The Rules on the Efficient Conduct of Proceedings in International Arbitration (the Prague Rules)1 have taken position in favour of a proactive role of the arbitral tribunal.

This is their leading thema as it is expressly declared in the Note from its Working Group

One of the ways to increase the efficiency of arbitral proceedings is to encourage tribunals to take a more active role in managing the proceedings”.

These Rules, like the IBA Rules on the Taking of Evidence in International Arbitration, only apply upon the consent of the parties.

It is suggested that a special mention is to be made of art. 2.4 of the Prague Rules, which provides

The arbitral tribunal may at the case management conference or at any later stage of the arbitration, if it deems it appropriate, indicate to the parties:

a. the facts which it considers to be undisputed between the parties and the facts which it considers to be disputed;

b. with regard to the disputed facts – the type(s) of evidence the arbitral tribunal would consider to be appropriate to prove the parties’ respective positions;

c. its understanding of the legal grounds on which the parties base their positions;

d. the actions which could be taken by the parties and the arbitral tribunal to ascertain the factual and legal basis of the claim and the defence;

e. its preliminary views on:

i. the allocation of the burden of proof between the parties;

ii. the relief sought;

iii. the disputed issues; and

iv. the weight and relevance of evidence submitted by the parties.

Expressing such preliminary views shall not by itself be considered as evidence of the arbitral tribunal’s lack of independence or impartiality, and cannot constitute grounds for disqualification.”

Out of them, the provision that the Tribunal may indicate to the parties

the facts which it considers to be undisputed between the parties and the facts which it considers disputed

as well as the mention to the parties of

            “its understanding of the legal grounds on which the parties base their positions

seem indeed to help in creating a dialogue with the parties to clarify the terms of the dispute.

The main difference between the IBA and the Prague Rules is due to the latter’s provision that the  arbitrator mentions to the parties:

the type(s) of evidence the arbitral tribunal would consider to be appropriate to prove the parties’ respective position

as well as its preliminary views on

i. the allocation of the burden of proof between the parties;

ii. the relief sought;

iii. the disputed issues; and

iv. the weight and relevance of evidence submitted by the parties.

By expressing its views on such a matter, the arbitral tribunal takes indeed a position which common law lawyers would not hesitate to describe as inquisitorial.

While this approach may well suit the parties which have that in mind, those who prefer a more traditional approach will take this into account.