Procedural Issues to Consider - Chapter I.5 - Practitioner's Handbook On International Arbitration And Mediation- 3rd Edition

David W. Rivkin is Co-Chair of Debevoise & Plimpton's International Dispute Resolution Group, based in the firm's New York and London offices. He has handled hundreds of international arbitrations, involving energy, joint ventures, investment treaties and other issues, throughout the world and before virtually every major arbitration institution. He is consistently ranked as one of the top international arbitration lawyers in the world by leading publications. Mr. Rivkin also represents Asian, European and Latin American companies in transnational litigation in the United States, including the enforcement of arbitral awards and arbitration agreements. Mr. Rivkin holds many positions with international organizations, including as Secretary General of the International Bar Association; President of the North American Users' Council of the LCIA; Vice Chair of the Arbitration Institute of the Stockholm Chamber of Commerce; a member of the Board of the Singapore International Arbitration Center; a member of the Council of the American Law Institute, for which he is an Adviser to the Restatement of the Law of International Arbitration and previously served as an adviser to the project on Transnational Rules of Civil Procedure; and a member of the Council on Foreign Relations. He was appointed by the U.S. State and Commerce Departments to be a founding member of the NAFTA Advisory Committee on Private Commercial Disputes. He is a member of the U.S. Secretary of State's Advisory Committee on Private International Law and a member of the Sanctions Subcommittee of the Department of State's Advisory Committee on International Economic Policy (ACIEP). He is on the panels of many arbitration institutions. He served as one of the Court of Arbitration for Sport arbitrators at the Olympics in 2002, 2004 and 2008, and he is also a member of the court of the Fédération International de l'Automobile (FIA).

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

This chapter addresses the issues which the parties must consider as they prepare for the arbitral hearing, many of which are settled at the pre-hearing conference. These issues include the form of evidence at the hearing and the pre-hearing exchange of evidence, discovery, deposits for the costs of the arbitration, confidentiality, the scheduling of submissions, bifurcation of the issues to be decided, and the scheduling of the hearing. Also discussed are the ICC’s Terms of Reference, the prospect of making pre-hearing motions, the IBA Rules of Evidence, choice-of-law considerations, and interim orders.

§ 5.01 Introduction

The initial phase of the actual arbitration (which follows the presentation of pleadings by the parties, in a Statement of Claim and a Statement of Defense, however denominated) can be the most critical phase of the case. How the case is structured, the manner in which evidence is to be presented, and other issues decided during the initial phase can often determine the outcome of the arbitration itself. Moreover, the initial phase is the time when the parties and the arbitrators must work together to structure the case to proceed in the most efficient manner possible. If that task is undertaken carefully, the parties will ultimately be satisfied with the conduct of the arbitration, no matter what the result. This chapter will discuss the issues that parties and their counsel should consider and the procedural steps that are generally taken between the pleadings and the conduct of the hearing. The chapter considers the international arbitration rules that govern this phase, the conduct and content of pre-hearing conferences, the use of discovery in international arbitration, pre-hearing motions, choice of law issues, and interim orders. Practitioners should bear in mind, however, that each international arbitration is, to some degree, unique and may be conducted in a manner different from the last one in which he or she was involved. The flexibility of the process is one of its great advantages. Practitioners should determine in every case how to take advantage of that flexibility to obtain the best results and to pursue the case efficiently.

Table of Contents:

§ 5.01 Introduction

§ 5.02 International Arbitration Rules
[1] Principal Arbitration Institutions
[a] Principal Institutions
[b] National and Regional Institutions
[c] The World Bank
[d] European Institutions
[e] Asian Institutions
[2] UNCITRAL Arbitration Rules
[3] Filling the Gaps in the Rules over the Conduct of the Hearing

§ 5.03 Pre-hearing Conferences
[1] Applicable Rules: ICC, AAA, and CPR Rules
[2] ICC Terms of Reference
[3] Topics to Consider

§ 5.04 Discovery
[1] Arbitrators' Power to Order Discovery
[a] Discovery and Arbitral Rules
[b] Legal Basis for Discovery
[2] Common Practice and the IBA Rules

§ 5.05 Pre-hearing Motions

§ 5.06 Choice-of-Law Considerations

§ 5.07 Interim Orders

§ 5.08 Witness Statements and Expert Reports