ICDPASO Commercial Arbitration Rules Interpretation Series:Article 18 "Place of Arbitration"

I. Introduction

The place of arbitration is one of the core elements of international commercial arbitration, involving the lex arbitri (law applicable to the arbitration proceedings), the nationality of the award, the competent court for judicial supervision, and the efficacy of recognition and enforcement of the award. Clear and reasonable rules on the place of arbitration are crucial for ensuring the fair and efficient conduct of arbitral proceedings, safeguarding the legitimate rights and interests of the parties, and ensuring the smooth enforcement of the award. Article 18 of the International Commercial Dispute Prevention and Settlement Organization (ICDPASO) "Commercial Arbitration Rules" establishes a concise, pragmatic, and clearly defined system of rules concerning the "place of arbitration." This system fully respects party autonomy while granting the arbitral tribunal flexible discretion, and it clarifies the legal connection between the place of arbitration and the place where the award is made. This provision closely links with aspects such as the jurisdiction of the arbitration proceedings, applicable law, and judicial supervision, providing clear and predictable guidance on rules regarding the place of arbitration for international commercial parties, and plays an important role in enhancing the certainty and international compatibility of arbitration procedures.

II. Original Rule Text

Article 18 Place of Arbitration

(1) The parties may agree on the place of arbitration. Failing such agreement, the place of arbitration shall be determined by the arbitral tribunal, taking into account the circumstances of the case.

(2) The arbitral award shall be deemed to be made at the place of arbitration.

III. Article Analysis

(A) Paragraph 1

1.Analysis of Core Characteristics

This paragraph sets out the rules for determining the place of arbitration.

(1) Primacy of Party Autonomy. Establishing "party agreement" as the primary principle for determining the place of arbitration grants the parties the right to choose their arbitration seat autonomously. This not only allows parties to agree on a single place of arbitration but also does not restrict the specific scope of the agreement (e.g., parties' domicile, place of contract performance, place of dispute occurrence), fully aligning with the autonomy principle in international commercial arbitration.

(2) Allocation of Discretion in Absence of Agreement. When the parties fail to agree on the place of arbitration, this provision grants the arbitral tribunal the authority to determine it, "taking into account the circumstances of the case." The "circumstances of the case" encompass multiple factors such as the contractual relationship, parties' nationalities, nature of the dispute, location of evidence, and anticipated enforcement of the award. This not only ensures the tribunal can make flexible decisions based on the actual case but also, through the phrase "taking into account," emphasizes the need for prudence and reasonableness in exercising discretion, avoiding subjective arbitrariness.

2.Comparative Law Perspective

The Singapore International Arbitration Centre (SIAC) Rules (Rule 36) stipulate that parties may agree on the place of arbitration; failing such agreement, it is determined by the SIAC Tribunal.1

The Hong Kong International Arbitration Centre (HKIAC) Rules (Article 14) stipulate that parties may agree on the place of arbitration. If not agreed, the place of arbitration is Hong Kong, unless the arbitral tribunal determines, after considering the circumstances of the case, that another place is more appropriate.2

The International Chamber of Commerce (ICC) Arbitration Rules (Article 18) stipulate that if the parties have not agreed upon the place of arbitration, it shall be determined by the ICC Court.3

The London Court of International Arbitration (LCIA) Rules (Article 16) stipulate that parties may agree in writing on the seat of arbitration at any time before the formation of the Arbitral Tribunal and, after such formation, with the prior written consent of the Arbitral Tribunal. In default of any such agreement, the seat of the arbitration shall be London, unless the Arbitral Tribunal orders, in view of the circumstances and after having given the parties a reasonable opportunity to make written comments, that another arbitral seat is more appropriate.4

The Arbitration Institute of the Stockholm Chamber of Commerce (SCC) Rules (Article 25) stipulate that if the parties have not agreed on the place of arbitration, it shall be determined by the SCC Board.5

The advantage of this ICDPASO provision lies in directly vesting the power to determine the place of arbitration (in the absence of party agreement) in the arbitral tribunal. This avoids potential procedural delays caused by institutional involvement and allows the tribunal, possessing comprehensive case knowledge from the proceedings, to make a decision better suited to practical needs. Furthermore, the phrase "taking into account the circumstances of the case" grants the tribunal ample discretion, offering greater flexibility and adaptability.

3.Jurisprudential Analysis

(1) Embodiment of Party Autonomy. Allowing parties to autonomously agree on the place of arbitration is a direct application of party autonomy to the selection of a core procedural element. Parties themselves best understand their commercial needs, legal preferences, and enforcement expectations. Choosing their own place of arbitration ensures dispute resolution within a familiar legal environment, enhances trust and control over the process, and allows them to proactively avoid unfavorable judicial jurisdiction or applicable law risks.

(2) Dual Guarantee of Procedural Efficiency and Fairness. Granting the arbitral tribunal the power to determine the place of arbitration in the absence of agreement avoids deadlock caused by disputes between parties over the seat, and enhances the tribunal's flexibility to determine the place of arbitration based on the actual circumstances of the case, thereby ensuring efficient procedural progress. The tribunal, being closely involved with the proceedings, legal relationships, and party submissions, can make a decision on the place of arbitration based on the "circumstances of the case" that better balances the interests of all parties, ensuring both procedural fairness and substantive justice.

(B) Paragraph 2

1.Analysis of Core Characteristics

This paragraph constitutes an important rule connecting substance and procedure, clarifying the legal link between the place of arbitration and the place where the award is made.

(1) Effect of Legal Fiction. It explicitly states that "the award shall be deemed to be made at the place of arbitration." This means that, not only formally but also legally, the place where the award is made is legally presumed to be the place of arbitration. This is a universal rule in international commercial arbitration (especially under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards), resolving the issue of determining the award's "nationality" (i.e., the law governing the award).

(2) Certainty of Procedural Consequences. This paragraph provides a clear standard for the subsequent legal consequences of the award. Whether for judicial review, setting aside, or recognition and enforcement of the award, the law of the place of arbitration typically plays a key role. This provision eliminates potential disputes between parties regarding the place where the award was made, enhancing procedural stability.

2.Comparative Law Perspective

SIAC Rules (Rule 52) state that the award shall be deemed to be made at the place of arbitration, a formulation entirely consistent with the ICDPASO rules.6

HKIAC Rules (Article 35) similarly clarify that the award is deemed to be made at the place of arbitration.7

ICC Rules (Article 32) stipulate that the award shall be deemed to be made at the place of arbitration.8

LCIA Rules (Article 16) specify that if hearings or deliberations are held elsewhere than the seat of arbitration, or not in person, the arbitration shall nonetheless be treated as conducted at the arbitral seat and any award as made at that seat.9

SCC Rules (Article 25) provide that the award shall be deemed to have been made at the place of arbitration.10

This ICDPASO provision is fully consistent with the rules of the mainstream international institutions mentioned above. This is a standard practice in international commercial arbitration, aiming to establish a single, undisputed place where the award is made to serve subsequent legal application and enforcement procedures.

3.Jurisprudential Analysis

(1) Guaranteeing the Certainty of the Award's Validity. Explicitly deeming the award to be made at the place of arbitration is the core basis for determining the award's nationality. Under the New York Convention, the nationality of the award directly dictates the procedure for its recognition and enforcement in other countries. A unified and clear rule on the place where the award is made avoids enforcement obstacles arising from inconsistent determination standards, safeguarding the ultimate realization of the parties' substantive rights.

(2) Clarifying Judicial Supervision Jurisdiction. The place of arbitration is the key factor determining the competent court for judicial supervision, including judicial remedies such as setting aside the award or staying proceedings, which fall under the jurisdiction of the courts at the place of arbitration. By linking the place of arbitration and the place where the award is made, this rule provides parties with a clear expectation of the judicial remedy path, avoiding confusion and disputes over which court has jurisdiction, thereby maintaining procedural stability.

(3) Safeguarding Procedural Justice and Predictability. By stipulating through the rules that the award is deemed made at the place of arbitration, the possibility of parties subsequently raising objections based on the actual place of signing the award or holding meetings is precluded, ensuring the seriousness of the procedure and the predictability of legal consequences.

IV. Alignment and Compatibility with China's Newly Amended Arbitration Law

The newly revised "Arbitration Law of the People's Republic of China" (hereinafter referred to as the "New Arbitration Law"), effective from September 12, 2025, strengthens requirements for the standardization, internationalization, and enforceability of arbitration procedures. ICDPASO Article 18 aligns closely with the spirit and provisions of this new law and demonstrates significant adaptability in practice.

(A) Responding to the New Law's Respect for Party Autonomy

The New Arbitration Law consistently reinforces the principle of party autonomy. ICDPASO Article 18(1), "The parties may agree on the place of arbitration," fully embodies this principle, respecting the parties' autonomy in arranging arbitration procedures. This aligns highly with the new law's encouragement for parties to choose their own procedural paths and enhance arbitration efficiency.

(B) Conforming to the New Law's Regulation of the Arbitral Tribunal's Procedural Management Powers

The New Arbitration Law grants the arbitral tribunal greater procedural management authority and flexibility to advance case resolution efficiently. ICDPASO Article 18(1), which provides for determination by the "arbitral tribunal, taking into account the circumstances of the case" in the absence of agreement, represents a reasonable allocation and regulation of the tribunal's discretion. This design not only avoids procedural delays caused by unsuccessful party negotiations but also, through the phrase "taking into account the circumstances of the case," guides the tribunal to make decisions appropriate to the actual case, meeting the new law's requirements for tribunal professionalism and efficiency.

(C) Highlighting the Practical Advantages and Compatibility of ICDPASO Rules

New Arbitration Law Article 81 stipulates: Parties may agree in writing on the place of arbitration. Unless otherwise agreed by the parties regarding the law applicable to the arbitration procedure, the place of arbitration shall serve as the basis for determining the law applicable to the arbitration procedure and the competent judicial court. The arbitral award is deemed to be made at the place of arbitration. If the parties have no agreement on the place of arbitration or the agreement is unclear, the place of arbitration shall be determined according to the arbitration rules agreed upon by the parties; if the arbitration rules have no such provision, it shall be determined by the arbitral tribunal based on the circumstances of the case, following the principle of facilitating dispute resolution. The ICDPASO provisions on the place of arbitration are consistent with the design philosophy of the New Arbitration Law and complement it at the practical level, demonstrating a high degree of compatibility.

(D) Connecting with the New Law's Goal of Developing Internationalization in Arbitration

The New Arbitration Law aims to enhance the internationalization level of Chinese arbitration and increase the attractiveness of China as a place of arbitration. The design of ICDPASO Article 18 closely aligns with this goal: its logic of "party agreement first" is consistent with mainstream international rules, allowing parties to freely choose any place of arbitration, including China, which suits the decision-making habits of international commercial parties; the model where the arbitral tribunal leads in determining the place of arbitration, compared to rules dominated by some institutions, offers greater flexibility, helping to attract international disputes to choose China as the place of arbitration and enhancing the international competitiveness of arbitration within China's jurisdiction.

V. Conclusion

Through two concise and clear paragraphs, Article 18 of the ICDPASO "Commercial Arbitration Rules" establishes a system of rules regarding the place of arbitration centered on party autonomy, supplemented by arbitral tribunal discretion, and with a clear legal connection. This system respects the tradition of autonomy in international commercial arbitration, ensures procedural efficiency and fairness through scientific allocation of powers, and is highly aligned with international practice, ensuring the rules' international compatibility. In its connection with China's New Arbitration Law, this provision precisely echoes the core principles and values of the new law while demonstrating a high degree of adaptability through flexible, pragmatic, and operable rule design. Its unique advantages compared to the rules of mainstream international arbitration institutions make it more adaptable and competitive in international commercial arbitration practice. It provides clear, efficient, and fair solutions concerning the place of arbitration for international commercial parties, further solidifies the institutional foundation of ICDPASO as an international platform for dispute resolution, and offers strong support for promoting the international development of China as a place of arbitration.