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Commercial Arbitration 2017

Last verified on Wednesday 26th April 2017

Kuwait

Dalal Al Houti
Al Tamimi & Company

    Infrastructure

  1. 1.The New York Convention
    Is your state a party to the New York Convention? Are there any noteworthy declarations or reservations?
    1. Kuwait acceded to the New York Convention in 1978. Kuwait will only apply the New York Convention to the recognition and enforcement of awards made in the territory of another contracting state.

  2. 2.Other treaties
    Is your state a party to any other bilateral or multilateral treaties regarding the recognition and enforcement of arbitral awards?
    1. As of 16 April 2017, Kuwait is party to 89 bilateral investment treaties (BITs) including, among other jurisdictions, Belgium (2003), Bosnia (2002), Bulgaria (1998), China (1986), Croatia (1998), Czech Republic (1997), Denmark (2002), Ethiopia (1998), Finland (1997), France (1991), Georgia (2009), Germany (1997), Hungary (1992), India (2003), Italy (1990), Jordan (2001), Kazakhstan (2000), Korea (2004), the Netherlands (2002), Pakistan (1986), Slovakia (2009), Spain (2008), Sweden (2002), Turkey (1992).

  3. 3.National law
    Is there an arbitration act or equivalent and, if so, is it based on the UNCITRAL Model Law? Does it apply to all arbitral proceedings with their seat in your jurisdiction?
    1. Kuwait does not have a free-standing arbitration law. Arbitrations are governed by the Code of Civil and Commercial Procedure (Law No. 38 of 1980), which contains a chapter on arbitration (chapter 12, articles 173 to 188) and Judicial Arbitration in Civil and Commercial Matters (Law No. 11 of 1995 as amended by Law No. 102 of 2013). These laws do not conform to the UNCITRAL Model Law. 

  4. 4.Arbitration bodies in your jurisdiction
    What arbitration bodies relevant to international arbitration are based within your jurisdiction? Do such bodies also act as appointing authorities?
    1. The main arbitration centre in Kuwait is the Kuwait Commercial Arbitration Centre (KCAC). Key features of the KCAC Rules of Arbitration and Conciliation (the KCAC Rules) include:

      • The parties are not required to select arbitrators from a list of arbitrators set by the institution;
      • The UNCITRAL Rules shall apply in the absence of provisions relating to specific matter in the KCAC Rules or the CCP Law; and
      • The KCAC Rules include mandatory provisions that should be adhered to by the tribunal such as, but not limited to, the right of defence and equal treatment between the parties. 
  5. 5.Foreign institutions
    Can foreign arbitral providers operate in your jurisdiction?
    1. Yes, foreign institutions can operate. 

  6. 6.Courts
    Is there a specialist arbitration court? Is the judiciary in your jurisdiction generally familiar with the law and practice of international arbitration?
    1. Kuwait does not have a specialist arbitration court. The local courts are civil law courts and are generally less familiar with international arbitration. 

    Agreement to arbitrate

  7. 7.Formalities
    What, if any, requirements must be met if an arbitration agreement is to be valid and enforceable under the law of your jurisdiction? Can an arbitration agreement cover future disputes?
    1. An arbitration agreement must be in writing and signed by a person authorised to bind the company to arbitration. It is not sufficient for contracting parties to have the general capacity to contract but most also have the requisite capacity to dispose of the right which is the subject matter of the dispute (ie, the right to bind the company to arbitration).

      Arbitration agreements may cover future disputes. However, the subject matter of the dispute must be specified in the agreement to arbitrate or during the proceedings, otherwise the arbitration will be deemed null and void. The courts tend to be conservative as arbitration in Kuwait is perceived as an “exceptional” means of dispute resolution as it ousts the jurisdiction of the local courts.

      The Kuwaiti Law does not refer to the arbitration agreement made by reference. However, such agreement would be valid if it was unequivocally made as long as it can be proved in writing.

  8. 8.Arbitrability
    Are any types of dispute non-arbitrable? If so, which?
    1. The arbitration laws in Kuwait do not provide a comprehensive list of disputes that are arbitrable. A broad approach is taken on this issue. According to the CCP Law, arbitration is not permissible in those matters in which conciliation is not permitted (eg, criminal matters). Disputes involving, employment, civil rights, bankruptcy and trademarks are generally not arbitrable as they fall under the exclusive jurisdiction of the Kuwaiti courts. 

  9. 9.Third parties
    Can a third party be bound by an arbitration clause and, if so, in what circumstances? Can third parties participate in the arbitration process through joinder or a third-party notice?
    1. In principle, only signatories to an arbitration clause are bound by it. The CCP Law, the Judicial Arbitration Law and the KCAC Rules are silent with respect to third-party participation in arbitration proceedings. 

  10. 10.Consolidation
    Would an arbitral tribunal with its seat in your jurisdiction be able to consolidate separate arbitral proceedings under one or more contracts and, if so, in what circumstances?
    1. The CCP Law and the Judicial Arbitration law are silent in this regard. However, where both parties have numerous contracts with identical arbitration clauses and which are related to the same business venture, there is no reason why a tribunal should not be able to consolidate separate proceedings, subject to the parties’ agreement. 

  11. 11.

    Groups of companies
    Is the "group of companies doctrine" recognised in your jurisdiction?

    1. Kuwait laws are silent in this regard however the group of companies’ doctrine is recognised in limited circumstances. 

  12. 12.Separability
    Are arbitration clauses considered separable from the main contract?
    1. Yes, it is the case that arbitration clauses are considered separate from the main contract and will consequently survive termination or invalidation of the main contract. 

  13. 13.Competence-competence
    Is the principle of competence-competence recognised in your jurisdiction? Can a party to an arbitration ask the courts to determine an issue relating to the tribunal’s jurisdiction and competence?
    1. While the CCP Law is silent on this matter, the principle of competence-competence is recognised in Kuwait.

      Article 5 of the Judicial Arbitration Law does provide that the tribunal has the right to rule over its own jurisdiction, including matters related to lack of a valid arbitration agreement, its cancellation, annulment or if it does not cover the subject matter of the dispute in question. It should be noted that such objections must be made before discussing the merits of the case. This is also recognised by the KCAC Rules. 

  14. 14.Drafting
    Are there particular issues to note when drafting an arbitration clause where your jurisdiction will be the seat of arbitration or the place where enforcement of an award will be sought?
    1. If the parties wish to have Kuwait as the seat, it is advisable to state the particular arbitration law they wish to apply to their dispute (whether the CCP Law or the Judicial Arbitration Law) to avoid ambiguity.

      While there are no express provisions under Kuwaiti Law restricting the government or governmental entities from entering into an arbitration agreement, pursuant to the Judicial Arbitration Law, an arbitral tribunal constituted in accordance with said law has exclusive jurisdiction with regards to disputes arising between public entities and different governmental institutions or authorities (eg, ministries), and over arbitration claims made by private entities against governmental bodies (eg, ministries and public companies).

  15. 15.Institutional arbitration
    Is institutional international arbitration more or less common than ad hoc international arbitration? Are the UNCITRAL Rules commonly used in ad hoc international arbitrations in your jurisdiction?
    1. Institutional international arbitration is more common in Kuwait than ad hoc international arbitration. However, when ad hoc arbitrations occur, they will often use the UNCITRAL Rules in some capacity. 

  16. 16.Multi-party agreements
    What, if any, are the particular points to note when drafting a multi-party arbitration agreement with your jurisdiction in mind? In relation to, for example, the appointment of arbitrators.
    1. The CCP Law, the Judicial Law and the KCAC Rules do not regulate a multi-party arbitration agreement. In absence of an institution any problems encountered when appointing the arbitral tribunal will need to referred to the local courts. 

    Commencing the arbitration

  17. 17.Request for arbitration
    How are arbitral proceedings commenced in your jurisdiction? Are there any key provisions under the arbitration laws of your jurisdiction relating to limitation periods of which the parties should be aware?
    1. Under the CCP Law and the Judicial Arbitration Law there are no particular rules about commencing arbitral proceedings, nor any time limits. 

      Where an institution is being used, the rules of the institution will need to be adhered to. Under the KCAC Rules, for example, arbitration proceedings are initiated through the submission of a written request for KCAC secretariat with the relevant documents supporting the claim. 

    Choice of law

  18. 18.Choice of law
    How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?
    1. The provisions governing arbitration in Kuwait are silent when it comes to the determination of the substantive law of the dispute in the absence of the parties’ agreement. That said, the tribunal has procedural freedom and in practice determines the substantive law using the conflict of law rules it considers applicable. 

    Appointing the tribunal

  19. 19.Choice of arbitrators
    Does the law of your jurisdiction place any limitations in respect of a party’s choice of arbitrator?
    1. Under Kuwaiti law, an arbitrator must not be a minor or under any legal guardianship of another. They also not have been convicted of a criminal offence or be bankrupt unless that have undergone formal rehabilitation. 

  20. 20.Foreign arbitrators
    Can non-nationals act as arbitrators where the seat is in your jurisdiction or hearings are held there? Is this subject to any immigration or other requirements?
    1. Non-nationals can act as arbitrators in arbitrations seated in the Kuwait. There are no restrictions. 

  21. 21.Default appointment of arbitrators
    How are arbitrators appointed where no nomination is made by a party or parties or the selection mechanism fails for any reason? Do the courts have any role to play?
    1. Local courts have the power to assist with the appointment of arbitrators should the designated mechanism of appointment fail for any reason. 

  22. 22.Immunity
    Are arbitrators afforded immunity from suit under the law of your jurisdiction and, if so, in what terms?
    1. The CCP Law, the Judicial Arbitration Law and the KCAC Rules are silent with regards to the liability of arbitrators. However, under the CCP Law, and arbitrator may be required to compensate the parties where the arbitrator withdraws without a good reason. 

  23. 23.Securing payment of fees
    Can arbitrators secure payment of their fees in your jurisdiction? Are there fundholding services provided by relevant institutions?
    1. In the absence of the assistance of an arbitral institution, the parties would have to negotiate fees with the tribunal members directly. In the absence of the assistance of an arbitral institution, the Tribunal will usually request that deposits be made prior to any significant work being conducted, with a final amount being paid prior to the release of the final award.

      As regards Judicial Arbitration, article 3 of the Judicial Arbitration Law allows the tribunal to call for deposits to be made by the parties as security for their fees. The fees will be deposited into the Treasury of the Arbitration Department.

    Challenges to arbitrators

  24. 24.Grounds of challenge
    On what grounds may a party challenge an arbitrator? How are challenges dealt with in the courts or (as applicable) the main arbitration institutions in your jurisdiction? Will the IBA Guidelines on Conflicts of Interest in International Arbitration generally be taken into account?
    1. A party can challenge jurisdiction, and will usually do so as soon as possible by making an application to the Tribunal once constituted. The Kuwaiti courts also have the right to rule on the jurisdiction of the tribunal if such jurisdiction is challenged by any of the parties.

      An arbitrator may be removed if he or she becomes bankrupt, subject to criminal conviction, or is put under guardianship.

      In foreign arbitrations involving a Kuwaiti element, the IBA Guidelines on Conflicts of Interest in International Arbitration are at times taken into account. However, when it comes to domestic arbitration, it is rare that such guidelines are considered.

    Interim relief

  25. 25.

    Types of relief
    What main types of interim relief are available in respect of international arbitration and from whom (the tribunal or the courts)? Are anti-suit injunctions available where proceedings are brought elsewhere in breach of an arbitration agreement?

    1. Kuwaiti courts have exclusive jurisdiction to decide on interim measures prior to the constitution of the tribunal.

      Kuwait Law states that arbitration does not involve "urgent matters" unless otherwise agreed. Therefore, in theory, interim relief could theoretically be awarded by the arbitral tribunal if it were agreed between the parties. In practice, however, tribunals do not have inherent power to order interim relief, and since the local courts rarely grant such relief, it is unlikely that any order for interim relief made by the tribunal would be enforced by the court. 

  26. 26.Security for costs
    Does the law of your jurisdiction allow a court or tribunal to order a party to provide security for costs?
    1. Under Kuwaiti laws, no such orders are available. Even if the parties conferred such a power on the tribunal and an order for security for costs was granted, in practice, it is unlikely that the order will be enforced by the local courts. 

    Procedure

  27. 27.

    Procedural rules
    Are there any mandatory rules in your jurisdiction that govern the conduct of the arbitration (eg, general duties of the tribunal and/or the parties)?

    1. The procedural rules applicable to court proceedings are also followed by arbitrators in general and wherever applicable. According to the CCP Law, arbitrators may call witnesses to give evidence. Arbitrators may also nominate an expert if needed or requested by the parties. Arbitrators may also request assistance from the court to order a party to submit a document relevant to the dispute.  

  28. 28.Refusal to participate
    What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration?
    1. Under the CCP Law and the Judicial Arbitration Law, the failure of a respondent to participate does not inhibit the tribunal from proceeding with the arbitration and rendering an enforceable award. 

  29. 29.

    Admissible evidence
    What types of evidence are usually admitted, and how is evidence usually taken? Will the IBA Rules on the Taking of Evidence in International Arbitration generally be taken into account?

    1. As a general rule, under the CCP, parties are required to provide evidence in support of their case. The IBA Rules on the Taking of Evidence in International Commercial Arbitration are, at times, used for guidance.

      Any expert witnesses or fact witnesses must attend the hearing and their attendance must be recorded. Witnesses and experts will usually tender a written statement before undergoing examination at the hearing by the opposing lawyers and the Tribunal. 

  30. 30.Court assistance
    Will the courts in your jurisdiction play any role in the obtaining of evidence?
    1. Under Kuwaiti law, a tribunal may request the assistance of the local courts to obtain evidence or aid in the production of documents from third parties. 

  31. 31.Document production
    What is the relevant law and prevailing practice relating to document production in international arbitration in your jurisdiction?
    1.  The arbitral tribunal may request the local courts to order a third party to produce a document that is in its possession and that is necessary for the award. 

  32. 32.Hearings
    Is it mandatory to have a final hearing on the merits?
    1. Typically, the arbitrator must inform the parties of a hearing date. This hearing can, however, be adjourned or waived at the convenience and request of the parties.  

  33. 33.

    Seat or place of arbitration
    If your jurisdiction is selected as the seat of arbitration, may hearings and procedural meetings be conducted elsewhere?

    1. Yes.

    Award

  34. 34.Majority decisions
    Can the tribunal decide by majority?
    1. Yes, under both the CCP Law and the Judicial Arbitration Law, the tribunal can decide by majority. 

  35. 35.Limitations to awards and relief
    Are there any particular types of remedies or relief that an arbitral tribunal may not grant?
    1. Kuwaiti law does not have explicit restrictions concerning the types of remedies or relief that an arbitral tribunal may grant. 

  36. 36.Dissenting arbitrators
    Are dissenting opinions permitted under the law of your jurisdiction? If so, are they common in practice?
    1. Yes, under both the CCP Law and the Judicial Arbitration Law, dissenting opinions are permitted. 

  37. 37.Formalities
    What, if any, are the legal and formal requirements for a valid and enforceable award?
    1. Arbitral awards must be made in writing and must contain the following: 

      • a copy of the arbitration agreement;
      • a summary of the parties’ allegations and supporting documents;
      • the reasons for the award;
      • the date of the award so that the court can verify that it was rendered within the arbitration time limit;
      • the place where it is made; and
      • the signature of all or a majority of the arbitrators. 

      If one or more arbitrators refrain from signing, the award is valid provided that such refusal is mentioned in the award that then shall be signed by the majority.

      Arbitral awards rendered abroad are considered foreign even if the parties to the dispute are Kuwaiti, the agreement to arbitrate has been made in Kuwait, or Kuwaiti law was applied to settle the dispute. 

  38. 38.Time frames
    What time limits, if any, should parties be aware of in respect of an award? In particular, do any time limits govern the interpretation and correction of an award?
    1. Under the CCP Law, unless the parties agree otherwise, the award must be issued within six months from the date of notice of the first hearing.

      The Judicial Arbitration Law, however, does not provide a time limit for rendering the award. The time frame for issuing the award will be decided by the tribunal.  

      The CCP Law states that the arbitrator may rectify material, typographical or arithmetical errors in the award and interpret any ambiguous or vague provisions in the text. The tribunal’s duty shall also be to consider any issues relating to the merits of the dispute if they failed to do so in the award despite it being part of their mandate. This shall be during the legal or agreed period for rendering the award and in accordance with the rules provided in other relevant articles of the CCP Law. If this is impossible, or the time limit for rendering the award expires, these matters shall fall within the jurisdiction of the original court with jurisdiction to hear the dispute. If the ruling is appealed when it is permissible, or an original case be raised for its voidance, then the court hearing the appeal or challenged shall rectify any material errors or interpret the vague or ambiguous provisions. 

    Costs and interest

  39. 39.

    Costs
    Are parties able to recover fees paid and costs incurred? Does the "loser pays" rule generally apply in your jurisdiction?

    1. There are no specific provisions under the Kuwaiti law dealing with the recovery of costs in the context of arbitration proceedings. Arbitral Tribunals will therefore decide to allocate costs based on the parties’ agreement and in the event the parties did not agree on such cost allocation, the Civil and Commercial and Procedures Law (the CCP) may apply. The CCP actually provides that the legal costs/fees and other expenses and fees are to be incurred/borne by the losing party. According to the CCP, court proceedings’ costs include court fees and duties, experts and witness costs and fees and lawyer fees. Accordingly, in practice, arbitrators in ad hoc and institutional arbitration may rely on the provisions of the CCP in this respect. Article 42 of the rules of Kuwait Commercial Arbitration Center (KCAC Rules) provides that the final award shall decide on the allocation of the costs of arbitration between the parties. 

  40. 40.Interest on the award
    Can interest be included on the principal claim and costs? Is there any mandatory or customary rate?
    1. The Kuwaiti Commercial Code allows interest to be awarded. According to the Commercial Code, parties may agree on an interest rate, which is typically based on the Central Bank of Kuwait. The default provision is that 7 per cent would apply. It should be noted that the restriction on the interest rate applies to Kuwaiti dinars only. 

    Challenging awards

  41. 41.Grounds for appeal
    Are there any grounds on which an award may be appealed before the courts of your jurisdiction?
    1. The CCP Law states that an arbitral award may not be appealed unless otherwise agreed upon by the parties, whereupon the appeal shall be brought before an appellate board of the Court of First Instance, and shall comply with the established rules for appealing judicial decisions given by the courts.

      The Judicial Authority Law states that the award rendered by the tribunal can only be challenged before the Court of Cassation in the following cases:

      • on the basis of a violation of law or fault in its application or interpretation;
      • on the basis of an invalidity in the award or in the procedures which influence the award. If the tribunal decided a contrary award to a judgment previously given to the same parties and had the effect of a peremptory order, whether given by the ordinary courts or by any of the arbitration boards;
      • on the basis of any of the reasons that require the request of review. 
  42. 42.Other grounds for challenge
    Are there any other bases on which an award may be challenged, and if so what?
    1. Under Kuwaiti law awards may be challenged for the following reasons:

      • the award was rendered without a valid arbitration agreement or was based on invalid documents:
      • the arbitrator was improperly appointed;
      • the award was issued by one arbitrator;
      • the award was issued out of time;
      • the award relates to a matter that is not capable of being arbitrated;
      • the award is contrary to the public policy of Kuwait. 
  43. 43.Modifying an award
    Is it open to the parties to exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?
    1. Arbitral awards are only subject to appeal if the parties agreed in this regard before the issuance of the award. This is contrary to the position in many other arbitration laws where arbitral awards are subject to appeal unless the parties agree otherwise. In all cases, arbitral awards renderedeg, to pro bono may not be appealed. The impossibility of appeal, if the parties have not agreed otherwise, is justified by the fact that in most cases, the parties resort to arbitration in order to have an expedited means of dispute resolution with a final and binding outcome. 

    Enforcement in your jurisdiction

  44. 44.Enforcement of set-aside awards
    Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?
    1. This has not been tested in Kuwait. The Kuwaiti courts tend to be conservative, so a common view is that they would likely be disinclined to enforce such award as arbitration is seen as an exceptional mode of dispute resolution. 

  45. 45.Trends
    What trends, if any, are suggested by recent enforcement decisions? What is the prevailing approach of the courts in this regard?
    1. The local courts remain the preferred form of commercial dispute resolution in Kuwait. However, in recent years, arbitration is slowly starting to gain momentum with commercial parties. When it comes to enforcement, an award decided by an arbitral panel in Kuwait enjoys the force of an adjudicated order, and is fully enforceable in conformity with the proceedings prescribed in the CCP. The Kuwaiti courts recognise party autonomy and there is a general presumption in favour of enforcement of the arbitration award. 

  46. 46.State immunity
    To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?
    1. It is unlikely that Kuwait can raise a defence of state or sovereign immunity at the enforcement stage. The rationale is that once a sovereign entity enters into a commercial transaction and conducts itself like a private party in its commercial dealings, it should not be permitted to avoid the legal consequences of its actions simply by virtue of its sovereign affiliation (see, for example, Kuwait Airways Corp v Iraqi Airways Co [1995] 1 WLR 1147 at 1171 (HL). However, government entities should obtain permission to enter into arbitration agreements. 

    Further considerations

  47. 47.Confidentiality
    To what extent are arbitral proceedings in your jurisdiction confidential?
    1. The CCP Law does not deal with confidentiality of arbitration proceedings. The Judicial Arbitration Law does however state that the tribunal is not allowed to publish the award except with the parties’ consent. 

      The KCAC Rules provide that all information disclosed during the arbitration must be kept confidential. Unless otherwise agreed by the parties, an arbitration award may be published by the Centre without disclosing the name of the parties. 

  48. 48.Evidence and pleadings
    What is the position relating to evidence produced and pleadings filed in the arbitration? Are these confidential? Is there any way that they might be relied on in other proceedings (whether arbitral or court proceedings)?
    1. The CCP Law does not deal with confidentiality of arbitration proceedings and so unless otherwise agreed by the parties it is possible that any pleadings and evidence may be used in later proceedings. 

  49. 49.Ethical codes
    What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
    1. No Code of Ethics for Arbitrations has been published. That said, article 2 of the Ministerial Resolution No. (43) of 1995 on Judicial Arbitration provides relevant guidelines. Arbitrators registered in the Arbitrator’s Roll shall satisfy the following conditions:

      • Be a Kuwaiti national;
      • Be of good conduct and reputation;
      • Shall not have been dismissed from service under a disciplinary decision unless at least three years have lapsed from the date of such a disciplinary decision was issued;
      • Shall not have been sentenced to a criminal penalty in an offence involving moral turpitude or integrity unless he has been rehabilitated; and
      • Have appropriate academic qualifications and experience as duly approved by the Committee specified in the following article.

      A committee comprising the following members controls the selection of arbitrators:

      • The Chief Justice of the Court of Appeal, as Chairman;
      • The Assistant Undersecretary for Expertise & Arbitration Affairs, as member; and
      • The Assistant Undersecretary for Financial & Minor Affairs - Palace of Justice, as member. 
  50. 50.Procedural expectations
    Are there any particular procedural expectations or assumptions of which counsel or arbitrators participating in an international arbitration with its seat in your jurisdiction should be aware?
    1. There are some local rules, which although well known to those practising in the jurisdiction, may seem alien to international arbitration practice. For example, any representatives appearing in the arbitration must submit a valid power of attorney. 

  51. 51.

    Third-party funding
    Is third-party funding permitted in your jurisdiction?

    1. Third party funding is not yet part of the Kuwaiti market. 

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GAR know-how provides reliable cross-jurisdictional insight to help cement the building blocks of international practice. In this section, select experienced practitioners answer commonly asked questions for key jurisdictions so allowing readers to be better-placed to solve the challenges of their working days.

Questions

    Infrastructure

  1. 1.The New York Convention
    Is your state a party to the New York Convention? Are there any noteworthy declarations or reservations?
  2. 2.Other treaties
    Is your state a party to any other bilateral or multilateral treaties regarding the recognition and enforcement of arbitral awards?
  3. 3.National law
    Is there an arbitration act or equivalent and, if so, is it based on the UNCITRAL Model Law? Does it apply to all arbitral proceedings with their seat in your jurisdiction?
  4. 4.Arbitration bodies in your jurisdiction
    What arbitration bodies relevant to international arbitration are based within your jurisdiction? Do such bodies also act as appointing authorities?
  5. 5.Foreign institutions
    Can foreign arbitral providers operate in your jurisdiction?
  6. 6.Courts
    Is there a specialist arbitration court? Is the judiciary in your jurisdiction generally familiar with the law and practice of international arbitration?
  7. Agreement to arbitrate

  8. 7.Formalities
    What, if any, requirements must be met if an arbitration agreement is to be valid and enforceable under the law of your jurisdiction? Can an arbitration agreement cover future disputes?
  9. 8.Arbitrability
    Are any types of dispute non-arbitrable? If so, which?
  10. 9.Third parties
    Can a third party be bound by an arbitration clause and, if so, in what circumstances? Can third parties participate in the arbitration process through joinder or a third-party notice?
  11. 10.Consolidation
    Would an arbitral tribunal with its seat in your jurisdiction be able to consolidate separate arbitral proceedings under one or more contracts and, if so, in what circumstances?
  12. 11.

    Groups of companies
    Is the "group of companies doctrine" recognised in your jurisdiction?


  13. 12.Separability
    Are arbitration clauses considered separable from the main contract?
  14. 13.Competence-competence
    Is the principle of competence-competence recognised in your jurisdiction? Can a party to an arbitration ask the courts to determine an issue relating to the tribunal’s jurisdiction and competence?
  15. 14.Drafting
    Are there particular issues to note when drafting an arbitration clause where your jurisdiction will be the seat of arbitration or the place where enforcement of an award will be sought?
  16. 15.Institutional arbitration
    Is institutional international arbitration more or less common than ad hoc international arbitration? Are the UNCITRAL Rules commonly used in ad hoc international arbitrations in your jurisdiction?
  17. 16.Multi-party agreements
    What, if any, are the particular points to note when drafting a multi-party arbitration agreement with your jurisdiction in mind? In relation to, for example, the appointment of arbitrators.
  18. Commencing the arbitration

  19. 17.Request for arbitration
    How are arbitral proceedings commenced in your jurisdiction? Are there any key provisions under the arbitration laws of your jurisdiction relating to limitation periods of which the parties should be aware?
  20. Choice of law

  21. 18.Choice of law
    How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?
  22. Appointing the tribunal

  23. 19.Choice of arbitrators
    Does the law of your jurisdiction place any limitations in respect of a party’s choice of arbitrator?
  24. 20.Foreign arbitrators
    Can non-nationals act as arbitrators where the seat is in your jurisdiction or hearings are held there? Is this subject to any immigration or other requirements?
  25. 21.Default appointment of arbitrators
    How are arbitrators appointed where no nomination is made by a party or parties or the selection mechanism fails for any reason? Do the courts have any role to play?
  26. 22.Immunity
    Are arbitrators afforded immunity from suit under the law of your jurisdiction and, if so, in what terms?
  27. 23.Securing payment of fees
    Can arbitrators secure payment of their fees in your jurisdiction? Are there fundholding services provided by relevant institutions?
  28. Challenges to arbitrators

  29. 24.Grounds of challenge
    On what grounds may a party challenge an arbitrator? How are challenges dealt with in the courts or (as applicable) the main arbitration institutions in your jurisdiction? Will the IBA Guidelines on Conflicts of Interest in International Arbitration generally be taken into account?
  30. Interim relief

  31. 25.

    Types of relief
    What main types of interim relief are available in respect of international arbitration and from whom (the tribunal or the courts)? Are anti-suit injunctions available where proceedings are brought elsewhere in breach of an arbitration agreement?


  32. 26.Security for costs
    Does the law of your jurisdiction allow a court or tribunal to order a party to provide security for costs?
  33. Procedure

  34. 27.

    Procedural rules
    Are there any mandatory rules in your jurisdiction that govern the conduct of the arbitration (eg, general duties of the tribunal and/or the parties)?


  35. 28.Refusal to participate
    What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration?
  36. 29.

    Admissible evidence
    What types of evidence are usually admitted, and how is evidence usually taken? Will the IBA Rules on the Taking of Evidence in International Arbitration generally be taken into account?


  37. 30.Court assistance
    Will the courts in your jurisdiction play any role in the obtaining of evidence?
  38. 31.Document production
    What is the relevant law and prevailing practice relating to document production in international arbitration in your jurisdiction?
  39. 32.Hearings
    Is it mandatory to have a final hearing on the merits?
  40. 33.

    Seat or place of arbitration
    If your jurisdiction is selected as the seat of arbitration, may hearings and procedural meetings be conducted elsewhere?


  41. Award

  42. 34.Majority decisions
    Can the tribunal decide by majority?
  43. 35.Limitations to awards and relief
    Are there any particular types of remedies or relief that an arbitral tribunal may not grant?
  44. 36.Dissenting arbitrators
    Are dissenting opinions permitted under the law of your jurisdiction? If so, are they common in practice?
  45. 37.Formalities
    What, if any, are the legal and formal requirements for a valid and enforceable award?
  46. 38.Time frames
    What time limits, if any, should parties be aware of in respect of an award? In particular, do any time limits govern the interpretation and correction of an award?
  47. Costs and interest

  48. 39.

    Costs
    Are parties able to recover fees paid and costs incurred? Does the "loser pays" rule generally apply in your jurisdiction?


  49. 40.Interest on the award
    Can interest be included on the principal claim and costs? Is there any mandatory or customary rate?
  50. Challenging awards

  51. 41.Grounds for appeal
    Are there any grounds on which an award may be appealed before the courts of your jurisdiction?
  52. 42.Other grounds for challenge
    Are there any other bases on which an award may be challenged, and if so what?
  53. 43.Modifying an award
    Is it open to the parties to exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?
  54. Enforcement in your jurisdiction

  55. 44.Enforcement of set-aside awards
    Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?
  56. 45.Trends
    What trends, if any, are suggested by recent enforcement decisions? What is the prevailing approach of the courts in this regard?
  57. 46.State immunity
    To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?
  58. Further considerations

  59. 47.Confidentiality
    To what extent are arbitral proceedings in your jurisdiction confidential?
  60. 48.Evidence and pleadings
    What is the position relating to evidence produced and pleadings filed in the arbitration? Are these confidential? Is there any way that they might be relied on in other proceedings (whether arbitral or court proceedings)?
  61. 49.Ethical codes
    What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
  62. 50.Procedural expectations
    Are there any particular procedural expectations or assumptions of which counsel or arbitrators participating in an international arbitration with its seat in your jurisdiction should be aware?
  63. 51.

    Third-party funding
    Is third-party funding permitted in your jurisdiction?