dr. christian koller ([email protected]) · of the lex arbitri party autonomy ... −...

The Arbitral Proceedings

Dr. Christian Koller([email protected])

Outline

I. Regulatory Framework

II. Minimum Standard of Due Process

III. Rules governing the proceedings

IV. Best Practices in International Arbitration

V. Conduct of the Proceedings

VI. Support by State Courts

Pre- ArbitrationCommencement

of ArbitrationArbitral

ProceedingsPost-Arbitration

Arbitration Timeline

Contract & Arbitration Agreement

Dispute

Case Analysis

Request for Arbitraiton

Constitution of the Arbitral Tribunal

Exchange of submissions

Hearing

Arbitral Award

Challenge

Enforcement and Recognition of Arbitral Awards

I. Regulatory Framework

Applicable procedural law (see, e.g. Art. 18 et seq. Model law)

Arbitral tribunal‘sdiscreation

Non-mandatory provisionsof the lex arbitri

Party autonomy

Mandatory provisions ofthe lex arbitri


Art. 18 Model law

“The parties shall be treated with equality and each party shall be given a full opportunity of presenting his case.”

− Equal treatment of the parties (parties must be granted same procedural rights

(as, e.g. with regard to written submissions, questioning of witnesses, filing of

documentary evidence)

− Right to be heard in adversarial proceeding includes:

• to participate in evidentiary hearings

• to rebut the other party’s allegations, and

• to examine and challenge the evidence brought forward by the other party

• by bringing evidence of its own


− Violations:

• Restrictive approach?

• Causality?

−Safeguard: Right to challenge the award in case of a violation of due process

(see, e.g., Art 34 (2) (a) (ii) “the party making the application was not given

proper notice of the appointment of an arbitrator or of the arbitral proceedings or

was otherwise unable to present his case”)

− Duty to object to procedural irregularities (see, e.g., Art 4 Model law)


Art. 19(1) Model law :

“Subject to the provisions of this Law, the parties are free to agree on the

procedure to be followed by the arbitral tribunal in conducting the proceedings.”

− Reference to arbitration rules (or other certain soft law instruments, e.g. IBA

Rules on the Taking of Evidence)

− Procedural agreements included directly in the arbitration agreement

− Fall back: non-mandatory provisions of the lex arbitri


Art. 19(2) Model law :

“Failing such agreement, the arbitral tribunal may, subject to the provisions of

this Law, conduct the arbitration in such manner as it considers appropriate. The

power conferred upon the arbitral tribunal includes the power to determine the

admissibility, relevance, materiality and weight of any evidence.”

− Is the arbitrator’s discretion limited?

−„parties‘ justified expectations“

−„obligation to act in good faith“


− Flexibility as one of the key features and main advantages of

international arbitration

The Parties “trade the procedures and opportunities for review of the

courtroom for the simplicity, informality, and expedition of arbitration.”

Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth Inc. (U.S. S.Ct. 1985)

− International arbitration as a legal “melting pot” or “marriage of civil and

common law”

• Parties, arbitrators and counsel from diverse legal traditions and practices

• Arbitral proceedings as a hybrid of civil and common law cultures

• Adversarial v. inquisitorial system

• Witness contact / preparation

• Emphasis on oral vs. emphasis on written proceedings

IV. Best Practices in International Arbitration

Existing or still evolving “best practice” for certain aspects of the

proceedings, e.g.:

− IBA Rules on the Taking of Evidence in International Commercial Arbitration

(2010)

− IBA Guidelines on Party Representation in International Arbitration (2013)

− CIArb Guidelines for Interviewing Potential Arbitrators

− UNCITRAL Notes on Organizing Arbitral Proceedings (1996)

− CIArb Guidelines (about 20)


A. Initial Stages of the Arbitration

− Constituting Order (Terms of Reference)

− Specific Procedural Rules

− Procedural Timetable

− Language of the proceedings

Arbitration agreements often specify the language of the proceedings

If they do not, most institutional rules permit the arbitral tribunal to

determine the language (e.g. ICC Rules Art. 20, Swiss Rules Art. 17)

Practical significance

• Substantive importance (nuance matters!)

• Speed (witnesses / translators)

• Costs (production and translation of documents)

• Choice of counsel

V. Conduct of the Proceedings - Overview

Source: Martin Bernet (Schellenberg & Wittmer, Zürich)


B. Taking of Evidence – General

− Determining the rules for the taking of evidence

Broad discretion left to arbitral tribunal

− Evidence taking as the example where international arbitration successfully

combined common law (adversarial) and civil law (inquisitorial) systems

− IBA Rules of Evidence

− Free weighing of evidence (“freie Beweiswürdigung”) generally accepted;

arbitrators take robust, non-technical approach to establish true facts (IBA

Rules of Evidence Art. 9(1))

− Law applicable to issues of burden of proof?


B. Taking of Evidence – Witnesses

− Any person, including a party or party’s officer can be a witness (Art 4

[2] IBA Rules)

− Witness preparation (see Art 4 [3] IBA Rules)

− Witness statements (see Art 4 [5] IBA Rules)

− Presence at the hearing required („principle of immediacy“)? (see Art 4

[7]; Art 8 [1] IBA Rules)


B. Taking of Evidence – Witnesses

− IBA Guidelines on Party Representation :

“20. A Party Representative may assist Witnesses in the preparation of

Witness Statements and Experts in the preparation of Expert Reports.

21. A Party Representative should seek to ensure that a Witness

Statement reflects the Witness’s own account of relevant facts, events

and circumstances.”


B. Taking of Evidence – Documents

− Common Law - Civil Law divide (Common Law „Discovery“ vs

narrow approach in Civil Law)

− Art 3 IBA Rules as a „Best Practice“

− Procedural steps document production:

• each party produces documents on which it relies

• request for document production

• objections

• order by the arbitral tribunal (Redfern Schedule)


B. Taking of Evidence – Documents

Case: In an ICC arbitration conducted between a Turkish textile company and a German supplier of new production equipment, theTurkish company argues that the supplier would be late in delivering theproduction facility. In addition, the buyer submits that the equipmentalready delivered would cause technical problems and not conform withcertain warranties. The buyer files the following request:

„Claimant requests the arbitral tribunal to order the German party tosubmit all internal documents over a certain period which referred to thetechnical condition of the installed equipment, including any instructionsto the German party's technicians and engineers regarding the technicalproblems, and in particular all internal monthly site reports.”


B. Taking of Evidence – Experts and on-site inspections

− Importance of party appointed experts (Art 5 IBA Rules)

− Tribunal appointed experts (Art 6 IBA Rules)

− Innovative techniques: „Expert conferencing“ and „Expert

teaming“ (Art 5 [4] IBA Rules)

− On-site inspections (Art 7 IBA Rules)


C. The Oral Hearing

− Mandatory? (see Art 24 Abs 1 Model law)

− Organization of the hearing (Opening Statements, order of

witnesses, experts and the like)

− „Pre-Hearing Order“

• Court Reporter?

• Interpreters?

• Core bundle of exhibits

• How to deal with new factual allegations and evidence

VI. Support by State Courts (juge d‘appui)

− Appointment, dismissal, replacement of arbitrators

− Challenge of arbitrators

− Interim relief and conservatory measures

− Taking of evidence (where coercive power is needed)

− In some jurisdictions: other judicial assistance (examples:

extension of appointment, complaints regarding mature length

at proceedings)