Procedural Rules

In large-scale contracts it is quite usual for the parties to draft extensive procedural rules in the agreement. In normal commercial contracts, the parties have usually run out of time and energy by the time they reach the arbitration clause.

However, it is all too usual for parties to choose arbitration because they hope it will be quicker and cheaper than litigation, only to end up with a procedure which takes as long and costs more. Realistically, arbitrators seldom order very tight timetables and strict limitations on submissions and evidence without the agreement of both parties. Once the dispute arises, there will usually be one party with an interest in delay. Therefore, only by making provision in the arbitration agreement, can you be sure of a really tight timetable.

An example is set out below. It is 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."