Originally from Practitioner's Handbook On International Arbitration And Mediation- 3rd Edition

This chapter discusses both the procedural and practical issues relevant to the presentation of evidence at the arbitral hearing. These include document1 control, the use of the preliminary hearing to set the ground rules for the hearing, the usual practices for presenting the evidence-in-chief2 and expert evidence, standards of practice for cross-examination and impeachment, use of documents in the witness box, closing submissions, and time limited arbitrations.

§ 6.01 Introduction

[1] The Interplay between Procedure and Substance

Practitioner's Hint: The practitioner must bear in mind both the procedural and substantive aspects of an arbitration. While the substance of the matter will become the foundation for any award which is issued, the procedural aspects may well impact the amount, timing and collection of that award.

This chapter concentrates on the procedural aspects of an arbitration. Procedure is important. An inappropriate procedure can lead to major difficulties in the enforcement of an award and may indeed render the whole of the proceedings futile. That said, it should also be emphasised that the procedure is not the be all and end all of the arbitration. The purpose of the arbitration is to redress or to deny an alleged wrong and the parties must not lose sight of that overall purpose through an undue concentration on the mechanisms by which the redress or denial is to be effected.

Practitioners need to keep the overall purpose of the arbitration clearly before the arbitral panel at all times. When the procedure becomes the main purpose of the exercise, all those involved in the process, but particularly the panel, have caught a dangerous tiger by the tail. It should be borne in mind that the inability of a party to present his case (e.g. because of the specified procedures) is a ground for setting aside an award, both under the New York Convention for the Enforcement and Recognition of Foreign Arbitral Awards (see Article V) and under Article 36 of the UNCITRAL Model Law, which was drafted under the auspices of the United Nations Commission on International Trade Law (UNCITRAL for short).

Both parties4 need to recall that an arbitration, if not settled (and, even if settled, if the settlement is in the form of a consent award), is likely to result in an award that one party will have to enforce in what may be a very different jurisdiction5 from the one that oversaw the arbitration itself.6