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CHAPTER 6 – CONDUCT OF THE PROCEEDINGS
In general, an arbitral tribunal must conduct the arbitration in
accordance with the procedure agreed by the parties. If it fails
to do so, the award may be set aside, or refused recognition
and enforcement. However, the freedom of the parties to
dictate the procedure to be followed in an international
arbitration is not unrestricted. The procedure that they
establish must comply with any mandatory rules and public
policy requirements of the law of the juridical seat of the
arbitration. It must also take into account the provisions of the
international conventions on arbitration, which aim to ensure
that arbitral proceedings are conducted fairly
Party Autonomy
Article 19(1) of the Model Law provides: ‘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.’
In the exercise of their autonomous authority, the parties may
confer upon the arbitral tribunal such powers and duties as
they consider appropriate to the specific case. They may choose
formal or informal methods of conducting the arbitration,
adversarial or inquisitorial procedures, documentary or oral
methods of presenting evidence, and so forth.
Limitations of Party Autonomy
Exercise of Party Autonomy Is limited by certain requirements
that may be categorized under the following headings:
1. Equal Treatment
NYC and Model Law, Article 18 states: ‘The parties shall be
treated with equality and each party shall be given a full
opportunity of presenting his case.’
2. Public Policy
The parties must not purport to confer powers upon an arbitral
tribunal that would cause the arbitration to be conducted in a
manner contrary to the mandatory rules or public policy of the
state in which the arbitration is held. One important mandatory
rule that has already been considered requires that each party
should be given a fair hearing or, as the Model Law expresses
it, ‘a full opportunity of presenting his case’.
Any agreement between the parties purporting to confer
power on the arbitral tribunal to
perform an act that would be contrary to a mandatory rule (or
to the public policy) of the country in which the arbitration is
taking place would be unenforceable in that country, at least to
the extent of the offending provision. So would any provision
that purports to give the arbitral tribunal power to perform an
act that is not capable of being performed by arbitrators under
the law applicable to the arbitration agreement, or under the
law of the seat of arbitration
3. Arbitration Rules
By: Atty. Anna De Jesus (Philippines)
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4. Third Party

The parties may not validly agree to confer powers on an

arbitral tribunal that directly affect persons who are not parties
to the arbitration agreement, unless a special provision of the
applicable law enables them to do so.
An arbitral tribunal may direct the parties to produce
documents, to attend hearings, or to submit to examination—
but it usually has no power to compel third parties to do so.

International Practice

There is no universally recognized comprehensive set of

detailed procedural rules governing international arbitrations.

Procedural structure of a typical international Arbitration

Two elements in particular distinguish the procedural shape of

an international arbitration:
1. Unusual for arbitrators to be a resident of the Seat
2. Time spent at hearings is “premium time” in terms of
cost to the parties.
The result is that, in formulating a first procedural order,
arbitral tribunals routinely try to ensure that the procedure is
able to keep to a minimum in-person meetings prior to the
witness hearing.

Chart: Initial written submissions (request for arbitration,

answer and reply)

By: Atty. Anna De Jesus (Philippines)


Expedited Procedures
Expedited Formation
i. Emergency arbitrator procedures - These procedures
provide parties with a means of obtaining interim relief
from an emergency arbitrator appointed on an expedited
basis (usually within one or two business days) prior to the
constitution of the arbitral tribunal, providing an
alternative to seeking relief before the national courts
ii. Expedited formation of the arbitral tribunal -The LCIA Rules
provide that, in cases of exceptional urgency, a party may
apply to the LCIA Court for the expedited formation of an
arbitral tribunal
Fast Track Procedures
expedition can be achieved by the adoption of ‘fast-track’
procedures, either by means of simplified procedures available
under certain arbitral rules, or by the tribunal exercising its
discretion to abridge time limits.
Swiss Rules serve as a good example of how the procedure can
work significantly to reduce the duration of an average
arbitration. Under these Rules:
• a sole arbitrator is appointed, unless the arbitration
agreement otherwise provides and the parties are
unable to agree to the appointment of a sole arbitrator;
• written pleadings are limited to a statement of case, a
defence, and (if applicable) a counterclaim
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• and reply; unless the parties agree to a documents-
Early or summary Determination
Alternative to ‘fast-track’ procedures. This involves the early
determination of one or more claims or defenses, upon
application by a party or on the tribunal’s own initiative, on the
basis that the claim or defense in question has no prospect of
success.
Preliminary Steps
i. Preliminary meetings
it is sensible for the tribunal to convene a meeting with the
parties as early as possible in the proceedings. This ensures that
the arbitral tribunal and the parties have a common
understanding of how the arbitration is to be conducted
maybe conducted by teleconference or video conference.
Some institutional rules expressly provide for the convening of
a preliminary meeting
ii. Representation at preliminary meetings
Each party should be represented by persons with sufficient
authority and knowledge of the case to take ‘on the spot’
decisions, both in discussion with the other party’s
representatives and during the course of the meeting with the
arbitral tribunal itself.
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iii. Items to be covered at preliminary meetings
The agenda items to be addressed at a preliminary meeting
depend partly on the law governing the arbitration (for
example, in some jurisdictions, it may be necessary to
establish a submission agreement) and partly on whether the
parties have already subjected the arbitration to a set of
international or institutional rules, either for administered or
for non-administered arbitration.
The following items will usually be addressed during a
preliminary meeting:
• preliminary issues—such as jurisdictional objections,
interim relief applications, and/or bifurcation;
a. ‘Bifurcation’ of liability and quantum
b. Separation of other issues
• written submissions—including number of rounds, their
timing, structure, and length, and whether they are to
be accompanied by documentary and witness evidence
• document production;
• witnesses—including their number, the timing of
submission of witness statements or expert reports, and
any use of tribunal-appointed experts;
• the pre-hearing conference—including the venue and
timing;
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• the evidentiary hearing—including its venue and timing;
and
• other procedural and administrative matters—such as
the role of the IBA Rules on the Taking of Evidence in
International Arbitration, the chairman’s power to
make procedural orders alone, the appointment of an
arbitral secretary, and the means of communication
with the tribunal.
iv. Time out
Private meetings of the arbitral tribunal and between the
parties themselves may take place before the main case
management meeting of the arbitral tribunal and the parties.
Indeed, it is not uncommon for the main meeting to be
adjourned, or even for there to be several short adjournments,
while the arbitrators confer in private.
v. UNCITRAL Notes on Organizing Arbitral Proceedings
vi. Procedural Order No. 1
serves as a useful guideline to the parties and to the tribunal
in discussing what is required for the actual arbitration with
which they are concerned
Written Submissions
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The immediate purposes of the parties’ initial statements are
to facilitate the appointment of the arbitral tribunal, to guide
the institution or the arbitral tribunal in establishing the
amount of the deposit to be paid by the parties to secure the
costs of the arbitration, to enable the arbitral tribunal to
identify the issues that arise for determination, and to make
appropriate procedural orders for the next steps.
In ad hoc international arbitrations, when the procedure to be
followed has been established, the first step taken in almost all
cases is an exchange between the parties of some form of
written submission.
Written pleadings are usually exchanged sequentially, so that
the claimant fires the first shot, the statement of claim, and the
respondent answers with the statement of defense (and
counterclaim, if any). Exceptionally, however, the arbitral
tribunal may direct that the parties should submit their written
pleadings simultaneously, so that each party delivers a written
submission of its claims against the other on a set date, and
then, on a subsequent date, the parties exchange their written
answers and so forth. Whilst simultaneous exchanges can
reduce the overall duration of the written phase, they are more
likely to lead to the arbitral equivalent of ‘ships passing in the
night’. For this reason, simultaneous exchange remains less
common than sequential exchange for prehearing Submissions
There is no such thing as a standard time limit in international
arbitration, although periods of up to three months between
submissions are not uncommon. Arbitrators should recognize,
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however, that the longer the time limits, the lengthier the
written submissions are likely to be.
Collecting Evidence
It follows that fact-finding is one of the most significant
functions of an arbitral tribunal and it is a function that all
tribunals take seriously. The relevant facts are determined by
international arbitral tribunals either following the
presentation by the parties (usually via experienced counsel) of
documentary and/or oral evidence, or by arbitral tribunals
making their own efforts, with the assistance of the parties, to
ascertain the evidence that they consider necessary to establish
the relevant facts.
Common law & Civil law procedures
Admissibility - Whether they are from common law or civil law
countries, they tend to focus on establishing the facts necessary
for the determination of the issues between the parties and are
reluctant to be limited by technical rules of evidence that might
prevent them from achieving this goal.
Burden of Proof - The degree of proof that must be achieved in
practice before an international arbitral tribunal is not capable
of precise definition, but it may be safely assumed that it is
close to the test of the ‘balance of probability’ (that is, ‘more
likely than not’). The practice of arbitral tribunals in
international arbitrations is to assess the weight to be given to
the evidence presented in favor of any particular proposition by
reference to the nature of the proposition to be proved.
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Categories of Evidence
The evidence presented to arbitral tribunals on disputed issues
of fact may be divided into four categories:
a. production of contemporaneous documents;
b. testimony of witnesses of fact (written and/or oral);
c. opinions of expert witnesses (written and/or oral); and
d. inspection of the subject matter of the dispute.
1. Documentary Evidence
The parties produce the documents on which they intend to
rely at an early stage in an international arbitration. This will
usually be with their written submissions, which has the merit
of placing the principal documents ‘on the table’ at the earliest
practicable moment. The story becomes more complicated in
the context of documents that the parties have not chosen to
produce voluntarily.
a. IBA Rules on the Taking of Evidence in International
Arbitration – Article 3;
Redfern schedule: When one party issues a ‘request to produce’
to the other, an exchange of views takes place between the
parties’ lawyers, usually by correspondence, but sometimes at
a meeting. During this exchange, the parties’ positions become
clearer.
b. Production of electronic documents
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IBA Rules define the term ‘document’ as ‘a writing,
communication, picture, drawing, program or data of any kind,
whether recorded or maintained on paper or by electronic,
audio, visual or any other means’.
Sedona Principles: which are aimed primarily at containing to a
reasonable level the extent of the human resources that parties
may be obliged to expend in identifying documents that might
be required to be disclosed in litigation.
c. Documents in the possession of third parties
An arbitral tribunal lacks power to order production of
documents in the possession third party even where such
documents may be relevant to the matters in issue. However,
in some countries, a third party may be compelled by subpoena
to attend at the hearings to give evidence and the courts can
assist the arbitral tribunal in enforcing the attendance of such
witnesses.
d. Adverse inferences
From the silence of a party, or failure to comply with an order
of the arbitral tribunal for the production of documentary or
witness evidence.
Article 9(5) and (6) of the IBA Rules, which state:
5. If a Party fails without satisfactory explanation to
produce any Document requested in a Request to
Produce to which it has not objected in due time or
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fails to produce any Document ordered to be
produced by the Arbitral Tribunal, the Arbitral
Tribunal may infer that such document would be
adverse to the interests of that Party.
6. If a Party fails without satisfactory explanation to
make available any other relevant evidence,
including testimony, sought by one Party to which
the Party to whom the request was addressed has
not objected in due time or fails to make available
any evidence, including testimony, ordered by the
Arbitral Tribunal to be produced, the Arbitral
Tribunal may infer that such evidence would be
adverse to the interests of that Party.
2. Presentation of documents
It is of considerable assistance to the arbitral tribunal if the
parties are able to present the documentary evidence in the
form of a volume (or volumes) of documents, in chronological
order, with each page numbered like those of a book, for use at
the hearing.
3. Translations
It is usually necessary to provide translations of any documents
that are not already in the language of the arbitration. Such
translations should, if possible, be submitted to the arbitral
tribunal jointly by the parties as ‘agreed translations’.
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4. Facts witness evidence
To explain or supplement the evidentiary documents, so as to
help the arbitral tribunal to perform its fact-finding function.
Article 4 of the IBA Rules deals with the presentation of fact
witness evidence.
• Presentation of witness evidence - The IBA Rules
requires each party to indicate to the arbitral tribunal
which of the other party’s witnesses should be
required to attend the hearing for oral examination;
the arbitral tribunal itself indicates to the parties
which, if any, of the other witnesses it wishes to hear
in person
• Preparation of witnesses - whether, and if so, to what
extent, it is permissible for a party, its employees, or
counsel to interview and prepare those witnesses
whose testimony they intend to present to the arbitral
tribunal.
• Parties as witnesses
• Admissibility and weight of witness evidence - The rules
concerning admissibility of witness testimony are, in
principle, the same for written testimony as those that
are applied to witnesses when they are giving oral
testimony at a hearing before the arbitral tribunal. An
arbitral tribunal has discretion to determine the
evidentiary weight to be given to witness evidence. This
By: Atty. Anna De Jesus (Philippines)

arises from the general principles applicable to
arbitration proceedings and is expressly affirmed, for
example, in Article 27(4) of the UNCITRAL Rules
5. Taking evidence outside the seat
The Model Law also deals with court assistance in the
production of evidence. However, it was determined that
questions of international cooperation in the taking of evidence
should not be governed by a model law, but through bilateral
or multilateral conventions. Thus, it is restricted to obtaining
evidence where both the state in which the arbitration takes
place and the state in which the evidence is located are
signatories of the Model Law. In the light of inherent
limitations, the most common way of compelling the
production of evidence in arbitration is indirectly, by means of
the ability of arbitrators to draw adverse inferences from
unexcused failure to produce the requested evidence
6. Experts
There are two basic methods of proceeding in a situation in
which the arbitral tribunal itself does not have the relevant
expertise. The first is for the arbitral tribunal to appoint its own
expert or experts; the second is for the parties to present expert
evidence to the tribunal.
International arbitral tribunals have the power to appoint
experts under most arbitration Rules. Corollary to this power,
the arbitral tribunal should give the parties an opportunity to
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comment on any expertise upon which the arbitrators have
relied.
The parties’ expert evidence is normally delivered initially in the
form of written expert reports, usually at the same time as any
written statements of witnesses of fact, or shortly thereafter,
but in any event well in advance of the hearing.
Article 5(2) of the IBA Rules provides a useful summary of the
expected contents of a party-appointed expert report
Where expert evidence is introduced by the parties, the rules
regarding the admissibility of expert evidence applied by
arbitral tribunals will be, in general, the same as those applied
to other forms of evidence in the same arbitration. If the
evidence of technical opinion is conflicting (which is usually the
case), the expert witnesses must be prepared to appear in
person before the arbitral tribunal for examination.
Experts on foreign law - Nowadays, in almost all international
arbitrations, ‘law’ is treated as ‘law’. Such law is proven either
as a matter of submission by counsel (or its local co-counsel),
or by way of expert testimony in the form of an expert opinion
by a legal expert of the substantive law in issue.
7. Inspection of the subject matter of the dispute.
Article 7 of the IBA Rules provides that:
Subject to the provisions of Article 9.2, the Arbitral Tribunal
may, at the request of a Party or on its own motion, inspect or
require the inspection by a Tribunal-Appointed Expert or a
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Party-Appointed Expert of any site, property, machinery or any
other goods, samples, systems, processes or Documents, as it
deems appropriate. The Arbitral Tribunal shall, in consultation
with the Parties, determine the timing and arrangement for the
inspection. The Parties and their representatives shall have the
right to attend any such inspection.
• Procedure for inspection - arbitral tribunal has broad
discretion as to the manner in which it undertakes an
inspection of the subject matter of the dispute. Unless
the parties specifically agree otherwise, the arbitral
tribunal will normally be careful to ensure that the
principle of equality of treatment is strictly observed; it
is good practice for the arbitral tribunal to issue a
procedural direction in advance. Who is to be present?
Who will make the arrangements? Will questions and
answers or any discussion be transcribed and form part
of the record?
• Inspection under ad hoc and institutional rules of
arbitration - UNCITRAL Rules and the ICC Rules are
silent; ICSID Arbitration Rules contemplate that a site
inspection may be necessary; WIPO provides for
experiments to be conducted.
Hearings
a. Organization of hearings
Hearings are normally held on a date fixed by the arbitral
tribunal, either at the request of one or both of the parties, or
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on its own initiative; In fully administered arbitrations, the
institution itself (for example the AAA or the LCIA) sometimes
makes the arrangements.
Location - may be held at any location that is convenient for all
concerned. Subject to any mandatory provisions of law in the
seat of the arbitration, there is generally no requirement that
all hearings be physically conducted in the territory of the seat
of the arbitration.
Pre-hearing conference - Agenda items to be covered at a pre-
hearing conference can include tribunal sitting times, the
division of time between the parties, the running order, length,
and format of opening statements, the sequestration of
witnesses, the scope and length of direct cross- and redirect
examination, oral closing statements and/or post-hearing
briefs, transcription, and the preparation of hearing bundles.
b. Procedure at Hearings
The procedure at a hearing is not fixed in stone. As the
UNCITRAL Notes on Organizing Arbitral Proceedings describe:
Arbitration rules typically give broad latitude to the arbitral
tribunal to determine the order of presentations at the
hearings. Within that latitude, practices differ, for example, as
to whether opening or closing statements are heard and their
level of detail; the sequence in which the claimant and the
respondent present their opening statements, arguments,
witnesses and other evidence; and whether the respondent or
the claimant has the last word. In view of such differences, or
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when no arbitration rules apply, it may foster efficiency of the
proceedings if the arbitral tribunal clarifies to the parties, in
advance of the hearings, the manner in which it will conduct the
hearings, at least in broad lines.
i. Opening statements
ii. Examination of witnesses
IBA Guidelines on Party Representation contain advice as to the
appropriate limits of such preparation, providing that contact
between counsel and witnesses should not ‘alter the genuiness
of the Witness or Expert evidence, which should always reflect
the Witness’s own account of relevant facts, events or
circumstances’
Article 8 of the IBA Rules
Fact witnesses are usually first ‘examined’ by counsel for the
party presenting that witness, then ‘cross-examined’ by
counsel for the other party, then ‘re-examined’ by the first
counsel, if necessary. Additional cross-examination may be
introduced, with permission of the arbitral tribunal, where the
witness has given new ‘direct’ testimony during the re-
examination.
Arbitral tribunals may sustain objections to direct or redirect
examination questions based on characterizing them as
‘leading’, or ‘closed.
Witnesses are sometimes excluded, or ‘sequestered’, until they
have given their testimony, although this practice is often
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dispensed with, particularly if a witness also happens to be a
party representative.
iii. ‘Witness conferencing’ - An alternative to traditional
cross-examination is to put two or more witnesses
together to answer questions from the tribunal.
iv. Closing submissions
c. Default Hearings
An arbitral tribunal may, and indeed should, proceed ex parte
if one of the parties (almost invariably the respondent) refuses
or fails to appear. In such cases, the arbitral tribunal should
proceed with the hearing and issue its award, making sure that
the precise circumstances in which the proceedings have taken
place are specified in the award itself.
This is necessary because it is likely that a party who boycotts
an international arbitration intends to resist enforcement of
any award ultimately rendered. Since it is a legitimate ground
for refusal of recognition or enforcement of an award, whether
under the New York Convention or
otherwise, that a party has not had a reasonable opportunity to
present its case, it is desirable that the award should itself
show, on its face, the circumstances in which the respondent
did not participate. Two main problems commonly arise in
relation to such ex parte hearings: the first is what constitutes
a ‘refusal’ to participate; the second is how the arbitral tribunal
should proceed in such circumstances.
By: Atty. Anna De Jesus (Philippines)
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Post hearing briefs - common for the parties to submit post-

i. Refusal to participate
where a party does not notify its unwillingness to participate,
but creates a delay so unreasonable that the arbitral tribunal
(on the application of the other party) would be justified if it
were to treat the party in default as having abandoned its right
to present its case where a party so disrupts the hearing that it
becomes impossible to conduct it in an orderly manner.
ii. Procedure in default hearings
Where it is clear from the beginning that a party (usually the
respondent) does not propose to take part, the arbitral tribunal
usually ensures that all notifications of hearings and
correspondence continue to be sent to the defaulting party,
and that all of the participating party’s submissions and
evidence are placed before the defaulting party in written form.
The tribunal will then be justified in holding only a brief hearing,
on an ex parte basis, to review the claims and raise any
questions.
hearing briefs, often of limited
length, summarizing the main points that have emerged in
evidence and argument.
Introduction of new evidence - fresh evidence may come to
light after the hearing, but before the arbitral tribunal has
issued its award the tribunal has discretion to reopen the
proceedings at the request of the party wishing to present the
new evidence. In general, arbitral tribunals prefer to determine
a dispute with the benefit of all of the relevant evidence in their
possession. If the fresh evidence turns out to be valueless, or
without merit, the opposing party may be compensated by the
arbitral tribunal I n relation to the additional costs incurred, and
by an award of interest where this is appropriate.

The Model Law contains a provision empowering the arbitral

tribunal to continue the proceedings and to make an award
where a party fails to comply with the requirements of the
procedure agreed by the parties or established by the arbitral
tribunal. Similar provisions are to be found in modern laws of
arbitration.

d. Procedure after the Hearing

By: Atty. Anna De Jesus (Philippines)