PROCEDURE AND EVIDENCE

1 Introduction
conduct of arbitration: commences from the claimants
initiation of the arbitration and
extends up to the closure of the arbitral proceedings.
2 Party autonomy
The principle: parties freedom to choose the procedure to
be applied in their
arbitration.
During the preparatory work of the Model Law, party
autonomy
was referred to in the following terms:
Probably the most important principle on which the
model law should be based is
the freedom of the parties in order to facilitate the
proper functioning of international
commercial arbitration according to their
expectations. Thiswould allow themto freely
submit their disputes to arbitration and to tailor the
rules of the game to their specific
needs.
MODEL LAW- Article 19(1)
Subject to the provisions of this Law, the parties
are free to agree on the procedure to
be followed by the arbitral tribunal in conducting
the proceedings.
Limits to party autonomy: freedom is controlled or limited
by law.7 The reasonwhy total freedom is not granted waswell
articulated during
the preparatory work of the Model Law:
. . . To give parties the greatest possible freedom does not
mean, however, to leave
everything to them by not regulating it in the model law. Apart
from the desirability
of providing supplementary rules . . . what is needed is a
positive confirmation or
guarantee of their freedom. Thus, the model law should
provide a constitutional
framework which would recognize the parties free will and
the validity and effect of
their agreements based thereon.
. . . Yet . . . it is not suggested to accord absolute priority to
the parties wishes over
any provision of the law. Their freedom should be limited by
mandatory provisions
designed to prevent or to remedy certain major defects in the
procedure, any instance
of denial of justice or violation of due process. Such
restrictions would not be contrary
to the interest of the parties, at least not of the weaker and
disadvantaged one in a
given case. They would also meet the legitimate interest of
the State concerned which
could hardly be expected to issue the above guarantee
without its fundamental ideas
of justice being implemented.
The main limits or constraints on party autonomy are
summarised below:

1. Parties failure to agree Party autonomy is premised on

consent.
The power of parties to dictate the way the
proceedings are conducted dissipates rapidly when they are
unable to reach agreement.
In such cases, specific default provisions in the
chosen set of rules or the lex arbitri may be triggered or the
arbitral tribunal may be empowered to make the relevant
determination.
2. Fundamental, mandatory due process principles (natural
justice principles)- Article 18 of the Model Law
encapsulates two of the key due process principles:
The parties shall be treated with equality and each party
shall be given a full opportunity of presenting his case.
these principles are essential requirements akin to
basic human rights that cannot be overridden by
private agreement. An award might be set aside or
be unenforceable if tainted by transgressions of
such due process requirements.
3. Other mandatory procedural laws If the procedural rules
agreed by theparties conflict with any non-derogable
provisions of the lex arbitri, then the latterwill usually prevail.
4. Institutional requirements- Although not a major
impediment to party
autonomy, institutional requirements may occasionally
constrain party
autonomy. (e.g., under some institutional rules parties are
not free
to exclude the supervision that is part of that institutions
procedure.13 At
the same time, it is only by virtue of party autonomy that
such institutional
rules could apply in the first place, because the parties would
have chosen
them.)
5. Third parties- No matter what the parties to the arbitration
agree, their
agreement by itself cannot legally bind a third party.
6. Arbitral tribunal discretion where parties agree on the
procedure to be adopted, the arbitral tribunal is in principle
duty-bound to follow that agreement.
7. The role of domestic courts Court decisions concerning
a given arbitration
are often not fully consistent with what the parties originally
agreed in
relation to that arbitration.
3 Rules, procedural law and guidelines
Arbitration rules
Choice of arbitration rules
The parties may, but are not required to, agree on
a set of institutional or ad
hoc arbitration rules to apply to their arbitration.
If they do not agree on a set ofarbitration rules,
then none will apply. Alternatively, they may simply
formulate their own rules or rely on the procedural
law at the seat of arbitration.
Differences between institutional and ad hoc arbitration
procedure: The degree of supervision or administration
offered by arbitral institutions varies.

Failure to object to non-compliance with procedural

rules: party that does not object to a failure to comply with
an applicable procedural rule may be deemed to have
waived its right to object subsequently.
Applicable version of rules: A question as to the applicable
version of any arbitration rules can arisewhen the rules are
revised or otherwise amended between the time the
arbitration agreement
is concluded and the time the arbitration is commenced.
IBA Rules of Evidence: have in large measure established
a generally
acceptable synthesis of common law and civil law practice in
relation to presenting
and obtaining evidence, including the often delicate issue of
discovery or
production of documents.
the Rules reflect procedures in use in many
different legal systems, and they may be
particularly useful when the parties come from
different legal cultures.
they may be adopted in whole or in part by the
parties and the arbitral tribunal or they may be
varied or simply used as guidelines in developing
procedures for the particular circumstances of an
arbitration. Frequently, parties agree that the
arbitral tribunal may refer to them for guidance
without being bound by them.
4 Core procedural rights and duties: State courts exercise
supervisory jurisdiction over arbitrations that are seated
in that state.
Right to present case: A fundamental right accorded to all
parties to an arbitration is that each party be given a
reasonable opportunity to present its case.
It is a procedural right based on the Latin maxim
audi alteram partem.
This right includes the entitlement to be notified as
to the commencement of arbitration proceedings,
as well as hearings and other steps in the
arbitration, and the right to answer the assertions
made by the opposing party.
Right to equal treatment: The requirement that parties be
treated with equality is well established and constitutes a
cardinal principle of arbitral procedure.
This right is enshrined in virtually all international commercial
arbitration instruments, and is frequently found in the same
provision that deals with the opportunity to present ones
case.
Arbitrators duty to avoid delay and expense:
Section 2GA(1)(b) of the Hong Kong Arbitration
Ordinance requires arbitratorsto use procedures
that are appropriate to the particular case,
avoiding unnecessary delay and expense, so as to
provide a fair means for resolving the dispute to
which the proceedings relate.
Rule 15(2) of the SIAC Rules- [i]n the absence of
procedural rules agreed by the parties or
contained in these Rules, the arbitral tribunal shall
conduct the arbitration in such manner as it
considers appropriate to ensure the fair,
expeditious, economical and final determination of
the dispute.
Model Law applies, in extreme circumstances
parties may apply to the court under Article 14(1)
to terminate the mandate of an arbitrator if he fails
to act without undue delay.

Balancing common law and civil law procedure

6 Arbitral proceedings
Overview of typical procedural steps:
(i) notice of arbitration;
(ii) response to the notice of arbitration;
(iii) appointment of arbitrators;
(iv) preliminary meeting between the arbitral tribunal and the
parties at which procedural timetables and documents such
as terms of reference might
be prepared (this meeting may be in person, by telephone,
video-link, ordispensed with altogether);
(v) exchange of written submissions (witness statements
may instead beattached to pre-hearing briefs);
(vi) disclosure of documentary evidence (requests to
produce);
(vii) oral hearing (with witnesses of fact and expert
witnesses);
(viii) post-hearing submissions;
(ix) deliberations of the arbitrators;
(x) issuance of the award; and
(xi) setting aside or enforcement of the award in domestic
courts.
Initiating the arbitration: The notice of arbitration (or
request for arbitration) initiates the arbitration process.
Representation: Arbitration rules and laws generally do not
require that a person representing a party in an arbitration be
a lawyer.
Article 6 of theACICARules, for example,
providesthat parties may be represented or
assisted [in the arbitration] by persons of their
choice.
Preliminary meeting: At this preliminary meeting the arbitral
tribunal, in consultation with the parties, will decide a number
of procedural issues such as:
the method of communication between the arbitral
tribunal and the parties;
how document production will take place;
how oral evidence will be heard;
a timetable for service or exchange of written
submissions.
Terms of reference: Article 18(1) of the ICC Rules requires
that those terms include a summary of the parties claims
and the particulars of the applicable procedural rules.
Written submissions: Like virtually all aspects of arbitration
procedure, the type, number and sequence of written
submissions is flexible and varies greatly.
Detailed written submissions are ordinarily served
or submitted after the
notice of arbitration and answer, butmay be done
away with in a small arbitration.
Amendment of claims: Article 23 of the ACICA Rules
provides that:
During the course of the arbitral proceedings either
party may amend or supplement its
claim or defence unless the Arbitral Tribunal
considers it inappropriate to allow such
amendment having regard to the delay in making it
or prejudice to the other party or
any other circumstances it considers relevant.
However, a claim may not be amended
in such a manner that the amended claim falls
outside the scope of the arbitration
clause or separate arbitration agreement.
On-site inspections: an on-site inspection may be referred
to as a see, touch and smell exercise.

It gives the arbitral tribunal an important

impression of a place or object that is relevant to
the arbitration and may provide the arbitrators with
a deeper understanding of the factual issues in
dispute.

Bifurcation and trifurcation: A procedural device that may

increase efficiency in arbitration involves splitting

the procedure into several phases.

Bifurcation and trifurcation, respectively, divide the
proceedings into two or three phases, for example,
one dealing with jurisdictional issues, one dealing
with liability and a final one with quantum or costs.
Party default and non-participating parties: