Written Pleadings - Chapter 13 - Handbook on International Commercial Arbitration

Peter Ashford is Solicitor of the Supreme Court and a Partner at Cripps Harries Hall LLP and is Head of the firm's Commercial Peter Ashford is a Partner and Head of commercial dispute resolution in the leading United Kingdom Firm of Cripps Harries Hall LLP, Tunbridge Wells, United Kingdom. Mr. Ashford advises on a wide range of commercial disputes with a particular emphasis on substantial commercial contract disputes, especially those involving an international aspect, partnership and LLP disputes, professional issues for solicitors and professional negligence. He is particularly experienced in complex, high value claims and acts for many international clients. He handles disputes in court, arbitration, mediation and disputes without any formal process. Mr. Ashford received his training in London and qualified in 1986. He joined Cripps Harries Hall LLP in 1987 and became a partner in 1991.

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In some arbitrations, the Request for Arbitration and the Answer will provide a sufficient “agenda” for the evidentiary hearing, or even the Final Award itself. Such cases will, however, be rare. The primary purpose of the Request and Answer is to facilitate the identification of suitable arbitrators and their appointment and to provide suitable directions. In ICC arbitrations, they also form the basis of the drafting of the Terms of Reference.

In the considerable majority of cases, one of the early directions will be for more comprehensive written pleadings. Confusingly, these can be known by a variety of names: memorials, briefs, statements of case and defence, and statements (or points) of claim and defence. Unless Rules specifically provide for the name of the pleading (and most notably the ICC Rules do not provide for further pleading beyond the Request and Answer still less the name any pleading should have), practitioners may use any term they are comfortable with.

The purpose of the written pleading can also be very different as the understandings of practitioners from different jurisdictions can be very different. By way of illustration, the contrasting pleading requirements of U.S., German, and English pleading in national court cases demonstrates the differing cultures and, hence, counsel and party expectations.