11/19/2018

4.0
Procedure and conduct
of arbitral proceedings

Professor Steve Ngo

Pre-commencement of arbitration –
some initial considerations
• Breakdown in negotiation or mediation, to proceed to arbitration
• If mediation has taken place, be mindful of any offers made (though
maybe unacceptably low) because the other party may raise this at
arbitration stage to request for costs to be awarded
• Is there an arbitration clause?
• Time bar to raise claims? What is the governing law of the contract?
• Gather evidence; appointment of counsel (if not self-represented)
• Counsel to provide legal opinion, draw up chronology, preparing
skeletal of claim statements and facts, etc
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Pre-commencement of arbitration –
representative
• Parties can self-represent and lack of experience cannot be used
against the parties by the tribunal or even counsel representing one of
the party
• Typically foreign counsels can appear before tribunals located in other
jurisdictions – see Turner (East Asia) Pte Ltd v Builders Federal (Hong
Kong) Ltd & Anor [1988] SLR 1037.
• UNCITRAL Arbitration Rules, Art. 5:
– Each party may be represented or assisted by persons chosen by it. The
names and addresses of such persons must be communicated to all parties
and to the arbitral tribunal. Such communication must specify whether the
appointment is being made for purposes of representation or assistance.
Where a person is to act as a representative of a party, the arbitral tribunal, on
its own initiative or at the request of any party, may at any time require proof
of authority granted to the representative in such a form as the arbitral tribunal
may determine.

Pre-commencement of arbitration –
representative
• ICC Rules:
– No defined qualification of party representative. Tribunal or ICC
Secretariat may require proof of the authority (Art. 17). See also Art.3(2) &
(3); Art. 4(3)(b); Art. 5(1)(b), Art. 23; Art. 26(4)

• Model Law and many national arbitration laws are silent

because its local legal profession act would have dealt with the
question of foreign counsels can appear before arbitral tribunals.
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Commencement of arbitration –
checklist
• Arbitration clause in the contract: is there an arbitration clause? Is the
arbitration clause unambiguous, valid, effective? (not a pathological
clause)
• Ad-hoc or institutional arbitration? Which rules/national law or which
arbitration institution?
• Notice of Arbitration (NOA)/ Request for Arbitration (RFA) – establish the
required format for NOA/ RFA
• Choice of arbitrators – consider the names of potential arbitrator
candidates
• Statement of claim – this is expected to be incorporated in the NOA.
Depending on the procedural rules, claimant maybe allowed to
amend its statement of claim or if permitted, to indicate that it will be
provided subsequent to the NOA/RFA

Commencement of arbitration –
NOA/RFA
• Communication: (UNCITRAL Model Law)
– Claimant shall “communicate” with respondent
– Need for ‘receipt of written communications’, service of
notice/documents: ML Art.3(1)(a) stipulates “any written communication is
deemed to have been received if it is delivered to the addressee
personally or if it is delivered at this place of business, habitual residence
or mailing address; if none of these can be found after making a
reasonable inquiry, a written communication is deemed to have been
received if it is sent to the addressee’s last-known place of business,
habitual residence or mailing address by registered letter or any other
means which provide a record of the attempt to deliver it.
– Communication is deemed to have been received on the day it is so
delivered (ML Art. 3(1)(b))
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Commencement of arbitration –
NOA/RFA
• Communication: (ICC Rules)
– Claimant to communicate to the institution/ arbitration centre
– All notifications or communications from the Secretariat and the arbitral
tribunal shall be made to the last address of the party or its representative
for whom the same are intended, as notified either by the party in
question or by the other party. Such notification or communication may
be made by delivery against receipt, registered post, courier, email, or
any other means of telecommunication that provides a record of the
sending thereof. (Art. 3(2))
– A notification or communication shall be deemed to have been made on
the day it was received by the party itself or by its representative, or would
have been received if made in accordance with Article 3(2). (Art. 3(3))

Commencement of arbitration –
NOA/RFA
• Form: (UNCITRAL Rules)
– (No mention in Model Law)
– UNCITRAL Rules of Arbitration, Art.3(3): The notice of arbitration shall include
the following to the Respondent by the Claimant:
– (a) A demand that the dispute be referred to arbitration;
– (b) The names and contact details of the parties;
– (c) Identification of the arbitration agreement that is invoked;
– (d) Identification of any contract or other legal instrument out of or in
relation to which the dispute arises or, in the absence of such contract or
instrument, a brief description of the relevant relationship;
– (e) A brief description of the claim and an indication of the amount
involved, if any;
– (f) The relief or remedy sought;
– (g) A proposal as to the number of arbitrators, language and place of
arbitration, if the parties have not previously agreed thereon.
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Commencement of arbitration –
NOA/RFA
• Form:
– UNCITRAL Rules of Arbitration, Art.3(4): The notice of
arbitration may also include:
– (a) A proposal for the designation of an appointing Authority;
– (b) A proposal for the appointment of a sole arbitrator
– Referred to in article 8, paragraph 1;
– (c) Notification of the appointment of an arbitrator in the case of
tribunal of 3 arbitrators

Commencement of arbitration –
NOA/RFA
• Form: (ICC Rules)
– A Request for Arbitration shall be submitted by the Claimant to the
Secretariat office and shall contain the following (Art.4(3)):
– a) the name in full, description, address and other contact
details of each of the parties;
– b) the name in full, address and other contact details of any
person(s) representing the claimant in the arbitration;
– c) a description of the nature and circumstances of the dispute
giving rise to the claims and of the basis upon which the claims
are made;
– d) a statement of the relief sought, together with the amounts of
any quantified claims and, to the extent possible, an estimate of
the monetary value of any other claims;
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Commencement of arbitration –
NOA/RFA
• Form: (ICC Rules)
– A Request for Arbitration shall be submitted by the Claimant to the
Secretariat office and shall contain the following (Art.4(3)):
– e) any relevant agreements and, in particular, the arbitration
agreement(s);
– f) where claims are made under more than one arbitration
agreement, an indication of the arbitration agreement under
which each claim is made;
– g) all relevant particulars and any observations or proposals
concerning the number of arbitrators and their choice in
accordance with the provisions of Articles 12 and 13, and any
nomination of an arbitrator required thereby; and
– h) all relevant particulars and any observations or proposals as
to the place of the arbitration, the applicable rules of law and
the language of the arbitration.

Commencement of arbitration –
Response to NOA/RFA
• Model Law: No mention of response to NOA nor form for NOA (including
national arbitration laws).

• Form: (UNCITRAL Rules)

– Within 30 days of receipt of NOA, respondent shall communicate the
following (Art.4(1)):
– (a) The name and contact details of each respondent;
– (b) A response to the information set forth in the notice of arbitration, pursuant
to article 3, paragraphs 3 (c) to (g):
– (c) Identification of the arbitration agreement that is invoked; (d)
Identification of any contract or other legal instrument out of or in relation
to which the dispute arises or… (e) A brief description of the claim and an
indication of the amount involved, if any; (f) The relief or remedy sought;
(g) A proposal as to the number of arbitrators, language and place of
arbitration, if the parties have not previously agreed thereon.
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Commencement of arbitration –
Response to NOA/RFA
• Form: (ICC Rules)
– Within 30 days of receipt of RFA, respondent shall submit an “Answer”
which shall contain the following (Art.5(1)):
– a) its name in full, description, address and other contact details;
– b) the name in full, address and other contact details of any person(s)
representing the respondent in the arbitration;
– c) its comments as to the nature and circumstances of the dispute giving rise
to the claims and the basis upon which the claims are made;
– d) its response to the relief sought
– The Secretariat may grant the respondent an extension of the time for
submitting the Answer, provided the application for such an extension
contains the respondent’s observations or proposals concerning the
number of arbitrators and their choice and, where required by Articles 12
and 13, the nomination of an arbitrator.

Service of notice: remember!

• Ad hoc arbitrations
– Communicate to the respondent; e.g. UNCITRAL Arbitration Rules, Art. 3(1)

• Administered arbitrations
– NOA or RFA to the institution and not respondent; e.g. ICC Rules Art. 4(1)

• Failure of proper notice could lead to:

– Re-serving of notice resulting in delay
– Respondent may be denied opportunity to participate in the hearing thus
implication on enforcement of award or its setting aside

• In practice, counsels will also ‘play safe’ but looking up current address
to avoid unnecessary argument about ‘last known place of business’
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Appointment of arbitrators
• Default number of arbitrators according to the rules or national
arbitration laws, if the parties cannot agree
• Arbitration & Conciliation Act (s.10(2)): sole arbitrator
• UNCITRAL Rules of Arbitration (Art.7(1)): sole arbitrator
• ICC Rules (Art. 12(2)): sole arbitrator unless the dispute warrants
three arbitrators
• UNCITRAL Model Law (Art. 10(2)): three arbitrators

Appointment of arbitrators
• Default number of arbitrators according to the rules or national
arbitration laws, if the parties cannot agree
• Arbitration & Conciliation Act (s.10(2)): sole arbitrator
• UNCITRAL Rules of Arbitration (Art.7(1)): sole arbitrator
• ICC Rules (Art. 12(2)): sole arbitrator unless the dispute warrants
three arbitrators
• UNCITRAL Model Law (Art. 10(2)): three arbitrators
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Typical method of appointment of

arbitrators
• Ad hoc/national arbitration law: parties are free to agree on the
procedure failing which:
• Sole arbitrator:
– Model Law: Failing agreement, the court or authority specified shall appoint
the sole arbitrator upon the request of a party (Art. 11(3)(b)). If the parties have
prior agreement on the procedure for appointment but a party fails to act on
it or the parties cannot reach an agreement, then the court or authority
specific shall make the appointment (Art.11(4)(a)&(b)
– UNCITRAL Rules: 30 days after receipt by all other parties of a proposal to
appoint a sole arbitrator and no agreement is reached, then the appointing
authority shall make the appointment (Art. 8(1))
– ICC Rules: if the parties have agreed to sole arbitrator and cannot agree to
nominate the same within 30 days after RFA, then the Court shall make the
appointment (Art. 12(3)).

Typical method of appointment of

arbitrators
• Three arbitrators:
– Model Law: Each party shall appoint one arbitrator, two arbitrators
appoint the third arbitrator. If a party fails to appoint an arbitrator or the
two arbitrators cannot appoint the third, within 30 days, the court shall
make the appointment (Art.11(3)(a)).
– UNCITRAL Rules: Each party shall appoint one arbitrator, two arbitrators
appoint the third arbitrator (Ar. 9). If a party fails to appoint an arbitrator or
the two arbitrators cannot appoint the third, within 30 days, the appointing
authority shall make the appointment (Art. 9).
– ICC Rules: each party shall nominate one arbitrator for ICC’s confirmation,
failing which the Court shall make the appointment (Art. 12(4).
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Constituted arbitral tribunal

• Arbitrator to do conflict check and confirm acceptance
• If required, submit declaration of independence and impartiality
• If no declaration is required, to voluntarily declare to parties that there
is no justifiable doubts exist
• In tribunal of three arbitrators, Chair or Presiding arbitrator will usually
take the lead in communication but with approval from all other
arbitrators. Such communication will be ‘sent on behalf of the arbitral
tribunal’
• Question of procedure can be decided by presiding arbitrator only,
with authorization by the parties or members of tribunal (e.g. arbitrators
could be located overseas and in different time zones): ML Art. 29

Conduct of proceedings
• Preliminary meeting (“case management conference”) is useful but
not always required. Can be done via videoconference otherwise in
writing
• Tribunal to consider any preliminary challenge to their jurisdiction, if any
• Establish deadlines for written submissions (ML Art.23)
• Establish dates for hearing and the proceedings
• Ascertain if there is a difference evidentiary hearing venue than the
juridical seat
• Tribunal to consider if there is a need for oral hearing or documents
only (ML Art. 24)
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Conduct of oral hearings

• To give sufficient notice to the parties; ML Art.24(2)
• Communication of documents; parties and tribunal
• Setting the date; time, venue.
• Representation: ensure legitimacy of party representatives
• Oral hearing:
– Physical, face to face in person?
– Use of technology: videoconference; ediscovery, bundle of documents
– Language: need for interpretation and prior translation of documents

Conduct of proceedings
• Attendance at hearing
– Parties representatives but not any others subject to agreement of the
other party
– No members of the public, journalists, etc

• Recording proceedings
– Whether recording is agreed (not likely for commercial arbitration)
– Rights of arbitrators to retain notes and not to be disseminated

• Interlocutory applications – security for costs, interim measures

• Dealing with party defaults
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Typical sequence of hearing

• Tribunal’s welcome and introduction
• Claimant’s case:
• (1) Introduction (2) Opening of case (3)Examination in chief (4)
Cross-examination by respondent’s counsel, if any (5) Re-
examination (6) Tribunal may ask questions at end of each
witness’ testimony
• Respondent’s case: (same sequence as above)
• Respondent’s final submissions
• Claimant’s final submissions

Typical sequence of hearing

• Procedure at a hearing is not fixed in stone. The UNCITRAL Notes
on Organizing Arbitral Proceedings describe, at para 80:
Arbitration rules typically give broad latitude to the arbitral tribunal
to determine the order of presentations at the hearings. Within that
latitude, practices differ, for example, as to whether opening or
closing statements are heard and their level of detail; the
sequence in which the claimant and the respondent present their
opening statements, arguments, witnesses and other evidence;
and whether the respondent or the claimant has the last word. In
view of such differences, or when no arbitration rules apply, it may
foster efficiency of the proceedings if the arbitral tribunal clarifies
to the parties, in advance of the hearings, the manner in which it
will conduct the hearings, at least in broad lines
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Evidence
• Categories of evidence:
– (1) production of contemporaneous documents;
– (2) testimony of witnesses of fact (written and/or oral);
– (3) opinions of expert witnesses (written and/or oral); and
– (4) inspection of the subject matter of the dispute.

• Common vs civil law ‘culture’: common law judges leave tend it

to the parties to present their respective cases and then form a
judgment on the basis of what the parties elect to present to the
court. By contrast, in the courts of most civil law countries, the
judge takes a far more active role in the conduct of the
proceedings and in the collection of evidence, including the
examination of witnesses

Evidence
• Dealing with evidence, arbitrators need to consider admissibility,
materiality, weight, relevance
• Fabricated evidence: the other party can rebut and the
arbitrator to consider any such allegation
• Less likely for oath to be administered in international arbitration.
No sanction for contempt and arbitral tribunal need to be
conscious that counsels may not ‘respect’ them as they would
with national court judges since there might be no sanction
available
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Evidence
• Admissibility of evidence according to IBA Rules on the Taking of
Evidence (Art. 9(2)) can exclude the following evidence:
– Lack of sufficient relevance
– Legal impediment or privilege
– Unreasonable burden to produce the evidence
– Loss or destruction of evidence
– Commercial or technical confidentiality
– Political or institutional sensitivity
– considerations of procedural economy, proportionality, fairness or equality
of the Parties

Attitude of parties during

proceedings
• The IBA Guidelines on Party Representation in International
Arbitration are inspired by the principle that party representatives
should act with integrity and honesty and should not engage in
activities designed to produce unnecessary delay or expense,
including tactics aimed at obstructing the arbitration
proceedings.:
• Remedies for misconduct (Guideline 26), inter alia:
– Draw appropriate inferences in assessing the evidence relied upon
– Consider the party representative’s misconduct in apportioning the costs
of arbitration
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Other factors and considerations

• Payment to institutions or arbitral tribunals; deposit payments,
final payments: arbitration unlike court litigation is not done for
free
• Is Third Party Funder involved and extent of disclosure required
by law?
• ‘Innovations’ by institutions – “Expedited Procedures”: subject of
arbitral institutions’ services, there can be EP for low value
disputes providing for sole arbitrator, abbreviated proceedings,
etc

Summary
takeaways
• How to commence arbitration
• Understanding the appointment of arbitrators
• Establish the procedures of arbitration
proceedings
• Overview of roles and responsibilities of
counsels and arbitrators during arbitration
proceedings
• Understanding how evidence are taken in
arbitration