Procedural Rules

Whilst it is possible for parties to draft procedural rules into their arbitration agreement, whether this is done, and whether it is commercially realistic to negotiate, is likely to be contextually dependent. For example, in large-scale, heavily negotiated, contracts it may be something the parties engage on. But, for a normal commercial contract, it may be less proportionate.

One advantage of doing so is that, by making provision in the arbitration agreement, the possibility of the tribunal adhering to a tight timetable is increased (albeit that, to preserve due process, it is desirable for any such drafting to reserve an appropriate degree of discretion for the tribunal to determine differently). On the other hand, it may not always be feasible to predict, or agree upon, what parameters may be appropriate.

An example is set out below. It may be suitable, though aggressive, for normal commercial contracts. For large-scale international and/or construction contracts, the limits may need to be increased significantly. Even then, the tribunal will retain the ability to extend the procedure if requested to do so. But the agreed procedure sets a benchmark, and any party wishing for a longer procedure will need to persuade the tribunal of the reason for it.

"Unless the parties agree or the arbitrator rules otherwise:

  1. the claimant shall serve its written claim document within 14 days of the arbitrator’s appointment. The defence shall be served 14 days after that and the reply 14 days thereafter. Each shall attach any documents relied upon;

  2. no pleading, witness statement, expert report or submission shall exceed 10 pages plus attachments;

  3. factual witnesses shall give evidence in chief by witness statement. Cross-examination of any factual or expert witness shall not exceed half a day;

  4. neither party shall be required to give general discovery of documents, but may be required only to produce specific, identified documents which are relevant to the dispute;

  5. there shall be no oral submissions, though the arbitrator may ask questions of the parties orally or in writing;

  6. the arbitrator shall make the award, with reasons, within 4 months of the arbitrator's appointment."

An alternative, where institutional rules are being used which contain expedited procedures, may be to agree that those expedited procedures shall apply to cases even outside their default parameters (which are typically value based); as they sometimes permit such an extension by agreement. Whether such a solution is suitable will, in addition to the considerations mentioned above, turn on the precise terms of the procedures laid down.