with order/direction – tribunal may make peremptory order.

• Any party fails to comply with peremptory order – tribunal may do what is appropriate.

• If the peremptory order is against claimant for security for costs, and he fails –tribunal may dismiss claim.




AA 1996

• Sec 42: Court may order a party to comply with a peremptory order.• Upon application of tribunal/a Party (with permission of tribunal, unless this

has been agreed by the parties).

• Sec 43: Court procedures may be invoked to summon a Witness to testify/produce documents before tribunal – application with permission of parties/by agreement of parties.

• Sec 44: Court powers to order.• Similar to s 38.

• Order Sale of any Goods subject of proceedings.

• Grant an Interim Injunction / Appoint Receiver.




AA 1996

• Sec 45: A party may apply to court to determine a preliminary point of law.• Application can be made only by agreement of parties or consent of tribunal.

• If parties had waived requirement of tribunal to give reason, then no application can be made.

• Discretion of court to decide or not the question.




AA 1996

• Sec 46: Tribunal to decide as per the law chosen by parties. If none, as determined by tribunal as per conflict of laws rules.

• Sec 47: Tribunal may make separate awards at different times on different aspects.




AA 1996

• Sec 48: Remedies.• Declaration.

• Monetary Order.

• Injunction.

• Specific Performance.

• Rectification/Setting-Aside/Cancelling a Document.

• Any other power agreed by parties.



UK Arbitration Act 1996 (EW & NI)AA 1996

• Sec 49: Interest.• Parties may agree.

• Simple or compound interest from such dates, at such rates and with such rests as it considers meets the justice of the case—

• Simple or compound interest from the date of the award (or any later date) until payment, at such rates and with such rests as it considers meets the justice of the case

• The above provisions do not affect any other power of the tribunal to award interest.

• Cf: Late Payment of Commercial Debts (Interest) Act 1998.




AA 1996

• Sec 50: Court may extend contractual time for making award.• Upon application of a party/tribunal.




AA 1996

• Sec 51: Tribunal shall record settlement by agreed award, subject to right of tribunal to object to such recording.

• Sec 52: Award to be in writing, reasoned (unless waived by parties), dated with seat stated.

• Sec 53: Award deemed made in EW/NI, if seat there.

• Sec 54: Date of award to be determined by tribunal, or on the date the last arbitrator signs.

• Secs 55-56: Notification of award without delay, subject to power to hold for payment of fees and expenses.




AA 1996

• Sec 57: Correction (considered part of award) and additional award.• On own initiative – correction within 28 days of Award.

• On application of a party made within 28 days – correction within 28 days of application.

• Additional award within 56 days of original award.

• Sec 58: Award is final and binding (subject to challenge-procedures).




AA 1996

• Secs 59-65: Costs at discretion of tribunal, subject to agreement between parties (eg cost capping agreement) and subject to any cost limit direction by tribunal.• Tribunal’s fees and expenses.

• Arbitral institution’s fees and expenses.

• Legal/other costs.




AA 1996

• Sec 66: Enforcement by leave of court.• Upon leave, award may be entered as judgment of court.

• No leave where opposing party shows lack of substantive jurisdiction of tribunal.• Right to object lost if the opposing party participated in arbitration without objection (s

73).




AA 1996

• Sec 100: NYC award – made outside the UK.

• Sec 101: Recognition and enforcement of NYC award (similar to s 66).

• Sec 102: Applicant to produce award, agreement (and translation).

• Sec 103: Similar to Art 36 of UNCITRAL Model Law (Art V of NYC).

• Sec 104: Sec 66 route of enforcement may alternatively be adopted.




AA 1996

• Sec 67: Challenging award for lack of substantive jurisdiction. • Subject to s 73 loss of right to object.

• Court may confirm/vary/set-aside award (in whole/part).

• Sec 68: Challenging award for serious irregularity resulting in substantial injustice to the applying party.• Subject to s 73 loss of right to object.

• Complete list of 9 items of serious irregularity stated in s 68(2).

• Court may remit/set-aside/declare in effective award (in whole/part).




AA 1996

• Sec 69: Appeal on point of law.• Right to appeal lost if need to reason award waived by parties.

• No appeal to court until any available appeal to arbitral tribunal / s 57 correction or additional award exhausted, if available (s 70(2)).

• Appeal time limit: 28 days of date of award (s 70(3)).

• Leave of court must be obtained (unless agreement of parties secured) to appeal.

• Court may confirm/vary/remit/set-aside award (in whole/part).

• Sec 70: Court may order award sum to be paid into court pending challenge under ss 67-69, etc.




AA 1996

• Sec 71: If award remitted back under ss 67-69, fresh award must be made within 3 months.

• Sec 72: Additional rights of person who did not take part in arbitration to challenge by court proceedings.• Validity of arbitration agreement.

• Constitution of tribunal.

• Scope of submission.




AA 1996

• Sec 73: Loss of right to challenge.

• Take part without objection (unless by due diligence could not have known the ground of objection).• Tribunal’s jurisdiction.

• Proceedings improperly conducted.

• Failure to comply with Arbitration Agreement / Act.

• Any other irregularity.

• Competence decision – not challenged by any available arbitration-appeal procedure.

• Competence award – not challenged by ss 67-69.19/06/2021 38© Arun Kasi https://arunkasico.com



AA 1996

• Sec 74: Immunity of arbitral institution, etc.

• Sec 76: Parties may agree on modes of service (eg email).

• Sec 77: Where s 76 mode not practical, court may order alternative service/dispensation of service. • Application can be made only after exhausting any available arbitral

procedures.

• Sec 78: Reckoning periods of time.




AA 1996

• Sec 79: Court’s power to extend any agreed time limit.• Upon application by a party/tribunal.

• Application only after available procedures exhausted.

• Court will order only if substantial injustice would otherwise be caused.

• Secs 85-88: Modifications/additions for domestic arbitration.




AA 1996

• Sec 100: Common law preserved:• Refusal to recognise and enforce on public policy grounds.

• Etc.



Maritime Arbitration – the Feeders

Pre-Dispute Agreement

• BIMCO, etc forms, eg NYPE, BALTIME, GENCON, SALEFORM, etc.

• OIL MAJORS forms, eg SHELLTIME 4, BPTIME 3, EXXONVOY 2012, etc.

On-Service Agreement

• LOF 2020 (salvage).

Post Dispute Agreement

• ASG format agreements, eg collision, salvage, cargo claims.



Types of Arbitration Agreement

Full Rules

NYPE 2015 options:

• LMAA Terms [3 arbitrators], LMAA ICP (<USD400,000) [3 arbitrators], LMAA SCP (<USD100,000) [sole arbitrator]. Note: ICP option not included in NYPE 2015.

• SMA Arbitration Rules [3 arbitrators], SMA Shortened Arbitration Rules (<USD50,000) [sole arbitrator].

• SCMA Arbitration Rules [3 arbitrators], SCMA SCP (<USD150,000) [sole arbitrator].

• Arbitration as mutually agreed by parties.




Full Rules

LOF 2020.

• LSAC 2020 (sole arbitrator appointed by Council of Lloyd’s – option to appeal to sole Appeal Arbitrator available – to determine quantum [remuneration/special compensation]).

BPTIME 3.

• LMAA Terms (3 arbitrators).




No Detailed Rules – Act Provisions Apply by Default largely

NYPE 1946.

• Arbitration by 3 commercial men in New York – no further rules. EgNYPE 1946. One to be appointed by each party, and the 2 arbitrators to appoint the third one.

NYPE 1993.

• Arbitration by 2 members of Baltic Exchange in London (with power to optionally appoint umpire) – no further rules. One to be appointed by each party, and the 2 arbitrators has option to appoint an umpire.



Types of Arbitration AgreementNo Detailed Rules – Act Provisions Apply by Default largely

ASG Collision Arbitration Agreement (post collision),

• Arbitration by single QC of English Bar.

• Unless Parties Agree on Arbitrator Name, Secretary of ASG appoints.

ASG Salvage Arbitration (post Salvage).

• Arbitration by sole Lloyd’s Salvage Arbitrator with appeal option to Appeal Arbitrator.

• Appointment by agreement of parties or by Secretary of ASG.

• Arbitration can be on Liability as well as Quantum.19/06/2021 46© Arun Kasi https://arunkasico.com



No Detailed Rules – Act Provisions Apply by Default largely

ASG Cargo Claims Arbitration (post incident)

• Arbitration in London – AA 1996 automatically in – One Arbitrator.

SHELLTIME 4

• Arbitration in London – AA 1996 automatically in – One Arbitrator.



Law Clauses

Three Laws

• Law applicable to Arbitration (seat).

• Law applicable to the Arbitration Agreement.

• Law applicable to substantive agreement/dispute.

In Standard Forms

• Arbitration in London -> England Seat -> AA 1996.

• Usually: English Law to regulate Arbitration Agreement.

• May or May not be: English Law to regulate substantive dispute.19/06/2021 48© Arun Kasi https://arunkasico.com


LMAA Terms and Procedure 2021

LMAA Terms & Procedure 2021

• Most of the claims are negotiated and settled.

• Of those going to arbitration, about or more than 80% are settled before award.





• LMAA Terms 2021 (any amount) – default 3 arbitrators.• One (original arbitrator [nominee]) to be appointed by each party.

• The 2 original arbitrators to appoint the 3rd arbitrator.

• The 3rd arbitrator is the chairman.

• All decisions by majority. If no majority / unanimity, the view of chairman prevails.

• LMAA Intermediate Claims Procedure 2021 (<USD400,000) – default 3 arbitrators – appointment, etc same as LT.

• LMAA Small Claims Procedure 2021 (<USD100,000) – default 1 arbitrator.





• LT/ICP/SCP are not the law but are contractually agreed terms of conduct of arbitral proceedings.• Parties are at liberty to contractually vary it until before appointment of the

first arbitrator.

• After appointment of the first arbitrator, consent of the arbitrators/umpire may be required for variation in some aspects, as the terms will also operate as the agreement between the arbitrators/umpire and the parties.





• Parties may modify the amount-limits or brackets for ICP and SCP.

• A mere reference to LT does not incorporate ICP/SCP, which must be specifically incorporated if parties desire that (eg NYPE 1996/2015 adopting SCP (but not ICP) in addition to LT).

• ICP para 1; SCP para 1.




Applicable to ICP and SCP

• If proceedings commence under ICP or SCP, but counterclaim exceedsICP or SCP limits, then either party, after service of counterclaim, mayrequire the proceedings to go under LT or SCP as the case may be.

• The arbitrator may so proceed under LT or SCP or continue under ICPor SCP as the case may be.

• In either case, the arbitrator will remain the sole arbitrator.

• Parties may modify this position when making arbitration agreement.

• ICP para 1; SCP para 1(b).




Applicable to all LT, ICP and SCP

• Applicable for Arbitral Proceedings commenced wef 1 May 2021 (LTpara 4).

• Law applicable to Arbitration Agreement: English (LT para 6).

• Seat of Arbitration: England (LT cl 6); Applicable Act: UK ArbitrationAct 1996 (LT para 2(a)).





• Award must be reasoned, unless dispensed with by parties (then noappeal to court on point of law under s 69 AA 1996) - if dispensedwith, then, tribunal must give an outline of reasons (privilegedreasons), not referable/usable in court, unless court otherwisedetermines (LT para 25).

• Award may be published anonymously, after tribunal gives 21 daysnotice to parties - if any party objects within the 21 days, then nopublication (LT para 29).

• Service on lawyers / agents allowed (LT para 30).




Applicable to all LT, ICP (and SCP)

• Non-disclosure of relevant documents in submission [pleadings] byone party is not a reason to allow additional time for the other partyto make its submission [pleadings] (LT sch 2, para 2 – only for LT andICP, but not for SCP).

• For denials in submissions [pleadings], reason/contrary version mustbe given - bare denials are not acceptable (LT sch 2, para 6).

• Tribunal may order a party to sign a ‘statement of truth’ in relation toits disclosure or any submission or declaration (LT sch 2, para 10 –only for LT and ICP, but not for SCP).





• Before making any procedural application to tribunal, a party mustfirst ask and give the other party 3 days time to agree (LT sch 2, para14).

• Parties are not to routinely copy to the tribunal exchanges betweenthem in the absence of ruling / good reasons therefor (LT sch 2, para15).

• Communications concerning procedural matters should be madeexpeditiously (LT sch 2, para 16).





• Tribunal will not normally acknowledge receipt of correspondence (LTsch 2, para 17).

• Parties are not ordinarily to ask the tribunal to review its proceduralorders (LT sch 2, para 18).





• Tribunal may order discrete costs for unnecessarily incurred costs, onapplication of a party or on own volition after giving the other partyan opportunity to comment (LT sch 2, para 19(a)), eg:• Inappropriate applications.

• Inappropriate resistance to applications.

• Unnecessary communications.

• Excessive photocopying.

• Duplicated communication.





• Tribunal may take into account all relevant matters in determiningliability and quantum of costs (LT sch 2, para 19(b)), eg:• Calderbank offers.

• Unreasonable/inefficient conduct by a party.





• Additional consideration for LT.• Cost estimates given by parties in LMAA Questionnaire (LT sch 3).

• Failure by a party to comply with sch 4 in assessing costs.• Duty to consider documents-only arbitration at the outset.

• Rules as to tendering factual and expert evidence.

• Preparing documents for hearing.

• Submitting skeleton arguments.

• Compiling transcripts.





• Parties must give prompt notice about representation, and anychange in it, to the other party and tribunal – a change inrepresentation is not a reason for adjournment (LT sch 2 para 20).

• Parties may agree that directions agreed by parties are deemed to bethe tribunal’s order, which they must notify the tribunal – thedirections will accordingly take effect unless the tribunal directsotherwise (LT sch 2 para 21).• Effect: ss 41(5)-(7) AA 1996 is triggered – tribunal may make peremptory

order for failure by a party to comply with its orders.




LMAA Terms 2021: Appointment of Tribunal

• Default: 3 arbitrators (LT para 8).• One appoints each (original arbitrator [nominee]).

• Party wishing to refer dispute to arbitration appoints its original arbitrator before giving notice of arbitration to the other party (LT para 10).

• Upon such appointment, arbitral proceedings commence (LT para 20(e)) (important to stop time limitation under s 13 AA 1996).

• Appointment will be notified in the notice of arbitration (LT para 10).

• Notifying party will call upon the other party to appoint its original arbitrator within 14 days, failing which the notifying party may appoint its original arbitrator as sole arbitrator with notice to the other party (this must be stated in the notice of arbitration)(LT para 10).

• Court may set aside the appointment of one party’s original arbitrator as sole arbitrator(s 19 AA 1996).





• Default: 3 arbitrators (LT para 8).• The 2 arbitrators appoint the 3rd arbitrator - chairman.

• Decisions by majority. • If no majority/unanimity, view of chairman prevails.

• The 2 arbitrators must appoint the 3rd arbitrator before any substantive hearing.

• Before substantive hearing and appointment of the 3rd arbitrator: • If the 2 arbitrators can agree on any matter, they may decide accordingly.

• If they can’t agree, then they must appoint the 3rd arbitrator to reach decision.





• Default: 3 arbitrators (LT para 8).• If the 2 arbitrators can’t agree on appointment of 3rd arbitrator within 14 days

of call therefor by one of them, then an arbitrator/party may apply to the President of LMAA for the appointment (fee £350).





• Umpire option (2 arbitrators + the umpire) (LT para 9).• Available only if arbitration agreement provides this option (eg NYPE 1993).

• Appointment procedure/commencement similar to appointment of 3rd

arbitrator.

• Notice of arbitration procedure similar to 3 arbitrators case.

• Role of umpire:• Must be given documents.

• Must attend proceedings.

• But not participate in decisions, unless the 2 arbitrators disagree.

• Where 2 arbitrators disagree, umpire replaces the entire tribunal as sole arbitrator.





• Sole arbitrator option (LT para 11).• Available only if arbitration agreement provides this.

• The party desiring to refer dispute to arbitration calls upon the other to join in reaching agreement on appointing the sole arbitrator.

• Upon such call, arbitral proceedings commence (LT para 20(e)) (important to stop time limitation under s 13 AA 1996).

• If parties don’t reach agreement within 14 days of the call, either party may apply to the President of LMAA for the appointment (fee £350).





• Vacancy/inability of arbitrator/umpire (LT para 12/ss 27, 16, 18 AA 1996).• Vacancy must be resolved by original appointment procedure.

• If that fails, the President of LMAA can substitute an arbitrator upon application by a party or parties.

• Any such application must be notified to the affected arbitrator (if applicable) where it is for substitution.




LMAA Terms 2021: Appointment of Tribunal• Note: court may remove an arbitrator upon application by a party under s 24

AA 1996 only after above agreed procedure is has failed.

• Note: if the vacancy/incapability is of the original arbitrator of a party and the party fails to substitute, the matter can only proceed if the original arbitrator is substituted – in such case, the other party may apply to the President of LMAA to appoint an original arbitrator for the party failing to appoint a substitute original arbitrator for it.




LMAA Terms 2021: Jurisdiction of Tribunal

• A party may refer to the tribunal further disputes arising after commencement of the arbitral proceedings (LT para 13).

• In such case, the tribunal will determine how the further reference should be dealt with (LT para 13).




LMAA Terms 2021: Fees of Tribunal

• Parties are jointly and severally liable (LT para 14).

• Fee entitlement is in favour of each arbitrator/umpire.

• 3 types of arbitrator’s/umpire’s fee:• Appointment fee (£350 per arbitrator/umpire).

• Booking fee for hearings, for each arbitrator/umpire, fixed by LT.

• Other work/interlocutory work, not fixed by LT, but billed on reasonable basis.

• Apart from fee, arbitrators/umpire are entitled to their expenses.





• Payment of appointment fee (£350 per arbitrator/umpire) (LT sch 1, para (A)).• Each party pays the appointment fee to its original arbitrator.

• For 3rd arbitrator and umpire, the claimant pays it at first instance.

• In case of an agreed sole arbitrator, each party pays half.

• In case of sole arbitrator appointed by the President of LMAA, claimant pays at first instance if the respondent does not come to pay its share.

• If any party does not pay it for 28 days after payment demanded, arbitrator will give notice to all parties (LT sch 1, para (C)).• If still not paid within 14 days, then arbitrator may resign and claim the fee.





• Booking fee for hearings (arbitrator’s fee and not hearing-room etc cost) (LT sch 1, para (D)):• £1,250 per day for hearings up to 10 days.

• £1,625 per day for hearings up to 15 days.

• £2,000 per day for hearings up to 20 days.

• £2,000 + agreed rate per day for hearings > 20 days.

• All above per arbitrator/umpire.

• Eg hearing of 12 days: £1,250 x 12 days = £19,500 for each arbitrator/umpire.




LMAA Terms 2021: Fees of Tribunal• Parties and arbitrators/umpire may agree that the booking fee is non-

refundable in any case. • If not so agreed, then it is refundable in certain cases.

• The party who asks for hearing pays the booking fee.

• But tribunal may order the parties to pay it in equal share, eg: • Both parties agree hearing is required.

• Matter is appropriate to be disposed of by hearing although one of the parties oppose it.

• If booking is reserved in less than 6 months ahead of the start date, then the booking fee must be paid within 14 days.

• If booking is reserved in more than 6 months ahead of the start date, then the booking fee must be paid at least 6 months before the start date.




LMAA Terms 2021: Fees of Tribunal• If booking fee is not accordingly paid, the tribunal may cancel the reservation

and claim a portion of the booking fee (unless agreed as ‘non-refundable’).

• If so cancelled, either party may pay it within 7 days of cancellation notice to have the hearing reinstated.

• If hearing is vacated/adjourned for any reason:• Arbitrators entitled to full fee, if ‘non-refundable’ agreement in place.

• Otherwise: • If vacated/adjourned within 3 months before start date, then entitled to full fee.

• If vacated/adjourned ahead of 3 months before start date, then entitled to half-fee.




LMAA Terms 2021: Fees of Tribunal• Fee for other work/interlocutory work/upon award:

• Not fixed by LT.

• Arbitrators/umpire bill on reasonable basis, unless they and parties have entered into fee agreement (if such agreement, usually on hourly basis).




LMAA Terms 2021: Fees of Tribunal• EACH ORIGINAL ARBITRATOR may claim interim fees from his appointing

party.

• SOLE ARBITRATOR/3rd ARBITRATOR/UMPIRE may claim interim fees from the parties in equal share.

• Interim fees may be claimed intervals of 3 months (or more) for work done.

• Note: Final adjusted bill when the award is ready/case settled (LT sch 1, para (F)).

• If arbitrator/umpire does not make such claim, a party may ask for interim account at similar intervals.

• LT sch 1, para (B).




LMAA Terms 2021: Fees of Tribunal• If any party does not pay it for 28 days after payment demanded, arbitrator

will give notice to all parties (LT sch 1, para (C)).• If still not paid within 14 days, then arbitrator may resign and claim the fee for work

done up to date.





• Security for tribunal’s costs (fees and expenses) (LT sch 1, para (E)).• TRIBUNAL may claim reasonable security on estimated basis with 28 days’

notice (by payment, solicitor firm’s undertaking, P&I club, defence association, etc.

• In case of oral hearing case, it must be paid 21 days before start date of hearing – by the party asking for hearing unless tribunal determines otherwise.

• In case of documents-only arbitration, it must be paid before starting reading and drafting – by the claimant unless tribunal determines otherwise.





• Security for tribunal’s costs (fees and expenses)• If a party defaults in payment, the tribunal will ask any party to pay it within 7

days.• If payment is not made within the 7 days, then tribunal may suspend work and vacate

any hearings.

• Tribunal will be entitled to fee that it may claim for vacating hearing.

• Tribunal may issue peremptory order, under s 41(5) AA 1996, in case of failure to pay security.




LMAA Terms 2021: Hearing Room• Hearing rooms, where necessary, are usually booked at IDRC.

• £795/day for 15 pax room.

• After 7 pm, OT £115 per hour (or part).

• After midnight, OT £230 per hour (or part).

• Weekend, OT £115 per hour (min 6 hours charge).

• Virtual hearing facilities available with advanced OPUS 2 hearing/document management system.



LMAA Terms and Procedure 2021LMAA Terms 2021: Arbitration Procedure

• Tribunal to decide all procedural and evidential matters, having regard to parties’ agreement on them.

• Submissions (pleadings) (LT sch 2, paras 1, 3 and 5) • 28 – 28 – 14/28 – 14 days.

• Claim submission – 28 days of appointment of sole/respondent’s arbitrator.

• Defence (and Counterclaim) submission – 28 days.

• Submission in Reply (and Defence to Counterclaim) –• 14 days if Reply only.

• 28 days if Reply and Defence to Counterclaim.

• Submission in Reply to Defence to Counterclaim – 14 days.

• Front loading on submissions (but not memorial).19/06/2021 82© Arun Kasi https://arunkasico.com



LMAA Terms 2021: Arbitration Procedure

• Security for Costs (parties’ costs) application (LT sch 2, para 7).• Only after Defence served.

• If a party fails to comply, tribunal may make peremptory order under s 41(6) AA 1996 with consequences including stay (LT para 17(c)), dismissal, etc (s 41(6)).





• Disclosure (LT sch 2, paras 8-10).• Parties obliged to disclose documents even adverse to it.

• General Disclosure and Specific Disclosure available, subject to rights of privilege.

• Disclosure application during pleading-submission (to make pleading-submission) – only after first sought agreement of other party.

• Parties may ask each other for Disclosure at any time, failing which they may make application to tribunal at any other stage.

• Tribunal may require a party to sign a Statement of Trust concerning Disclosure.





• Questionnaire post-submissions (pleadings) (LT sch 2, para 11).• Option 1: Parties may agree that tribunal should proceed to award based on

the Submissions (Pleadings).• Tribunal will give its notice of intention to proceed to award (LT para 16(b)).

• Option 2: Parties complete Questionnaire (LT sch 3) – within 14 days of last Submission.• After Questionnaire, parties have 21 days time to agree on future procedural directions.

• After 21 days, tribunal will consider all and give directions.





• Questionnaire (LT sch 3).• Nature of claim?

• Approximate quantum of claim and counterclaim?

• Any amendments?

• Outstanding disclosure?

• Principal outstanding issues?

• Issues suitable for determination as preliminary issues?

• Preliminary meeting required, if so, at what stage?





• Questionnaire (LT sch 3).• Documents-only or hearing?

• If documents-only, suggested timetable and closing of documents submissions?

• If hearing, estimated length of hearing?

• Statements of factual evidence – By whom? On what issues? Length limit? Tender as oral or hearsay evidence? Interpreter, if oral evidence?

• Statements (Reports) of expert evidence – When will be exchanged? – What issues? Length limit? When will experts meet (unless parties agree on/tribunal directs no meeting)? When will record of meeting be provided? Will expert give oral evidence or by report only? Interpreter, if oral evidence?





• Questionnaire (LT sch 3).• Fix hearing date now or later?

• Usually, hearing date will be fixed later only after case preparation has sufficiently advanced.

• Virtual/semi-virtual hearing? – Protocol?

• Estimated costs of each party with breakdown - Up to Questionnaire? Through end? Cost cap?

• Security for Costs (parties’ costs)?

• Any other interlocutories?

• Mediation?





• Directions post-questionnaire (LT sch 2, para 12).• Exchange of Statements of Factual Evidence.

• To be adduced as hearsay evidence under Civil Evidence Act 1995.

• To stand as evidence in chief when the witness gives evidence before tribunal.

• Exchange of Statements (Reports) of Expert Evidence.• Tribunal may rule no expert evidence/no calling of expert unless permitted by it.

• Tribunal may limit the number of expert witness/fields/issues (LT para 17(a)).

• Concurrency• Tribunal may order this and give appropriate directions on time/documents/evidence (LT

para 17(b)).




LMAA Terms 2021: Arbitration Procedure• Preliminary Meeting – to reach agreement, failing that to give directions (LT

para 18).• Usually, will be held in cases of more than 5 days hearing.

• Usually, not more than 1 preliminary meeting.

• Parties must submit agenda, information sheet, and list of proposed directions.

• Information sheet must tell estimates of readiness for hearing.

• Parties must submit paginated bundle for preliminary meeting.

• Etc.

• Tribunal, on application by any party, may give any direction that differs from the standard ones in the rules (LT sch 2, para 22).




LMAA Terms 2021: Duties of Parties (with Cost Implications)

• LT Sch 4.• Para 1 – Parties must consider at outset ‘documents-only’ arbitration.

• Consider preparing an ‘amalgamated bundle of documents’ comprising both sides’ documents in chronological order for documents-only arbitration.




LMAA Terms 2021: Duties of Parties (with Cost Implications)• Para 2 – Factual Evidence.

• Note: Witness Statement stands as EIC, unless parties otherwise agree/tribunal otherwise directs.

• In Witness’s own words – no hearsay.

• Numbered paragraphs – margin cross reference for documents.

• Supplementary witness statements with consecutive numbering.

• In oral evidence through interpreter, make available witness statement in original language and English translation.• Parties must attempt to reach agreement on interpreter.

• Bundle Witness Statements – if too voluminous, then separate bundles for Claimant and Respondent.




LMAA Terms 2021: Duties of Parties (with Cost Implications)• Para 3 – Expert Evidence.

• Para 2 is generally applicable here.

• Expert not to annex documents already in bundles.• But make reference to bundle with margin cross references.

• Parties must consider appropriateness of ‘hot-tubbing’.




LMAA Terms 2021: Duties of Parties (with Cost Implications)• Para 4 – Documents for Hearing.

• No unnecessary documents.• Include relevant documents but not documents merely loosely touching on case.

• One copy only – attention to emails – break up email chains unless all emails in chain must be read together.

• Present documents in chronological order.• But sometimes topic order may be appropriate.

• Paginate bundles consecutively – no over-use of dividers – no page number for dividers –maximum 300 sheets per bundle – mark bundles with alphabet/number on top-left first page and on spine. • Avoid sub-numbering (eg A(1), A(2)), unless single set of documents broken up into two or

more bundles.




LMAA Terms 2021: Duties of Parties (with Cost Implications)• Pay attention to quality of photos reproduced – make available original photos for

hearing.

• Consider if A5 suitable, and if so, consult tribunal.

• If unstructured documents, consider adding line/para numbers.

• If voluminous bundles, prepare Core Bundle – with original bundle pagination.




LMAA Terms 2021: Duties of Parties (with Cost Implications)• Para 5 – Skeleton Arguments.

• Consider consecutive or concurrent exchange.

• Contain: sufficient detail so that no more than a brief oral presentation required.

• Add: synopsis, chronology, agreed timetable to present argument, order of calling witnesses.

• Serve on tribunal at least 2 working days ahead of start date, unless they need inordinate amount of time to absorb.

• Para 6 – Transcripts.• Paginate consecutively with dividers for each day.

• Consider suitability of A5 but consult tribunal if this is to be proposed.




LMAA Terms 2021: Fixing Hearing Dates

• Sch 5.• Estimated duration of hearing Fix hearing within

1-2 days 3 months

3-5 days 6 months

6-10 days 10 months

• Above counts from expected readiness date that parties inform tribunal – If no agreement between parties, then reasonably forecast readiness date.




LMAA Terms 2021: Fixing Hearing Dates

• Sch 5.• If a sole arbitrator is unable to so offer a date, then he must offer to retire.

• If three-member panel, then earliest next available common free date where none is available within the above time-limit.• If any member is not available after date is fixed, he must retire at least 6 months prior

to the start date.

• Retiring arbitration/umpire will be entitled to fee and expenses for work done.

• Upon retirement, the procedure for appointment of a substitute arbitrator/umpire will be triggered.




LMAA Terms 2021: Virtual Hearing (new after Covid-19 outbreak)

• Guidelines only.

• Sch 6, para 1: Early Preparation.• Do a practice-run.

• Have break-out rooms facility.

• For witnesses and interpreters, hard copy of electronic bundles must be served.

• Have contingency plans: teleconferencing, alternative video/audio conferencing.

• No participants to record, but tribunal may record.

• Decide whether electronic bundles/hard bundles/both will be used.19/06/2021 99© Arun Kasi https://arunkasico.com




• Sch 6, para 2: Just before hearing day.• Circulate ‘contact sheet’ – name, organisation, time-zone, email, phone.

• For witness/interpreters, no email/phone required.

• Plan detailed hearing schedule and break times.





• Sch 6, para 3: Etiquette.• Every participant identify themselves to host.

• Participants – when not speaking, mute – may be required to off video also is appropriate to save bandwith.

• Participants interfere by putting up hand physically or electronically.• Must wait until invited to speak.

• Tribunal may terminate hearing if connection unsatisfactory and cannot be satisfactorily resolved.





• Sch 6, para 4: Witness Testimony.• Witness not to communicate with third parties.

• Only have agreed bundles.

• No mobile phone or other electronic devices in the room.

• No others in the room with witness.

• Witness to show the room, at outset and during intervals (if required) by

• Turning his camera 360 degree.

• Preferably an additional back camera to record the computer screen.





• Sch 6, para 5: Electronic Bundles.• Preferably a single bundle.

• Maximum 1,000 pages per bundle.

• Index entries/bookmarks – mark by description rather than number.

• Pagination from first to last PDF page.

• Pagination to match hard copy pagination.

• PDF must have a table of contents.

• Minimise number of PDFs open at the same time.

• Normally have code bundle.




LMAA Terms 2021: Virtual Hearing (new after Covid-19 outbreak)• Consider using document management provider.

• Bundling up new documents introduced during hearing.

• Sch 6, para 6: Screens• Consider using more than 1 screen.




LMAA Terms 2021: Award• Tribunal to target 6 weeks to deliver award after close of proceedings (LT para

23).

• Shorter time if it is a documents-only arbitration (LT para 23).

• Award can be signed digitally (LT para 24).

• Parties must pay final bill and collect award within one month.• Failing that, tribunal may give 14-day notice to collect.




LMAA Terms 2021: Award: Correction/Explanation/Addition• Tribunal may correct an award on its own motion or on application of a party

made within 28 days of the award.

• Tribunal may make an additional award/explain award on application of a party made within 28 days of the award.

• Before exercising powers to correct or make additional award/explain award, tribunal must give opportunity to parties to make representation.

• Correction/explanation can be made on the award or by a separate memorandum within 90 days.

• LT para 28.




LMAA Terms 2021: Award: Costs and Interest

• If award reserves the question costs and interest, any party may apply within 3 months of award to determine them (LT para 31).

• Sec 57: Tribunal may also make an additional award (including for costs/interest) on its own initiative within 56 days of original award.




LMAA Terms 2021: Disposal of Papers

• Tribunal may dispose of the papers 3 months after award, unless a request to hold is made or an application is made to court against award.

• After the reason is over, tribunal may dispose of the papers in 6 months.




LMAA ICP 2021

• Applicable only if agreed.

• Default limit: USD400,000 (without interest and costs) (ICP para 1).• Usually: USD100,000 – USD400,000 (without interest and costs).

• Default: 3 arbitrators.• Option for 2 arbitrators and umpire available if agreed.

• Option for sole arbitrator available if agreed.

• Appointment procedure similar to LT (ICP paras 2-6).

• No specific substitution procedure.• Secs 27, 16 and 18 AA applies (procedure similar to that at time of appointment).




LMAA ICP 2021

• Opening Submissions (Pleadings) (ICP para 7).• 14 – 28 – 21 – 21 days.

• Claim Submission – within 14 days of appointment of sole/respondent’s arbitrator.

• Defence (and Counterclaim) Submission – within 28 days.

• Reply (and Defence to Counterclaim) Submission – within 21 days.

• Reply to Defence to Counterclaim Submission – within 21 days.

• Front loading (but not memorial) like Submissions under LT 2021.




LMAA ICP 2021

• Disclosure (ICP para 8).• Parties obliged to give relevant Disclosure (including adverse documents).

• No formal application.

• Parties indicate request for Disclosure in their Opening Submissions(Pleadings).

• Upon such request, Disclosure to be given within 14 days after completion of Opening Submissions.• Failing this, tribunal may draw adverse inference.

• Sec 34(2)(d): Tribunal’s power to regulate procedural and evidential matters includes power to order Disclosure.




LMAA ICP 2021

• Security for costs (ICP para 17)• No application for security for costs before Defence is served.

• No Questionnaire.




LMAA ICP 2021

• Statements of Witness of Fact (ICP para 9).• If a party wishes to adduce factual witness statement:

• Give notice within 14 days of completion of Opening Submissions.

• Serve/exchange the witness statement within 28 days of completion of Opening Submissions.

• No supplementary witness statements without permission of tribunal.• Request for permission must be made within 14 days of service/exchange of witness

statements.

• Witness statement must be in witness’s own words.• Paragraphs numbered.

• No hearsay.

• No argument.19/06/2021 113© Arun Kasi https://arunkasico.com



LMAA ICP 2021

• Expert Evidence (ICP para 10).• No expert evidence, unless tribunal permits.

• Request for permission must be made within 14 days after completion of Opening Submissions.

• Request to specify issues, fields, and name of expert witness.

• If permission given, serve/exchange expert evidence (report) within 21 days of permission.

• No supplementary expert evidence, unless tribunal permits.• Request for permission must be made within 14 days after completion of Opening

Submissions.




LMAA ICP 2021• Length limit (if Expert Evidence permitted).

• Principal Expert Evidence: 3,500 words.• This may come to about 15 pages with double spacing.

• Supplementary Expert Evidence: 1,000 words.• This may come to about 4 pages with double spacing.




LMAA ICP 2021

• No Oral Hearing, unless tribunal exceptionally allows (ICP para 11).• Request must be made within:

• 21 days after completion of Opening Submissions; or

• 14 days after service/exchange of witness statements or determination of expert evidence request or service/exchange of expert evidence.

• If oral hearing permitted:• Skeleton argument and statement of agreed facts to be served before hearing.

• Hearing limited to one day, unless additional days allowed by tribunal.• 2 hours for each party and 1 more hour reserved for use as tribunal deems appropriate.

• Time a party cross-examines other side witness counts against the crossing party’s time.

• Subsequent to hearing, respondent may serve its Closing Submission within 7 days.• Then claimant may serve its Closing Submission within 7 days.




LMAA ICP 2021

• Closing Submission where no Oral Hearing (ICP para 12).• Respondent serves its Closing Submission within 14 days of last procedural

stop.

• Claimant serves its Closing Submission within 7 days after the above.




LMAA ICP 2021

• What if a party missed the time? (ICP para 13).• If claimant has defaulted in filing claim submission, tribunal may dismiss

claim.

• Parties must apply for any extension before expiry of limited time.

• If a party is in default, tribunal, on own volition or application of the other party, MUST call upon the party in default to rectify within an additional time (maximum 21 days).• If the party still defaults, the tribunal may proceed to award based on materials before it.




LMAA ICP 2021

• Award (ICP para 14).• Tribunal to take every effort to make it available in 6 weeks after last

submission.

• Tribunal may correct an award on its own motion or on application of a party made within 28 days of the award.

• Tribunal may make an additional award/explain award on application of a party made within 28 days of the award. Note: s 57: Tribunal may make an additional award on its own initiative also.




LMAA ICP 2021• Before exercising powers to correct or make additional award/explain award,

tribunal must give opportunity to parties to make representation.





LMAA ICP 2021

• Parties Costs.• Costs at discretion of tribunal – fair, reasonable, and proportionate – on

commercial basis.

• Parties to give a summary/breakdown of costs (maximum 500 words) before award.




LMAA ICP 2021• Documents-only arbitration:

• Cap: 30% of claim amount (excluding interest and costs).

• In case of distinct counterclaim, 30% cap of counterclaim amount in addition the above.

• Arbitration with hearing:• Above cap is increased to 50%.

• Costs of venue, etc in addition to the above cap.

• If the tribunal had ordered cost cap during the proceedings, that lower limitwill apply.




LMAA ICP 2021

• Tribunal’s Fees and Expenses (ICP para 18).• Parties are jointly and severally liable.

• No fixed scale/no booking fee.

• Fee on reasonable basis for work done.

• Appointment Fee: £350 for each arbitrator/umpire.

• Sole Arbitrator - cap: 1/3 of parties’ cost cap (appointment fee is separate).

• 2-3 member-tribunal – cap: 2/3 of parties’ cost cap in aggregate for all members.




LMAA ICP 2021• Additional fee may be charged in case of challenge to tribunal’s jurisdiction

• Such fee payable by claimant at first instance.

• Interim fee payment claims, as in LT 2021, but no minimum interval set in ICP.• Consequences of failure of a party to pay are same as those in LT 2021.

• No Security for Tribunal’s Costs.




LMAA ICP 2021

• Concurrency (ICP para 19).• Similar to that under LT 2021.

• Departure from rules (ICP para 20).• In exceptional circumstances, tribunal may depart.

• Provided the parties’ cost cap cannot be varied.




LMAA ICP 2021

• Appeal rights (s 69 AA 1996) restricted to:• Issues of general interest; or

• Issues of importance to industry certified by the tribunal.

• Restriction does not apply to appeals against the tribunal’s decision of its own jurisdiction.




LMAA SCP 2021

• Available only if agreed (SCP para 1).

• Default limit: USD100,000 (SCP para 1).

• Sole Arbitrator (SCP para 1).

• If parties don’t agree on name of arbitration within 14 days of a party giving notice of arbitration, either party may apply to the President of LMAA for the appointment (fee: £350) (SCP para 2).

• Arbitration commences when notice of arbitration is given (ie before appointment of arbitrator) – important to stop time clock.




LMAA SCP 2021: Fees and Expenses (SCP para 3)

• Arbitrator’s fixed fee: £4,000.• Appointment fee + interlocutories + one day hearing.

• Where application is made to the President of LMAA for appointment, the £4,000 must be paid by claimant in full together with the LMAA fee of £350.

• LMAA will remit the £4,000 fee to arbitrator upon appointment.

• For counterclaim:• If counterclaim amount does not exceed claim amount: no additional fee.

• If counterclaim amount exceeds claim amount: £2,500. • Payable by respondent within 14 days of service of defence and counterclaim.

• A condition precedent to proceeding with the counterclaim.




LMAA SCP 2021: Fees and Expenses (SCP para 3)

• Arbitrator may make claim for expenses in addition to the fixed fee.

• Reasonable additional fee chargeable for challenge to arbitrator’s jurisdiction.

• If case settled or arbitrator resigns, etc, arbitrator may retain an appropriate sum reflecting the services given and refund the balance.




LMAA SCP 2021: Procedure (SCP para 5)

• Submission letters (Pleadings).• 14 – 28 – 21 – 14 days.

• Claim Submission – within 14 days – max 2,500 words.

• Defence (and Counterclaim) Submission – within 28 days – max 2,500 words.

• Reply (and Defence to Counterclaim) Submission – within 21 days – max 2,500 words/1,000 words.• If counterclaim fee is payable, then 21 days run from the date of payment.

• Reply to Defence to Counterclaim Submission – within 14 days – max 1,000 words.

• Front loading (but not memorial) like Submissions under LT 2021/SCP.




LMAA SCP 2021: Procedure (SCP para 5)• If inadequately/excessively plead, additional costs may be awarded against

the party so pleading.

• Arbitrator declares closing of submissions, once they are exhausted.

• No expert report without permission of tribunal – max 2,500 words.

• No hearing, except where exceptionally arbitrator requires it – limit one day (5 hours).

• All communications may be by email.




LMAA SCP 2021: Procedure (SCP para 5)

• No Disclosure (SCP para 6).• Arbitrator may order production of relevant document (including adverse

documents).• If fail to produce, arbitrator may draw adverse inference.

• No specific security for costs (parties’ costs).• But arbitrator may order under s 38(3) (unlikely).

• No Questionnaire.

• No specific provision for closing submissions or skeleton arguments.

• The Cos Joy (2011).19/06/2021 132© Arun Kasi https://arunkasico.com



LMAA SCP 2021: Award (SCP para 14)• Arbitrator to take every effort to make it available in one month after last

submission.

• Tribunal may correct an award on its own motion or on application of a party made within 28 days of the award.

• Tribunal may make an additional award/explain award on application of a party made within 28 days of the award. Take note of s 57 power to make additional award on own initiative.

• Before exercising powers to correct or make additional award/explain award, tribunal must give opportunity to parties to make representation.





LMAA SCP 2021: Award: Parties’ Costs• Costs at discretion of tribunal – on commercial basis.

• Unless parties give a summary/breakdown of costs (maximum 500 words) 7 days before award, arbitrator will proceed as he deems fit.

• Cap: £5,000 + LMAA fee £350 (if paid by successful party).• If there is a counterclaim exceeding claimant’s claim sum, the cap is increased by £1,000.




LMAA SCP 2021

• No power to order concurrency.

• Departure from rules (ICP para 9(b)).• In exceptional circumstances, tribunal may depart.

• Provided the parties’ cost cap cannot be varied.




LMAA SCP 2021: Appeal (SCP para 4)

• No appeal under s 69, except against arbitrator’s ruling on his own jurisdiction.

THANK YOUArun Kasi

