Originally from Asian Leading Arbitrators' Guide to International Arbitration

It is often claimed that one major advantage of international arbitration is the flexibility in the conduct of proceedings over national court litigation. After all, every case differs and it is wrong to conduct every one of them in a standard set of arbitral proceedings. Even for institutional arbitration which has rules to follow, most of them are worded in very general terms (*for example, ICC Arbitration Rules in Art.20 [1] said “The Arbitral Tribunal … to establish the facts of the case by all appropriate means”; The LCIA Arbitration Rules in Art.14.2 said: “the Arbitral Tribunal shall have the widest discretion to discharge its duties...”), leaving much flexibility to the largely unfettered discretion of the arbitrators. With ad hoc arbitration, the flexibility in arbitral proceedings is even greater. But flexibility can have disadvantages. An important one is the unpredictability or uncertainty. It is especially so if the parties and their legal representatives are going before an unfamiliar international tribunal (which often happens), as it can render every application in arbitral proceedings a guessing game.

A. Importance of Arbitral Proceedings

We know it is important to win the war (which is the award on substantive dispute) and not every battle (which is the interlocutory decisions in arbitral proceedings). But the outcome of the war may depend on one or more crucial battles fought out during the interlocutory stage. Such as, whether or not to order security for costs or the production of certain documents.