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A Guide to the ICDR International Arbitration Rules, 2nd Edition by Gusy, Martin F; Hosking, James M (21st February 2019)

Part II Commentary on the International Expedited Rules, 43 Articles E-7 to E-9—The Proceedings Under the Expedited Procedures

Martin F Gusy, James M Hosking

From: A Guide to the ICDR International Arbitration Rules (2nd Edition)

Martin F. Gusy, James M. Hosking

From: Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 25 August 2019

Subject(s):
Time limitations (and jurisdiction) — Arbitration

(p. 345) 43  Articles E-7 to E-9—The Proceedings Under the Expedited Procedures

Article E-7:  Procedural Conference and Order

After the arbitrator’s appointment, the arbitrator may schedule a procedural conference call with the parties, their representatives, and the Administrator to discuss the procedure and schedule for the case. Within 14 days of appointment, the arbitrator shall issue a procedural order.

Article E-8:  Proceedings by Written Submissions

In expedited proceedings based on written submissions, all submissions are due within 60 days of the date of the procedural order, unless the arbitrator determines otherwise. The arbitrator may require an oral hearing if deemed necessary.

Article E-9:  Proceedings with an Oral Hearing

In expedited proceedings in which an oral hearing is to be held, the arbitrator shall set the date, time, and location of the hearing. The oral hearing shall take place within 60 days of the date of the procedural order unless the arbitrator deems it necessary to extend that period. Hearings may take place in person or via video conference or other suitable means, at the discretion of the arbitrator. Generally, there will be no transcript or stenographic record. Any party desiring a stenographic record may arrange for one. The oral hearing shall not exceed one day unless the arbitrator determines otherwise. The Administrator will notify the parties in advance of the hearing date.

I.  Introduction

43.01  Articles E-7 to E-9 set out some basic procedural guidance for an arbitration governed by the Expedited Procedures once the case has been transferred to the sole arbitrator. These articles grant the arbitrator discretion to set the procedure and timetable for the arbitration. Unlike the comparable provisions in the main ICDR Rules, however, these provisions apply certain limitations on the procedure to promote the efficiency goals of the Expedited Procedures. Perhaps most notable is the presumption that an expedited arbitration will be decided on documents only, without an oral hearing. Other limitations include time limits on certain (p. 346) procedural benchmarks, such as the issuance of a procedural order, completion of written submissions, and time for an oral hearing, where necessary.

43.02  In establishing the procedural framework for an arbitration under the Expedited Procedures, the arbitrator also must ensure that the parties’ rights to be heard and treated equally, which are also enshrined in the ICDR Rules, are respected.1 To protect those rights, Articles E-7 to E-9 therefore also authorize the sole arbitrator to modify the default provisions where he or she considers it necessary. In making such determinations, the arbitrator will need to carefully balance the parties’ competing procedural rights, including the right to an efficient resolution of the dispute with limited time and costs.

II.  Textual commentary

A.  Procedural conference and order (Article E-7)

Article E-7

After the arbitrator’s appointment, the arbitrator may schedule a procedural conference call with the parties, their representatives, and the Administrator to discuss the procedure and schedule for the case. Within 14 days of appointment, the arbitrator shall issue a procedural order.

43.03  Article E-7 authorizes the sole arbitrator to hold a procedural conference call with the parties, their representatives, and the ICDR ‘to discuss the procedure and schedule for the case’. Article E-7 is consistent with Article 20(2) in the main ICDR Rules, which similarly permits the tribunal to hold a ‘preparatory conference … for the purpose of organizing, scheduling, and agreeing to the procedures’, including establishing deadlines for the parties’ submissions.2 As with the preparatory conference under Article 20(2), the procedural conference call under Article E-7 allows the arbitrator and the parties to establish and agree on the procedure for the arbitration at an early stage.

43.04  One notable feature of this provision is that it presumes that the parties, in addition to their representatives, will participate in this early conference call. Having the parties participate in a call with the arbitrator at this early stage allows for the ultimate decision-makers to participate in establishing the arbitration’s procedure and potentially discussing settlement possibilities.

43.05  Regardless of whether the arbitrator holds the preliminary conference, he or she ‘shall issue a procedural order’ within fourteen days of his or her appointment. Presumably, this procedural order will contain the specifics of the arbitral procedure, such as the schedule for written submissions, procedures for the exchange of information and documentary evidence, and the date of the oral hearing, should one be required.3

(p. 347) B.  Proceedings by written submissions (Article E-8)

Article E-8

In expedited proceedings based on written submissions, all submissions are due within 60 days of the date of the procedural order, unless the arbitrator determines otherwise. The arbitrator may require an oral hearing if deemed necessary.

43.06  Article E-8 provides that the parties must make all submissions to the sole arbitrator within sixty days of the issuance of the procedural order. Given this sixty-day time limit, the scope of submissions will likely be more constrained under the Expedited Procedures than they would be under the main ICDR Rules. For example, there may be a single exchange of written submissions on the merits and/or limitations on document disclosures. Where a Respondent party brings counterclaims, the sole arbitrator may need to require simultaneous submissions by the Claimant and Counter-claimant.4 Should the arbitrator determine that sixty days is insufficient for written submissions, the arbitrator has the authority to extend this time limit.

43.07  The written submissions contemplated by Article E-8 are in addition to the ‘detailed submissions’ with evidence that the parties will have already submitted in accordance with Article E-2 of the Expedited Procedures in the Notice of Arbitration and the Answer.5 In some cases, therefore, additional written submissions under Article E-8 could be very limited or potentially not even required.

43.08  Article E-8 also provides the arbitrator with the authority to determine whether a hearing will be required. The Expedited Procedures presume, however, that no hearing will be necessary, particularly where no claim or counterclaim exceeds US$100,000.6 Providing as the default that an expedited arbitration should be decided only on documents furthers the ICDR’s objective of reducing time and costs and is consistent with expedited rules adopted by other arbitral institutions. Rule 41.2(e) of the HKIAC Rules, for example, provides that expedited arbitrations are presumed to be decided on ‘documents only’. Similarly, the SCC Expedited Rules provide that a hearing will only occur if requested and where the tribunal ‘considers the reasons for the request compelling’.7

43.09  Article E-8 does not expand on the factors that a sole arbitrator should consider when determining whether an oral hearing is ‘necessary’. Expedited rules from other institutions, however, provide that an oral hearing may be necessary to examine witnesses or experts or hear other oral arguments.8 An arbitrator sitting under the ICDR Expedited Procedures will (p. 348) likely consider similar factors to determine whether a hearing is ‘necessary’ under Article E-8, balanced against the time and cost considerations entrenched in the Expedited Procedures.

C.  Proceedings with an oral hearing (Article E-9)

Article E-9

In expedited proceedings in which an oral hearing is to be held, the arbitrator shall set the date, time, and location of the hearing. The oral hearing shall take place within 60 days of the date of the procedural order unless the arbitrator deems it necessary to extend that period. Hearings may take place in person or via video conference or other suitable means, at the discretion of the arbitrator. Generally, there will be no transcript or stenographic record. Any party desiring a stenographic record may arrange for one. The oral hearing shall not exceed one day unless the arbitrator determines otherwise. The Administrator will notify the parties in advance of the hearing date.

43.10  Article E-9 of the Expedited Procedures makes clear that, even where an oral hearing is deemed ‘necessary’, the hearing should not undermine the intended efficiency benefits of an expedited arbitration. The hearing can often be one of the most time- and cost-intensive aspects of an arbitration. It can, for instance, require the time and expense of preparing documents, witnesses, and experts; travel-related costs for parties, counsel, and arbitrators; and expenses for hearing logistics, such as renting hearing space and engaging translators and stenographers. Article E-9 employs a number of mechanisms to limit these expenses. For example, the length of the oral hearing is limited to one day, and the deadline for it is sixty days from the date of the procedural order—the same time period for completing additional written submissions. In other words, the Expedited Procedures presume that, regardless of whether an expedited arbitration proceeds on documents only or with an oral hearing, it will conclude within the same time frame. The ICDR is unique amongst the major arbitral institutions that offer some form of expedited arbitration in expressly providing such limits on the timing of the oral hearing.9

43.11  Article E-9 also contains a number of cost-saving measures such as limiting the hearing to one day only. In addition, the article expressly provides that the parties need not incur the expense of an in-person hearing. Rather, Article E-9 authorizes the arbitrator to hold the hearing by whatever means the arbitrator deems ‘suitable’, which may, for example, include a video conference. The ICDR is amongst the few institutions that expressly provide for a non-in-person hearing in expedited arbitrations—only the ICC’s expedited rules contain a comparable provision.10 Finally, Article E-9 presumes that there will be no transcript (and the associated expense of one), unless a party specifically requests it.

43.12  In arranging the hearing logistics, the arbitrator is tasked with setting the date, time, and location of an oral hearing, while the ICDR is tasked with providing the parties with notice of such hearing. As with the analogous provision on hearings in the main ICDR Rules, (p. 349) Article 20(1), the arbitrator will, in practice, set the hearing logistics in consultation with the parties.11

43.13  While Article E-9 provides more direction on the hearing in an expedited case than comparable provisions in other expedited arbitration rules, it is silent on many aspects. Article E-9 leaves it to the discretion of the sole arbitrator (with the parties’ input) to efficiently run the hearing. Nonetheless, Article 23 of the main ICDR Rules provides direction on some additional aspects of a hearing, such as on the examination of witnesses and the privacy of the hearing.12 To the extent Article 23 does not conflict with Article E-9, those provisions can be used to fill in the gaps in an expedited proceeding.13

Footnotes:

1  See discussion of Art 20(1) at paras 20.04–20.15.

2  See discussion of Art 20(2) at paras 20.16–20.19.

3  See discussion of procedural orders at para 1.50.

4  See M Buehler, ‘The 2017 ICC Expedited Rules: From Softball to Hardball?’, 34(2) J Int’l Arb 136–37. (2017) (discussing the means by which an arbitrator may expedite written submissions under the International Chamber of Commerce (ICC) Expedited Procedures).

5  See discussion of Art E-2 at paras 41.04–41.09.

6  See B Dunning and LM Martinez, ‘In Conversation with Luis Martinez—Vice President of the International centre for Dispute Resolution’, Clyde & Co’s International Arbitration 1/3LY (2015), at 3, available at <https://www.adr.org/sites/default/files/document_repository/Luis%20Martinez%20on%20the%20ICDR%20Rules%20-%20Clyde%20and%20Co.%20International%20Arbitration%201-3LY%20Interview.pdf> (explaining that the Expedited Procedures carry a presumption that no hearing will be necessary); ICDR Rules, Art 1(4); see also discussion of Art 1(4) at para 1.50.

7  SCC Expedited Rules, Art 33(1).

8  See eg Swiss Rules, Art 42(1)(e) (providing for a ‘single hearing for examination of the witnesses and expert witnesses, as well as for oral argument’); SIAC Rules, Rule 5.2(c) (providing that for a hearing if ‘required for the examination of any witness or expert witness as well as for any oral argument’).

9  See eg ICC Rules, App IV, Art 3; SCC Expedited Rules, Art 33; SIAC Rules, Rule 5.2; HKIAC Rules, Rule 41.2. But see DIS Supplementary Rules for Expedited Proceedings, Section 4.3 (requiring the hearing to occur ‘at least four weeks after receipt of the final written submission’); Swiss Rules, Art 42(1)(e) (providing for a ‘single hearing for examination of the witnesses and expert witnesses, as well as for oral argument’).

10  See ICC Rules, App IV, Art 3(5) (‘Where a hearing is to be held, the arbitral tribunal may conduct it by videoconference, telephone or similar means of communication’).

11  See discussion of Art 23(1) at paras 23.05–23.07.

12  See discussion of Art 23 at paras 23.08–23.15.

13  See ICDR Rules, Art E-1 (‘These Expedited Procedures supplement the International Arbitration Rules as provided in Article 1(4)’).