Originally from Dispute Resolution Journal

In the world of international arbitration, where parties often have different nationalities and come from diverse legal traditions, a preliminary hearing letter can go a long way toward achieving a common understanding of the dispute. Akin to ICC “Terms of Reference,” this letter requires early identification of uncontested facts and the issues to be resolved. In so doing, it creates a common language for the arbitral process so that the parties’ expectations can be met. We live in a culture marked by excess and over-consumption. In the international arbitration arena, the culture of excess can take the form of over-lawyering, blurring the distinction between arbitration and litigation. International arbitration is particularly vulnerable to being held hostage by attorneys who import litigation procedures into the arbitration process since the protocols governing international arbitration tend to be rather general.

Since arbitration is different from litigation, these differences need to be recognized and emphasized in order to realize the benefits of arbitration, the most important ones being efficiency and finality. Foreign attorneys involved in international arbitration with American parties are often bewildered by their U.S. counterparts whose notion of zealous representation is to engage in full discovery and extensive motion practice. Both sides need guidance from the arbitrator to level the playing field and overcome differing expectations of the arbitration process. An arbitrator can provide this guidance by setting specific deadlines and establishing limitations at the outset of the proceeding. In addition, the arbitrator should remind everyone that American judicial protocols do not control and that rules of civil procedure applicable in U.S. courts do not apply. I recommend putting these guidelines in a letter to the parties’ counsel and sending it prior to the first preliminary hearing conference (a sample preliminary hearing letter appears on page 91) to provide the parties with much-needed direction.1