Most, if not all, of the procedural rules of major international arbitration institutions confer a broad discretion on arbitral tribunals regarding the manner in which they conduct proceedings subject only to the duty to treat parties with fairness and impartiality and to afford parties a reasonable opportunity to present their case. This procedural flexibility is usually achieved at the pre-arbitration hearing which, depending on the procedural rules applicable, has been variously referred to as “case management meeting”, “preparatory hearing”, “preliminary meeting” or “pre-hearing conference”.
ARBITRATION INSIGHTS:JACOB MUTEVEDZI
The initial hearing gives the arbitral tribunal and the parties a carte blanche and places plenty of procedural possibilities at their disposal. This conference launches the arbitral proceedings and fixes its formality in accordance with the desires of the tribunal, the parties, and their counsel. The parties get an opportunity to fashion the manner in which the case should proceed. It is usually convened shortly after the appointment of the arbitral tribunal. Pursuant to this pre-hearing conference, the tribunal issues a procedural order which defines the procedure of the actual arbitral hearing and the issues to be decided. The pre-arbitration hearing is, in most respects, similar to a pre-trial conference in litigation.
This hearing is of monumental importance to an arbitration practitioner and warrants thorough preparation. The discerning advocate must approach this hearing with a clear idea of how she wishes to see the dispute resolved. The pre-arbitration hearing and initial procedural order usually addresses, among other things, the following issues:
l determining the place, language and applicable law of the arbitration;
l requests for interim measures or confidentiality;
l extent and timing of discovery of documents and manner of resolving disputes regarding discovery of documents;
l number and form of written submissions and witness statements;
l requirements for appearance and examination of witnesses at hearings; and
l venue of the hearing.
While it may appear costly and inconvenient, an initial hearing is generally well worth the investment. It is even more important if the parties come from different cultural backgrounds and in instances where there is a huge gap in their levels of experience in international arbitration. If the parties take advantage of this conference to discuss all the relevant matters, the resulting procedural order (normally called Procedural Order No. 1) and directions will go a long way in ensuring that neither the parties nor the arbitrators encounter any surprises as the arbitration progresses. One of the most vital elements of an excellent arbitration process is that all participants understand what is expected of them at each stage of the proceedings.
Some parties elect to skip a pre-arbitration hearing due to considerations of costs and availability. Nonetheless, parties should take steps to agree on the applicable procedure and timetable. Inexperienced lawyers are often unduly argumentative and uncooperative at this stage. Such unreasonableness creates an unfavourable first impression. Normally, parties ought to be able to reach agreement on procedural issues without the involvement of the tribunal. My advice to counsel is that tribunals usually take a very dim view of unreasonable lawyers who impede settlement of straightforward procedural issues.
In recent times focus has increased on the need to manage the duration and cost of arbitral proceedings. This desire to curtail both time and costs devoted to proceedings has placed additional emphasis on the pre-arbitration hearing. In simple terms, the decisions that parties make or fail to make at the pre-arbitration hearing often determine the length, cost and efficiency of the arbitration. Parties should not take it for granted that decisions made at pre-hearing conferences can be easily revised in the event that problems surface during the course of the actual arbitral hearing; tribunals are often unwilling to depart from procedural orders because non-adherence to agreed procedures may constitute a basis for non-recognition of the tribunal’s award depending on the applicable law.
My own experience has taught me that preparation for the initial hearing should commence right at the stage when counsel takes initial instructions from client. It is important to evaluate the strengths and weaknesses of the client’s legal position, evidence and important witnesses, and craft a bespoke road map for the entire arbitral hearing well in advance. The following is a non-exhaustive list of questions which a resourceful practitioner ought to pose as she prepares for the pre-arbitration hearing:
Does my client wish to speed up or delay resolution of the case?
Is it preferable that the arbitrators make certain decisions, for example, concerning applicable law, jurisdiction, interim relief and security for costs before full evidentiary submissions?
Is it in my client’s interest to have extensive or minimal discovery of documents? When should this discovery take place?
How many witnesses should be called?
How many experts should be called? What topics will the experts cover? Can my client afford to pay experts’ fees?
How many hearing days?
Usually, the arbitrators will send counsel a list of issues to be discussed at the pre-arbitration hearing. It is advisable that the parties endeavour to reach agreement on as many procedural issues as possible in advance of the actual pre-arbitration conference. In most cases, arbitral tribunals encourage parties to attempt to agree on procedural matters before the initial hearing. Thus the parties may have a pre-meeting engagement of their own and jointly furnish the tribunal with a minute of the points on which they agree and separately as to points on which they disagree. Invariably, arbitrators prefer to defer to the parties regarding procedural matters. Such deference does not only pay homage to the doctrine of “party autonomy”, it is also a recognition of the fact that at this early stage the parties are better positioned than the arbitral tribunal to know how the matter should best proceed. Therefore, even if not requested to do so prior to the initial hearing, counsel should nonetheless consider issues that are likely to arise and whether it is advantageous to reach out to opposing counsel to seek agreement on certain matters.
l Jacob Mutevedzi is a commercial lawyer and partner at Clairwood Chambers Attorneys and writes in his personal capacity. He can be contacted @ email@example.com