ACICA45 Webinar: Lifecycle of an Arbitration Series — Conducting an Arbitration
On 8 July 2020, the second webinar of the ACICA 45 Lifecycle of an Arbitration Series was held. Erika Williams, Senior Associate at McCullough Robertson and Melissa Yeo, Senior Associate at Ashurst co-chaired the discussion between the speakers: Lucy Martinez, Independent Counsel and Arbitrator at Martinez Arbitration and James Morrison, Partner at Peter & Kim.
The discussion centred around preliminary hearings and procedural calendars in conducting an international arbitration.
The speakers acknowledged that the current pandemic has had an impact on the legal profession generally but practically hit the international arbitration sector. The profession has proven to be resilient in adapting to the use of video conferencing and other means of telecommunications.
The procedural order is the topic of the preliminary conference. Usually, tribunals encourage parties to agree on the procedural order or timetable the prior to preliminary conference and preferably make that order by consent.
In determining that procedural calendar and negotiating it with the other party consider the following factors:
- The quantum of the dispute will be highly relevant in determining the schedule of the case. It is also relevant for the presentation of the case, the number of lawyers on each side, the experts and the witnesses.
- Generally, claimants want to move quickly, and respondents want to move slowly.
- Cases involving states will generally move more slowly than others. States will often make bifurcation or trifurcation requests.
- Commercial arbitration moves more quickly than investment treaty arbitration.
- Covid-19 and how it plays out in the calendar.
- The relevant institutional rules regarding the calendar, assuming it is not an ad hoc arbitration.
It is important to make the distinction between “the procedural timetable”, the concrete timing around the material steps which the parties have to achieve by certain dates and “the procedural order” which contains the nuts and bolts procedural rules which supplement the ACICA rules and help provide a more detailed procedure around the arbitration. The former is more a matter for the parties while the latter is somewhere the tribunal will take the lead.
Delays are usually due to timing for each party, bifurcation requests, issues with confidentiality especially when a state is involved, document production, and hearing dates.
An agenda should always be included as it creates a road map, and keeps the conference focused and sharp. It allows for counsel to prepare for the preliminary conference and keep everything moving smoothly. Sometimes this is not possible, especially in emergency cases. Timeframes can be included in the agenda to manage different issues within the calendar.
There are several, very helpful drafting resources provided on the ACICA website under ‘Resources’, particularly, ‘External Resources’.
Interlocutory proceedings can divert from the main issues of the arbitration. It is different to what it means in litigation; it is not a proceeding for an interim relief on a substantive issue, but an interim measure of protection as per rule 33 of the ACICA rules.
Author: Jana Thoumi, ACICA Intern