1. SAVING TIME AND COSTS IN COMMERCIAL ARBITRATION
Oluwaseyi Bamigboye 1
Arbitration is a valuable tool for the resolution of disputes. However, if it is to serve the needs of
its users, it must be time and cost effective. [Commercial] Arbitration2
is a procedure for the
settlement of disputes, under which the parties agree to be bound by the decision of an arbitrator
whose decision is in general, final and legally binding on both parties.3
It derives its force
principally from the agreement of the parties to submit their claims or disputes to one or more
persons chosen by them to serve as their arbitrator;4
and in addition from the state as supervisor
and enforcer of the legal process.5
Conventional wisdom suggests that businesses choose binding
arbitration mainly because it ensures cost savings and shorter resolution times6
inter alia. These
are often touted as one of arbitration’s top advantages over traditional court litigation.7
Mounting
delays and escalating costs have led many to wonder whether arbitration is really preferable to
litigation.8
With the rise in popularity of this dispute resolution alternative, especially among
1
LL.B (Hons.) (Ibadan)
2
Section 57(1) of the Arbitration and Conciliation Act, Cap A18 Laws of Federation of the Federal Republic of
Nigeria 2004. See also Nigerian National Petroleum Corporation v. Lutin Investment Ltd & Anor (2006) 2 NWLR
(Pt.965) 506.
3
Orojo J O. and Ajomo M.A. (1999) Law and Practice of Arbitration and Conciliation in Nigeria. Lagos: Mbeyi &
Associates (Nigeria) Limited p. 3
4
Wesley A. St. 1960. Arbitration – W hat Is It?, 35 New York University Law Review 1031. Faculty Scholarship
Series, Yale Law School Faculty Scholarship. Retrieved February 7, 2015. 2.29pm at
http://digitalcommons.law.yale.edu/fsspapers
5
Orojo J O and Ajomo M.A. op.cit 3. See also. Stewart R.S, (1996). The Applicable law in International Arbitration
under the New English Arbitration Act, Volume XIII, No IV, 1997, The Journal of the London Court of
International Arbitration, Retrieved February, 7, 2015. 2:38pm at http://www.srshackleton.com/publications/
6
Gary Born (2012) International Arbitration: Law and Practice, Netherlands: Wolters Kluwer International pp. 14;
David B. L & Ronald L. S, (1998). The Appropriate Resolution Of Corporate Disputes: A Report On The Growing
Use Of Adr By U.S. Corporations 17 tbl.15, available at
http://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?article=1003&context=icrpubs; Richard W. N &
Stephanie E. K, (2002) International Private Commercial Arbitration: Expectations and Perceptions of Attorneys
and Business People, 30 INT’L BUS. LAW. 203, 203–04 (performing a simple forced-rank analysis of factors
important to attorneys and clients in AAA international arbitration cases).
7
Ibid
8
Siegfried Elsing, 9 Ger. Arb. J. 114, 115 (2011); Thomas Stipanowich, 2010. Arbitration: The 'New Litigation',
U.111. L. Rev. 1, 5; Patrick Bourke, Financial Aspects of Dispute Resolution, IBA Arbitration Committee
Newsletter, Mar. 2009, p. 9; Knocking Heads Together, The Economist, 1 Feb. 2007 . Robert G. (2005) Society of
Construction. Law, Trends In Construction Dispute Resolution, http://www.scl.org.uk/files/129-gaitskell.pdf;
Editorial, 17 CONSTR. L.J. 1, 1–2 (2001); Leslie A. G, Clause for Alarm, A.B.A. J., Nov. 2006, at 19; Sylvia Hsieh,
Arbitration Falling out of Vogue, LawyersUSA, Mar. 10, 2008, at 1; Mary Swanton, System Slowdown: Can
Arbitration Be Fixed?, INSIDECOUNSEL, May 2007, at 51; Lou Whiteman, Arbitration’s Fall from Grace,

2. sophisticated parties in complex international matters, many of those having gone through an
arbitration procedure attest that this is more of a myth than a reality and that arbitration may not
be so inexpensive and timeous after all.9
In fact, the arbitration community is increasingly
concerned with reducing the costs of arbitration, and ensure timely resolution so it can continue
to serve as a financially viable and attractive alternative to litigation10
because the longer the
proceedings, the more expensive they will be.11
The best way to truly ensure this is to identify
the areas where cost and time quickly accrue and then design ways by which an arbitrator can
save time and rein in such cost. Below are a few ways to save time and cost.
1. Use of Pre-hearing meetings
Pre-hearing meetings are held at the early stage of commencement of arbitration, and are
attended in person by the arbitrator, counsel, clients and experts where all preliminary matters
to assist the arbitral tribunal are discussed and implemented to achieve agreement on matters
affecting the organization, conduct and guidelines for the arbitration.12
It helps parties in
dispute to simplify the issues to be determined, to fix hearing dates, to obtain stipulations
pertaining to foundation for testimony or exhibits, to hear and rule upon evidentiary
objections to pre-filed testimony, to identify the proposed witnesses for each that may be
necessary or advisable, and if possible, to reach a final settlement without the necessity for
further hearing. This is significant in saving time as it helps parties to separate issues from
issues because it may later be seen that there was actually no dispute between the parties and
LAW.COM, July 13, 2006, http://www.law.com/jsp/cc/PubArticleCC.jsp?id=900005457792. Michael M. Marick et
al., Excess, Surplus Lines and Reinsurance: Recent Developments, 26 TORT & INS. L.J. 231, 232 (1991); Barry
Richard, Corporate Litigation: Arbitration Clause Risks, NAT’L L.J., June 14, 2004, at 13, 13; Benjamin J.C. Wolf,
On-line but Out of Touch: Analyzing International Dispute Resolution Through the Lens of the Internet, 14
CARDOZO J. INT’L & COMP. L. 281, 306–07 (2006) (describing the disadvantages of arbitration, include costs
similar to litigation and lengthy discovery process and hearings).
9
Daniel E. González, 2014. Special Report: International Dispute Resolution, Financier Worldwide Magazine,
October 2014 Issue.
10
ICC Commission Report 2012. Techniques for Controlling Time and Costs in Arbitration. Second Edition Report
of the ICC Commission on Arbitration and ADR Task Force on Reducing Time and Costs in Arbitration available at
www.iccwbo.org/data/policies/2012/ICC-Arbitration-Commission-Report-on-Techniques-for-Controlling-Time-
and-Costs-in-Arbitration-2012/
11
Ibid
12
Candide Johnson C.A and Shashore O (2011) Commercial Arbitration Law and International Practice in Nigeria,
LexisNexis, Durban, South Africa. p. 78

3. would then have accrued. Agreement on pertinent issues at the pre-hearing meeting becomes
part of the evidence at the hearing stage.
2. Using a Scott Schedule
The Scott schedule was held to be invented by Mr. George Alexander Scott who was a
surveyor and official referee.13
It is a formal document commonly used in Construction and
Property disputes, but can be useful in any complex arbitration matter, which sets out the
issues in dispute in tabular form.14
An arbitrator can therefore save time and cost by
employing the Scott schedule devoid of legal technicality and formality15
so as to more
conveniently compartmentalize what may otherwise be a complex technical dispute in order
to facilitate the effective identification of real and contentious issues in dispute and separate
the most significant issues from trivial issues hence assist the arbitrator to identify issues that
are agreed by the parties, and focus on the remaining issues that are crucial to the dispute
which will inevitably save costs and time in arbitration. Rather than for an arbitrator to
constantly refer to a vast volume of pleadings, the Scott schedule technique makes it relatively
easier to focus on contested issues and inevitably reduces the time and cost involved both at
the hearing and decision stage of an arbitral proceedings.16
3. By Exchanging Written proofs in advance
The arbitrator can order the parties to submit most of the things they are going to rely on
during the hearing to the arbitral tribunal. Modern litigation practice demands that the
documents to relied on and witness statements attached with those documents are ‘front
loaded’ i.e. sent before the magistrate or judge before hearing. An arbitrator can save a lot of
time by permitting the disputants to exchange and admit their written proofs of evidence in
place of oral presentation. This affords an opportunity for the arbitrator to scrutinize all those
13
Keating Chamber Barristers: History of Chambers http://www.keatingchambers.co.uk/about/history/default.aspx
accessed February 7 2015
14
David Chappell et al (2009) Building Law Encyclopedia United Kingdom: John Wiley & Sons Ltd
15
Michael Roberts Greens List Barristers, The Agreement to Arbitrate – Pitfalls and Benefits
http://www.greenslist.com.au/michael-roberts.html accessed February 7, 2014
16
Conference on International arbitration Panel 4: Reducing time and saving cost; Use of the ‘Scott Schedule’ to
expedite Resolution of Quantum Issues
<http://www.klgates.com/files/upload/international_arbitration_seminar_panel_4.pdf>accessed February 7, 2014

4. documents and select the ones that are necessary, thus saving time in the arbitral process. This
is allowed under Section 19(1) of the Act17
as well as Article 3(1) of the International Bar
Association Rules.18
In addition, an arbitrator can instruct that parties provide him with a
binder containing joint exhibits to avoid duplication.
4. By Admitting written statements in place of opening and closing speeches
Every witness adds to the costs, both when a witness statement is prepared and considered and
when the witness attends to give oral evidence. Costs can be saved by limiting the number of
witnesses to those whose evidence is required on key issues. The arbitrator may assist in
identifying those issues on which witness evidence is required and focusing the evidence from
witnesses on those issues. This whole process will be facilitated if the parties can reach
agreement on non-controversial facts that do not need to be addressed by witness evidence.
Where witness statements are required, the arbitrator should consider the timing for the
exchange of such statements so as to minimize the number of rounds of statements that are
required. For example, consider whether it is preferable for witness statements to be
exchanged after all documents on which the parties wish to rely have been produced, so that
the witnesses can comment on those documents in a single statement.
5. Choosing the best or appropriate location for hearings
Pursuant to Article 18 of the ICC Rules,19
which is similar to Section 16 of the Act,20
hearings
do not need to be held at the place of arbitration. The arbitrator and the parties can select the
most efficient place to hold hearings. In many cases, it may be more cost and time-effective to
hold hearings at a location that, for example, is convenient to the parties and majority of the
witnesses due to give evidence at that hearing in order to reduce travelling expenses and at the
same time expedite the proceedings. This is however possible unless where otherwise agreed
by the parties.
17
Arbitration and Conciliation Act Cap A18 Laws of Federation of Nigeria 2004
18
IBA Rules on the Taking of Evidence in International Arbitration
http://www.ibanet.org/Document/Default.aspx?DocumentUid=68336C49-4106-46BF-A1C6-A8F0880444DC.
Accessed February 7 2015
19
ICC Rules on Arbitration 2012
20
Arbitration and Conciliation Act, Laws of Federation of Nigeria,2004.