arbitration insights.. WITH JACOB MUTEVEDZI
The pre-hearing conference is an important opportunity for the arbitral tribunal to set the stage, to establish protocols, and to define and shape the entire process.
It is the initial hearing between the parties and the arbitrator. The objective of a pre-arbitration is to discuss the details of the case including, among other things, the evidence to be submitted, the witness list, possible settlement, discovery of documents and duration of the hearing.
An elementary format of how the tribunal will conduct the hearing can also be rendered.
This preparatory hearing affords the arbitrator and the parties a blank canvas on which to sketch the limitless procedural possibilities available to them.
It is the initial step, which launches the arbitration and delineates its formality according to the preferences of the arbitrator, the parties, and their lawyers.
Usually, this meeting is held soonafter the appointment of the arbitrator.
After the hearing, the arbitrator issues a procedural order, which sets out the procedure of the actual hearing and the issues to be decided.
In many ways, a pre-arbitration hearing resembles a pre-trial conference in court proceedings.
This conference is of the gravest importance to counsel and rigorous preparation is warranted. The prudent arbitration lawyer must approach this hearing with a clear idea of how she wishes to see the dispute resolved.
Generally, the pre-arbitration hearing and initial procedural order addresses, among other things, the following issues:
- Determining the place, language and applicablelaw of the arbitration;
- Requests for interim measures or confidentiality;
- Extent and timing of discovery of documents and manner of resolving disputes regarding discovery of documents;
- Number and form of written submissions and witness statements;
- Requirements for appearance and examination of witnesses at hearings; and
- Venue of the hearing.
While most parties worry about the expense, an initial hearing is generally well worth the money.
This hearing becomes even more important if the parties are from different cultural backgrounds.
It avails an opportunity for such parties to get a feel of each other’s cultures.
If the parties take full advantage of this exercise to discuss all the relevant matters, the resulting procedural orderand directions will go a long way in ensuring that neither the parties nor the arbitrators encounter any surprises as the arbitration progresses.
Some parties choose to forego 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 haveextensive 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 arbitratorswill send lawyersa list of issues to be discussed at the pre-arbitration hearing.
Parties should attempt to reach agreement on as many procedural issues as possible prior to 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 provide the tribunal with a joint minute of the points on which they agree and separately as to points on which they disagree.
Generally, 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.
- Jacob Mutevedzi is a commercial lawyer and arbitration practitioner. He can be contacted on firstname.lastname@example.org, on Twitter @jmutevedzi_ADR and on +263775987784. He writes in his personal capacity.