Preliminary Meetings With The Arbitral Tribunal - What Are They For?

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Introduction

After an arbitral tribunal is chosen and properly appointed, the arbitrators will often organise preliminary meetings with the parties. Such meetings are a useful opportunity for the arbitrators to meet the lawyers representing the parties, who may not themselves have had a chance to meet since much of the early procedure will have been conducted by correspondence.

Preliminary meetings have taken on added practical significance given the broad latitude parties now enjoy to structure the arbitral proceedings according to their own views of what is convenient and cost-effective and the arbitrator's duties under section 33 of the Arbitration Act 1996. Such meetings can contribute to the efficiency of the dispute resolution process as they allow parties to address factors that were unpredictable when the parties agreed to their arbitration clause. They provide an opportunity for the parties and the tribunal to focus on the main issues of the dispute and more importantly, to discuss procedure and evidence. They can be useful even where the parties have opted for institutional arbitration since most sets of rules, designed for adaptability to a variety of disputes and universal acceptance across legal systems, only set out general principles, not detailed regulation of the actual procedural questions parties will face during arbitration.

Although such questions can be resolved during the proceedings if, and when, they arise, preliminary meetings are an appropriate moment to settle, if not the detail of the procedures, at least the broad outlines, and some of the principal procedural features the parties require. It is no longer a given fact that English rules of procedure will apply. If the parties attach importance to a certain device of procedure, discovery for example, they should indicate their preferences to the tribunal. The more agreement there is on general questions early on, the less time will be lost by the parties arguing procedural points later in the proceedings.

Preliminary meetings may also be an opportunity to reinforce the parties' agreement to arbitrate their disputes by making important choices the parties may have left undecided: place, language, applicable law. They may also help to resolve disputes about the appointment of the arbitrators, to reveal and repair any defects in the arbitration agreement or to clarify questions of identity and proper names for the parties. Questions as to who the proper parties to the dispute are and whether any others might be joined may also be resolved. When such questions cannot be resolved, the parties will be faced with jurisdictional disputes they may wish to organise separately from the disputes on the merits.

Points to consider

The procedures the parties will want to consider will vary greatly depending on the nature of the transaction giving rise to the dispute. However, the following points should, in general, be addressed at the outset:

• the parties should confirm their representatives and resolve all questions of the place and manner of communicating documents to each other and the tribunal - this will help prevent the possibility of one party later arguing that it did not receive proper notice of the proceedings;
• is there any need for interim or conservatory measures?
• the costs of the arbitration, manner of payment and the arbitrators' fees should be considered;
• the parties should consider whether an accelerated or 'fast-track' procedure is appropriate - can the parties agree that the arbitral tribunal will decide the issues on documents alone?
• can the parties agree, even partially, to the facts and a list of the issues to be resolved?
• whether resolution of the dispute will involve many documents, the means of managing them, the manner in which they should be filed before the tribunal, numbered as exhibits and provided to the other side;
• whether the parties desire any form of discovery and whether there should be limits on the types of documents submitted;
• if more than one language is involved, whether translations will be required and who should bear the cost, whether documents should be entirely translated or only in pertinent parts (this can become relevant with respect to the case law filed by the parties) with discretion reserved to the tribunal to require further translation;
• whether the arbitrators should be empowered to decide the dispute in equity or in accordance with the applicable law supplemented by general principles of international law of contracts, trade usages or other similar considerations;
• decisions should be made on the number, order and types of pleadings the parties will be expected to file and if possible parties should agree on a provisional procedural calendar for the submission of the written pleadings;
• whether a formal hearing is necessary. If so, details regarding the hearing can be considered at a further organisational meeting after the pleadings have been filed and it is clear what the hearing will have to accomplish;
• whether any of the powers of the tribunal should be curtailed or removed. Under the Arbitration Act 1996, unless the parties have agreed otherwise, the arbitators have wide powers that English practitioners may not always consider, for example, to award compound interest, to cap recoverable costs, to appoint independent experts or to conduct the proceedings in an inquisitorial manner;
• whether any technical or legal expertise will be required and the modalities of such expertise - do the parties wish to appoint their own experts or ask the tribunal to appoint a neutral expert?
• in the interest of finality the parties may, if they have not already done so in their arbitration clause, wish to exclude recourse to the courts for determinations of preliminary points of law or appeals on questions of law.

Parties and arbitrators are well advised to carefully prepare their initial meetings. They should be held on the basis of a fixed agenda and, if possible, a draft agreement or Procedural Order covering the various points that need to be addressed. Any agreements the parties come to on these issues should be committed to writing.

This article was first published by FT Law & Tax in Practical Arbitration Journal. Further information can be found at Click Contact Link on the FT Law & Tax home page.

This note is intended to provide general information about some recent and anticipated developments which may be of interest. It is not intended to be comprehensive nor to provide any specific legal advice and should not be acted or relied upon as doing so. Professional advice appropriate to the specific situation should always be obtained.