Book contents
- Frontmatter
- Dedication
- CONTENTS VOLUME I
- Contents
- Table of Cases
- Table of Statutes
- Table of Statutory Instruments
- PART I MEDIATION
- PART II ARBITRATION
- Chapter 3 Commercial Arbitration: What Is It and Why Choose It?
- Chapter 4 The Major Principles of Arbitration and Litigation: A Comparison
- Chapter 5 Fundamental Features of English Arbitration
- Chapter 6 ‘The Seat’ and the Range of Relevant Laws
- Chapter 7 ‘Arbitrability’: Public Policy Limitations upon the Scope of Arbitration
- Chapter 8 A Confidential Process
- Chapter 9 Arbitration Agreements
- Chapter 10 Courts Giving Effect to Arbitration Agreements
- Chapter 11 Commencement of the Submission and Time Issues
- Chapter 12 The Tribunal's Appointment, Tenure and Immunity
- Chapter 13 Pre-Hearing Proceedings
- Chapter 14 The Hearing
- Chapter 15 Final Remedies, the Award, and Correction of the Award by the Tribunal
- Chapter 16 Fees, Expenses and Recoverable Costs
- Chapter 17 Arbitration Awards: Issues of Finality and Res Judicata
- Chapter 18 Challenges to English Arbitral Awards under English Law
- Chapter 19 English Enforcement of English Awards
- Chapter 20 Enforcement under the New York Convention (1958)
- PART III CONSUMER ADR
- Select Bibliography
- Index to Volumes I and II
Chapter 13 - Pre-Hearing Proceedings
from PART II - ARBITRATION
Published online by Cambridge University Press: 13 December 2017
- Frontmatter
- Dedication
- CONTENTS VOLUME I
- Contents
- Table of Cases
- Table of Statutes
- Table of Statutory Instruments
- PART I MEDIATION
- PART II ARBITRATION
- Chapter 3 Commercial Arbitration: What Is It and Why Choose It?
- Chapter 4 The Major Principles of Arbitration and Litigation: A Comparison
- Chapter 5 Fundamental Features of English Arbitration
- Chapter 6 ‘The Seat’ and the Range of Relevant Laws
- Chapter 7 ‘Arbitrability’: Public Policy Limitations upon the Scope of Arbitration
- Chapter 8 A Confidential Process
- Chapter 9 Arbitration Agreements
- Chapter 10 Courts Giving Effect to Arbitration Agreements
- Chapter 11 Commencement of the Submission and Time Issues
- Chapter 12 The Tribunal's Appointment, Tenure and Immunity
- Chapter 13 Pre-Hearing Proceedings
- Chapter 14 The Hearing
- Chapter 15 Final Remedies, the Award, and Correction of the Award by the Tribunal
- Chapter 16 Fees, Expenses and Recoverable Costs
- Chapter 17 Arbitration Awards: Issues of Finality and Res Judicata
- Chapter 18 Challenges to English Arbitral Awards under English Law
- Chapter 19 English Enforcement of English Awards
- Chapter 20 Enforcement under the New York Convention (1958)
- PART III CONSUMER ADR
- Select Bibliography
- Index to Volumes I and II
Summary
MATTERS OF ARBITRAL PROCEDURE IN GENERAL
Party autonomy extends to procedural matters.
The arbitrator has considerable freedom to organise the proceedings to ensure fairness, efficiency and speediness (Russell supplies a helpful checklist of procedural matters which can be considered in advance). Subject to the parties’ contrary agreement, the arbitrator can fix the nature of the proceedings in a wide range of respects. He can determine: its place and language; use of witness statements; disclosure of documents; examination of parties; whether to apply formal rules of evidence on questions of admissibility, relevance and weight; whether to take ‘the initiative in ascertaining the facts and the law’; use of oral or written evidence as submissions; as well as issuing ‘directions’ concerning matters of timing for all these steps and measures.
The need for arbitrators to avoid the lazy instinct simply ‘to copy the CPR’ (or Commercial Court Guide) is echoed in the 2006 report on the operation of the Arbitration Act 1996. But arbitration agreements seldom prescribe detailed matters of procedure. There is also the sceptical view that rather than seeking customised procedural refinement, the better way to secure speediness and efficiency is simply to appoint the best tribunal or solo arbitrator.
There are three ways in which the procedure might be established: (i) by express agreement, the parties might have chosen a procedure prescribed by a trade association; or (ii) by an arbitration association or institute (in cross-border arbitration this is a common arrangement); (iii) (by default) the arbitrator will himself select the appropriate procedure (on ad hoc and institutional forms of arbitration, 3.69 to 3.70).
As for this last possibility, the architects of the 1996 Act exhorted arbitrators to take the initiative, where appropriate, to suggest or adopt a process to suit the particular case. They should not slavishly mimic the settled procedures of High Court litigation. For the most part, these items of ordinary civil procedure are ‘on the menu’ for the parties to select, or for the arbitrator to suggest or adopt. But for arbitrators to plagiarise wholesale the High Court procedural rules would be excessive, disproportionate, unnecessarily time consuming, and certainly unimaginative. It would also probably defeat the expectations of the parties themselves.
- Type
- Chapter
- Information
- Andrews on Civil ProcessesArbitration and Mediation, pp. 261 - 284Publisher: IntersentiaPrint publication year: 2013