International Arbitration (Conduct of Proceedings) - Chapter 17 - College of Commercial Arbitrators Guide to Best Practices in Commercial Arbitration - 3rd Edition

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

In international arbitrations, a preliminary meeting or case management 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. Indeed, the efficiencies to be realized by such a meeting or conference have become sufficiently recognized to cause a revision to the ICC Rules, which now require that such a conference be convened when the tribunal is “drawing up the Terms of Reference or as soon as possible thereafter.” ICC Rules, Art. 24. See also ICC Rules, Appendix IV (setting forth “case management techniques” to be considered at the case management conference and throughout the proceeding). For the sake of convenience, the use of the phrase preliminary meeting in this chapter is meant to encompass the term case management conference.

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. In other words, a preliminary meeting affords the tribunal an opportunity to implement procedural measures designed to ensure the types of cost efficiencies that arbitral institutions and arbitrators are both expected to achieve. Guidelines for accomplishing that objective, such as those found in Appendix IV to the ICC Rules, the JAMS Efficiency Guidelines for the Prehearing Phase of International Arbitrations, the UNCITRAL Notes on Organizing Arbitral Proceedings (1996), and elsewhere, now proliferate and should be exploited by international arbitrators, preferably as early as the preliminary meeting.