Basics on Procedural Orders in International Arbitration

An international arbitrator manages procedural orders in an international arbitration by issuing directives that guide the proceedings, ensuring efficient and fair dispute resolution. These orders address various aspects such as:

• Timetable: Setting deadlines for submissions, hearings, and other procedural steps.
• Discovery: Determining the scope and process for document production and exchange of information.
• Evidentiary Matters: Establishing rules for the presentation of witnesses, experts, and documents.
• Confidentiality: Setting out rules for protecting confidential information.
• Other Procedural Issues: Addressing any other matters that may arise during the arbitration.

List of Matters that could be Addressed in a Procedural Order:

Preliminary Matters:

Applicable Rules: Specification of the arbitration rules governing the proceedings (e.g., ICC Rules, LCIA Rules, UNCITRAL Rules).

Seat of Arbitration: Determination of the legal place of arbitration, which affects procedural law aspects.

Number of Arbitrators: Decision on the number of arbitrators (sole, three-member tribunal).

Appointment of Arbitrators: Procedure for appointing arbitrators (party-appointed, institutional appointment).

Language of the Arbitration: Clarification of the language to be used in submissions, hearings, and the award.

Justification: These preliminary matters are essential for establishing the framework of the arbitration and ensuring procedural clarity.Citation: ICC Rules Article 11, LCIA Rules Article 5, UNCITRAL Rules Article 1

Claims and Defenses:

Statement of Claim: Deadline for the claimant to submit a detailed account of its claims and supporting evidence.

Statement of Defense: Deadline for the respondent to respond to the claims and present its defense.

Counterclaims: Provisions for raising and responding to counterclaims, if applicable.

Justification: These provisions outline the initial exchange of claims and defenses, setting the stage for the substantive dispute.Citation: ICC Rules Article 23, LCIA Rules Article 20, UNCITRAL Rules Article 23

Document Production/Discovery:

Scope of Document Production: Definition of the scope of documents to be exchanged between the parties.

Procedure for Document Production: Establishment of the process for requesting and producing documents, including deadlines and format.

Justification: Document production is crucial for ensuring that both parties have access to relevant information for presenting their case.Citation: IBA Rules on the Taking of Evidence in International Arbitration Articles 3 and 9

Witnesses of Fact and Expert Witnesses:

Witness Statements: Deadlines for submission of written witness statements and expert reports.

Witness Examination: Procedure for the examination of witnesses and experts during hearings.

Justification: Witness testimony and expert opinions are often essential evidence in arbitration proceedings.Citation: IBA Rules on the Taking of Evidence in International Arbitration Articles 4 and 5

Hearings:

Date and Place: Scheduling of the hearings, including dates, location, and estimated duration.

Format: Determination of the format of the hearings (in-person, virtual, or hybrid).

Justification: Hearings provide the parties with an opportunity to present their case orally and for the tribunal to question witnesses and experts.Citation: ICC Rules Article 25, LCIA Rules Article 19

Confidentiality:

Confidentiality Agreement: If not already in place, a confidentiality agreement may be included to protect sensitive information disclosed during the arbitration.

Justification: Confidentiality is often a concern in international arbitration, and a confidentiality agreement can provide necessary protection for sensitive information.Citation: None (Confidentiality agreements are typically separate from institutional rules)

Costs:

Allocation of Costs: Decision on how the costs of the arbitration (arbitrator fees, administrative fees, legal fees) will be allocated between the parties.

Justification: Clarifying the allocation of costs upfront can prevent disputes later in the proceedings.Citation: ICC Rules Articles 37 and 38, LCIA Rules Article 28

Miscellaneous:

Amendment of Procedural Order: Provision for amending the procedural order if necessary.

Further Orders: Reservation of the tribunal's right to issue additional procedural orders as needed.

Justification: These provisions allow for flexibility in the procedural order to address unforeseen circumstances or changes in the case.

Please note that this is not an exhaustive list, and additional matters may be included in a procedural order depending on the specific circumstances of the case. The procedural order is a critical document that sets the framework for the arbitration, and it is important for all parties to carefully review and understand its provisions.

Objectives of a Procedural Order:

• Efficiency: Streamlining the proceedings and avoiding unnecessary delays.
• Fairness: Ensuring that all parties have equal opportunity to present their case.
• Cost-Effectiveness: Minimizing the costs of arbitration for all parties.
• Flexibility: Adapting to the specific needs of each case.

Hearing Before Issuing a Procedural Order:

Whether a hearing is held before issuing a procedural order depends on the circumstances of the case and the preferences of the parties. In some cases, a hearing may be necessary to allow the parties to present their arguments on the issues. In other cases, the arbitrator may be able to issue a procedural order based on written submissions from the parties.

Applicable Institutional Rules:

Most major arbitral institutions have rules that address procedural orders. Some examples include:

• International Chamber of Commerce (ICC) Rules of Arbitration: Article 22(2) allows the arbitral tribunal to "take any measure for the preservation of evidence."
• London Court of International Arbitration (LCIA) Rules: Article 14.3 allows the arbitral tribunal to "give directions to the parties on any procedural matter."
• Singapore International Arbitration Centre (SIAC) Rules: Rule 24 allows the arbitral tribunal to "make procedural orders as it deems fit."

These rules generally give the arbitral tribunal broad discretion to issue procedural orders as needed to manage the arbitration.

In addition to these institutional rules, arbitrators may also be guided by the IBA Rules on the Taking of Evidence in International Arbitration, which provide detailed guidance on evidentiary matters.

Additional Considerations:

• Arbitrators should always strive to issue procedural orders that are clear, concise, and easy for the parties to understand.
• Arbitrators should also be mindful of the need to balance the competing interests of the parties.
• Procedural orders should be issued in a timely manner to avoid unnecessary delays in the arbitration.

Sample procedural order in an international arbitration

[TRIBUNAL]

[Case Number]

[Date]

PROCEDURAL ORDER NO. 1

PRELIMINARY MATTERS

1.1. The parties agree that this arbitration shall be conducted in accordance with the Rules of Arbitration of the International Chamber of Commerce (the "ICC Rules").

1.2. The language of the arbitration shall be English.

1.3. The seat of the arbitration shall be [City, Country].

1.4. The number of arbitrators shall be three.

1.5. The parties agree to the following appointments:

* Claimant appoints [Arbitrator Name]

* Respondent appoints [Arbitrator Name]

* The two co-arbitrators shall jointly appoint the presiding arbitrator.

CLAIMS AND DEFENSES

2.1. The Claimant shall submit its Statement of Claim by [Date].

2.2. The Respondent shall submit its Statement of Defense by [Date].

DOCUMENT PRODUCTION

3.1. The parties shall exchange initial document requests by [Date].

3.2. The parties shall produce documents in response to initial requests by [Date].

3.3. The parties may submit further requests for document production by [Date].

WITNESSES OF FACT

4.1. The parties shall exchange witness statements by [Date].

4.2. The hearing shall be held from [Date] to [Date].

EXPERT WITNESSES

5.1. The Claimant shall submit its expert report by [Date].

5.2. The Respondent shall submit its expert report by [Date].

CONFIDENTIALITY

6.1. All documents and information produced in this arbitration shall be treated as confidential.

6.2. The parties shall not disclose any confidential information to any third party without the prior written consent of the other party.

COSTS

7.1. The costs of the arbitration shall be borne equally by the parties.

MISCELLANEOUS

8.1. The arbitral tribunal reserves the right to amend this Procedural Order as necessary.

8.2. Any dispute arising out of or in connection with this Procedural Order shall be resolved by the arbitral tribunal.

[Signature of Arbitrator(s)]

Disclaimer: This is a sample procedural order and may need to be adapted to the specific circumstances of your case. Please consult with legal counsel for advice on your specific situation.

Sources

www.scribd.com/document/469210971/Agreement-with-Alwanees-DRAFT-doc

www.sec.gov/Archives/edgar/data/1041841/000095012703000732/exh_4-3.pdf

Summary and Conclusion

Procedural orders are essential in international arbitration as they establish the framework for efficient and fair dispute resolution. These orders cover a wide range of matters, including preliminary issues like applicable rules and seat of arbitration, as well as substantive aspects such as claims, defenses, and document production. They also address witness testimony, hearings, confidentiality, costs, and other miscellaneous matters.

The specific content of a procedural order is guided by the chosen arbitral rules (e.g., ICC, LCIA, UNCITRAL) and can be tailored to the unique circumstances of each case. The goal is to ensure procedural clarity, promote fairness, and facilitate a smooth and effective arbitration process.

By addressing these crucial matters upfront, procedural orders minimize the potential for misunderstandings and disputes, thereby contributing to a more streamlined and cost-effective arbitration. It is imperative for all parties involved to thoroughly understand and adhere to the provisions outlined in the procedural order to ensure a successful resolution of the dispute.

In conclusion, procedural orders play a pivotal role in shaping the course of international arbitration. They serve as a roadmap for the proceedings, ensuring that the process is conducted in an organized, transparent, and equitable manner. By providing a structured approach to dispute resolution, procedural orders ultimately contribute to the overall effectiveness and integrity of international arbitration as a preferred method for resolving cross-border disputes.