James H. Carter is a litigation partner in the New York office of Sullivan & Cromwell and coordinator of its international arbitration practice. Mr. Carter is a Past Chair of the American Bar Association Section of International Law and Practice and has served as Chair of its committee on International Commercial Arbitration.
Every arbitration requires procedural management. Each arbitration is a new procedural initiative, and someone will be required to take charge of the process to assure that it runs smoothly -- or even runs at all. Procedures must be in place for commencement of a proceeding, selection of an arbitrator or arbitrators, the identification and specification of claims and defenses, submission of materials to the tribunal, preparation for and the conduct of a hearing, preparation of an award and its communication to the parties.
The parties, assuming they are properly advised, will provide a method for that management in their arbitration clause. Excellent sets of rules exist to deal with all of the necessary procedural steps, and modern arbitration statutes provide default procedures if the parties do not articulate their choices. In the absence of any other provision by the parties, a court may be available to take key steps such as appointing an arbitrator. By choice or by default, therefore, the clause and the applicable arbitration law will provide for administration of the arbitration process.
But what is the "best" type of procedural management to select? That depends on one's perception concerning value. There are three possible choices for this administrative role: