Institutional arbitration (before a permanent court of arbitration) is characterized primarily by having a list of recommended arbitrators (from among whom the parties may, but do not have to, appoint arbitrators to hear the dispute) and its arbitration rules – according to which, as a rule, the proceedings before a given permanent court of arbitration are conducted.

The essence of the rules of a court of arbitration

In simple terms, the arbitration rules are, in fact, a much simplified and limited version of a given procedural act – the law that is generally applicable in a given country. They allow for greater flexibility of proceedings than those followed before a state court. However, they cannot conflict with the mandatory provisions of the procedural statutes. Since, in arbitration, the parties do not decide to apply a procedural act (of national law) in its entirety, the arbitration rules provide them with greater flexibility and reduce formalism. If arbitrators were to resolve a dispute according to a procedural act (e.g., the Code of Civil Procedure in Poland), arbitration would be illusory; the parties could just as well go straight to a state court. This would, therefore, be contrary to the essence of arbitration.

In turn, in ad hoc arbitration (i.e., conducted outside a permanent court of arbitration), the parties may also determine the rules of procedure. In such cases, the UNCITRAL Arbitration Rules, authored by the relevant commission operating at the United Nations, are applied as a standard.

Changes to the arbitration rules

Arbitration rules are adapted to the changing social and economic conditions. They intend to simplify the proceedings within the arbitration itself. Since their changes are more manageable than changing national law (arbitration institutions do this on their own), they better reflect the technological needs of arbitration. It is worth mentioning that arbitration has long-known solutions, such as remote hearings or written witness statements. Their introduction was possible in individual arbitration institutions precisely thanks to the arbitration rules of particular institutions.

Typically, changes to the rules of the crucial permanent courts of arbitration are preceded by consultations with the community. Interested parties can submit their comments on the projects that are made available. For example, in Polish conditions, the two biggest and most significant permanent arbitration institutions, the Court of Arbitration at the Polish Chamber of Commerce in Warsaw and the Court of Arbitration Lewiatan, are currently undergoing such changes. Suffice it to say that I reviewed such changes and participated in such a discussion in writing. The institutions encourage those dealing with arbitration in theory as well as in practice to share their remarks concerning the projects. The open meeting of the College of Arbitrators of the Court of Arbitration at the Polish Chamber of Commerce on 26.11.2024 was also interesting, as, during it, the draft of the new rules of this institution was presented in its entirety.

The show must go on

In countries where the arbitration market is more extensive, such modifications to the rules are an essential event for the institution and the entire community. They are announced and discussed just as changes to the generally applicable law and undoubtedly constitute an annual circumstance recorded in arbitration yearbooks. For example, when searching for information on the most critical changes in arbitration in Singapore in 2024, information on modifications to the rules of the largest arbitration institution there – Singapore International Arbitration Centre is presented as one of the key pieces of information about local trends in arbitration.

The Future of Arbitration

Central Europe, particularly Poland, has enormous potential for developing arbitration. Unfortunately, this potential is still untapped. Although necessary and important, changes to arbitration rules should occur in parallel with an intensive and reliable information campaign. Asian arbitration is a good example. It would be a pity if the efforts of domestic institutions to modify the rules went almost unnoticed, being limited only to debate within the arbitration community