The Hearing on the Merits - Chapter 9 - The College of Commercial Arbitrators Guide to Best Practices in Commercial Arbitration - 2nd Edition

Author(s):

Henri C. Alvarez

William L. D. Barrett

Louis A. Craco

James P. Groton

Curtis E. von Kann

Page Count:

39 pages

Media Description:

PDF from "The College of Commercial Arbitrators Guide to Best Practices in Commercial Arbitration - 2nd Edition"

Published:

October, 2010

Jurisdictions:

United States

Practice Areas:

Arbitral Awards,

Practice & Procedure,

Evidence,

Hearing

Author Detail:

Henri C. Alvarez, Esq., Partner, Fasken Martineau, Vancouver, British Columbia, Canada

William L. D. Barrett, Esq., Of Counsel, Butzel Long, New York, New York

Louis A. Craco, Esq., Independent Arbitrator and Mediator, Manhasset, New York

James P. Groton, Esq., Independent Arbitrator, Atlanta, Georgia

Curtis E. von Kann, Since 1997 he has been a full-time arbitrator, mediator, and neutral case evaluator in the Washington, DC office of JAMS, where he has served as sole arbitrator, tribunal member, and tribunal chair in a broad range of xxviii Guide to Best Practices in Commercial Arbitration commercial arbitrations. Judge von Kann is a member of the Chartered Institute of Arbitrators in London, a member of the Distinguished Neutrals Roster of the International Institute for Conflict Prevention & Resolution (CPR), and Immediate Past President of the College of Commercial Arbitrators and has lectured and published on many ADR topics. He served as Editor-in-Chief of the first edition of the College of Commercial Arbitrators Guide to Best Practices in Commercial Arbitration.

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Description:

The arbitrators’ goals with respect to the hearing on the merits are to (1) provide each party a fair opportunity to present its evidence and argument; (2) make the hearing as smooth, efficient, and expeditious as possible; and (3) provide arbitrators all the information they need to properly resolve the issues presented.

I. DESIGNING THE APPROPRIATE HEARING PROCESS

Arbitrators should utilize their broad discretion concerning management of the hearing to establish and carry out arrangements and procedures that are fair, appropriate to the particular case, and to the extent reasonably possible, acceptable to all parties.

Consistent with the common law, the rules of most arbitral institutions accord arbitrators broad discretion in managing arbitration hearings. See, e.g., CPR Rule 9.1 (“Subject to these Rules, the Tribunal may conduct the arbitration in such manner as it shall deem appropriate.”); JAMS Rule 22(a) (“The arbitrator will ordinarily conduct the arbitration hearing in the manner set forth in these Rules. The Arbitrator may vary these procedures if it is determined reasonable and appropriate to do so.”); AAA Rule 30(b) (“The arbitrator, exercising his or her discretion, shall conduct the proceedings with a view to expediting the resolution of the dispute and may direct the order of proof, bifurcate proceedings and direct the parties to focus their presentations on issues the decision of which could dispose of all or part of the case.”). Courts seldom disturb arbitration awards for reasons relating to the hearing procedures utilized by arbitrators. As a practical matter, arbitrators have virtually unlimited authority to conduct hearings as they think best.

Table of Contents:

I. DESIGNING THE APPROPRIATE HEARING PROCESS II. DOCUMENT HEARINGS III. SETTING THE BASIC CONSTRUCT OF THE HEARING A. Standards for Admission of Evidence B. Order of Proof IV. MANAGEMENT OF EXHIBITS A. Core Exhibits B. Evidentiary Exhibits C. Demonstrative Exhibits D. Exhibits Created During the Hearing V. MANAGEMENT OF TESTIMONY A. Possible Use of Written Testimony B. Expert Witness Testimony C. Lay Witness Testimony D. Testimony From Witnesses at Other Locations E. Previously Recorded Testimony F. Sequestration of Witnesses G. Restrictions on Counsel’s Communications with Witnesses During Testimony VI. MANAGEMENT OF HEARING TIME A. Introduction B. Setting and Maintaining a Realistic Daily Schedule C. Monitoring Compliance with the Hearing Schedule D. What to Do If a Party Runs Out of Time or Requests a Continuance VII. MANAGEMENT OF LOGISTICS A. Use of Technology B. Transcripts C. Hearing Room Logistics D. Special Needs VIII. SITE VISITS IX. ARBITRATOR CONDUCT DURING HEARINGS A. Controlling the Hearing B. Setting the Tone C. Maintaining an Open Mind D. Questioning Witnesses E. Discussing the Case with other Arbitrators F. Dealing with Non-Appearance of Witnesses G. Making Further Disclosures H. Addressing Arbitrator Performance Problems I. Calling for Additional Evidence J. Confirming that All Evidence Has Been Presented X. DETERMINING REQUESTS FOR FEES, COSTS, AND INTEREST XI. BRIEFING A. Pre-Hearing Briefs B. Post-Hearing Briefs C. Other Materials that May Assist Arbitrators XII. STATEMENTS AND ARGUMENTS OF COUNSEL A. Opening Statements B. Mini-Summaries C. Final Arguments