Originally from Soft Law in International Arbitration, Second Edition

Introduction

This Guideline sets out the current best practice in international commercial arbitration as to how to establish and manage the procedure according to the specific requirements of each arbitration. It includes guidance on: 

i. organising procedural and/or administrative aspects of an arbitration, including techniques which can be used to manage the proceedings (Articles 1 and 2);
ii. issuing procedural orders (Article 3, paragraph 1);
iii. dealing with parties’ failure to comply with procedural orders (Article 3, paragraph 2).

This Guideline should be read in conjunction with the CIArb Protocol for E-disclosure in Arbitration (Appendix I). The Protocol encourages early consideration of disclosure of documents in electronic form and includes a regime designed for parties to agree on the scope and the extent of e-disclosure. Parties may adopt the Protocol in whole or in part or arbitrators may use it as guidance as to the directions required to manage the conduct of e-disclosure, taking into account the particular circumstances of each arbitration.

Preamble

One of the main attractions of international arbitration is the flexibility of the process which can be tailor-made according to the parties’ specific needs and the particular circumstances of each dispute. Most arbitration laws and rules reflect this flexibility and do not prescribe how the procedure should be managed. Instead they mostly confirm that, absent an agreement between the parties to the contrary, arbitrators have a broad discretion to design the procedure to suit each arbitration, subject to ensuring that all parties are treated even-handedly and given a fair opportunity to present their case. Nevertheless, arbitrators should take great care to establish whether there are any other applicable mandatory provisions and comply with them. 

Once the arbitral tribunal is constituted, it is common practice for the arbitrators and the parties to discuss the administrative and procedural matters that will need to be ad-dressed during the course of the arbitration with the aim of agreeing so far as possible what has to be done by whom and when for the efficient and cost-effective conduct of the proceedings. To the extent that it is not possible for the parties alone to agree the procedure and/or the timetable, the arbitrators will have to decide the issue(s) after consultation with the parties. Arbitrators usually record what has been agreed and/or directed in procedural orders but, in some jurisdictions, there may be specific requirements as to form and content with which the arbitrators have to comply with. 

Arbitrators play a pivotal role in shaping and organising the proceedings so that they are conducted in an efficient and cost-effective manner. In this context, they set the tone for the arbitration by establishing an atmosphere of civility and cooperation and encourage the parties to adopt bespoke procedures that save time and costs. Throughout the course of the arbitration, arbitrators should actively monitor the proceedings to ensure that they progress smoothly and according to the agreed procedure and timetable. 

This Guideline summarises the various case management techniques that arbitrators may use with the aim of conducting the proceedings in an efficient, expeditious and economical manner. It also addresses the practice of issuing procedural orders and looks at the most common disciplinary measures that arbitrators may use to impose sanctions against parties who repeatedly fail to comply with their directions.