PRACTICAL ASPECTS OF

INTERNATIONAL ARBITRAL
PROCEEDINGS
Mr Oommen Mathew
Managing Partner, DWF LLP (Singapore)
Bali International Arbitration and Mediation Center (BIAMC)
International Arbitration Certification Course
Jakarta, 23 May 2019
 The Arbitral Process
I. Commencing the Arbitration
II. Preliminary Matters
III. Written Submissions
IV. Collecting and Presenting Evidence
V. The Hearing
VI. Post-Hearing Matters
VII. The Award
VIII. Setting Aside an Award
IX. Recognition and Enforcement of the Award
X. Relevant Instruments
 I. Commencing the Arbitration
A. Notice of Arbitration
B. Response to the Notice of Arbitration
 Notice of Arbitration
Article 3(2) of the UNCITRAL Arbitration Rules 2010:
Arbitral proceedings shall be deemed to commence on the date on
which the notice of arbitration is received by the respondent.
What must the Notice of Arbitration include?
Article 3(3) of the UNCITRAL Arbitration Rules 2010: The Notice of Arbitration shall include –
• A demand that the dispute be referred to arbitration;
• The names and contact details of the parties;
• Identification of the arbitration agreement that is invoked;
• Identification of any contract or other legal instrument out of or in relation to to which the
dispute arises or, in the absence of such contract or instrument, a brief description of the
relevant relationship;
• A brief description of the claim and an indication of the amount involved, if any;
• The relief or remedy sought;
• A proposal as to the number of arbitrators, language and place of arbitration, if the parties
have not previously agreed thereon.
What may the Notice of Arbitration include?
Article 3(4) of the UNCITRAL Arbitration Rules 2010: The Notice of Arbitration may include –
• A proposal for the designation of an appointing authority;
• A proposal for the appointment of a sole arbitrator;
• Notification of the appointment of an arbitrator
 Response to the Notice of Arbitration
Article 4(1) of the UNCITRAL Arbitration Rules 2010: Response to Notice of
Arbitration shall be communicated to the Claimant within 30 days of the
Respondent’s receipt of the Notice of Arbitration

Article 5 of ICC Rules 2017: Answer to the Request for Arbitration to be

submitted within 30 days from the Secretariat’s receipt of the Request

Rule 4.1 of the SIAC Rules 2016: Response to Notice of Arbitration to be filed by
the Respondent within 14 days of the Respondent’s receipt of the Notice of
Arbitration
 Content of Response
Article 4(1) of the UNCITRAL Arbitration Rules 2010:
The Response shall include –
(a) Name and contact details of each Respondent;
(b) A response to the information set forth in the Notice of Arbitration.
 Content of Response
Article 4(2) of the UNCITRAL Arbitration Rules 2010:
The Response may include –
(a) Any plea that an arbitral tribunal lacks jurisdiction;
(b) A proposal for the designation of an appointing authority;
(c) A proposal for the appointment of a sole arbitrator;
(d) Notification of the appointment of an arbitrator;
(e) A brief description of counterclaims or claims for the purpose of a set-off, if any,
including an indication of the amounts involved and the relief or remedy sought;
(f) A notice of arbitration in case the respondent formulates a claim against a party to
the arbitration agreement other than the claimant
 II. Preliminary Matters
A. Composition of Arbitral Tribunal
B. Place of Arbitration
C. Language
 Composition of Arbitral Tribunal
Matters dealt with under the UNCITRAL Arbitration Rules 2010:
1. Number of Arbitrators (Article 7)
2. Appointment of Arbitrators (Articles 8 to 10)
3. Disclosure by and challenges of arbitrators (Articles 11 to 13)
4. Replacement of an arbitrator (Article 14)
5. Repetition of hearings in the event of the replacement of arbitrator
(Article 15)
6. Exclusion of liability of arbitrators (Article 16)
 Place of Arbitration

Location
≠
Seat / Place of arbitration
 Place of Arbitration
Article 18 of the UNCITRAL Arbitration Rules 2010:
• As agreed by the parties
• In case no agreement by the parties, the place of arbitration
shall be determined by the arbitral tribunal
• The arbitral tribunal may meet at any location it considers
appropriate for deliberations
• The arbitral tribunal may also meet at any location it considers
appropriate for any other purpose
 Language of Arbitration
Article 19 of the UNCITRAL Arbitration Rules 2010:
• Subject to agreement by the parties, the arbitral tribunal may
determine the language or languages to be used in the proceedings
• The documents or other annexes and exhibit may be delivered at its
original language and shall be accompanied by a translation into the
language or languages agreed upon by the parties
 III. Written Submissions
A. Statement of Claim
B. Statement of Defence
C. Pleas as to the jurisdiction of the arbitral tribunal
D. Further written statement
 Statement of Claim
Article 20 of the UNCITRAL Arbitration Rules 2010:
The Statement of Claim shall include the following –
1. The name and contact details of the parties;
2. A statement of the facts supporting the claim;
3. The points at issue;
4. The relief or remedy sought;
5. The legal grounds or arguments supporting the claim;
6. Annexes which contain a copy of any contract or other legal instrument out of or in
relation to which the dispute arises and of the arbitration agreement;
7. As far as possible, it should be supplemented by all documents and other evidence
relied upon by the claimant, or contain reference to them.
 Statement of Defence
Article 21 of the UNCITRAL Arbitration Rules 2010:
1. The statement of defence shall be communicated in written to the claimant and to
each of the arbitrator within the period of time as determined by the arbitral
tribunal;
2. The statement of defence shall reply to the particulars of the statement of claim;
3. The statement of defence should be accompanied by all documents and other
evidence relied upon by the respondent, or contain reference to them;
4. The respondent may make a counter claim or rely on claim for the purpose of set-
off.
 Amendments to the Claim or Defence
Article 22 of the UNCITRAL Arbitration Rules 2010:
• During the course of the arbitral proceedings, a party may amend or supplement its
claim or defence, including a counterclaim or a claim for the purpose of set-off,
unless the arbitral tribunal considers it inappropriate to allow such amendment or
supplement having regard to the delay in making it or prejudice to other
parties or any other circumstances;
• However, a claim or defence, including counterclaim or the claim for the purpose
of set-off, may not be amended or supplemented in such a manner that the
amended or supplemented claim or defence falls outside the jurisdiction of the
arbitral tribunal.
 Pleas as to the Jurisdiction of the
Arbitral Tribunal
Article 23(1) of the UNCITRAL Arbitration Rules 2010:
• The tribunal shall have the power to role on its jurisdiction, including any objections
with respect to the existence or validity of the arbitration agreement
• an arbitration clause that forms part of a contract shall be treated as an agreement
independent of the other terms of the contract
• A decision by the arbitral tribunal that the contract is null shall not entail
automatically the invalidity of the arbitration clause.
 Pleas as to the Jurisdiction of the
Arbitral Tribunal
Article 23(2) of the UNCITRAL Arbitration Rules 2010:
• A plea that the tribunal has no jurisdiction shall be raised no later than (where
applicable):
– The statement of defence; or
– The reply to the counterclaim; or
– The claim for the purpose of a set-off.
• A party is not precluded from raising such a plea by its appointment or participation
in the appointment of an arbitrator
• A plea that the tribunal is exceeding the scope of its authority must be raised as
soon as the matter alleged to be beyond the scope of its authority is raised during
the proceedings BUT the tribunal may admit a later plea if the delay is justified
 Pleas as to the Jurisdiction of the
Arbitral Tribunal
Article 23(3) of the UNCITRAL Arbitration Rules 2010:
• The tribunal may rule on a plea either as a preliminary question or in an
award on the merits
• The arbitral may continue the arbitral proceedings and make an award,
notwithstanding any pending challenge to its jurisdiction before a court.
 Further Written Statement
Article 24 of the UNCITRAL Arbitration Rules 2010:
The arbitral tribunal shall decide which further written statements, in
addition to the statement of claim and the statement of defence, shall
be required from the parties or may be presented by them and shall fix
the periods of time for communicating such statements.
 IV. Collecting and Presenting Evidence
A. IBA Rules on the Taking of Evidence in International
Arbitration 2010
B. Burden of Proof
C. Witnesses & Witness Statements
D. Documentary Evidence
E. Arbitral Discretion
 IBA Rules on the Taking of Evidence in
International Arbitration 2010
• Intended to provide an efficient, economical and fair process for the taking of
evidence in international arbitration.
• Overriding principle: “each party shall be entitled to know, reasonably in advance of
any Evidentiary Hearing or any fact or merits determination, the evidence on which
the other parties rely”.
• Sets out provisions for the exchange of documentary evidence, witness statements
and expert reports that provide each party and the arbitral tribunal with significant
information about each side’s evidence.
 Burden of Proof
Article 27 of the UNCITRAL Arbitration Rules 2010:
Each party shall have the burden of proving the facts relied on to
support its claim or defence.
 Witnesses: Who can Testify?
Article 27(2) of the UNCITRAL Arbitration Rules 2010:
“Witnesses, including expert witnesses, who are presented by the parties to testify to the arbitral tribunal
on any issue of fact or expertise may be any individual, notwithstanding that the individual is a party to the
arbitration or in any way related to a party…”

Article 4 of the IBA Rules on Taking of Evidence 2010:

1. Within the time ordered by the Arbitral Tribunal, each Party shall identify the witnesses on whose
testimony it intends to rely and the subject matter of that testimony.
2. Any person may present evidence as a witness, including a Party or a Party’s officer, employee or
other representative.
3. It shall not be improper for a Party, its officers, employees, legal advisors or other representatives to
interview its witnesses or potential witnesses and to discuss their prospective testimony with them.
 Witnesses: Statements
Article 27(2) of the UNCITRAL Arbitration Rules 2010:
…Unless otherwise directed by the arbitral tribunal, statements by witnesses,
including expert witnesses, may be presented in writing and signed by them.
 Witnesses: Statements
Article 5 of the IBA Rules on Taking of Evidence 2010:
Each witness statement shall contain:
• Full name and address of the witness, a statement regarding his / her relationship
with the Parties, a description of his / her background, qualifications, training and
experience, if relevant
• a full and detailed description of the facts and the source of the information,
supported by documents relied on
• Statement as to the language in which the statement was originally prepared and
the language in which the witness testimony wil be given
• An affirmation of the truth of the statement
• Signature of the witness and its date and place
 Documentary Evidence
Article 27(3) of the UNCITRAL Arbitration Rules 2010:
At any time during the arbitral proceedings the arbitral tribunal may require the parties
to produce documents, exhibits or other evidence within such a period of time as the
arbitral tribunal shall determine.

Article 3(1) of the IBA Rules 2010:

Within the time ordered by the Arbitral Tribunal, each Party shall submit to the Arbitral
Tribunal and to the other Parties all Documents available to it on which it relies,
including public Documents and those in the public domain, except for any Documents
that have already been submitted by another Party.
 Documentary Evidence
Redfern Schedule
No. Requesting Documents or Relevance and Objections to Reply to Tribunal’s
Party Category of Materiality Document Objections to Decision
Documents According to Request Document
Requested Requesting Party Request
1.
2.
3.
*Adapted from ICSID template at https://icsid.worldbank.org/en/Documents/process/Redfern.doc
 Arbitral Discretion
It is ultimately a question of WEIGHT.

Article 27(4) of the UNCITRAL Arbitration Rules 2010:

The arbitral tribunal shall determine the admissibility, relevance, materiality and weight
of the evidence offered.
 V. The Hearing
Article 28 of the UNCITRAL Arbitration Rules 2010:
• Art 28(1): In the event of an oral hearing, the tribunal shall give parties adequate
advance notice of the date, time and place.
• Art 28(3): Hearings shall be held in camera unless parties agree otherwise.
 V. The Hearing
Article 28 of the UNCITRAL Arbitration Rules 2010:
• Art 28(2): Witnesses, including expert witnesses, may be heard under the conditions
and examined in the manner set by the arbitral tribunal.
• Art 28(3): Tribunal may require the retirement of any witness, including expert
witnesses, during the testimony of such other witnesses, except that a witness,
including an expert witness, who is a party to the arbitration shall not, in principle, be
asked to retire
• Art 28(4): The Tribunal may direct that witnesses be examined through electronic
means (e.g. video-conferencing)
 VI. Post Hearing Matters
• Post Hearing Briefs
• Introduction of New Evidence
 VII. The Award
A. Difference in “Orders” and “Awards”
B. Types of Awards
C. Validity of the Award
 Orders vs. Awards
Article III of the New York Convention:
Each Contracting State shall recognize arbitral awards as binding and enforce them in
accordance with the rules of procedure of the territory where the award is relied upon,
under the conditions laid down in the following articles.

Singapore International Arbitration Act:

“award” means a decision of the arbitral tribunal on the substance of the dispute and
includes any interim, interlocutory or partial award but excludes any orders or
directions made under section 12;
 Types of Award
1. Final Award
2. Partial and Interim Award
3. Consent Award
4. Default Award
 Validity of the Award
1. Formalities (Art 34(1) – (4) of the UNCITRAL Arbitration
Rules)
2. Communication (Art 6) of the UNCITRAL Arbitration
Rules)
3. Concurring and Dissenting Views
4. Scrutiny of the Draft Award (not widely practised)
5. Finality, Clarity, Scope
 VIII. Setting Aside an Award
A. Grounds for Challenging an Award
B. Time Limitation
C. Effect of a Successful Challenge
 Grounds for Challenging an Award
1. Interpretation of award
2. Correction of award
3. Request for additional award
4. Recourse to the court
 Interpretation of Awards
Article 37(1) of the UNCITRAL Arbitration Rules 2010:
Within 30 days after the receipt of the award, a party, with notice to the
other parties, may request that the arbitral tribunal give an
interpretation of the award.
 Correction of Awards
Article 38(1) of the UNCITRAL Arbitration Rules 2010:
Within 30 days after the receipt of the award, a party, with notice to the
other parties, may request the arbitral tribunal to correct in the award
any error in computation, any clerical or typographical error, or any
error or omission of a similar nature. If the arbitral tribunal considers
that the request is justified, it shall make the correction with 45 days of
receipt of the request.
 Additional Award
Article 39(1) of the UNCITRAL Arbitration Rules 2010:
Within 30 days after the receipt of the termination order or the award, a
party, with notice to the other parties, may request the arbitral tribunal
to make an award or an additional award as to claims presented in the
arbitral proceedings but not decided by the arbitral tribunal.
 Recourse to Court
Article 34(2) of the UNCITRAL Model Law (2006 Rev Ed) sets out the grounds for setting
aside an Award:
• Incapacity of the parties to the arbitration agreement / invalidity of the arbitration agreement
• Adverse party did not receive proper notice of the appointment of arbitrator / arbitration
proceedings / was unable to present his case;
• Award fell outside the scope of submission to arbitration;
• Composition of the tribunal or procedure was not conducted in accordance with the
agreement of the parties;
• Subject matter of the dispute is not capable of settlement by arbitration under the law of the
State;
• Recognition or recognition is in conflict with the public policy of the State.
IX. Recognition and Enforcement of the Award
A. Application of International Conventions
B. Principles governing recognition and enforcement
C. Requirements for recognition and enforcement
D. Grounds for resisting recognition and enforcement under
the New York Convention
Applicable International Conventions
1. New York Convention on Recognition and Enforcement
of Foreign Arbitral Awards 1958
2. International Centre for Settlement of Investment
Disputes (ICSID) Convention
3. Panama Convention 1975 formulated by Inter-American
Convention on Private International Law
4. GCC Convention of 1995 formulated by Gulf
Cooperation Council
 Principles Governing Recognition and
Enforcement
• Distinction must be made between recognition and enforcement. Recognition on its
own is generally a defensive process. Enforcement goes further than recognition.
When a court is asked to enforce an award, it is asked not merely to recognise the
legal force and effect of the award, but also to ensure that it is carried out, by using
such legal sanctions as are available.
• Enforcement of an award in the country that is the seat of the arbitration is usually a
relatively easy process. It generally involves the same processes as are required for
the enforcement of an award in a domestic arbitration.
• Enforcement of foreign arbitral award is a more complex matter.
 The New York Convention
• United Nations Convention on the Recognition and Enforcement of
Foreign Arbitral Awards of 1958
• The most important convention in international commercial
arbitration
• 159 state parties, including 156 of 193 United Nations member
states
 Grounds for Non-Enforcement under the
Convention
Article V sets out the limited exceptions under which a court may refuse recognition
and enforcement of the award:
• Incapacity of the parties to the arbitration agreement / invalidity of the arbitration
agreement
• Adverse party did not receive proper notice of the appointment of arbitrator /
arbitration proceedings / was unable to present his case
• Award fell outside the scope of submission to arbitration
• Composition of the tribunal or procedure was not conducted in accordance with the
agreement of the parties or the law of the country where the arbitration took place
 Grounds for Non-Enforcement under the
Convention
[cont’d]
• Award has not yet become binding / has been set aside or suspended in the country
where the award was made
• Subject matter of the dispute was not capable of settlement by arbitration under the
law of the country where recognition or enforcement is sought
• Recognition or recognition would be contrary to the public policy of the country
where it is sought.
 X. List of Relevant Instruments
A. Convention on the Recognition and Enforcement of Foreign Arbitral Awards
B. Convention on the Settlement of Investment Disputes between States and Nationals of Others
C. IBA Guidelines on Conflict of Interest in International Arbitration
D. IBA Rules on Taking of Evidence
E. IBA Ethics Rules for International Arbitration
F. ICSID Convention, Regulation and Rules
G. ICSID Additional Facility Rules
H. UNCITRAL Model Law on International Commercial Conciliation with Guide to Enactment and Use 2002
I. UNCITRAL Notes on Organizing Arbitral Proceedings
J. UNCITRAL Arbitration Rules as Revised in 2010
K. UNCITRAL Arbitration Rules (with new article 1, paragraph 4, as adopted in 2013)
L. UNCITRAL Model Law on International Commercial Arbitration
M. UNCITRAL Rules on Transparency in Treaty-Board Investor-State Arbitration
N. WIPO Arbitration Rules
THANK YOU