The ICC Commission on Arbitration and ADR launched its guide for In-House Counsel and Other Party Representatives on Effective Management of Arbitration on 6 June 2014.
According to the ICC, the purpose of the guide is to provide main actors of arbitration with “a practical toolkit for making decisions on how to conduct an arbitration in a time-and-cost-effective manner, having regard to the complexity and value of the dispute”.
The 65 pages Guide is focused on most frequent time and cost issues in the management of arbitrations, rather than strategic considerations, which tend to be case-specific.
The guide provides a checklist of the procedural decisions that need to be made at each principal phase of an arbitration.
It is worth noting that this guide was conceived with the ICC Rules of Arbitration in mind, but most of the guide can be applied to arbitrations conducted under other institutions.
The guide is split into three sections:
- Settlement considerations:
This section gives examples of methods and procedures available to reach settlement before and at any time throughout arbitration in order to save a great deal of time and cost.
The guide notably covers settlement methods that can be used under the ICC ADR rules, but not necessarily, that is mediation, neutral evaluation and “mini-trials”
- Case management conference (CMC)
Article 24 (1) of the ICC Rules of arbitration already set up the CMCs, which consist of meetings between the tribunal and parties at which practical issues of the arbitration will be resolved in an expeditious and cost effective manner.
The guide further describes the usefulness of CMCs at an early stage of the procedure to set (i) the number of rounds of briefs, (ii) the extent of document production, (iii) the timetable to be followed, and whether an oral hearing is required, etc….
- Topic sheets
The guide contains eleven “Topic Sheets” to assist parties, counsel and tribunals to make appropriate choices for the conduct of the arbitration, based on the day to day practice of the guide’s authors at each stage of the arbitration process:
- Request for arbitration: drawing the pros and cons of a short brief or a comprehensive brief;
- Answer to the Request and counterclaims: considering whether a short or longer answer might facilitate settlement discussions,
- Multiparty arbitration: whether it is beneficial to choose a single arbitration with all relevant parties or two or more separate arbitrations,
- Early determination of issues: whether breaking out issues in a partial award, such issues may include a decision on the meaning of a contractual provision or a decision on the applicable law etc…”;
- Rounds of written submissions, regarding how many subsequent rounds of written submissions are appropriate, taking into account the increase of length and cost ;
- Document production: the extent to which one party may request that another party produce documents;
- Need for fact witnesses: raises the question whether there is a genuine need for fact witnesses, and, in the affirmative, how to identify the issues on which fact witnesses are necessary;
- Fact Witness statements: scope and length of witness statements, and appropriate time for submitting them;
- Expert witnesses (pre-hearing issues): whether and how to appoint experts, with each possibility (i.e., expert appointed by the parties, the tribunal or both) ;
- Hearing on the merits (including witness issues): appropriate length of the hearing and organizational matters (direct examination, cross-examination, witness conferencing…);
- Post-hearing briefs: pros and cons.
For each of the topics, the “guidelines” set out the relevant provisions in the ICC Rules that may be referred to, and the options than the parties have in designing the process. They then discuss the pros and cons and provide a cost-benefit analysis.
The new guide provides party representatives with tools to assist them in accomplishing this important task, in order to “tailor make” an effective procedure that suits the needs and particularities of each case.
It shows the ICC’s concern to preserve and promote the time and cost effectiveness of arbitration, as recently shown through the “emergency arbitration” procedure (Article 29 of the 2012 ICC Rules) and through Article 37.5, pursuant to which “in making decisions as to costs, the arbitral tribunal may take into account such circumstances as it considers relevant, including the extent to which each party has conducted the arbitration in an expeditious and cost-effective manner”.
Therefore, the question which arises today is whether arbitration practitioners will refer to this guide or recommend to their clients to read it thoroughly before starting the arbitration, in order to preserve time and cost effectiveness of arbitration.
The guide is available here.