I. PRELIMINARY MEETING

International arbitrators should arrange a preliminary meeting with counsel for the purpose of organizing the arbitration proceedings.

In international arbitrations, a preliminary meeting or conference between the arbitrators and counsel for the parties, whether by telephone or in person, is particularly desirable to identify and resolve the often divergent procedural expectations of parties from different cultures and legal systems. A preliminary meeting may facilitate agreement or at least understanding of key procedural steps, such as possible bifurcation of issues, document production, the use of experts, the overall sequence of pleadings and taking of evidence, and other matters with which the parties may not be familiar. Such a meeting, preferably in person, also may allow the parties and arbitrators to establish personal contact, identify key issues, and agree on procedures and a timetable (to be incorporated in a procedural order) and conceivably could provide an opportunity for the parties to consider settlement. Because of the long distances and costs involved, however, an in-person meeting may not be practical. In such cases, a preliminary telephone conference with a carefully prepared advance agenda, coupled with exchanges of correspondence before and after the conference, normally will suffice.

At the time of the preliminary meeting, it may be advisable for the arbitrators to call attention to possibilities of settlement, with or without the assistance of the arbitrators. In addition to scheduling issues, arbitrators should consider taking up general limitations on disclosure of documents, including ESI, and the presentation of witnesses at hearings. The CPR Protocol on Disclosure of Documents and Presentation of Witnesses in Commercial Arbitration (2008) contains schedules of modes of alternative approaches to disclosure or witness presentation that the arbitrators may want to mention to the parties so that at an early stage, the parties can identify their preferences concerning the extent of disclosure, the role of witnesses, and other matters such as the extent of use of witness statements.

At the preliminary meeting, the arbitrators also may want to focus the attention of the parties on how evidence will be presented in the proceedings, both on claims and counterclaims, with respect to liability and damages, including the possibility of bifurcation. Matters dealt with in the preliminary meeting should, to the extent appropriate, be memorialized in the initial procedural order referenced in Section II, infra.

In any event, the arbitrators should verify whether an initial procedural conference and provisional timetable is required under applicable rules or governing law a the seat of the arbitration. Some leading arbitration rules, such as ICC Rule 18, expressly require the arbitral tribunal to issue a provisional timetable at an early stage of the proceedings and to promptly communicate in writing any modifications to that timetable to the institution and the parties. Thus, in some cases the parties may agree to, or the arbitrators may impose, an overall timetable that addresses the entire arbitration proceeding.

When an initial provisional timetable is not expressly required, arbitrators may prefer to address the timetable in tranches or piecemeal. The arbitrators may, for example, provide for an initial exchange of statements of position and postpone decision on subsequent procedural milestones, including written witness statements and oral wtness hearings, until a subsequent stage of the arbitration.