II. Distinction with ad hoc arbitration
Ad hoc arbitration may be defined by contrasting it with the notion of institutional arbitration. Ad hoc arbitrations are conducted without the benefit of an arbitral institution or institutional arbitration rules, subject only to the parties’ agreement and the applicable law. Sometimes an arbitral institution may provide certain logistical services to an ad hoc arbitration (such arbitration is often seen as an “ad hoc arbitration administrated by an arbitral institution”). For instance, an arbitration conducted under the UNCITRAL Arbitration Rules and administered by an arbitral institution is generally believed to be an ad hoc arbitration, even though it may benefit from certain logistical services from an arbitral institution, such as acting as a fund holder of the arbitrators’ fees.
III. Arbitral institution
International Centre for Settlement of Investment Disputes (ICSID) ; Arbitration Institute of the Stockholm Chamber of Commerce (SCC) ; Cairo Regional Centre for International Commercial Arbitration (CRCICA) ; China International Economic and Trade Arbitration Commission (CIETAC) ; International Center for Dispute Resolution (ICDR) ; International Court of Arbitration of the ICC (ICC) ; London Court of International Arbitration (LCIA) ; Permanent Court of Arbitration (PCA) ; Swiss Arbitration Association (ASA) ; Vienna International Arbitral Center (VIAC) ; Judicial Arbitration & Mediation Services (JAMS) International ; Hong Kong International Arbitration Center (HKIAC) ; European Court of Arbitration (ECA) ; Moscow Chamber of Commerce and Industry (MCCI); Common Court of Justice and Arbitration of OHADA (CCJA); Dubai International Arbitration Center (DIAC); German Arbitration Institute (DIS); Singapore International Arbitration Center (SIAC); Australian Centre for International Commercial Arbitration (ACICA). The extent of involvement of each institution in an institutional arbitration vary according to its arbitration rules.
IV. General treaty practice
Some treaties offer a choice to the investor or to the parties to agree on an ad hoc arbitration or institutional arbitration. According to a non-exhaustive statistical portrait, more than 90% of investment protection treaties provide for access to international arbitration.2 Treaty which do not provide for investor-state arbitration include treaties signed by Brazil, Cameroon, China, Congo, Cote d’Ivoire, Egypt, the EU, Germany, Korea, Senegal, and Switzerland.3 The most commonly used fora in the investment protection treaties as well as in the practice of investor-State arbitration is ICSID. Ad hoc arbitration comes the next.4 Other arbitral institutions5, most notably the SCC and the ICC, also have experience in investor-State arbitration. However, some of the arbitrations under the auspices of ICC (31 cases as of 2014), the SCC (106 cases as of 2018) or other arbitral institutions were conducted in accordance with the UNCITRAL Rules and therefore were essentially ad hoc arbitrations.6
Angola – Brazil BIT, concluded on 1 April 2015 ; ASEA – Hong-Kong – China SAR Investment Agreement, concluded on 12 November 2017 ; Bangladesh – Germany BIT, concluded on 6 May 1981 ; Benin – Germany BIT, concluded on 29 June 1978 ; Brazil – Chile BIT, concluded on 24 November 2015 ; Brazil – Colombia BIT, concluded on 9 October 2015 ; Brazil – Malawi BIT, concluded on 25 June 2015 ; Brazil – Mexico BIT, concluded on 26 May 2015 ; Brazil – Mozambique BIT, concluded on 30 March 2015 ; Brazil – Peru ETEA, concluded on 29 April 2016 ; Bulgaria – Malta BIT, concluded on 12 June 1984 ; Burkina Faso – Switzerland BIT, concluded on 6 May 1969 ; Burundi – Germany BIT, concluded on 10 September 1984 ; Cameroon – Germany BIT, concluded on 29 June 1962 ; Cameroon – Netherlands BIT, concluded on 6 July 1965 ; Cameroon – Switzerland BIT, concluded on 28 January 1963 ; Central African Republic – Switzerland BIT, concluded on 28 February 1973 ; Chad – Germany BIT, concluded on 11 April 1967 ; Chad – Switzerland BIT, concluded on 21 February 1967 ; China – Hong-Kong CEPA Investment Agreement, concluded on 28 June 2017 ; China – Pakistan BIT, 12 February 1989 ; China – Thailand BIT, concluded on 12 March 1985 ; Congo- Germany BIT, concluded on 13 September 1965 ; Congo – Switzerland BIT, concluded on 18 October 1962 ; DRC – Germany BIT, concluded on 18 March 1969 ; DRC – Switzerland BIT, concluded on 10 March 1972 ; Ivory Coast – Germany BIT, concluded on 27 October 1966 ; ; Ivory Coast – Sweden BIT, concluded on 27 August 1965 ; Ivory Coast – Switzerland BIT, concluded on 26 June 1962 ; Czech Republic – Peru BIT, concluded on 16 March 1994 ; EFTA – Costa Rica – Panama FTA, concluded on 24 June 2013 ; Egypt – Libya BIT, concluded on 3 December 1990 ; Egypt – Niger BIT, concluded on 4 March 1998 ; Egypt – Somalia BIT, concluded on 29 May 1982 ; Egypt – Uzbekistan BIT, concluded on 16 December 1992 ; EU – Georgia Association Agreement, concluded on 27 June 2014 ; EU – Kazakhstan EPCA, concluded on 21 December 2015 ; EU – Moldova Association Agreement, concluded on 27 June 2014 ; EU – Ukraine Association Agreement, concluded on 27 June 2014 ; EU – Iraq Cooperation Agreement, concluded on 11 May 2012 ; France – Korea BIT, concluded on 28 December 1977 ; France – Malaysia BIT, concluded on 24 April 1975 ; France – Malta BIT, concluded 11 August 1976 ; France – Mauritius BIT, concluded on 22 March 1973 ; France – Montenegro BIT, concluded on 28 March 1974 ; Germany – Haiti BIT, concluded on 14 August 1973 ; Germany – Israel BIT, 24 June 1976 ; Germany – Korea BIT, concluded on 4 February 1964 ; Germany – Lesotho BIT, concluded on 11 November 1982 ; Germany – Malaysia BIT, concluded on 22 December 1960 ; Germany – Mali BIT, concluded on 28 June 1977 ; Germany – Malta BIT, concluded on 17 September 1974 ; Germany – Mauritania BIT, concluded on 8 December 1982 ; Germany – Mauritius BIT, concluded on 25 May 1971 ; Germany – Niger BIT, concluded on 29 October 1964 ; Germany – Pakistan BIT, concluded on 25 November 1959 ; Germany – Papua New Guinea BIT, concluded on 12 November 1980 ; Germany – Rwanda BIT, concluded on 18 May 1967 ; Germany – Senegal BIT, concluded on 24 January 1964 ; Germany – Sierra Leone, concluded on 8 April 1965 ; Germany – Singapore BIT, concluded on 3 October 1973 ; Germany – Somalia BIT, concluded on 27 November 1981 ; Germany – Syrian Arab Republic BIT, concluded on 2 August 1977 ; Germany – Togo BIT, concluded on 16 May 1961 ; Germany – Tunisia BIT, concluded on 20 December 1963 ; Germany – Turkey BIT, concluded on 20 June 1962 ; Germany – Uganda BIT, concluded on 29 November 1966 ; Germany – Tanzania BIT, concluded on 30 January 1965 ; Germany – Zambia BIT, concluded on 10 December 1966 ; Guinea – Italy BIT, concluded on 20 February 1964 ; Italy – Malta BIT, concluded on 28 July 1967 ; Korea – Pakistan BIT, concluded on 25 May 1988 ; Korea – Switzerland BIT, concluded on 7 April 1971 ; Lao People’s Democratic Republic – Thailand BIT, concluded on 22 August 1990 ; Liberia – Switzerland BIT, concluded on 23 July 1963 ; Madagascar – Sweden BIT, concluded on 2 April 1966 ; Malaysia – Switzerland BIT, concluded on 1 March 1978 ; Mali – Switzerland BIT, concluded on 8 March 1978 ; Mauritania – Switzerland BIT, concluded on 9 September 1976 ; Morocco – Spain BIT, concluded on 11 December 1997 ; Morocco – Switzerland BIT, concluded on 17 December 1985 ; Netherlands – Sudan BIT, concluded on 22 August 1970 ; Netherlands – Thailand BIT, concluded on 6 June 1972 ; Niger – Switzerland BIT, concluded on 28 March 1962 ; Senegal – Sweden BIT, concluded on 24 February 1967 ; Senegal – Switzerland BIT, concluded on 16 August 1962 ; Singapore – Switzerland BIT, concluded on 6 March 1978 ; Sudan – Switzerland BIT, concluded on 17 February 1974 ; Switzerland – Togo BIT, concluded on 17 January 1964 ; Switzerland – Uganda BIT, concluded on 23 August 1971 ; Thailand – UK BIT, concluded on 28 November 1978 ; Thailand – Vietnam BIT, concluded on 30 October 1991.
OECD, Dispute Settlement Provisions in International Investment Agreements: A Large Sample Survey, 2012, para. 4 at p. 20, and Figure 4, at p. 21 (https://www.oecd.org/daf/inv/investment-policy/WP-2012_2.pdf).
CCJA (Common Court of Justice and Arbitration of OHADA), CRCICA (Cairo Regional Center for International Commercial Arbitration), LCIA (London Court of International Arbitration), HKIAC (Hong Kong International Arbitration Centre), MCCI (Moscow Chamber of Commerce and Industry), SIAC (Singapore International Arbitration Centre).
Rocío Digón and Marek Krasula, The ICC’s Role in Administering Investment Arbitration Disputes, in Arthur Rovine (ed.), Contemporary Issues in International Arbitration and Mediation: The Fordham Papers 2014 (2015), pp. 58, 60-62; SCC, A Great Year for Investment Treaty Disputes (https://sccinstitute.com/statistics/investment-disputes-2018/)
V. Features of institutional arbitration
Generally speaking, the main advantages of institutional arbitration include the presence of default arbitration rules, the services from a permanent organization and a higher degree of certainty in respect of the procedural aspects of the arbitration. The involvement from arbitral institutions on issues relating to the procedural aspect of the arbitration, particularly at the beginning of the arbitral process, such as appointment of arbitrators or the selection of an arbitral seat, prove to be very useful in some cases. In comparison, Ad hoc arbitration is often considered more private because fewer people are involved. Ad hoc arbitration also arguably gives more flexibility to the parties as there will be no automatically applicable arbitration rules or a predetermined schedule of arbitrator and institutional fees.7