Documentary evidence

1 An award may be set aside under the Model Law if ‘the arbitral procedure was not in accordance with the agreement of the parties’, and this is also a ground for refusal of recognition or enforcement: Arts 34(2)(a)(iv) and 36(1)(a)(iv). See also New York Convention, Art. V(1)(d).


2 See the above provisions of the Model Law and the New York Convention, and see Chapter 2.


3 For a discussion of the seat of the arbitration, see Chapter 3, paragraph 3.53ff.


4 See Chapter 1 for an introduction to the arbitral process.


5 See Veeder, ‘Whose arbitration is it anyway: The parties’ or the arbitration tribunal’s? An interesting question’, in Hill and Newman (eds) The Leading Arbitrators’ Guide to International Arbitration (2nd edn, Juris, 2008), p. 337, at pp. 340–341.


6 Rowley and Wisner, ‘Party autonomy and its discontents: The limits imposed by arbitrators and mandatory laws’ (2011) 5 World Arb & Med Rev 321, at 321, conceive of this as an expression of party autonomy in which the arbitrator ‘giv[es] effect to the parties’ choices in running the arbitration’.Pryles, ‘Limits to party autonomy in arbitral procedure’ (2007) 24 J Intl Arb 327 explains the procedural autonomy of the tribunal as a product of a tripartite contract between parties and tribunal, mandatory law, and institutional rules.


7 See, e.g., United Nations Commission on International Trade Law (UNCITRAL), Report of the Secretary-General: Possible Features of a Model Law on International Commercial Arbitration, UN Doc. A/CN.9/207 (UN, 1981), para. 17: ‘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.’


8 New York Convention, Art. V(1)(b): ‘Recognition and enforcement of the award may be refused … if … [t]‌he party against whom the award is invoked was … unable to present his case …’


9 UNCITRAL Rules, Art. 17(1).


10 See, e.g., World Intellectual Property Organization (WIPO) Arbitration Rules, Art. 38(b); International Centre for Dispute Resolution (ICDR) Rules, Art. 16(1); American Arbitration Association (AAA) Commercial Arbitration Rules, Art. 32(a). See also the Swiss Rules, Art. 15(1), and the Rules of the Hong Kong International Arbitration Centre (HKIAC), Art. 13(1), which both refer to ‘equal treatment’. The corresponding provisions of the ICC Rules, Art. 22(4), the LCIA Rules, Art. 14(4)(i), and the Dubai International Arbitration Centre (DIAC) Rules, Art. 17(2) do not expressly mention ‘equality’, but the phrase ‘fairly and impartially’ must encompass it.


11 UNCITRAL, n. 7, para. 21.


12 See, e.g., UNCITRAL Rules, Art. 17(1); ICC Rules, Art. 22(4); LCIA Rules, Art. 14(4)(i); Rules of the Stockholm Chamber of Commerce (SCC), Art. 19(2); China International Economic and Trade Arbitration Commission (CIETAC) Rules, Art. 33(1); HKIAC Rules, Art. 13(1). Compare DIAC Rules, Art. 17(2); Vienna International Arbitration Centre (VIAC) Rules, Art. 28(1); Swiss Rules, Art. 15(1).


13 For example, the administration of oaths by arbitrators in a country in which the law allows oaths to be administered only by judicial officers.


14 For example, in the United States, the Federal Arbitration Act of 1925 (FAA), § 7, allows an arbitrator to issue a summons to order the attendance of a third party as a witness at the arbitral proceedings; but court assistance is necessary to enforce the summons if the third party refuses to obey it.


15 This is considered in more detail in Chapter 7, paragraphs 7.13ff.


16 See, e.g., ICC Rules, Art. 22; UNCITRAL Rules, Art. 17(1); LCIA Rules, Art. 14(4) and (5); Swiss Rules, Art. 15(1) and (7); SCC Rules, Art. 19(2); ICDR Rules, Art. 16(1) and (2); SIAC Rules, Art. 16(1); HKIAC Rules, Art. 13(1).


17 See Chapter 4.


18 See Chapter 4.


19 See Chapter 9.


20 Marrella and Mozzato, Alle origini dell’arbitrato commerciale internazionale: L’arbitrato a Venezia tra Medioevo ed età moderna (CEDAM, 2001).


21 The debate that followed also gave birth to the notion of ‘fast-track’ arbitration. The aim of such processes is to accelerate all of the steps, thereby achieving a binding result as quickly as possible, reducing overall costs, and encouraging settlements.


22 ICC Rules, Art. 29 and Appendix V; ICDR Rules, Art. 37; Swiss Rules, Art. 43; SCC Rules, Appendix II; HKIAC Rules, Sch. 4; SIAC Rules, Sch. 1; LCIA Rules, Art. 9B. Since 1990, the ICC has offered the option to parties to expressly adopt the Pre-Arbitral Referee Rules, which provide for the immediate appointment of a pre-arbitral referee empowered to make certain interim orders prior to the constitution of the arbitral tribunal. However, the Rules have rarely been used, primarily because they require parties to opt in, and are now rendered practically obsolete by the introduction of the emergency arbitrator provisions in Art. 29 and Appendix V of the 2012 ICC Rules, which apply unless the parties expressly opt out.


23 See, e.g., the ICC, SCC, and Swiss Rules.


24 Swiss Rules, Art. 26(3).


25 LCIA Rules, Art. 9A (‘Expedited Formation of Arbitral Tribunal’) provides:


9.1 In exceptional urgency, any party may apply for the emergency formation of the Arbitral Tribunal by the LCIA Court under Article 5.


9.2 Such an application shall be made in writing to the Registrar (preferably by electronic means), together with the Request (if made by a Claimant) or a copy of the Response (if made by a Respondent), delivered or notified to all other parties to the arbitration. The application shall set out the specific grounds for exceptional urgency in the formation of the Arbitral Tribunal.


9.3 For the purpose of forming the Arbitral Tribunal, the LCIA Court may abridge any period of time under the Arbitration Agreement or other agreement of the parties (pursuant to Article 22.5).


26 Turner and Mohtashami, Guide to the LCIA Arbitration Rules (Oxford University Press, 2009), paras 4.86ff.


27 Information provided by the LCIA’s Registrar.


28 DIAC Rules, Art. 12 (‘Expedited Formation’) provides:


12.1  On or after the commencement of the arbitration, any party may apply to the Centre for the expedited formation of the Tribunal, including the appointment of any replacement arbitrator where appropriate.


12.2  Any such application shall be made to the Centre in writing, copied to all other parties to the arbitration and shall set out the specific grounds for exceptional urgency in establishing the Tribunal.


12.3  The Centre may, in its complete discretion, adjust any time-limit under these Rules for formation of the Tribunal, including service of the Answer and of any matters or documents adjudged to be missing from the Request.


29 These include the AAA, SIAC, CIETAC, HKIAC, WIPO, SCC, and the Swiss Chambers’ Arbitration Institution. See, e.g., AAA Commercial Arbitration Rules, Expedited Procedures, Sections E-1–E-10; see also the ICDR Arbitration Model Clause for Expedited Cases; SIAC Rules, Art. 5; CIETAC Rules, Ch. IV (titled ‘Summary Procedure’); HKIAC Rules, Art. 41; WIPO Expedited Arbitration Rules; SCC Rules for Expedited Arbitrations; Swiss Rules, Art. 42.


30 Swiss Rules, Art. 6(4).


31 The Swiss Federal Supreme Court ruled on a challenge to an award rendered in accordance with the Swiss Chamber’s expedited procedure and held, in the circumstances, that the respondent had not been denied its right to be heard nor had it been treated unequally: Decision No. 4A_294/2008, Swiss Federal Supreme Court, 28 October 2008.


32 ICC Case No. 10211. None of the material published in this book is confidential, because the proceedings and the procedure were fully reported in various motor racing journals. See also Kaufmann-Kohler and Peter, ‘Formula 1 racing and arbitration: The FIA tailor-made system for fast track dispute resolution’ (2001) 17 Arb Intl 173.


33 As a postscript, one of the present authors, who was a member of the tribunal (which unanimously upheld the FIA’s position), recalls one of the other arbitrators during the deliberation making the observation: ‘Of course, you know what they [the F1 team] will do … they’ll paint each car the same, one side of the car in the livery of one brand and the other side in the livery of the other brand.’ His instinct served him well: this is precisely what the team did.


34 See also Rawding, Fullelove, and Martin, ‘International arbitration in England: A procedural overview’, in Greenaway, Fullelove, Lew, and Bor (eds) Arbitration in England, with Chapters on Scotland and Ireland (Kluwer Law International, 2013), p. 361, at paras 18-34–18-38.


35 Gill, ‘Applications for the early disposition of claims in arbitration proceedings’ (2009) 14 ICCA Congress Series 513. National court procedures often permit a court to make a summary judgment where a plaintiff or a defendant has no reasonable prospects of succeeding on its claim or defence. However, as Gill points out, ‘it is uncontroversial to suggest that tribunals generally do not possess the powers of summary disposition conferred on national courts’: ibid., at 515. See also the Centre for Public Resources (CPR) International Committee on Arbitration, Guidelines on Early Disposition of Issues in Arbitration, available online at www.cpradr.org/RulesCaseServices/CPRRules/GuidelinesonEarlyDispositionofIssuesinArbitration.aspx.


36 ICSID Rules, r. 41(6), provides that: ‘If the Tribunal decides that the dispute is not within the jurisdiction of the Centre or not within its own competence, or that all claims are manifestly without legal merit, it shall render an award to that effect.’ See also AAA Rules, Art. 33. More generally, IBA Rules, Art. 2.3, encourages the arbitral tribunal ‘to identify to the Parties, as soon as it considers it to be appropriate, any issues: … (b) for which a preliminary determination may be appropriate’. See also 1999 IBA Working Party and 2010 IBA Rules of Evidence Review Subcommittee, ‘Commentary on the Revised Text of the 2010 IBA Rules on the Taking of Evidence in International Arbitration’ (2011) 5(1) DRI 45, at 51: ‘While the Working Party did not want to encourage litigation-style motion practice, the Working Party recognised that in some cases certain issues may resolve all or part of a case.’


37 Born and Beale, ‘Party autonomy and default rules: Reframing the debate over summary disposition in international arbitration’ (2010) 21 ICC International Court of Arbitration Bulletin 19.


38 It is necessary to distinguish between a preliminary meeting (or preliminary hearing) and a pre-hearing conference. A preliminary meeting takes place as early as possible in the proceedings, and certainly before the written stage. A pre-hearing conference takes place after the written stage, and has as its primary objective the organisation and order of proceedings at the evidentiary hearing.


39 SIAC Rules, Art. 16(3); DIAC Rules, Art. 22.


40 ICC Rules, Art. 24. See also ICC Rules, Appendix IV (‘Case Management Techniques’).


41 AAA Rules, Art. 21 (and Sections P-1 and P-2); ICDR Rules, Art. 16(2). Most rules require the tribunal to consult with the parties before it prepares the procedural timetable for the arbitration: see, e.g., ICSID Rules, r. 20; HKIAC Rules, Art. 13(2); SCC Rules, Art. 23; Swiss Rules, Art. 15(3). See also UNCITRAL Rules, Art. 17(2).


42 As in the Aminoil arbitration: Government of the State of Kuwait v The American Independent Oil Co. (Aminoil) (1982) 21 ILM 976, at 983.


43 By the twenty-first century, this had become rare: see Chapter 2, n. 6.


44 See also Böckstiegel, ‘Party autonomy and case management: Experiences and suggestions of an arbitrator’ [2013] SchiedsVZ 1.


45 See Chapter 9.


46 These are set out at in Appendix I. The UNCITRAL Working Group II (Arbitration and Conciliation) produced a draft revised version of the Notes in its Sixty-second Session in New York, 2–6 February 2015, but at the time of writing this draft had yet to be approved.


47 See Chapter 5.


48 See also the discussion of partial and interim awards in relation to the separation of liability and quantum in Chapter 9. See also ICC Rules, Appendix IV, para. (a); ICDR Rules, Art. 16(3); AAA Rules, Art. 32(b); SIAC Rules, Art. 16(4).


49 See Redfern, ‘The arbitration between the Government of Kuwait and Aminoil’ (1984) 55 BYIL 65.


50 See Hunter and Sinclair, ‘Aminoil revisited: Reflections on a story of changing circumstances’, in Weiler (ed.) International Investment Law and Arbitration: Leading Cases from the ICSID, NAFTA, Bilateral Treaties and Customary International Law (Cameron May, 2005), pp. 347–381.


51 Note that a number of sets of institutional rules permit the tribunal to ‘direct the parties to focus their presentations on issues the decision of which could dispose of all or part of the case’: ICDR Rules, Art. 16(3); AAA Rules, Art. 32(b); SIAC Rules, Art. 16(4). See also ICC Rules, Appendix IV, para. (a); LCIA Rules, Art. 19(2).


52 See paragraph 6.03.


53 In this vein, one arbitrator has remarked, ‘I am sometimes shocked when I write the award that although we heard 25 witnesses, I am only referring to two, and I think, “why did we spend time hearing them, why did the parties bear the costs of preparing them …” ’: ‘Due process must trump efficiency, says Derains’, Global Arbitration Review, 23 September 2014.


54 Kaplan, ‘If it ain’t broke, don’t change it’ (2014) 80 Arbitration 172

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