This is the second part of an article in which we address the question: why is it that arbitration has not delivered on its promise to offer an efficient alternative to the courts for the resolution of commercial disputes? The short answer is that it is because the process lacks structure and discipline.

In the first part we dealt with the importance of the preliminary hearing and the taking of evidence. In this part, we will tackle the thorny problem of scheduling the evidentiary hearing, post-hearing briefs and, once the evidence and the arguments have been fully presented, the arbitrator’s duty to deliver an award in a reasonable time.

Scheduling

Piecemeal hearings may be the habit in Maltese litigation, but they are the enemy of efficiency.

Scheduling consecutive hearing dates in block form, duly anticipated by the full disclosure of all evidence in advance, allows for preparing well, preparing once and preparing to test, not to discover, the evidence, via cross-examination.

The tribunal may offer a set of dates in the draft procedural order. During the preliminary hearing counsel will be invited to comment on the amount of time they will need for direct examination (if any), cross-examination and summation, with those times reflected in the final procedural timetable.

Scheduling – extensions of time and hearing postponements

Given the focus on efficiency, requests for extensions of time and hearing postponements are strongly disfavoured. Accordingly, counsel can expect that rationale along the lines of “this is my first request” will be met with dismay and disapproval by the tribunal. Only serious requests for delay will be entertained.

Parties can also expect that actions negatively impacting the efficiency of the process will be considered in the tribunal’s assessment of costs.

Scheduling – tribunal access and efficiency

One of the benefits of a tribunal dedicated to the task-at hand is availability for interim telephone or online hearings should the need present itself.

Parties should expect speedy review and rulings on procedural matters. And, perhaps needless to say, the tribunal should rarely, if ever, be responsible for any delay in the proceedings. 

Post-hearing briefs

The need for post-hearing briefs should be discussed. It may be that the pre-hearing filing of legal authorities and oral closing arguments are sufficient.

If briefs are to be filed, the time frame should be reflected in the procedural timetable.

Award of arbitrator

Cases should be decided while the evidence is still fresh in the mind of the decision-maker.

Absent unusual complexity, parties should expect a reasoned award within 60 days of the close of evidence or filing of post-hearing briefs. Perhaps needless to say, the process can be impacted by the size of the tribunal (i.e. sole arbitrator or tripartite panel).

A new kind of arbitrator

A more efficient process begins with a tribunal fluent in case management. The tribunal must not only be knowledgeable enough to give a sound award. It must have the time and the ability to devote to the organisational and procedural aspects of the arbitration, so as to ensure that it runs smoothly and fairly.

It is hoped that in time a small cadre of available independent and impartial arbitrators will be available to the Maltese business and legal communities.

When that happens, counsel and clients will have a real alternative to litigation for the resolution of commercial disputes.

Arbitration that delivers

In closing, it probably bears mentioning again that effective case management is hardly new in arbitration. On the contrary, every one of the tools and techniques noted above is common, at least in the context of international commercial arbitration.

That said, the abiding strength of the process is the ability to tailor the process to the dispute and the expectations of participants or, as one bright person said long ago, “fitting the forum to the fuss”. Party autonomy is a given in a process born of contract. Time will tell, but we believe that Malta is ready for a different kind of arbitration.

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

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