The previous instalment of this step-by-step guide to conducting FA Rule K Arbitration looked at pre-action matters, jurisdiction challenges and injunctive relief. This instalment looks briefly at how a party brings a claim under Rule K, and considers what might be done by a party in its Notice of Arbitration so as to speed up or slow down the process.
The rules governing the commencement of an FA Rule K Arbitration are found at Rule K2, and set out the requirements of the Notice of Arbitration by which a Claimant initiates the arbitral process:
Commencement of Arbitration
2 (a) In order to commence an arbitration under these Rules the Claimant(s) shall serve on the other party or parties to the dispute (the “Respondent(s)”) a written notice of arbitration (the “Notice of Arbitration”) which shall set out:
The requirements under Rule K for the Notice of Arbitration are relatively scant, operating similarly to an N1 Claim Form in ordinary civil litigation, albeit with a couple of added administrative features.
First, the Claimant is required to include in the Notice of Arbitration proposals in relation to the Standard Directions which are set out later in the Rules at §K4(b). This is an innovation, requiring the Claimant prospectively to engage with the Standard Directions (in a way not generally undertaken in civil litigation until the case management conference, after pleadings are complete) and, moreover, positively to assert, as part of the Notice, the extent to which (if at all) it wishes to vary the ordinary timetable.
Second, the Claimant is required in the Notice of Arbitration to set out proposals in respect of the arbitrator, notably whether it is content for the dispute to be adjudicated upon by a single arbitrator or whether it wishes the tribunal to consist of three arbitrators (the legal default under the Rules in the absence of any expression or order to the contrary – see §K3(a)).
The provisions of Rule K for commencing an arbitration are, however, as notable for what they do not say as for what they do. Whereas the requirements of §2(a) are relatively threadbare, they confer upon the parties a sufficient degree of latitude that, depending upon a party’s intentions, can be deployed to both speed up or slow down proceedings.
For a party seeking – for instance – to accelerate proceedings, filing a Notice of Arbitration accompanied by a fully-articulated Points of Claim (see §4K(b)(1)), together with a proposal for a single arbitrator and no departure from the Standard Directions at §K4(b) could conceivably (with the approval of the tribunal) shave time off the ordinary timetable and move matters quickly towards a hearing, well in advance of the ordinary timeframe provided for under the Rules.
Conversely, a party seeking to slow down the progress of an arbitration might propose a tribunal of three arbitrators (knowing the scope for subsequent challenge under §K3 will likely expand accordingly), in the context of a deliberately concise and non-revelatory §K2(a)(ii) statement (requiring a more fulsome Points of Claim to be filed in due course), with no bespoke proposals for directions (potentially forestalling arguments about the procedural timetable until a later point). As can be seen, even in respect of the relatively rudimentary Notice of Arbitration, there is scope both to accelerate, and to frustrate – depending on one’s objectives.
In the next instalment of this series, we consider the Notice of Response, and the preliminary issues of jurisdiction and disclosure that might arise long before the procedural timetable can be settled.
Written by Ashley Cukier.