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Published by Enhelion, 2019-11-24 04:50:59





This is a complex process because in order to make arbitrational decision or award valid and
binding in nature than it is important to get indulge in each and every aspect by following proper
management process from the beginning itself. It is a neutral forum which provides parties a
uniform system of enforcement of procedures, at the same time it is flexible also, as per the
needs and circumstances of a case.

Before 2007, as per the reviews of the parties in arbitrational process, they point out that this
process is expensive and too long. That was the time when it used to take three to four years in
order to identify all the defects and to find their solution in a case. Therefore, the International
Chamber of Commerce (ICC), for the better experience of the users tried to figure out the
methods which can be implied for bringing efficiency in arbitrational process. The report
provides that, for the purpose of reducing cost there is need to place special emphasis in the
presentation of a case and various measures can be take in each phase of arbitration process.

In 2009, the ICC commission has revised their Rules of Arbitration, and after the revision such
rules came into force from 1St January, 2012. The committee also said that the main requirement
of better management of arbitration process is to maintain and improve the time and cost
efficiency in arbitration process.

Another aspect is that, the process of arbitration is flexible in nature therefore, the rules which
has been made by ICC does not clearly specify the proper process for conducting arbitration. For
Example – there is no Rule under ICC which is particularly providing the number of rounds of
briefs, rules regarding production of documents, examination of witness, oral-arguments,
memorandum of post-hearing, etc. Such kind of flexible framing enables the parties and the
tribunal to deal with each case by having effective procedure which is suitable to the needs and
particularities of that case.


It means and include the process of answers and counterclaims. As soon as the matter went for
arbitration, the next process involves communication. According to the ICC Rules of Arbitration,
Article 5 provides that, the Respondent after making request for arbitration to the Secretary, is
requires to file and answer for the purpose of arbitration. And such answer must contain the
required information. The benefit of this process is depending upon the length of answer which
the Respondent has filed as per the request of the Claimant. If the request of Claimant is shorter
and the answer given by Respondent is brief in nature than it might contribute to the efficient
management of the arbitration process. In case if the parties want to add any additional
information and details then it might also contribute to resolve the dispute between the parties
and increase the ability of the tribunal to focus on the key aspects and relevant issues.

It is also important to determine that whether the Claimant has filed a full statement of his case in
the request, then if there is enough time the tribunal will also allow the Respondent to file a full
statement of defence in the answer, as a part of communication between the parties to a case. If
a case is not complex in nature and both the parties wants to save the time and cost od their case
then they can give their consent to avoid one or more rounds of communication process in

Therefore, it can be said that the parties have the option to give their consent with regard to filing
a request /answer in shorter or longer forms. The settlement decisions may get vary according to
the answer given by the parties. The tribunal would always consider and inform the parties about
the preferable outcomes like if the substantive aspects of the settlement can be dealt by the
process of negotiation then the shorter answer might be preferred, and if the strength and the
ability of the Respondent to counterclaim as a part of his defence, is shown to the Claimant in
writing then a longer answer might be preferable for the purpose of settlement.


It is organised by the appointed arbitrators with the parties to a case. The preliminary meeting is
a good opportunity for the arbitrators to meet with the lawyers which are representing the
opposite parties. These meeting are very important because they bring efficiency in the dispute
resolution process, as many unpredictable factors can be discussed in this meeting. The main
motive to organise preliminary meeting is to provide an opportunity to the parties and the

tribunal to disscus the main issues of the dispute, the procedure which the parties wants to follow
and the evidence on which they will are relying. This meeting only set out the general rules and
principles which will be followed in the arbitrational process. Even there is an option to resolve
such questions during the arbitrational proceedings but it can be resolved in preliminary
meetings, atleast the broad outlines. In the meeting if the parties to a case have their personal
suggestion with regards to the procedure, then they can easily indicate their preference to the
tribunal. The concept of this meeting is that to reduce the time consumption, in case if there is
prior agreement on general questions in the meeting itself then the duration of procedural
argument would be comparatively shorter.

The preliminary meeting would also provide the second opportunity to settle their grievances
before the beginning of arbitrational process. They even can decide all the other important
aspects which were not decided prior to the meeting like place, language, applicability and law.
The dispute regarding the appointment of the arbitrators can also be resolved it also includes the
process of revealing and repairing any defects in the arbitration agreement, and the matters like
to clarify the questions pertaining to the identity and proper names of the parties. The other
questions which can be taken into consideration in this meeting would be like who are the proper
parties of the case. If by mistake, any point has not been discussed in the preliminary meeting
then there is an option to organise a conference of such issues separately.

Therefore, following are the points which a Re important to consider1 –

▪ In order to avoid any kind of conflicts between the parties relating to the place, manner of
communication and transfer of documents, they should confirm all the points and aspects
with their representatives.

▪ It is important to identify that whether there is any need of interim and conservatory

▪ All the important points should be considered well in advance such as the cost of the
arbitration, manner of payment of arbitrators fees, etc.

1 Norton Rose Fulbright LLP, Preliminary Meeting with the Arbitral Tribunal – What are They For? MONDAQ

▪ The parties should also provide their consent with regards to the procedure which they
want to follow like whether they wants to discuss all the issues on documents or not.

▪ Preliminary meeting also decides and identify the points on which both the parties have
common consent and they can be settled or resolved with mutual understanding.

▪ The meeting also decides the manner of the presentation of documents before the
tribunal, number of exhibits, etc.

▪ The parties also decide whether they want to provide additional documents or they want
to subtract any reports from the provided documents.

▪ The issues like if there is requirement of translation then who would bear the cost,
whether documents should be translated entirely or in portion.

▪ One of the most important aspect is that whether the tribunal would decide the matter by
giving privilege to the concept of equity or in accordance with the law which is
applicable and which is considering the general principles of international law of
contracts, trade usages and some other similar considerations.

▪ It is also relevant to identify that whether the decision has been taken as per the number,
order and types of pleadings, the other parties will be expected to file and they should
agree on the submission of the written pleadings.

▪ In case if the formal hearing is necessary then it’s details can be framed after the pleading
have been filed then the hearing have to be accomplish.

▪ The arbitrators have very wide powers such as to award compound interest, to cap
recoverable cost, to appoint independent experts, or to conduct the proceeding in the
prescribed manner and such powers can be curtailed under the Arbitration Act, 1996 by
the act of the parties in this regard.

▪ Any kind of technical or legal expert can be appointed as per the needs of the parties,
even the parties can request the tribunal to appoint a neutral expert.

▪ The parties have option to exclude the recourse of courts for the determination of
preliminary points of law or appeals on the questions of law.

It is advised that the parties and arbitrators should prepared for their preliminary meeting well in
advance. They must have fixed agenda upon which they can discuss and can include all the
aspects in such agenda and if possible then they can draft an agreement or procedural order
which is covering the various points to be addressed. Any agreement which the parties frame in
the preliminary meeting should be made in writing.


These are those matters in which the parties request the court to grant immediate protection. And
they can’t wait for months to get the decision. Therefore in order to deal with such kind of
matters there is a need to have conservative measures or process of injunction would provide
protection to the approaching party which is working within the ambit of the right asserted in
such proceeding. Here, the interim relief represents a kind of temporary equitable order and it is
calculated to preserve the assets which are needed to make a potential final award more
meaningful.2 Overall, it can be said that the interlocutory matters which are dealt by arbitration
process are not easy to handle because they contain high chances of uncertainty of events as
compared to normal arbitrational procedure.

The Arbitrator has three obligations or statutory duties while conducting the interlocutory
proceedings –

▪ To give fair and reasonable opportunity to both the parties to present their case without
doing any kind of partiality and properly deal with the case of the opponents.

▪ To avoid any kind of unnecessary delay or expense.
▪ Same duty as provided under second point.

But it is quite difficult for an arbitrator to avoid delay in the arbitration proceedings because if
any of the party is presenting any aspect of their case then for them it would be very important.
So, it is more convenient for the arbitrator to be more concern about the application of the rules
of natural justice.

2 Mauro Rubino-Sammartano, Chapter 23 Interlocutory Injunctions- International Arbitration Law and Practice,
Third Edition JURIS LEGAL INFORMATION (Jan.,2014),

It can be said that it is not common for the tribunal to deal with the interlocutory matters. But the
tribunal tries to deal with such matters by providing necessary directions which will directly
impact on the speed, cost and harmonious working in arbitration case.

One of the main issue of interlocutory matters is that it is very difficult to grasp as there is lack of
guidance with regards that how can arbitrator decide a dispute by maintaining proper
confidentiality. It is also very difficult for new comers to learn as they do not get enough
opportunity to take experience from the experts of arbitrators. It is difficult because the
procedure of High Court rules vary a lot with the arbitration process.

In order to resolve the issue arising out in the interlocutory matters it is important for the tribunal
to reach at common decision where there is majority in interlocutory orders. At times when there
are co-arbitrators then it is not possible that they all have same consensus over a particular
aspect, this might stretch the arbitration proceeding, and can cause extra cost of the parties and
delay in decision making. So, the one of the way to tackle the interlocutory problem which
might arise is to try to settle an agreement with the opponent which should be of mutual consent
and mutual benefi. And they can also appoint a third arbitrator by their own who would be
known by the parties as competent or experienced arbitrator.

The topic of interlocutory matters also include another aspect and that is “Adversarial and
Inquisitorial” approach. As per this concept the power has been given to the Arbitral Tribunal to
adopt a kind of approach under Section 56(7) of the HKAO(Hong Kong Act). The similar kind
of power has been given to English Arbitration Act, 1996 under Section34(g) but they believe in
following traditional approach while dealing with interlocutory matters. There in the arbitration
process one may encounter the cases of parties and their legal representatives who also get


Document production and it’s disclosure - in order to support their case a party must definitely
submit their documents. It is the extend upto which one party demand the other party to produce

all the essential documents. Under Article 19 of ICC Rules which provides that in the absence of
any agreement between the parties, the rules allows the parties to agree upon the procedure
which empowers the tribunal to decide any case.

The production of documents also provides for a general rule that the parties should be treated
fairly and impartially and each party must have reasonable opportunity to present their case. The
manner of production of documents and it’s execution have great impact on the time and cost.

The counsel and the representatives of other party also considers the importance of the
documents which has been produced by examining the cost efficiency.

It is not always compulsory to include the process of disclosure of documents, so the cases under
which there is no document production would lead to3 –

▪ In such cases, the parties may not seek exchange of any document from each other and
they might solely rely on the documents which they have in their possession.

▪ At any point of time the parties are free to submit such documents, which they acquire, it
means there is no loss of time due to exchange of documents.

▪ In such condition the parties can also request the arbitral tribunal to order for the
production of specific documents.

Now, the situation where there is only the production of some specific documents or narrow
categories of documents –

▪ It is considered by using IBA rules by taking of evidence as per the standard of
International Arbitration.

▪ The suggestions which are provided in the report of the ICC Commission on Arbitration
and ADR and it’s title was with regards to control the time and cost which occurred in
arbitration process.

3 International Chamber of Commerce, Effective Management of Arbitration, a guide for in-house counsel and other
party representatives, COMMISSION ON ARBITRATION AND ADR, (Sept. 2014)

▪ And the Management of E-Document production can also be considered as an
appropriate solution.

In some Common Law Jurisdiction the concept of broad documents is used it provides that –
▪ When most of the parties agree upon the broad requests for documents.
▪ In some of the rare cases in which the parties agree on the request of common law
‘discovery’ by including depositions and interrogatories.

Most of the times, the parties used to agree on the point of production of any particular
document. But at times when both the parties are unable or not agree with each other to decide
the extent of the production of documents then in such kind of situations the Arbitration Tribunal
look into the matter and decide on their behalf.

Expert opinion and Pre-hearing issues – According to the Article 25(3) if ICC Rules of
Arbitration which provide for the possibility of experts who are appointed by the parties. And
Article 25(4) deals with the appointment of experts by the arbitral tribunal which ensures that
those experts will define their terms of reference and receive their reports.

In the process of the selection of appropriate experts, the parties jointly can also submit the list of
experts which they admire to be appointed or selection can also be done solely on the decision of
arbitral tribunal.

The appointed expert also contribute their presence in the production of written reports.

• Such reports is presented by the expert at the time of briefing or after the time when
parties have produced their fact witness statements.

• These reports can be present subsequently or sequentially.

It is observed that in order to determine the points on which both the parties are either agreeing
or disagreeing, the tribunal required respective reports from both the parties but instead of that it
is advisable that the parties should arrange their personal meeting and discuss and highlight all
those points of agreement and disagreement by themselves.

As per the terms of reference made by the tribunal, it is the duty of the expert of respective
parties to provide a written report on the basis of the reference.

Now the next point is the weightage of the statements given by the witness. It provides that when
a party has decided to produce a fact witness statements as the presentation of his case then, the
following are the points which requires attention like the scope of it, whether it is important to
submit the statement of such witness, what will be the possible consequences of such action. It is
relevant to know that the comprehensive witness statements are very valuable part of case
presentation, as it allows the witness to tell the scenario of the dispute, the place and context of
documentary evidence. And it is also important to know that the lengthy statement of witness are
contributing in increasing the time and cost as well as the scope of such cross-examination.


The procedure of Arbitrational Proceeding is quite flexible in nature and depend upon the
circumstances of a particular case and therefore, it may vary and can take various forms. Like in
some cases the parties wants and agree mutually to adjudicate their dispute on the basis of
written submissions solely without any hearing. While many time in commodity arbitrations the
parties consider to rely upon arbitrator’s own expertise.

As it is a complex process of dispute resolution, therefore the arbitration process takes around
12-18 months in order to reach at final hearing from it’s commencement. It might get shorter or
longer time duration depending upon the various reasons such as the facts and circumstances of
each case, the procedures which has been adopted during the process of arbitration, the
behaviour and conduct of the parties in a case, and also the availability of the tribunal. In
traditional scenario, following are the steps of hearing procedure of International Commercial
Arbitration4. Although, it is common that some of the steps may get overlapped or take place
simultaneously: -

4 Latham & Watkins, Guide to International Arbitration, THOUGHT LEADERSHIP (2017),

▪ While the claimant is requesting for arbitration then generally, after it gets finalised that
the case will be adjudicate on the basis of arbitrational process by ensuring that this case
falls under the jurisdiction of International Commercial Arbitrational Tribunal than
summary of his entire claims gets prepared.

▪ Next step is the argument of respondent, it indicates if respondent wants to set up any
counter claim.

▪ Then further, if it is found appropriate then the claimant give reply to the respondent’s

▪ A Tribunal gets appointed in order to hear the dispute between the parties.
▪ After the appointment of the tribunal the process of procedural hearing gets followed by

the setup of all requirements like timetable, etc. for the arbitration.
▪ In case, at the initial stage if the claims of Claimant were not framed properly or if the

claims were not served with the request of arbitration then the tribunal will provide a
chance to the Claimant to frame full statement of his case.
▪ Similarly, at the initial stage if the defence and counterclaim of the Respondent were not
framed properly or if the claims were not served with the request of arbitration for answer
then the tribunal will provide a chance to the Respondent to frame full defence and
counterclaim in this case.
▪ Then the replay pertaining to the defence of Respondent is asked from the Claimant.
▪ As per the request of the other party there is the process of disclosure of documents on
which the party is relying.
▪ Then there is a process of exchange of statement of witness. Sometimes, this process is
followed by rebuttal statements of the witness.
▪ Then the reports of Claimant and Respondent also gets exchanged with each other in
order to prepare the case and to understand the need and demand of opposite party so
that, mutual understanding can be set up. Sometimes, this process is followed by


exchange of rebuttal reports as well and such situation arise as per the requirements of the
▪ Finally, after all the exchange of documents and reports the meeting of expert is
organized. In that meeting the expert discuss the matter and try to reach at a conclusion
that how they can narrow the issues between both the parties. And experts also try to
figure out the points on which both the parties are having same requirements IR all the
joint statement of matters on which both the parties are either agreed/disagreed
▪ Then there is a process of exchange of pre-hearing submissions.
▪ Then, the process of hearing comes which is the most important procedure in any case.
▪ Now, both the parties submit their reports and documents after the hearing, it is called
as post-hearing submissions.
▪ Finally, the Arbitrational Tribunal give suitable award by considering each and every
aspect of that case.

This is the proper Procedure of hearing any arbitrational matter. So, the process which has been
mentioned above provide separate steps for the statement of case, statement of witness, reports of
expert, etc. All this is the normal process of arbitration which follows all rules and regulation. In
spite of this traditional process, in many of the arbitration procedures which are following ICC
rules, the most common approach which they followed is memorial based. In memorials the
statement of case of Claimant and the defence of Respondent are served together along with the
list and details of witness and expert reports, in order to eliminate the longer procedure. And at
the time of disclosure of documents there are two or more rounds of memorials. So, the bottom
line is that the process of arbitration is flexible and can be easily mould and simplified in order to
meet the circumstances by the guidelines and direction of the tribunal or as per the agreement
made by the parties regarding their process of dispute resolution.

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