Arbitration Essentials: How to Initiate and Navigate an International Arbitration

Rules and Procedures

Part I: Initiating Proceedings

JAMS provides a comprehensive spectrum of conflict prevention and dispute resolution services to meet the unique needs of today’s global business environment. Those services include arbitration, which offers a private, efficient and binding way to resolve disputes outside of court. This FAQ series is designed to guide you through the key steps of initiating and conducting arbitration as well as enforcing an award under our rules and procedures. Part one of this series addresses the early stages of arbitration.

The first installment features insights from Hon. Ariel E. Belen (Ret.), FCIArb, and Hon. Michael Massengale (Former), FCIArb.

Judge Belen joined JAMS in 2012 after a nearly 18-year tenure on the bench that included service as an associate justice of the New York State Supreme Court, Appellate Division, Second Department and as administrative judge of the Supreme Court, Kings County (Brooklyn). He is a highly experienced domestic and international mediator and arbitrator who has resolved a plethora of wide-ranging legal disputes.

Justice Massengale joined JAMS in 2020 after serving as an appellate justice on the First Court of Appeals in Houston, Texas. His practice is focused on arbitration and includes a wide range of practice areas. He has been appointed to serve as an arbitrator in a substantial number of complex disputes, including international arbitrations.

How do parties initiate an international arbitration with JAMS?

To initiate an arbitration with JAMS, pursuant to Article 2.1 of the JAMS International Arbitration Rules, a claimant files a Request for Arbitration (Request), which should include the following information:

• A statement of the names, addresses, telephone numbers and email addresses of the parties and their representatives, if known

• A description of the nature and circumstances of the dispute giving rise to the claim(s)

• A statement of the relief sought, including, to the extent possible, an indication of any amount(s) claimed

• A copy of the arbitration agreement or clause under which the dispute is to be arbitrated

• If applicable, a statement identifying the arbitrator appointed by the claimant, including such arbitrator’s address, telephone number(s) and email address

• A statement of any matters (such as seat or language of the arbitration or the number of arbitrators, or their qualifications or identities) on which the parties have already agreed in writing for the arbitration or in respect of which the claimant wishes to make a proposal

Can a claimant attach documents to a Request?

Yes. Pursuant to the JAMS International Arbitration Rules, art. 2.1(f), a claimant may annex to its Request documents it deems relevant, or it may add a reference to documents or other evidence it intends to submit. The failure to annex or refer to a document will not in itself preclude the use of that document in the arbitration.

How do claimants provide service of notice to other parties?

Service is effected by the claimant providing to each party one signed copy of the Request and any accompanying documents. Copies also must be provided to JAMS—two copies in the case of a sole arbitrator or four copies in the case of a tripartite panel.

Service may be made by hand-delivery, overnight delivery services or, if a respondent is located in the United States, U.S. mail. Service by any of these means is considered effective upon the date of deposit of the document. See JAMS Int’l Arb. R. art. 2.2(a).

Can the Request be filed electronically?

Yes. Unless prohibited by the law of the seat of the arbitration, or otherwise agreed to by the parties, at the option of the filing party, the Request may be filed with the JAMS Administrator in electronic form with the requisite number of paper copies sent on the same date by courier service or post, if applicable. The claimant must also remit the filing fee and the advance payment on administrative expenses required by JAMS. In the event that the claimant fails to comply with either of these requirements, the Administrator may fix a time limit within which the claimant must comply, failing which the file will be closed without prejudice to the right of the claimant to submit the same claims at a later date in another Request. See JAMS Int’l Arb. R. art. 2.2(a).

What are the rules and requirements for electronic filing?

The arbitrator or arbitrators (Tribunal) or JAMS may at any time require (and generally do require) electronic filing and service of documents in an arbitration, including through JAMS’ electronic filing system, known as JAMS Access. See JAMS Int’l Arb. R. art. 2.2(b).

JAMS Access is a user-friendly cloud-based platform for the filing and service of documents and for secure communication among JAMS neutrals, attorneys, parties and case managers. When a document is uploaded to JAMS Access, the platform simultaneously transmits the document to JAMS, the opposing party and the Tribunal (if it has been constituted). More information about JAMS Access can be found at www.jamsadr.com/jamsaccess.

When electronic filing is used, the parties are required to maintain and regularly monitor a valid, usable and live email address for the receipt of all documents and notifications. Any document filed through JAMS Access shall be considered as filed when the transmission to JAMS Access is complete. Any document e-filed by 11:59 p.m. (of the sender’s time zone) shall be deemed filed on that date. See JAMS Int’l Arb. R. art. 2.2(b).

Every document filed with JAMS Access shall be deemed to have been signed by the arbitrator, administrator, attorney or declarant who submits the document, and shall bear the typed name, address and telephone number of a signing attorney. See JAMS Int’l Arb. R. art. 2.2(c).

Delivery of documents by e-service through JAMS Access to other registered users is valid and effective service and has the same legal effect as an original paper document. Recipients of e-served documents access such documents through JAMS Access. E-service is deemed complete when the party initiating e-service or the Administrator completes the transmission of the electronic document(s) to JAMS Access for e-filing and/or e-service. See JAMS Int’l Arb. R. art. 2.2(d).

If an electronic filing and/or service by JAMS Access does not occur due to error in transmission, the Tribunal or JAMS may, for good cause shown, permit the document to be filed and/or served nunc pro tunc to the date it was first attempted to be transmitted electronically. In such cases, a party shall, absent extraordinary circumstances, be entitled to an order extending the date for any response or the period within which any right, duty or other act must be performed. See JAMS Int’l Arb. R. art. 2.2(e).

Outside electronic filing, how can documents be filed?

For documents that are not electronically filed, service by a party under these rules is effected by providing one signed copy of the document to each party and two copies in the case of a sole arbitrator or four copies in the case of a tripartite panel to JAMS. Service may be made by courier service or, if the party to be served is located in the United States, certified or registered post or any other means of communication that provides a record of transmission. Service by any of these means is considered effective upon the date of deposit of the document. See JAMS Int’l Arb. R. art. 2.2(f).

When is an arbitration deemed to have commenced?

An arbitration is deemed to have been commenced when JAMS issues a Commencement Letter based upon the existence of one of the following:

(i) A post-dispute arbitration agreement fully executed by all parties specifying JAMS administration or use of any JAMS rules

(ii) A pre-dispute written contractual provision requiring the parties to arbitrate the dispute or claim and specifying JAMS administration or the use of any JAMS rules or that the parties agree shall be administered by JAMS

(iii) A written confirmation of an oral agreement of all parties to participate in an arbitration administered by JAMS or conducted pursuant to any JAMS rules

(iv) The respondent’s failure to timely object to JAMS administration, where the parties’ arbitration agreement does not specify JAMS administration or any of the JAMS rules

(v) A copy of a court order compelling arbitration at JAMS

The issuance of the Commencement Letter confirms that requirements for commencement have been met, that JAMS has received all payments required under the applicable fee schedule and that the claimant has provided JAMS with contact information for all parties together with evidence that the Request has been served on all parties. See JAMS Int’l Arb. R. art. 2.4(b).

When must a Respondent file its Statement of Defense?

Once JAMS has issued a Commencement Letter confirming that the requirements for commencement have been met, and thereby commenced the arbitration, the time within which the Respondent may file its Statement of Defense begins to run. See JAMS Int’l Arb. R. arts. 2.4(b), 4.1. If the Respondent chooses to participate in the arbitration, it has 30 calendar days after the arbitration has been commenced to deliver a Statement of Defense to the Claimant and to JAMS. See JAMS Int’l Arb. R. art. 4.1. Notably, unlike under the prior version of these rules, which were in effect from September 2016 until May 2021, the deadline for filing a Statement of Defense does not begin to run when the Respondent receives the Request for Arbitration. Instead, it begins to run only once all the requirements for commencement have been satisfied and JAMS has issued a letter so stating.

Typically, the Statement of Defense—and any other case-related documents during the proceeding—will be delivered to JAMS and the opposing party by uploading it to JAMS Access. In the alternative, to accomplish delivery of the Statement of Defense to parties required by Article 4, the Respondent may send it by email to the assigned JAMS case manager, with a copy to opposing counsel.

What happens if a Respondent fails to file a Statement of Defense?

If the Respondent declines to participate in the arbitration and chooses not to file a Statement of Defense, then Respondent shall nevertheless be deemed to have denied all claims set forth in the Request for Arbitration. See JAMS Int’l Arb. R. art. 4.1. As a result, the Claimant’s burden of proof (see JAMS Int’l Arb. R. art. 24.1) is unchanged by the Respondent’s decision whether to file a Statement of Defense. In short, the Claimant still must prove its claims even if the Respondent declines or refuses participate in the arbitration, as there is no “default judgment” in an arbitration that is being administered pursuant to the JAMS International Arbitration Rules, or any other JAMS rules for that matter.

What should be included in a Statement of Defense?

A Statement of Defense should include:

• confirmation or denial of all of part of the claims in the Request for Arbitration;

• any objection not previously made to the Tribunal’s jurisdiction to determine a claim or defense, or JAMS’ authority to administer the arbitration;

• a description of the nature and circumstances of any set-offs asserted or counterclaims against the Claimant;

• a response to any statements regarding the conduct of the arbitration that were contained in the Request for Arbitration;

• the name, address, telephone number(s) and email address (if known) of the Respondent’s party-appointed arbitrator if applicable; and

• any counterclaims the Respondent wishes to assert against the Claimant.^[1]

Stay tuned for Part II of our Arbitration Essentials FAQ Series, where we’ll explore more on a variety of topics surrounding international arbitration.