Session IV:

Organizing the Arbitral Proceedings

by: PROF. MARIO E. VALDERRAMA FCIArb, FHKIArb, FPIArb
Preliminaries
OBJECTIVE: Capacity Building in Organizing the Arbitral Proceedings.
Note: References to UNCITRAL Model Law (at times written as MAL) Provisions are to its 1985 version.
Preliminaries
In arbitration the parties craft the procedure.
Model Law Article 19(1) Subject to the provisions of this Law, the parties are free to agree on the procedure to be
followed by the arbitral tribunal in conducting the proceedings.
Preliminaries
The alternative is to allow the tribunal to craft the procedure, in full or in part.
Model Law Article 19(2) Failing such agreement, the arbitral tribunal may, subject to the provisions of this Law,
conduct the arbitration in such manner as it considers appropriate.
Note: Italicized clause gives Tribunal inquisitorial powers.
Preliminaries
The prevalent practice in Phl is the alternative approach, that is, to allow the tribunal to craft the procedure rather
than for the parties themselves to do so.
Why?
This presentation is intended to, among other things, cure the situation.
AGREEMENT BASED ARBITRATION: PROCESS MODEL
The following slides are with reference to agreement based arbitration.
To make any of them applicable to statutory arbitrations: the applicable law, the rules to be promulgated by the
administering institution/agency or both should adopt the matter or component of the process model.
DYNAMICS: Preference of Rules
Mandatory provisions of law / rules prevail over contractual stipulations.

Contractual provisions govern unless if they come in conflict with mandatory provisions.
Default provisions take over in the absence or deficiency of contract.
The Tribunal may exercise its discretion in the absence of contract/default provisions/mandatory
provisions. This was introduced by the UNCITRAL Model Law.

Refs: Civil Code Art. 1306; PDRCI Rules Art. 1 (4) and (2); MAL Art. 19 (1) and (2).
DYNAMICS: Preference of Rules
WARNING: The IRRs Art. 5.23 applicable to domestic arbitration (but not to international arbitration)
provided detailed procedures in default of agreement of the parties.
Most, in fact nearly all, of the procedures have no statutory support and could be said to be even violative
of MAL Art. 19.2 (arbitrator discretion) which also applies to domestic arbitration.

The better way is to say that the provisions in IRR Art. 523 are suggested agenda items rather than
default procedures.

DYNAMICS: Preference of Rules

Cautionary Notes:
The rules of arbitral institutions may contain mandatory and default provisions.

The rule that the agreement of the parties prevail does not apply to the fees and the terms of the Tribunal.
Note, though, that under ICC and PDRCI Rules the provisions on arbitrator fees are mandatory.

DYNAMICS: Default provisions vs. arbitrator discretion

In an arbitration the parties cannot agree on whether the award should be unreasoned or a reasoned award.
May the arbitral tribunal in the exercise of its discretion opt for an unreasoned award?
Answer: No. The default provision of law is that the award should be with reasons (see MAL Art 31.2; also
R.A. 9285 Sec 33).

DYNAMICS: Party Agreement vs. Mandatory Provisions

In an ICC arbitration the parties agreed that the award should be unreasoned. Valid?

Answer: No. Under ICC Rules the provision that the award should be reasoned is mandatory (Art. 31.2).
Note: PDRCI Rules allow unreasoned awards provided both parties agree (See Art. 3 [3]).
CRAFTING THE PROCEDURE
Primary Instrument: The Arbitration Agreement
Secondary Instrument: The TOR / Corresponding Order for Directions (if required and on those instances
considered invaluable) that are based on:
Agreement of the parties or

Tribunal discretion if parties cannot come to agreement; and

Law, by way of public policy safeguards (mandatory) and as default provisions (directory).

PRELIMINARY MEETING / CONFERENCE

GENERAL
First meeting between arbitrators and parties/ representatives.

Time: After the arbitral tribunal was constituted.

PRELIMINARY MEETING / CONFERENCE

GENERAL
Purposes:
For the arbitrator to satisfy himself that he was properly appointed.

To consider submissions from the parties as to the procedures required to be completed before the arbitrator
can make his award and the timetable for those procedures.

PRELIMINARY MEETING / CONFERENCE

GENERAL
Intention
The drafting and signing of the terms of reference (normally signed by the parties) or of the equivalent
order for directions / procedural order (issued by the tribunal reflecting the results of the preliminary
meeting/conference).

PRELIMINARY MEETING / CONFERENCE

GENERAL
Usual Duration

Normally takes two hours.

Takes longer in Phl because arbitral tribunal may have to educate parties / representatives.

PRELIMINARY MEETING:
NECESSITY
When required If required by institutional rules, e.g. ICC Rules require consultation with parties (see
Arts. 23 and 24).
When invaluable, though not required: When hearings are to be held.
NOTE: UNCITRAL Rules does not require preliminary meeting.

When it may be dispensed with In look-sniff and documents only arbitrations; also in arbitrations of
simple cases.

PRELIMINARY CONFERENCE:
DISPENSING WITH THE PC
One of the practices in international arbitration is for the arb to send the agenda items to the parties to get
their the parties views.
This is usually with a note that the tribunal will hold a preliminary conference if so desired by any of the
parties.
Rationale.
DRAFT TOR IN PDRCI

PDRCI Article 26 requires the Tribunal to prepare on the basis of the parties submission (or, if appropriate
upon consultation with the parties) a document defining its Terms of Reference. Other than the noncontroversial matters the Tribunal may state the particular rules (other than those provided in the PDRCI
Rules which are the defaults).
A cautionary note: the would be stated rules, including the PDRCI Rules, may be modified or even be taken
out by the parties. On the would be stated rules, the Tribunal would already be stating its discretion, which
is available only if there is no agreement between the parties and there is no default provision. It should
thus be clearly stated that they are starting points, i.e., more like agenda items.

PRELIMINARY MEETING:
PRELIMINARIES
Notice to parties setting date, time and place

Parties provided with agenda items.

With warning that preliminary conference will proceed without absent party if so requested by present
party; normally not carried out because of danger that to proceed without a party may constitute violation
of right to be heard / due process.

PRELIMINARY MEETING:
PRELIMINARIES
Dealing with expenses / fees

ICC Deposits required

PDRCI Initial deposit only (Php 50K at present). Others computed after the pc with possible adjustments
as required.
Ad Hoc settings Practice is for arbitrator to have parties agree to terms before calling meeting
NOTE: Avoid living dangerously with respect to arbitrators fees / expenses
PRELIMINARY MEETING:
PRELIMINARIES
Dealing with Failures to Appear
Normally by second notice containing terse warning that preliminary conference will proceed without
absent party if so requested by the present party. This time the warning shall be carried out.
WHAT WOULD NORMALLY TRANSPIRE
Introductions
Dealing with interlopers
It is not unusual for the parties / representatives to take along companions or employees. Tribunal would
normally exclude them at this point by invoking the privacy and confidentiality provisions in the law.
It is lenient in RP if parties agreed to the presence of non-parties. But this may add to expenses.
WHAT WOULD NORMALLY TRANSPIRE
Disclosures: involve the requirement that the arbs. are impartial and independent.
Prior contacts and relationships.

An arbitrator may be removed not necessarily because the relationship is a ground for inhibition but
because of the failure to disclose. In ICC: The Tribunal must appear to be independent/impartial in the eyes
of the parties. (Art. 11 [2] and [3]).
The duty to disclose is continuing up to the end of the arbitration.
Note: At the time of the PC the arbitrators should have already made their disclosures. Additional disclosures may be
made if found necessary.
WHAT WOULD NORMALLY TRANSPIRE
Disclosures: involve the requirement that the arbs. are impartial and independent.
Note: PDRCI adopted the IBA Guidelines and IBA Rules of Ethics.

Note: The general rule is the objective, rather than the subjective, test or standard.

WHAT WOULD NORMALLY TRANSPIRE

Working through the agenda items one by one.
The agenda items are in the following slides.
Note: The UNCITRAL Notes on Organizing Arbitral Proceedings enumerated items that may be taken up
during the preliminary conference.
WHAT WOULD NORMALLY TRANSPIRE
Resulting decisions would be incorporated in the TOR / Order for Directions
TOR normally needs signature of parties.

ICC requirement in TOR if a party refused / failed to participate / sign: Tribunal should send TOR to ICC
Headquarters, still unsigned by the members of the tribunal, for approval.
Order for Directions need no signature; arbitrator may have a checklist that he requests parties to sign.

 In PDRCI: TOR signed by a party and members of the Tribunal will suffice (Art. 26 [3].
ICC TOR/OFD 1
ICC Requirement if a party refused or failed to participate.

Order for Directions, normally no 1, is the equivalent of the TOR. Needs no signature of the parties.
Note: ICC has theTOR; Uncitral Rules has the Notes on Organizing the Proceedings.

AGENDA ITEMS
Viewing Arbitration Agreement and Notice of Arbitration

To see if there was an agreement to arbitrate and if the arbitration was validly commenced.
Note: Under PDRCI Rules it is the filing with PDRCI and the payment of the required filing fees that will
commence the arbitration (Art. 4 [2]).

AGENDA ITEMS
Tribunals Appointment, Terms and Schedule of Charges, Deposits in Respect of Costs
Problem Areas
Domestic arbitration: R.A. 876 Sec. 21 Arbitrators entitled to Php 50.00 per day if parties have no written
agreement as to arbitrators fees.
Arbitrations in general: There is no legal provision allowing a party to advance on behalf of a recalcitrant
the latters share in the required fees / deposits for expenses.
AGENDA ITEMS Correction here
Tribunals Appointment, Terms and Schedule of Charges, Deposits in Respect of Costs
ICC Rule: ICC has a schedule; ICC determines arbitrators fees; ICC rules requires a party to advance on
behalf of a recalcitrant the latters share in the required fees / deposits. Variations possible re deposit on
arbitrators fees.
PDRCI rule: PDRCI has a schedule; PDRC rules requires a party to advance on behalf of a recalcitrant the
latters share in the required deposit for costs. Variations possible re deposit of arbitrators fees.
Ad Hoc arbitration - by arrangement.
AGENDA ITEMS
Seat of Arbitration and Applicable Law to Arbitration Agreement
In domestic arbitration, the seat is necessarily the Philippines and Philippine arbitration law the applicable
law
In international arbitration, the seat is important because the award in a delocalized arbitration would
most likely be unenforceable.
The applicable law to the arbitration agreement is subject to agreement but stipulating on a law different
from that of the seat may cause complications because the mandatory curial laws of the seat cannot be
superseded by another system of law.
Note: Not all jurisdictions are Model Law jurisdictions.
Note: Place, Venue and Seat.
In ICC: it is the Court that determines the seat absent a stipulation
by the parties (Art. 18 [1]).
In PDRCI: it is the arbitral tribunal (Art. 24[1]).
AGENDA ITEMS
Language of Arbitration
Subject to agreement.

Default Rules:
o English or arbitrator discretion in international arbitration see R.A. 9285 Sec. 31; PDRCI Rules
Art. 25.

o English or Filipino or arbitrator discretion in domestic ibid.

Note: The above are local rules.
AGENDA ITEMS
Place (Venue) of Arbitration
Subject to agreement.

Default Rule: Metro Manila or arbitrator discretion ( see R.A. 9285 Sec. 30; PDRCI Rules Art. 24).
Note: The above are local rules.
Note: Proceedings may take place elsewhere (PDRCI Rules Art. 24).
AGENDA ITEMS
Applicable Law to Substance of the Dispute: Equity Rather Than Law?
Implied default rule in domestic arbitration: Equity See R.A. 876 Secs. 13 and 20 (arbitrators [A]ward
may grant any remedy or relief which they deem just and equitable and within the agreement of the parties
xxx. But parties may stipulate otherwise.
Cautionary Note: IRR Art. 5.28 (a): Award is law based. Applicable law is that chosen by the parties;
default is Philippine law.
AGENDA ITEMS
Applicable Law to Substance of the Dispute: Equity Rather Than Law?
Rule in international arbitration (Model Law) law
o Applicable system of law a matter of stipulation See MAL Art. 28.1.
o Conflict Rules Parties may stipulate (instead of stipulating on the applicable law); arbitrator
discretion in case there was no agreement see MAL Art. 28.2.
o Amiable compositeur or ex aequo et bono Only if parties authorized arbitral tribunal to do so
see MAL Art. 28.3.
o Terms of the Contract and usages of trade to be taken into account see MAL Art. 28.4.
AGENDA ITEMS
Procedural Rules; Administration
Per agreement between the parties
AGENDA ITEMS
Outline of the Issues in Dispute: Claim/Defense/Counterclaim
ICC Rule: May be deferred. New Rules: Arb. Discretion.

In PDRCI default is by the arbitral tribunal.

Setting of milestones if definition of the issues to be deferred.

Note: Claims and Issues.
AGENDA ITEMS
Type of Arbitration
Types: Enumeration not exhaustive
o Look sniff Normally requires expertise. Arbitrator uses his senses e.g. class of coffee, rice, other
commodities.
o Documents only Similar to small claims procedure in MTCs.
o Short procedure Similar to present court procedures: prospective witnesses submit their
statements, which shall be their direct, but subject to cross, re-direct and re-cross.
o Full dress Similar to old procedure in RTC.
o Others e.g. hot tubbing; pendulum arbitration; last offer arbitration .
AGENDA ITEMS
Type of Arbitration

Approaches:
o Adversarial Tribunal is more or less passive and relies on presentations of parties, but tribunal (if
not prohibited) may ask clarificatories.
o Inquisitorial Tribunal generates its own evidence and takes active part in ferreting out the truth.
It is recommended that whether tribunal can take an active part in ferreting out the truth, and if so the extent thereof,
be made part of the agenda.
PROCEEDINGS: Adversarial Approach
Party calls his witness.

Witness takes his oath of affirmation and affirms his statement.

Party ask the witness to confirm his name, address and involvement in the subject matter.
Direct examination or examination in chief follows (ordinarily omitted as the witness had already filed his
statement).
Cross examination by adverse party.
Redirect examination.
Recross examination.
Tribunal makes its own examination. Depending, however, on the nature of questions asked by the
tribunal, the parties may be allowed to ask supplementary questions on the issues raised by the tribunals
questions.
Witness thereafter excused.

PROCEEDINGS: Inquisitorial Model

Initial Examination by Tribunal
Tribunal calls the witness to be examined.

Witness takes usual oath or affirmation.

Tribunal confirms name and address of witness; also that the content of his witnesss statement is true and
is the evidence witness wishes to give.
Initial Examination by Tribunal (cont)
Tribunal asks the witness such questions as the former considers appropriate.

PROCEEDINGS: Inquisitorial Approach (cont).

Examination by Parties
Witness turned over to the parties for examination for the usual direct (if necessary), cross, re-direct and
recross.
Parties may ask witness to clarify his answers to the questions of the Tribunal.
PROCEEDINGS: Inquisitorial Approach
It is said that, normally, the tribunal may end up asking about 70% of the total number of questions directed
to a witness.
In other words, the tribunal under normal circumstances may end-up asking more questions than the total
number of questions asked by the party representatives.

SIDE NOTE: COMBINING APPROACHES WITH OTHERS

Note that the approaches described in the previous slides may be combined with other types of arbitration
proceedings such as in the so-called witness conferencing (or hot tubbing).
If Mr. Justice Roberto A. Abad (Ret.) were to have his way, the first and second level courts will go
inquisitorial in the so-called run of the mill cases excluding small claims.

SIDE NOTE: GOING INQUISITORIAL

Needs strength of character.

More so in Phl where there is prejudice against the inquisitorial model.

Danger of apparent or perceived bias (so arb must exercise caution).

Requires more preparation on part of tribunal.

NOTE: Most Phl lawyers/arbs would most likely want to veer away from it. But combinations may be seen in
practice.
PROCEEDINGS: Hot Tubbing
The usual way is sequential presentation.
Hot Tubbing is concurrent presentation of experts.
Notes: Hot tubbing is also possible in the presentation of witnesses of fact.
In hot tubbing experts can put questions to each other.
AGENDA ITEMS
Type of Arbitration (cont) Re Inquisitorial Approach: Coaching Parties Re Procedure:
ICC Rule usually by counsel in charge of the file. No prohibition for arbs to do so.

PDRCI Rule same as ICC Rule?

May arbitrator do so? Yes, unless if inquisitorial power were curtailed by agreement. Warning: SC opinion
may differ.

AGENDA ITEMS
Preliminary Issues
Questions of jurisdiction procedures.

Matters that may be involved:

o Milestones.
o Need for a hearing.
o When arbitrator to decide; deferment?
o Suspension of proceedings if a party were to go to court?
o Determination of issues.

AGENDA ITEMS
Preliminary Issues
Questions of jurisdiction procedures
o If positive ruling to be elevated to court, should the proceedings continue in the meantime? (Note:
Negative rulings seems to be final but arguments are now being raised to also allow their elevation
to court. SP Rules allow parties to do so).
o Problem in domestic arbitration: Domestic tribunals have no kompetenz kompetenz. Special
Rules, however, corrected the deficiency.
AGENDA ITEMS
Preliminary Issues
Need for interlocutory proceedings Procedures; may chairman decide by himself?

Examples of interlocutory proceedings: Extensions, cancellations, resettings.

AGENDA ITEMS
Reasoned or Unreasoned Award?
Default rule in domestic and international arbitrations: Reasoned award if without stipulation See MAL
Art. 31.2.; also R.A. 9285 Sec. 33 for the application of the MAL Art. to domestic arbitration

NOTE: ICC Rule reasoned award is mandatory.

AGENDA ITEMS
Forms of Case Submissions
Pleadings The type of written statements required in court proceedings: Points of claim, points of defense
and counterclaim (if any) and points of reply.
Statements of the case/defense Narratives listing documents relied on and setting out arguments on points
of law arising and a summary of evidence to be adduced.
AGENDA ITEMS
Programme / Timetable for Submissions; Chess Clock (Guillotine)?
The programme / timetable would most likely be provisional, subject to resettings, extensions and
cancellations.
In ICC, the rule is to set the programme / timetable on an instrument separate from the TOR.

In a chess clock / guillotine type, the parties are allotted limited times to present their evidence, and cannot
exceed the allotted time. Requires agreement between the parties.

AGENDA ITEMS
Disclosure of Documents
Before the hearing?
o More or less similar to what we do in court when we file our Pre-Trial Briefs.

During the hearing?

o Similar to what we used to do before the change in the Rules re Pre-Trial Proceedings.

Discovery Procedures.

AGENDA ITEMS
Representation
R.A. 9285 Sec. 22; also Sec. 33 In arbitration, a party may be represented by any person of his choice
(but lawyers retain their exclusive right of audience if any matter were elevated to court or administrative
agency).
Tribunal inquires if lawyer/expert are merely assisting, or representing the parties. If representing, tribunal
requires submission of a written power of attorney.
AGENDA ITEMS
Hearing: Venue, Duration, Date
No need to elaborate.
AGENDA ITEMS: EXPERTISE
So-called issues of law are generally evidentiary in the words, issues of fact in law based awards;
reason.
Tribunal may not use its expertise (or so-called secret evidence). For the tribunal to do so is a due
process/right to be heard issue that may provide a ground to vacate / non-recognition of the award.
Duty of expert is to educate the tribunal and not to decide the dispute.
EXCEPTION TO NON-USE OF EXPERTISE
By agreement of the parties, but tribunal still cannot use secret evidence.

When tribunal may use expertise without need of agreement e.g., in determining the admissibility,
relevance, materiality and weight of the evidence offered.

PARTY EXPERTS
An arbitration with complicated issues will most likely have the following:
1) Definition of the issues.
2) Exchange of provisional expert opinions (which are privileged; not to be filed with arbitrator).
3) Experts conclave, when the experts set out their opinions where there was agreement, where they disagree,
and the reasons for their disagreement. The result is the Joint Expert Statement, to be submitted to the
arbitrator.
4) Final Report here the experts will separately defend their opinions that were subject to objections and will
expound on their respective objections and reasons for objecting.
5) Reply Report here the experts will separately deal with new matters stated in the Final Report.
6) Hearing when experts will be cross examined.
Note: IBA Rules of Evidence follows the above but uses different terms.
EXPERTS: DEFINING LEGAL ISSUES
Wrong way: Whether or not Claimant is in Estoppel. This will make the expert decide the issue.

Right way: Is there estoppel under Philippine law? If so, what is its concept and how does it work?

AGENDA ITEMS
Experts/Tribunal Appointed Experts: Tribunal May Use Its Expertise in Resolving the Dispute?
Tribunal appointed experts

May exercise, unless curtailed, powers of tribunal.

TOR of expert Subject to agreement between the parties.

AGENDA ITEMS: EXPERTS

Tribunal does not understand the legal / technical basis of claimants / respondents claim the
implication is that the expert failed in his /her obligation to educate the arbitral tribunal.
Note: Or simply there is insufficiency or no evidence at all involving the issue. Includes hard to
understand expert presentations.
It is not the obligation of the Tribunal to choose the applicable provision of law from the list quoted by the
claimant/respondent the implication, again, is that the expert failed in his/her obligation to educate the
arbitral tribunal.
AGENDA ITEMS
Experts/Tribunal Appointed Experts: Tribunal May Use Its Expertise in Resolving the Dispute?
Tribunal may not use expertise in deciding dispute; to do so is considered bias and is a due process issue.
o What to do if tribunal has strong feelings on a matter: Inform the parties (but being careful not to
sound partial) and ask relevant witnesses/parties about their position on it.
WARNING: In RCBC v BDO & BDO v CA and RCBC, G.R. Nos. 196171 and 199238, 10 Dec. 2012, SC
characterized as manifest partiality the act of the arb in doing what he was supposed to do (to avoid using
secret evidence).
Note: Parties settled. See Resolution dated January 2014.

Limited instance when tribunal may use expertise Weighing of evidence.

Note: In the IRR, UNCITRAL Arbitration Rules 1976 is the default procedure/rule unless if arbitral
tribunal considers it inappropriate (Art. 4.19 (b). This has no statutory support and would most likely
complicate matters.
Note: Party autonomy parties may provide for different rules / procedures.

AGENDA ITEMS
Witnesses of Fact

 No need to elaborate.
NOTE: The two usual classes of witnesses in an arbitration are (a) the witnesses of fact and (b) the expert witnesses.
AGENDA ITEMS
Bundles of Correspondence
Bundles of documents are to be restricted to those to be referred to at the hearing.

Procedure in bundling usually as follows: Claimant prepares draft bundles in chronological order with
older documents at the top, at this stage unnumbered, and forwards it to the respondent; respondent to
interleave additional documents it requires to be added and to return it to claimant; claimant to number and
copy bundles and to deliver copies to the arbitrator and respondent; storage and retrieval protocols.
Use of separate bundles.

AGENDA ITEMS
Transcript / Record of the Hearings
Needs agreement more so because of expenses involved.
AGENDA ITEMS
Administrative Services That May Be Needed for the Tribunal to Carry Out its Functions
Normally an administrative assistant, who is subject to the confidentiality rules.

ICC requires that Chairman or Sole Arbitrator be responsible for appointed administrative assistant; fees of
assistant to be shouldered by tribunal from their fees but expenses are part of costs.
In PDRCI administrative services are usually carried out by the secretariat. Fees and expenses are
considered part of costs.

AGENDA ITEMS
Interpreter?
Expenses shouldered by the party who presents witness.
AGENDA ITEMS
Amendments and Additional Submissions (Art. 29)
May be made in the course of the arbitral proceedings.

At this point (during the PC) the rule is leniency, subject only to the limits of the jurisdiction of the
Tribunal.
Admission may become strict depending on the stage of the arbitration. Possible delay, prejudice to the
other parties and similar circumstances may be considered by the Tribunal.

AGENDA ITEMS
Opening and Closing Addresses to be in Writing?
Local practice is for parties to file written memoranda.
Note: Some arbs. refer to these as pre-hearing and post hearing memorials, respectively.
AGENDA ITEMS
List of Items in Dispute
No need to elaborate.
AGENDA ITEMS
Communication with Tribunal; Routing of Written Communications Among the Parties and the Tribunal
Usual procedure is for a party to serve communication to adverse party before filing with the tribunal.

Normally, no direct communication with members of the tribunal.

In PDRCI: copies to be furnished PDRCI (Art. 23 [4]).

AGENDA ITEMS
Agreement of Figures, Plans, Drawings, Photographs, Correspondence, Facts, Etc.
These are simply stipulations of fact.
PRE-HEARING REVIEW (CASE MANAGEMENT CONFERENCE)
Recommended in medium and large cases that will take several months to prepare.

Purpose is to air all procedural issues and making detailed arrangement regarding the hearing and the runup to it.
Note: See PDRCI Rules Art. 34. Supposed to be mandatory, but . . .

PRE-HEARING REVIEW (CASE MANAGEMENT CONFERENCE)

Case Management Techniques (ICC)
Bifurcate the proceedings or render one of more partial awards on key issues.

Identify the issues that may be resolved by agreement or by experts.

Identify issues that may be decided solely on the basis of documents.
Recommendations reproduction of documents: documents to accompany submissions; avoid requests for
production when appropriate; limit requests to those that are material/relevant to the outcome; establish
reasonable time limits for production; use schedule of document production to facilitate resolution of issues
in relation to production of documents.
Limiting length and scope of written submissions and written and oral evidence to avoid repetition and
maintain focus on key issues.
Using telephone or video conferencing and use of IT.
Organizing pre-hearing review conference re schedules and when tribunal can indicate to parties, issues on
which tribunal would like the parties to focus.
Inform parties that they can settle their disputes. Where appropriate, the tribunal can take steps to facilitate
settlement (careful here, more so in domestic arbitration).

AGENDA ITEMS
Any Other Business e.g., time when award to be published, physical evidence other than documents;
bifurcation of proceedings, possible settlement negotiations and their effect on scheduling proceedings.
NOTES

The enumeration is not exhaustive. A recommended standard agenda was made by the UN in its
UNCITRAL Notes on Organizing Arbitral Proceedings.
The foregoing enumeration assumes that the arbitration is on a purely ad hoc setting. Some of the above
need not be discussed if arbitration is institutional and covered by institutional rules.
The TOR/OFD will define the proceedings / rules governing the proceedings applicable to the arbitration.
o TOR/OFD is more akin to Rules of Court rather than to a Pre-Trial Order.

FINAL NOTES
A former Secretary General of the HKIAC observed: Jurisdictions that have upgraded their arbitration law
passed through that phase of development when cowboys are arising and what they do is to mess things up.

A former President of CIArb has this cautionary note: Experience shows that in many cases on the job
training will not suffice. It is a recipe for disaster.