Originally from The College of Commercial Arbitrators Guide to Best Practices in Commercial Arbitration, Fifth Edition

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I.           PRELIMINARY HEARINGS/CASE MANAGEMENT CONFERENCES

In international arbitrations, a preliminary hearing or case management conference between the arbitrators and counsel for the parties, by whatever means makes commercial sense, is particularly desirable to identify and resolve the often divergent procedural expectations of parties from different cultures and legal systems. The efficiencies to be realized by such a meeting or conference are well recognized. For example, the ICC Rules 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. 24.1; see also id. App. IV (setting forth “case management techniques” to be considered at the case management conference and throughout the proceeding); ICDR Rules Art. 22.2 (“The Tribunal may, promptly after being constituted, conduct a preparatory conference with the Parties. . .”).

A case management conference will address key procedural steps, such as possible bifurcation of issues, document production, the use of experts, the overall sequence of pleadings, memorials, and taking of evidence (e.g., burden of proof). Such a meeting, even if conducted remotely, also allows the parties and arbitrators to establish personal contact, identify key issues, and agree on a timetable (to be incorporated into a procedural order), and sometimes may provide an opportunity for the parties to consider mediation or other means of settlement. In sum, the case management conference affords the tribunal an opportunity to implement procedural measures designed to ensure the types of cost efficiencies that arbitral institutions and arbitrators are 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 (2016), now proliferate and should be exploited by international arbitrators, beginning with the case management conference.

Because of the long distances and costs involved, an in-person case management conference may not always be practical. In such cases, a preliminary telephone conference or videoconference with a carefully prepared agenda, coupled with exchanges of correspondence as appropriate before and after the conference, normally will suffice.

Arbitrators at the preliminary hearing should also discuss general limitations on disclosure of documents, including ESI. Guidance in this regard can be drawn from various sources, including, for example, the Chartered Institute of Arbitrator’s Protocol for E-Disclosure in Arbitration (2008). However, while international arbitrators should be prepared to confront and resolve ESI issues if they arise, it is not customary in international arbitrations to impose detailed ESI protocols on the parties.

At the case management conference, the arbitrators also may want to focus the parties’ attention on how they will present the evidence on claims and counterclaims, with separate discussion of liability and damages, including, if appropriate under the circumstances, the possibility of bifurcation, both to prepare for and to govern evidentiary hearings. Guidance may be drawn from the IBA Rules on the Taking of Evidence, which are increasingly embraced by party agreement to govern proceedings. Matters dealt with should be memorialized, to the extent appropriate, in the initial procedural order referenced in section II, infra.

The arbitrators should also verify whether an initial procedural conference and a procedural or provisional timetable is required under applicable rules or governing law at the seat of the arbitration. Some leading arbitration rules, such as Article 24(2) of the ICC Rules and Article 17(2) of the UNCITRAL Rules, expressly require the arbitral tribunal to issue a procedural or provisional timetable at an early stage of the proceedings and to communicate promptly in writing any modifications of that timetable to the institution, if any, and the parties. Thus, in nearly all international cases the parties may agree to, or the arbitrators may impose, the timetable for the entire proceeding.

Finally, before or at the time of the case management conference, and depending on the governing rules, it may be advisable for the arbitrators to call attention to the possibility of settlement, with or without a mediator’s assistance. Compare, e.g., ICDR Rules, Art. 6 (“Subject to (a) any agreement of the parties otherwise or (b) the right of any party to elect not to participate in mediation, the parties shall mediate their dispute pursuant to the ICDR’s International Mediation Rules concurrently with the arbitration”), with ICC Rules, App. IV(h) (suggesting that at the case management conference, the tribunal advise the parties of available options for settling their dispute including by mediation or allowing the tribunal, when the parties agree, to “take steps to facilitate settlement of the dispute, provided that every effort is made to ensure that any subsequent award is enforceable at law”).