There is no fixed formula for the conduct of an arbitration from the moment the initial file of papers arrives at an arbitrator’s office to the start of the hearing. In fact, subject to a few exceptions,1 the conduct of the arbitration from that early stage to the hearing is almost entirely unregulated by the various arbitration rules and statutes. This lack of regulation or prescriptive procedure is one of the key selling points of international arbitration in that it allows significant flexibility in how the parties go about presenting their respective cases. This flexibility is subject to a few basic principles such as:
• Ensuring that a party has an opportunity to present its case—how it takes up that opportunity is ultimately a matter for itself of course; and
• Ensuring that a party has an opportunity to meet the case of the other and not be taken by surprise, or put another way, avoiding a trial by ambush.
The procedure to be adopted for the conduct of an arbitration does not simply emerge out of nowhere; rather it usually follows some form of early meeting or dialogue as between the parties and an arbitrator. That early meeting or dialogue is the subject of this chapter. For simplicity, this chapter is written from the perspective of a sole arbitrator.