Initiating Arbitration: Filing the demand and response

(This is the third article in a 12-part series on domestic arbitration, offering a clear guide through each stage of the process. In this installment, we explore how arbitration is formally initiated, the filing process, timelines, and the Respondent’s role in answering the claim. Stay tuned for Part 4: “Selecting the Arbitrator: Process and Considerations” coming next month.)

By Harshitha Ram

“The first move may not determine the victory but it charts the course and lays the foundation for success.” This saying aptly describes the importance of the initial stages of arbitration. The seeds of success are sown early, with precision and preparation determining the trajectory of the dispute. From filing the demand to crafting a strategic response, these steps establish the foundation of a just and efficient resolution process. A well-crafted demand serves as a roadmap, clearly outlining the issues, remedies sought, and framework for arbitration. It should be concise yet persuasive, including a clear statement of the dispute, references to the arbitration agreement, and detailed relief sought, such as damages or specific performance. Precision and preparation at this stage ensure a smooth transition from disagreement to dialogue, laying the groundwork for a fair and efficient resolution.

Practicality is key. Think of the demand as a document that will guide not just the respondent but also the arbitral tribunal. Be mindful of the rules outlined in the applicable arbitration agreement or institution, such as the AAA, particularly regarding submission methods, filing fees, and deadlines. A common oversight is neglecting to attach supporting documents or failing to properly serve the demand on all parties involved. These details may seem technical, but they ensure that the arbitration begins on solid procedural footing, preventing unnecessary disputes or delays.

Responding to the Demand for Arbitration: Crafting a Strategic Defense


Responding to a demand for arbitration is more than a procedural obligation—it’s a critical opportunity to shape the narrative of the dispute and lay the groundwork for your defense. A well-prepared response should carefully address the claims raised in the demand, admitting or denying allegations where appropriate, while also presenting any preliminary objections or defenses. For example, if the dispute is not arbitrable or if there are jurisdictional concerns, these issues must be raised at the outset to avoid waiving them. Additionally, if the respondent intends to file counterclaims, these should be detailed with the same level of specificity as a demand, including the basis for the claims and the relief sought.

Timeliness and thoroughness are essential. Most arbitration rules set strict deadlines for filing a response, often within 14 to 30 days of receiving the demand. Missing this deadline can lead to procedural disadvantages, such as ex parte orders. Beyond addressing the substance of the dispute, use this stage to highlight any procedural issues, propose preferences for arbitrator selection (if allowed), and indicate whether interim measures may be needed. A strategic response not only sets the stage for the arbitration process but also signals to the claimant and tribunal that the respondent is well-prepared and ready to engage effectively in the proceedings.

Illustrative Scenario


Consider an arbitration between two sophisticated commercial entities. The claimant submits a hastily prepared demand, riddled with vague assertions and missing critical evidence—an approach that leaves key aspects of the dispute undefined. In sharp contrast, the respondent files a meticulously crafted answer. Not only does it systematically deconstruct the claimant’s allegations, but it also raises compelling procedural objections and introduces a counterclaim fortified with robust legal and factual support. By anchoring their strategy firmly in the arbitration agreement and procedural framework, the respondent not only gains the tribunal’s trust but also shapes the narrative and trajectory of the case. This is a critical truth in arbitration: the groundwork laid at the outset reverberates throughout the proceedings, driving efficiency and influencing outcomes.

Addressing Preliminary Issues: Resolving Procedural Hurdles Early


The initial stages of arbitration often involve addressing preliminary issues that can significantly impact the trajectory of the case. One common issue is arbitrability, where the respondent may challenge whether the dispute falls within the scope of the arbitration agreement. These objections must be raised promptly, as many arbitration rules consider them waived if not addressed early. Other procedural hurdles may include disputes over the selection or appointment of arbitrators, the applicable procedural rules, or the venue of arbitration. Resolving these issues at the outset ensures that the arbitration progresses smoothly without unnecessary delays or disruptions.

Another critical preliminary issue is the request for interim or emergency relief. Either party may seek measures such as injunctions, preservation of assets, or security for costs to protect their position before the arbitration is fully underway. These requests are typically addressed by the arbitral tribunal once constituted, but some institutions, such as the AAA or the ICC, provide mechanisms for appointing an emergency arbitrator to decide urgent matters.
Addressing these issues early demonstrates a proactive approach to safeguarding interests and ensures that procedural clarity is maintained as the arbitration moves forward.

Practical Tips for Parties: “The strongest arguments are built on clear facts and precise articulation”. Having said that Draft with the Tribunal in Mind by writing your demand or response as if addressing the future arbitrators. Clear, organized submissions make a strong first impression and help the tribunal quickly understand the key issues. Leverage the Arbitration Agreement by carefully analyzing for specifics on rules, governing law, and procedural requirements. Use these provisions strategically to frame your case. Anticipate Challenges by proactively identifying potential objections, such as arbitrability or procedural defects, and address them preemptively to avoid delays. Focus on Evidence from the Start by assembling key documents and witness information early, ensuring your demand or response is supported by facts rather than bare assertions. Maintain a Professional Tone even in contentious disputes, avoiding inflammatory language.
Arbitration often involves ongoing relationships, and professionalism can aid in smoother resolution. Be Strategic with Counterclaims ensuring they align with the scope of the arbitration agreement and strategically bolster your negotiating position. Engage Early with Procedural Rules by familiarizing yourself with the institution’s procedural rules to anticipate deadlines and procedural nuances, such as bifurcation or expedited processes. Consider Interim Relief Options by evaluating whether requesting interim measures early, such as asset freezing or document preservation, could strengthen your position. The foundation of an effective arbitration process lies in meticulous preparation and strategic foresight from the outset. Each step, from drafting demands to addressing procedural challenges, significantly influences the outcome of the proceedings. By prioritizing clarity, precision, and adherence to procedural rules, parties can foster an efficient and equitable resolution.

(About the author: Harshitha Ram is an international disputes attorney, arbitrator, mediator, lecturer in law, and the President of the Global Arbitration Mediation Academy (GAMA). To learn more or connect with her, visit:  www.adracademy.us  www.harshitharam.com.)

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