Grant Hanessian, Baker McKenzie
This is an extract from the fourth edition of GAR’s The Guide to Advocacy. The whole publication is available here.
Virtually all the major international arbitration rules provide arbitral tribunals with enormous discretion to conduct proceedings, subject only to the obligation to treat the parties fairly and impartially and to provide a reasonable opportunity for them to present their case.
Hence the importance of the initial hearing. If one may speak of the ‘art’ of international arbitration, the initial hearing presents the tribunal and parties with a blank canvas and a full palette of procedural possibilities. At the initial hearing, the parties give their views as to how the case should proceed, choices are made, and the case begins to assume its particular character. However it is labelled under the various rules – ‘case management conference’, ‘preparatory conference’, ‘preliminary meeting’ or ‘pre-hearing conference’ – the initial hearing, which typically takes place shortly after the appointment of the tribunal, and the procedural order that usually follows shortly thereafter, not only results in a comprehensive plan for the proceedings but also may significantly define the issues to be decided.
The careful advocate therefore approaches the initial hearing with considerable care and preparation, and a clear idea of how he or she wishes to see the case resolved.
The initial hearing and first procedural order typically address such issues as:
- method and timing of determining the place, language and applicable law of the arbitration, if these have not previously been agreed;
- requests for interim measures, bifurcation or confidentiality;
- extent and timing of exchange of documents, and method for resolving disputes regarding document exchange;
- number and form of written and evidentiary submissions and witness statements;
- requirements for appearance and examination of witnesses at hearings; and
‘An initial hearing is generally worth the investment’
While there are, of course, cost and availability considerations, an initial hearing is generally well worth the investment, particularly if the parties are from different cultures or if counsel have significantly different levels of experience in international arbitration.
Whether or not there is an initial hearing, parties should make every effort to reach agreement between themselves as to procedure and timetable. If agreement cannot be reached, a tribunal is not oblivious to which party has been obstructive.– Juliet Blanch, Arbitration Chambers
- number and venues of hearings.
The increasing focus in recent years on controlling the time and cost of arbitration proceedings has placed additional emphasis on the initial hearing – decisions made (or not made) at the initial hearing will often determine the length, cost and efficiency of the arbitration.Parties should not anticipate that these decisions can be easily revisited; tribunals are well aware that failure to follow agreed procedures may constitute grounds for non-recognition of the tribunal’s award under the New York Convention.
This chapter first provides thoughts on how counsel might best approach the initial hearing and then discusses particular issues that often arise at the hearing.
Approach to the initial hearing
Preparation for the initial hearing should begin when counsel starts preliminary discussions with the client and drafting the initial pleading. Counsel should consider the strengths and weaknesses of the client’s legal position, evidence and important witnesses, and develop a preferred road map for the entire proceeding well in advance. Does the client wish to expedite or delay resolution of the case? If the former, are some issues important to final resolution subject to summary determination at an early stage? Is it desirable that the tribunal make certain decisions ( for example, regarding applicable law, jurisdiction, interim relief, security for costs) prior to full evidentiary submissions? Is it in the client’s interest that there be extensive or minimal exchange of documents? When should this exchange take place? Should the claimant make the first evidentiary submission, or are simultaneous submissions preferable? How many witnesses? Experts (and, if so, on what topics)? How many hearing days?
A good initial hearing always pays dividends
During the past 20 years or so, the appetite for an early, first meeting in person between the tribunal and the parties appears to have diminished. The difficulty of finding an early date that works for counsel, representatives and members of the tribunal, and the cost, are often cited.
But if the parties, their counsel and members of the tribunal come from different cultures, counsel and the tribunal have not previously worked together, and agreement on timetables and procedures is not apparent, holding a meeting in person will almost always pay big dividends.
Not only is it easier to forge agreement or establish a timetable and procedures when all are present, and have been heard, but an early first meeting allows the tribunal to take the measure of counsel (and vice versa) and to establish control. And if the occasion is used properly to discuss all the normal matters that are covered in a well thought out Procedural Order No. 1, the resulting order and directions will go a long way to ensuring that neither the parties nor the tribunal face any surprises as the arbitration develops. One of the most important ingredients of a good arbitration is that all participants understand what is expected of them at each stage of the proceeding.– J William Rowley QC, Twenty Essex Chambers
Reaching agreement with the opposing party prior to the initial hearing
Often, the tribunal or arbitral institution will invite counsel to consider a list of issues to be discussed at the hearing. Many institutions have guidelines or policies regarding the initial hearing. In cases under the arbitration rules of the International Chamber of Commerce (ICC), the ‘case management conference’ typically includes discussion of the ICC’s Terms of Reference and a separate ‘procedural timetable’. One of the most comprehensive lists of issues to be discussed at an initial hearing is one of the first to have been published: the United Nations Commission on International Trade Law Notes on Organizing Arbitral Proceedings (the UNCITRAL Notes), issued in 1996. The UNCITRAL Notes remain a useful checklist for an initial hearing agenda. Some arbitrators find it useful to distribute to the parties a form Procedural Order No. 1 prior to the hearing as a basis for party discussion.
The initial hearing is when the parties and the tribunal first meet each other, and it is advisable for the parties to reach agreement on as many procedural issues as possible in advance of that. It does not create a favourable first impression about the reasonableness of the parties or counsel if the tribunal must devote significant time to resolving ministerial procedural issues on which reasonable parties ought to be able to agree.– Stanimir A Alexandrov, Stanimir A Alexandrov PLLC
Tribunals and institutions typically encourage parties to attempt to agree on procedural matters prior to the initial hearing. The parties may be asked to advise the tribunal jointly as to the points on which they agree and separately as to points on which they disagree. Arbitrators generally prefer to defer to the parties regarding procedural matters, not only in deference to ‘party autonomy’ but also because arbitrators assume at this early stage that the parties are better positioned than the tribunal to know how the matter should best proceed. Indeed, the tribunal may know very little about the case – depending on the applicable rules and the parties’ initial tactical choices, the pleadings may be very summary, accompanied by little or no evidence.
Even if not requested to do so prior to the initial hearing, counsel should nevertheless consider issues that are likely to arise and whether it is advantageous to reach out to opposing counsel to seek agreement on certain matters.
Of course, the parties themselves may have very different ideas about the conduct of a particular arbitration. Counsel from different jurisdictions, particularly if one or both counsel teams have more experience before national courts than international arbitral tribunals, may have opposing views regarding exchange of documents, examination of witnesses and other matters that significantly affect proceedings. If the parties are in dispute regarding issues of particular importance, counsel may wish to consider making a short written submission to the tribunal on the disputed matters prior to the initial hearing, or even request a pre-hearing schedule for submissions, to ensure that the tribunal has the positions of the parties in advance. Limited briefing of disputed issues after the preliminary hearing and prior to issuance of the first procedural order is also common.
Finally, even when the parties have agreed on certain matters, the arbitrators may encourage the parties to reconsider their agreement on procedures that result in extensive delays in resolving the case, are disproportionate to the amount in dispute or complexity of the case, or reflect parochial litigation practices that may be inappropriate in an international arbitration.
There are obvious benefits to a face-to-face initial hearing for the tribunal and counsel. However, if the arbitrators and counsel reside in different parts of the world and physical hearings are not practical, it is common to hold initial hearings by telephone or videoconference.
The case will be run the way the chair wants
The most important thing to know going into a preliminary hearing is how your arbitrator, or the chair of a three-arbitrator tribunal, likes to conduct proceedings. The principle of cujus regio ejus religio (the religion of the prince is the religion of the state), first formulated in the Peace of Augsburg, applies with full force to arbitrations. The case will be run the way the chair wants to run it, and the wise advocate adapts to the chair’s preferences.– John M Townsend, Hughes Hubbard & Reed LLP
In some cases, it may be useful also to have party representatives at the initial hearing. As an advocate, I generally prefer to have the client present, as I believe that this facilitates the client’s understanding of the process and may help communicate to the tribunal important client interests, particularly if there is some urgency in resolving all or part of the case.
The presence of the parties may encourage counsel to show more flexibility, particularly as to scheduling hearings and submissions.
Issues to be determined
A number of issues are typically addressed at the initial hearing, which are discussed next. As has been stated, some arbitral institutions have guidelines or policies regarding the issues that should be addressed, which should be consulted, if applicable.
Place of arbitration
The place of arbitration – or legal situs – can be of critical importance. The location usually determines the applicable procedural arbitration law – which governs the enforceability of the arbitration agreement and the arbitrability of claims – as well as the national courts that will be available to support (or, in less fortunate circumstances, frustrate) the arbitration and serve as primary jurisdiction for enforcement under the New York Convention.
Typically, the place of arbitration will be resolved prior to the initial hearing either in the arbitration agreement or, in some cases, by the arbitral institution. In the event the place of arbitration has not been determined, this issue should be addressed at the initial hearing and a procedure established for promptly resolving the issue.
The possibility of hearings or other meetings outside the place of arbitration may also be discussed. Arbitration rules typically provide that the tribunal can hold hearings in a location other than the place of arbitration.
Arbitration rules, procedural and substantive law
Usually, the parties will have agreed on particular arbitration rules in their arbitration agreement or by subsequent agreement prior to the initial hearing. However, in the rare case in which the parties have not agreed on rules, the subject must be addressed at the initial hearing. Since the tribunal is already in place, the parties typically will not be in a position to use institutionally administered rules and must choose between existing ad hoc rules (e.g., the UNCITRAL Rules) or tailoring a set of procedures to the particular case. Obviously, reaching agreement at the outset of a dispute regarding bespoke rules requires considerable cooperation between the parties, which may be difficult to achieve in a contentious dispute. Crafting bespoke rules is not for inexperienced arbitration counsel or the faint of heart: ‘pathologies’ often lurk in such efforts, and result in delays, additional costs and, in the worst cases, endanger enforcement of the award. Counsel and tribunal drafting their own rules must be, or become, familiar with any mandatory procedural rules under the national law of the place of arbitration.
Disputes regarding applicable procedural and substantive law should be identified at the initial hearing and a process determined to decide these matters. Depending on the importance and complexity of the issues – which can be quite complex – it may be appropriate for the tribunal to resolve the governing law as a threshold issue.
Language of proceedings
The language of the proceedings can have a significant effect on the conduct and cost of an international arbitration. If the parties cannot agree on the language, most rules provide that it will be determined by the tribunal.
In the event, as would be hoped, that the parties have agreed (in their arbitration agreement or subsequently) on the language of the arbitration, a number of questions still arise that should be considered at the initial hearing. Generally, translation of documents originally in languages other than that of the arbitration is not required at the time of the initial exchange between the parties but only if and when a document is submitted as evidence – and then only in relevant part. Consideration should be given as to whether there will be oral presentations or testimony in a language other than that of arbitration. If the arbitrators and counsel are unable to work in the other language, and interpretation is required, it must be decided whether there will be simultaneous or consecutive interpretation. Simultaneous interpretation is much preferred but more expensive. If presentations or testimony are permitted in a language other than that of the arbitration without interpretation, and there is to be transcription of proceedings, it must be decided how the transcript will reflect statements made in languages other than that of the arbitration. The preliminary order may also reflect how corrections in the transcripts are to be made and translators and interpreters are to be retained and paid.
Always be advocating
The effective advocate should think of every contact with the tribunal and opposing counsel as a moment of advocacy. That does not mean that the advocate is argumentative, or seeks to argue points not called for at the time. It does mean that from the very beginning of the case, the advocate should be looking to demonstrate an intention to cooperate and engage. For an advocate, credibility is all, and that credibility should extend to earning the tribunal’s confidence that the advocate intends to be constructive in organising the case and prepared to be reasonable in working out disputes. The credibility earned by effective advocacy on the procedural aspects of the case will pay dividends on the merits.– Donald Francis Donovan, Debevoise & Plimpton LLP
Determining points at issue
Many tribunals begin the initial hearing by giving counsel an opportunity to summarise the respective claims and arguments of the parties, to inform the arbitrators of the factual context of the matter and highlight the main issues in dispute. Although these presentations are often relatively short and informal, they are often the first opportunity for counsel to orally address the tribunal. Counsel should prepare this presentation with some care as it is important to have a consistent narrative throughout the proceedings. Particularly in a smaller case, counsel may not have another opportunity to speak to the tribunal regarding the merits of the dispute until the evidentiary hearings.
Some tribunals will wish to have more detailed information about the claims at the initial hearing and, in some cases, additional information may be required under applicable rules. For example, the ICC Rules require that counsel provide the tribunal with information for the terms of reference at, or soon after, the initial conference, including ‘a summary of the parties’ respective claims and of the relief sought by each party, together with the amounts of any quantified claims and, to the extent possible, an estimate of the monetary value of any other claims [and] unless the arbitral tribunal considers it inappropriate, a list of issues to be determined’.
Tribunals may also want to know whether the parties intend to amend their initial pleadings. Some tribunals may ask the parties to consider whether they wish to prepare a stipulation of uncontested facts prior to the initial hearing.
Preliminary or interim measures
In international arbitration – as in all disputes – it is sometimes critical for a party to obtain relief prior to the final disposition of the case. Such relief – in international arbitration variously termed ‘interim measures of protection’, ‘conservatory measures’, or ‘provisional’, ‘preliminary’ or ‘temporary’ relief – may be necessary to preserve the status quo (e.g., by ordering continued performance of a contract during the arbitral proceedings), or to facilitate conduct of arbitral proceedings (e.g., by ordering the preservation of evidence or inspection of goods, property or documents). Under most arbitration rules and national arbitration laws, arbitral tribunals may issue preliminary, interim or provisional measures.
The best advocacy is a collaboration
In the art of persuasion, the adage ‘brevity is the soul of wit’ rings true. Too often, the persuasive value of a case is diminished by diligent advocates who, in seeking to advance their client’s interests to the fullest, obfuscate the key elements of a claim with arguments and evidence on peripheral facts and issues. Advocates must avoid ornamenting pleadings with irrelevant facts, or unnecessary detail, propensities that distract from the real issues in dispute.
The best advocacy is achieved with collaboration between arbitrators and counsel. Arbitrators should engage with parties at an early stage of the proceedings to identify the issues that remain genuinely in dispute, and encourage the focusing of submissions and evidence (whether lay witness, expert or documentary) on only those issues. It is ultimately in the interests of all parties to exercise brevity in arbitration. Succinctness in pleadings will allow the tribunal to reach the crux of the matter in an economic and expeditious manner. If the parties positively engage with these case management practices, counsel will be able to tailor the presentation of their client’s case to the key issues, and thus present their case most persuasively.– Doug Jones AO, Independent arbitrator
In the event a party contemplates an application for such measures, and the subject has not been previously brought to the attention of the tribunal, it may be useful to alert the tribunal of a potential request at the initial hearing, so the arbitrators can consider whether to establish a schedule for the application. Since imminent harm is generally a criteria for interim relief, if a party believes at the time of the initial hearing that it will make such a request, it is usually best to inform the tribunal, so as not to unnecessarily surprise (and inconvenience) the tribunal and opposing party and raise issues as to when the moving party first knew of the circumstances giving rise to the request.
Written and evidentiary submissions; communications between parties and arbitrators
The procedural order following the initial hearing usually provides a schedule for the case through the end of merits hearings. Given the need to coordinate schedules of arbitrators, counsel, experts and witnesses it is normally advantageous to schedule merits hearings at the initial hearing if at all possible. Establishing dates for merits hearings in the initial procedural order allows the tribunal and counsel to work backwards in scheduling evidentiary submissions, document exchange and other key events, typically providing sufficient time in the schedule so that the merits hearings are not delayed if milestone dates slip, as sometimes occurs.
Regarding written submissions, the tribunal and parties must decide whether these should be consecutive or simultaneous, and the timing of document exchange. Some arbitrators may request submission of relatively short written skeleton arguments shortly before the hearings.
Set backup hearing dates at the same time as the rest of the calendar
It is always advisable for parties to agree on a procedural calendar, including potential dates for a hearing, and then confirm those dates with the tribunal. When considering hearing dates, however, it is also advisable for the parties, with the tribunal, to set backup hearing dates at the same time that they set the rest of the calendar for the case. With the number of counsel and arbitrators involved in a hearing, it is not unusual for something to come up during the course of the case that might justify changing previously agreed filing dates, etc. If the parties have identified backup hearing dates with the tribunal at the start, they are less likely to have to go through the difficulties of rescheduling at the last minute, which may lead to split or significantly delayed hearings.– Stanimir A Alexandrov, Stanimir A Alexandrov PLLC
Other matters to be considered include consequences of late submission of documentary evidence; whether the parties will submit jointly a single set of documentary evidence (or bundle) prior to the hearing; presumptions and timing of objections regarding the origin and receipt of documents; page limits on written submissions; and such matters as paper and font size, whether written submissions are to include hyperlinks to fact and legal exhibits, and protocols as to how the parties are to communicate with each other and the tribunal.
Any on-site inspection contemplated should also be discussed at the initial hearing, as should arrangements regarding the presentation of physical evidence.
Although parties and counsel from civil law and common law jurisdictions may have differing views regarding exchange of documents in international arbitration (and there may be significant differences between experienced international arbitration counsel and counsel more familiar with domestic litigation), there is a general consensus that the International Bar Association’s Rules on the Taking of Evidence in International Commercial Arbitration (the IBA Rules) provide appropriate guidance in most cases. Although it may seem counter-intuitive to lawyers trained in common law jurisdictions, significant efficiencies may sometimes be achieved if the parties wait until after the first round of evidentiary submissions to engage in document exchange. The initial evidentiary submissions may significantly focus the issues in dispute and narrow the scope of subsequent document requests.
Any issues concerning privilege and exchange of electronic information should be given close attention at the initial hearing, as disputes in these areas can lead to very significant costs and delay. A number of sources are available to counsel and arbitrators to explain the issues that arise in the ‘e-document’ context.
Respect the IBA evidence rules
Requests for production of documents tend in a number of cases to be abusive. For a few years after the IBA Rules of Evidence were issued, counsel used to comply in most cases with the parameters specified in the Rules (requests for precise documents or categories of documents, relevance and materiality, documents in the possession of the other party). Nowadays, Redfern schedules sometimes extend over several hundred pages, and many requests tend to be fishing expeditions and no longer comply with the IBA Rules. They generate a lot of unnecessary work for the arbitral tribunal since in the end they will generally be rejected. Parties should also realise that any procedural abuse may be sanctioned by the arbitral tribunal in the final allocation of costs.
Equality does not mean deadlines should be identical
There is no longer any arbitral procedure in which the parties do not file one or several requests for extensions of time. It is therefore essential that in the procedural calendar they agree on deadlines that are reasonable and comfortable, and that they will be able to strictly respect. The parties should also be reminded that the principle of equality does not mean that the deadlines for each party be identical. It only implies that they both have equal opportunity to adequately present their case.
Requests for extensions of time should remain exceptional, duly justified, and made well in advance of the deadline and not the day before. They are not problematic if they are limited to a few days. On the other hand, they generate problems if they imply a postponement of the hearing dates. At a time when institutions put a lot of pressure on arbitrators to strictly comply with short deadlines, the parties should do the same and therefore avoid requesting extensions that have the effect of disrupting the tribunal’s own organisation.– Bernard Hanotiau, Hanotiau & van den Berg
Some method of resolving disputes regarding document exchange should be discussed at the initial hearing and included in the procedural order. Use of the ‘Redfern schedule’, by which parties itemise in a table disputed document requests, is now common, although one may wonder how often use of such schedules – the author has seen these run to hundreds of pages in large cases – achieves the intended efficiencies.
Most international arbitration rules do not require the parties to maintain the confidentiality of proceedings or information exchanged in the course of the arbitration. In the event the parties desire confidentiality – of the proceedings generally or of particular information or documents (e.g., on grounds of trade secrets) – the subject should be addressed at the initial hearing and in the following procedural order or a separate confidentiality agreement.
One or more parties may argue at the initial hearing that the case, or a significant part of the case, can be resolved by a partial award on the basis of legal submissions and documents, without the need for an evidentiary hearing – or after limited evidentiary hearings on a dispositive matter such as jurisdiction or statute of limitations. In such cases, it is often advisable to schedule final evidentiary hearings, so that the dates are reserved and available if necessary.
In addition to scheduling dates for merits hearings, arrangements must be made regarding the location of the hearing and related logistical matters, whether there should be a limit on the aggregate amount of time each party will have for oral submissions and questioning witnesses; the order in which the parties will present their arguments and evidence; arrangements for a record of the hearings; use of demonstrative evidence at hearings; and whether the parties wish to reserve time for closing arguments. It is often advisable to schedule a pre-hearing conference several weeks before the merits hearing to resolve any outstanding issues and confirm that the reserved hearing dates remain necessary (or sufficient).
Counsel sometimes have different approaches to witnesses, and in such cases it is useful for the procedural order following the initial hearing to have clear rules on the presentation of witness evidence.
Use of witness statements in place of direct examination is now common in larger international arbitration. Typically, witness statements will be submitted with the first substantive pleading (the statement of claim or first memorial). The procedural order should provide the date – sufficiently in advance of the hearings – by which the parties will state which of the adverse party’s witnesses it intends to cross-examine. In the event that witness statements are not required, particularly in a smaller case, a date should be established for notification of the identity of any witnesses a party intends to present.
Other matters to consider include establishing dates by which the parties will state the order in which they will call their witnesses and designate party representatives for the hearings; length of direct examination (often a short warm-up direct examination is permitted); scope of cross-examination and re-direct examination; whether oral testimony will be given under oath or affirmation and, if so, in what form an oath or affirmation should be made; and whether witnesses may be in the hearing room prior to their testimony.
If the parties intend to appoint expert witnesses, as is common, expert reports are often scheduled to accompany the other evidentiary submissions. Counsel may find it useful to enquire at the initial hearing whether the arbitrators wish to have the experts meet prior to the merits hearings to identify areas of agreement and disagreement or to have expert witness conferencing at the merits hearings. Witness conferencing, in particular, may affect the parties’ choice of experts.
If the tribunal, or one of the parties, expresses an interest at the initial hearing in tribunal appointment of an expert, it may be appropriate for a party opposing tribunal appointment to ask the tribunal to postpone any decision until after the initial evidentiary submissions (including any reports by party-appointed experts). If the tribunal does appoint an expert, the procedural order should include a schedule for drafting the expert’s terms of reference, submission of the expert report and party comments on the expert’s report well before the merits hearing.
Some general rules on how to make a better first impression
The initial hearing offers an important opportunity to make a good first impression. Here are some tips.
– Henri Alvarez QC, Vancouver Arbitration Chambers
- Well-prepared counsel who take a reasonable, organised approach help to establish themselves as reasonable and reliable. This requires having a good understanding of one’s case so as to establish a timetable and procedure suited to it. This can be of significant importance for the outcome of a party’s case.
- In approaching the initial hearing, it is important to know your tribunal and its legal background and general approach to arbitral procedure. This will often be of assistance in advocating for specific procedural steps or rules that will be helpful to the presentation of your case. Consider issues such as interim measures, document production and privilege and confidentiality in advance of the meeting and whether and how to best provide for them.
- Generally, it will be helpful to have discussed and, where possible, agreed the general procedure with counsel for the other side before the initial hearing. This will permit a more orderly initial hearing and allow counsel to focus on the areas where there are differences between the sides. A well-prepared, reasonable approach in respect to these items in dispute may yield significant benefits.
Post-hearing matters and form of award
The initial hearing and first procedural order may not address post-hearing submissions, leaving the issue for determination at the end of the hearings. Extensive post-hearing briefs can add substantially to the cost of the case. If the parties wish to discourage post-hearing briefing, or limit the parties’ post-hearing submissions to areas of particular tribunal interest, it may be useful to raise this subject at the initial hearing. Issues regarding the form or registration of the award under the applicable national arbitration law or the arbitral rules should also be resolved.
Settlement negotiations and mediation
Some tribunals will ask during the initial hearing if the parties have engaged in settlement discussions or discussed the possibility of mediation. Some arbitration rules require the institution to inform the parties of the institution’s mediation capabilities at an early stage.
Security for costs
If a respondent is concerned that the claimant, if unsuccessful, will be unable to pay the costs of arbitration, the respondent may wish to consider whether it has an interest in making an application for security for costs. The parties and tribunal can consider at that time whether additional information from the claimant is necessary for such an application and, if so, when it should be provided.
Administrative services and use of tribunal secretary
In ad hoc arbitrations, it may be useful to discuss at the initial hearing, and establish in the first procedural order, communications protocols for administrative matters such as tribunal compensation and the amount and management of cost deposits. Often, ad hoc tribunals will seek agreement of the parties to use an arbitral institution for these services.
Also, the initial hearing is a good opportunity for the tribunal to inform the parties if it wishes to use a secretary. If the tribunal is proceeding under the rules of an arbitral institution, or if an institution is providing administrative services in an ad hoc case, it may be useful for the parties to advise the arbitral institution, rather than the tribunal, of any concerns the parties may have regarding the use of a tribunal secretary (e.g., secretarial duties or compensation), to permit counsel to provide views on these issues without attribution.
Seeking to improve the quality of tribunal preparation and decision-making, some have proposed that the tribunal and parties include in the initial procedural order dates for the tribunal to meet immediately prior to and following the merits hearings. The rationale for these initiatives is certainly sound, but it can be awkward for counsel to suggest that dates for tribunal deliberations should be included in the first scheduling order. Again, it may be possible for the parties to communicate such a request to the institution, rather than directly to the arbitrators.
Conduct of counsel: reference to IBA Guidelines on Representation of Parties
Application of national ethical codes is uncertain in many international arbitrations, particularly when the arbitration is sited in a jurisdiction in which counsel are not licensed. The IBA’s Guidelines on Party Representation in International Arbitration, issued in 2013, are intended to create a level playing field in which parties and counsel may have different ethical norms that may affect the integrity and fairness of the proceedings. The IBA Guidelines address such matters as identification of party representatives, counsel conflict of interest, document retention and production, and counsel communications with the tribunal, experts and witnesses. They also provide means for tribunals to provide sanctions for counsel misconduct. Since the IBA Guidelines apply only if agreed by the parties, it may be useful for the tribunal and parties to agree at the initial hearing that the Guidelines, or some portions of them, will serve as a source of guidance, as is now customary with respect to the IBA Rules on the Taking of Evidence.
Remember: creativity requires full understanding
Initial procedural hearings too often are a wasted opportunity. Procedures are set for the entire case and rarely revised later. An effective advocate should take advantage of this opportunity. To do so, the arbitrators should have as much information as possible about the case. If the initial pleadings are limited, then consider preparing a more complete summary of the case before the initial hearing. Or ask the arbitrators to request both parties to make submissions at the procedural hearing about their view of the case. This will enable the arbitrators and counsel to have a more informed discussion of the appropriate procedures for the case – and to have the confidence to be more creative in setting those procedures.
In one case on which I served as chair of the tribunal, it was clear that joint venture partners could not work together. I asked the parties to put aside the 18-month timetable they had proposed, and instead to meet immediately to discuss the four or five issues that needed a prompt resolution. An hour later, they came back to the meeting room with such a list. We were able to formulate a hearing around those issues in only a few months. Once the arbitrators decided those issues, the case promptly settled.– David W Rivkin, Debevoise & Plimpton LLP
As the discussion in this chapter makes clear, the topics that may be addressed and resolved at the initial hearing are as many and varied as the procedural possibilities of international arbitration itself. The initial hearing is the first, and most critical, occasion for the tribunal and parties to shape procedures appropriate to the nature and complexity of the particular case – to organise proceedings in a cost-effective manner and to anticipate and avoid disruptive procedural battles later in the case. The initial hearing is also counsel’s only opportunity to make a good first impression on the tribunal. For all these reasons, it is important that counsel use the initial hearing to best advantage – which can only occur if counsel approaches the event with a thorough understanding of how they would like the entire case to unfold.
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