Chapter 13 - Preliminary Meeting - Handbook on International Commercial Arbitration - Second Edition
The first preliminary meeting is a vital stage in the proper administration of the reference. It is often the first opportunity for members of the tribunal to meet face-to-face; for the parties to meet each other since the dispute took on its formal dispute resolution process; for counsel and the parties to meet each other and the members of the tribunal. The attendance of appropriate senior representatives of the parties at the preliminary meeting is a matter of some debate; some practitioners favour it and others not (those in the latter camp consider it avoids grandstanding by counsel), but the clearly preferable view is in favour of attendance. Whilst there is unlikely to be any resolution of issues at the meeting by the tribunal—the purpose of the meeting being procedural rather than substantive—nevertheless, the attendance of senior representatives enables a better understanding by those representatives of the issues, time and cost of the process which may itself promote settlement.
General counsel or other senior decision makers of the parties should play a vital role in the preliminary meeting. It is, after all, their reference–not that of their external counsel. It is they who should decide, with the benefit of advice from counsel, how the reference should proceed. In particular, there will be options of how to manage the process, e.g. as to how document production should be managed—some more expensive in time and costs than others. Accordingly, they ought to be at the centre of the decisions on procedure. To enable wide ranging debate as to the appropriate procedure counsel should be ready, willing and able to discuss the time and cost implications of alternative procedures.
An agenda of items to be raised at the first meeting will often be circulated by the Chairman. A sample of such an agenda is attached at Appendix 6. Although the sample presupposes various procedural steps nothing should be seen as ‘standard’ and hence required. The advantage of arbitration should be the flexibility of the process and its ability to respond to the claims, defences, facts and issues presented. The key to saving time and cost is to craft a procedure to the unique features that are before the tribunal. It is for that reason that an investment of time and money at the stage of the first procedural meeting can pay dividends later in the process – it will ensure that the appropriate preparatory work has been undertaken and with a common understanding of its aim and purpose. Simply because it has always been done a particular way does not mean that it always has to be done that way.