This is the first article in a two-part series. Read part two.

Arbitration has long promised an efficient alternative to the courts for the resolution of commercial disputes.  But in too many jurisdictions, including Malta, it’s been a promise left largely unfulfilled.  Colleagues say things like “Why would I choose a process that is every bit as slow and inefficient as the courts?”. 

Is a private trial that looks and feels like Maltese litigation all you expect from the arbitration process? The focus of this article is a new approach to the arbitration process, one marked by the efficiency, economy and transparency rightly expected by process users.

Edmond Burke famously said that good order is the foundation of all things and, not surprisingly, so it is with arbitration.  In a well-managed arbitration process, a preliminary, organisational hearing is scheduled soon after the appointment of the arbitral tribunal. 

This hearing is for the tribunal, following a discussion with the parties and their counsel, to set a timetable for the conduct of the process from beginning to end, and for the issuance of a procedural order to govern the process. The preliminary hearing has long been an important feature of international arbitration.  The UNCITRAL Notes on Organising Arbitral Proceedings, published in 1996 and updated in 2016, are testimony to the acceptance of well-ordered proceedings.

As the preliminary hearing sets both the tone, procedure and procedural timetable for the arbitration it should be attended by both counsel and client representatives.  Counsel should come to the preliminary hearing prepared to briefly summarise their case and agree to matters including disclosure, the method and timing for the presentation of evidence and an arbitration timetable.  

In order to set tribunal expectations and ease procedural discussions, the tribunal may send the parties a draft procedural order and timetable in advance of the preliminary hearing.  In any case, the preliminary hearing will be followed by a tribunal issued procedural order and timetable.

A well-designed process should maximise preparedness and avoid trial by surprise.  The procedural order will provide a time frame within which parties should request information/documents from their counterparty, as well as a time frame for production or objection and, failing agreement, a decision on disputed requests from the tribunal. References may be made to internationally accepted tools for managing disclosure and standards for tribunal review.

The procedural timetable will establish a date by which the parties will identify the need, in apposite disputes, for expert evidence and dates by which any reports will be exchanged. The tribunal may also ask that expert witnesses for each party meet with the experts for their counterparty and report on areas of agreement and disagreement. This process helps narrow the issues.

Perhaps needless to say, both the method and timing of taking evidence significantly impacts the efficiency of the process. In other jurisdictions, it has been realised that a good number of disputes can be resolved on the basis of documentary evidence alone because oral evidence will not add any material factual colour.

This has led to arbitral processes in which the tribunal is invited to decide the matter on the basis of the documents presented to it, as they speak for themselves. This makes for a far more efficient process and, thus, the first question to be asked is whether the arbitration can proceed to decision on documents only. 

If the parties agree, then much time, effort and expense can be saved. Should witness testimony be required, the timetable will establish a date by which a list of witnesses, accompanied by witness statements in affidavit form and exhibits each party may introduce into evidence will be exchanged between the parties and copied to the tribunal.

Best practice, and so the default choice, in international commercial arbitration is, when possible, to have witness testimony provided in affidavit form, in advance of the evidentiary hearing, together with any documentary evidence to be relied upon.  

In-person or online hearings can then be reserved for brief witness introduction on direct and otherwise devoted to cross-examination.

This method has multiple benefits.  The obvious is a considerable savings in hearing time.

Another benefit is more focused hearings, with both parties and tribunal having a better understanding of the case and the evidentiary conflicts. Whether direct testimony is presented via affidavit or in-person, counsel should be careful to distinguish between witness preparation (fine) and witness coaching (improper).

Documentary evidence presentation can also be simplified.  One helpful approach is to assume the authenticity of any document proffered as an exhibit, absent objection and regardless of whether it is the original document or a copy.  This will save time by avoiding the necessity of authentication. 

Parties may also be invited to file copies of any legal authorities along with their memorials. Counsel should feel free to highlight language for the tribunal, so long as those same highlights are provided to opposing counsel.

Mark Appel and Henri Mizzi are independent arbitrators and members of ArbDB Chambers London ‒ Malta ‒ Dubai ‒ Singapore: www.arbdb.com

Read part two in this article series.