Part I Commentary on the ICDR International Rules, 4 Article 4—Administrative Conference
Martin F Gusy, James M Hosking
Martin F. Gusy, James M. Hosking
- Arbitral tribunals — Arbitration
4.01 Article 4 was added to the ICDR Rules in 2014. It incorporates a long-standing ICDR practice by which the ICDR conducts an administrative conference before the arbitral tribunal is constituted to facilitate party discussion and agreement on issues such as arbitrator selection, mediating the dispute, process efficiencies, and any other administrative matters. No other major international arbitration rules contain a similar provision.
4.02 According to comments from ICDR senior management, the ICDR’s standard administrative procedure requires that an administrative conference be conducted in all international cases within ten business days after the notice of arbitration has been submitted, unless a party requests emergency relief under Article 6, in which case the matter proceeds to appointment of the emergency arbitrator. International logistics permitting, the telephonic conference may be conducted as soon as forty-eight hours after the submission of the Notice of Arbitration but it usually takes longer.1
4.03 The administrative conference is organizational—as opposed to judicial—in nature, and must not be confused with a case management conference (or preliminary hearing) of the (p. 59) sort that is typically held between the arbitrators and the parties. Importantly, except for some limited determinations that fall to be made by the ICDR,2 the arbitral tribunal is the ultimate decision-maker on all legal issues throughout the arbitration.
4.04 The administrative conference, usually conducted by telephone,3 affords the parties—typically, but not always, through counsel—an opportunity to air their objectives for management of the case and, if possible, to reach agreements on administrative issues. Administrative issues that may lend themselves to early discussion include: the means of communication between the ICDR and the parties; scheduling issues; establishing the approximate length of the proceeding; adequacy of conducting the dispute under the International Expedited Procedures; handling time extension requests; the need for interim measures; and the parties’ preferences regarding the number of arbitrators, their qualifications, compensation, and method of appointment.4
4.05 Depending on the complexity of the case, and the familiarity of both sides with the factual and legal issues, the administrative conference may also permit an opportunity to arrive at stipulations of uncontested facts, identify potential witnesses,5 provide for advance exchange of information, and consider the possibility of utilizing a documents-only process.6 However, such issues are more often than not left for discussion with, and a ruling by, the tribunal. The administrative conference is typically led by the ICDR case manager responsible for the proceeding and, accordingly, this presents him or her with an opportunity to become familiar with the parties’ expectations.
1 See also LM Martinez, ‘A Guide to ICDR Case Management’, in G Hanessian (ed), ICDR Awards and Commentaries 13 (Juris, Huntington, New York, 2012). FN 35 The administrative conference call is usually scheduled within fourteen days of the date of the initiation letter.
2 See eg deciding that a case should not be conducted under the International Expedited Procedures according to Arts 1(4) and E-5, extensions of time under Art 3(5), and decisions on the challenge of an arbitrator (Art 14).
5 The standard ICDR administrative procedure asks each party to disclose the witnesses whom it expects to present on its checklist for conflicts, which is customarily attached to the ICDR’s letter acknowledging receipt of the Notice of Arbitration. This list is confidential, should only be sent to the case manager, and helps the case manager to select arbitrators free from conflicts. Having said this, not all cases may be at a stage at which witnesses can be readily identified. See also LM Martinez, ‘A Guide to ICDR Case Management’, in G Hanessian (ed), ICDR Awards and Commentaries 13 (Juris, Huntington, New York, 2012).
6 Although subject to interpretation, Art 23(1) does not explicitly require that there be an oral hearing on the merits. See also Memorandum and Order of 9 December 2009 in Matthew v Papua New Guinea, Case No 09 Civ 3851 (SDNY, 2009) (‘There is no rule requiring that an oral hearing be held’).
See also LM Martinez, ‘A Guide to ICDR Case Management’, in G Hanessian (ed), ICDR Awards and Commentaries 13 (Juris, Huntington, New York, 2012).