In some arbitrations, the Request for Arbitration and the Answer will provide a sufficient “agenda” for the evidentiary hearing, or even the Final Award itself. Such cases will, however, be rare. The primary purpose of the Request and Answer is to facilitate the identification of suitable arbitrators and their appointment and to provide suitable directions. In ICC arbitrations, they also form the basis of the drafting of the Terms of Reference.
In the considerable majority of cases, one of the early directions will be for more comprehensive written pleadings. Confusingly, these can be known by a variety of names: memorials,1 briefs, statements of case and defence,2 and statements (or points) of claim and defence.3 Unless Rules specifically provide for the name of the pleading (and most notably the ICC Rules do not provide for further pleading beyond the Request and Answer still less the name any pleading should have), practitioners may use any term they are comfortable with.
The purpose of the written pleading can also be very different as the understandings of practitioners from different jurisdictions can be very different. By way of illustration, the contrasting pleading requirements of U.S., German, and English pleading in national court cases demonstrates the differing cultures and, hence, counsel and party expectations.
A. U.S. Procedure
In the U.S., there are different pleading requirements in Federal and state courts. In Federal courts, the rule is for so-called “notice pleading,” designed merely to give notice of the nature of and basis for the claim: