Silent clause

If, as is usual, you choose (i), the procedure to be followed in the arbitration will be dictated by (in order of precedence):

• any mandatory procedural rules of the law of the seat,
• the agreement of the parties once the dispute has arisen,
• the procedure in any institutional rules to which the arbitration is subject, and
• the decision of the arbitrators.

In practice, neither institutional rules nor arbitration laws provide much of a timetable, and they leave the arbitrators a lot of discretion to fix the procedure. In recent years some institutional rules have included expedited procedures, whose default sphere of application tends to be lower value disputes, but even these generally leave some leeway for the tribunal, albeit from the starting point of an expedited framework.

Arbitrators’ attitude in that respect will be conditioned by their background (see the sections on individual countries under seat) and the parties’ submissions as applied to the dispute with which they have to deal.

In purely domestic arbitrations, arbitrators are understandably much influenced by local procedural practices In international arbitrations, some degree of consensus has emerged, with a compromise between common law and civil law systems: arbitrators take a fairly passive, rather than inquisitorial, role; there is no general discovery of documents, but either party may call for specific documents or categories of documents; cross-examination of witnesses is allowed, and is done by the opposing party more than by the tribunal; and expert witnesses are appointed by the parties more than by the tribunal.

But, as for the precise timetable and scale of the arbitration, that will generally be down to the tribunal in line with their procedural discretions mentioned above.