Professor John Sharkey AM reviews issues critical to the arbitral process, including:
The importance of the preliminary conference in shaping a cost effective and prompt resolution;
What a conference must cover i.e.
Terms of engagement;
The adoption of institutional rules;
The place of the arbitration;
The adoption of rules of evidence and procedures for documents and examination of witnesses, including experts.
The ongoing management, interim measures, hearing arrangements, recording and transcription.
The preliminary conference and directions hearings
1. Commercial Arbitration - The Procedural Conference and
Directions Hearings
Resolution Institute
Professor John Sharkey AM
2. Resolution Institute
Commercial Arbitration - The Procedural Conference and Directions Hearings
• Commercial Arbitration Act 2011 (Vic)
• The paramount object - s.1AC (1)
“…………..to facilitate the fair and final resolution of commercial
disputes by impartial arbitral tribunals without unnecessary delay or
expense.”
3. Resolution Institute
Commercial Arbitration - The Procedural Conference and Directions Hearings
• The Act aims to achieve the paramount object by:
(a) enabling parties to agree on the appropriate processes; and
(b) providing procedures that enable cost effective, informal and quick
resolutions.
s.1AC (2)
4. Resolution Institute
Commercial Arbitration - The Procedural Conference and Directions Hearings
Before the procedural conference –
the arbitration agreement
the arbitrator’s terms
fees
the right to draw down on funds deposited
the form of the conference
the conference agenda
5. Resolution Institute
Commercial Arbitration - The Procedural Conference and Directions Hearings
Agenda for procedural conference
1. Representation
2. Arbitrator’s terms
3. Confirmation of jurisdiction
4. Governing law (a) of the contract
(b) of the arbitration
5. The adoption of any institutional rules
6. Resolution Institute
Commercial Arbitration - The Procedural Conference and Directions Hearings
Agenda for procedural conference (cont)
6. The treatment of documentary evidence
(a) The IBA Rules on the Taking of Evidence in International Arbitration
(b) CIArb Protocol for E-disclosure in Arbitration
7. Oral hearing or documentation only
8. Hearing
7. Resolution Institute
Commercial Arbitration - The Procedural Conference and Directions Hearings
Agenda for procedural conference (cont)
8. Hearing
• Program for statements of case/ factual witnesses’ statements/expert reports
• Appointment of first day of hearing
• Duration of hearing
• Witnesses sworn or not?
• The form of submissions
8. Resolution Institute
Commercial Arbitration - The Procedural Conference and Directions Hearings
Agenda for procedural conference (cont)
9. View
10. Venue
11. Communications with the tribunal
12. Date for further procedural conference
11. Resolution Institute
Commercial Arbitration - The Procedural Conference and Directions Hearings
Procedural Order no.1 - General provisions
2. Should a party seek any variation or supplement to these directions that party
should first seek the agreement of the other party to any proposed changes.
Should agreement be reached the tribunal shall promptly be informed of the
changes agreed. Failing agreement the parties are at liberty to apply on written
notice to the other party and to the tribunal to vary or add to these directions.