Procedural timetable no 1 – topped and tailed: improved case management

Elizabeth Warwick
King & Spalding, London
ewarwick@kslaw.com

Report on panel discussion at the 23rd Annual IBA Arbitration Day, Friday 25 March 2022​​​​​​​, presented by the IBA Arbitration Committee

Session Chair/Proponent

Lucy Reed, Arbitration Chambers, New York; President of the International Council for Commercial Arbitration (2020–2023); President of Singapore International Arbitration Centre

Panellists

Georges Affaki, AFFAKI, Paris

Yoshimi Ohara Nagashima, Ohno & Tsunematsu, Tokyo

Dorothy Ufot SAN, Dorothy Ufot & Co, Lagos

More robust case management

The first panel session at the 23rd Annual IBA Arbitration Day discussed the need for more robust case management by arbitral tribunals. Session chair Lucy Reed spoke as a proponent of such a system; she emphasised the benefits that would stem from arbitral tribunals taking more affirmative roles throughout the course of arbitrations and using their authority to maximise efficiency. She shared her view that the International Council for Commercial Arbitration (ICCA) Guidelines on Standards of Practice[1] should be introduced, so that all arbitral tribunal users understand the conduct expected of them, and so that the tribunal has standing in the event that out-of-bounds behaviour pervades proceedings.    

All three panellists expressed their agreement with Reed’s proposal. They made various suggestions as to how they would tweak certain revisions to the updated procedural timetable put forward by Reed, reflecting lessons learnt from their own practices. The consensus from the panel was that one size does not fit all. The status quo, cookie-cutter approach should be replaced with a collaborative and flexible approach.

Increasing engagement and case management conferences

Reed opened the session by echoing the sentiments recently expressed by Claudia Salomon, President of the International Chamber of Commerce (ICC)’s International Court of Arbitration, that there should be more focus on the issues in dispute from the beginning of the arbitral process. The issues should also be revisited regularly, with more case management conferences (CMCs) and more engagement from all parties, including in-house counsel.

Reed’s specific proposed revisions

Reed put forward a number of specific proposed revisions to the procedural timetable, including:

• early appointment of experts;
• an increase to the number of CMCs (to at least three);
• the introduction of a ‘midstream meeting’;
• a mediation window;
• the ‘Reed retreat’;
• use of an agreed list of issues and other changes to the joint materials;
• an informal without-prejudice Q&A with the tribunal post-hearing; and
• a scheduled post-hearing deliberation with the tribunal.

Early appointment of experts

With a view to increasing efficiency, Reed highlighted the need to plan ahead when appointing expert witnesses and hearing expert testimony early on in the procedural timetable. To this end, she advocated the adoption of the Chartered Institute of Arbitrators’ Protocol for the Use of Party Appointed Expert Witnesses in International Arbitration, which, inter alia, provides for a meeting of experts to take place before reports are produced.

An increased number of CMCs

To keep arbitral proceedings on track and stop minor issues resulting in major delay, Reed called for more CMCs to be added to procedural timetables. Further, in addition to the scheduled CMCs, the tribunal or its president should have the ability to schedule brief CMCs with counsel at any time – either at the request of a party, or on the tribunal’s own initiative. The idea is simple: more frequent CMCs will act as an insurance policy. Counsel can relax in the knowledge that they will have the full attention of the president to discuss any brewing issues at given junctures, and the tribunal has regular opportunities to amend the procedural timetable and step in if required to ensure the efficient progression of proceedings.

Midstream meeting, aka Kaplan early opening

Following the first round of written submissions, Reed proposed that there be a ‘midstream meeting’ (or Kaplan early opening).[2] The purpose of such meeting would be to ensure that the tribunal has an opportunity to (and does) read into the proceedings to get a sense of the heart of the case. By doing so, the tribunal can have a meaningful dialogue with counsel about peripheral points, unnecessary evidence and gaps in the evidence. A midstream meeting would also provide a chance for (at least) part of the case to be settled early, if appropriate.

Mediation window

Following on from the midstream meeting, Reed proposed a further ‘mediation window’ for the parties to consider mediation. As the mediation window would be set in the procedural timetable, the parties would have an organic window to consider settlement without the misconception that, by asking for it, they would look weak. When queried by a delegate whether the mediation window could be linked to a Calderbank offer, Reed responded that she felt that would be a step too far as it would put too much pressure on the initiative.

The Reed retreat

Redfern has a schedule, and Reed would like a retreat. The self-coined ‘Reed retreat’ would be a pre-hearing tribunal session, whereby the members of the tribunal meet (in person or virtually) to discuss the case and identify issues it wishes the parties to address during the hearing.

The Reed retreat would also serve as an opportunity for each tribunal member to engage with the parties’ submissions, in anticipation of having a meaningful dialogue with the full tribunal. Reed acknowledged an all-too-frequent frustration of the parties that tribunals often arrive to the hearing unprepared. The Reed retreat – paid for by the parties (apart from the cocktail hour) – would put paid to such frustration.

Agreed list of issues/changes to the joint materials

Continuing with the ethos of efficiency, Reed said certain joint materials – such as the dramatis personae and chronology of events – should be taken out (if deemed unnecessary by the tribunal). This should be replaced, or otherwise supplemented by, a consolidated index of the case record, hyperlinked to the parties’ pleadings, witness statements, expert reports, fact exhibits, legal authorities and tribunal’s procedural orders. A reenergised list of issues would allow tribunals to easily locate all the parties’ submissions and evidence on each issue.

Post-hearing submissions

Deeming lengthy post-hearing submissions to be unhelpful, Reed proposed that, at the close of the relevant hearing, the tribunal should discuss the scope, form and deadline for any post-hearing submissions with the parties. Subject to that discussion, the tribunal could direct the parties to file brief post-hearing submissions in bullet point format.

Scheduled post-hearing deliberation

Rather than leaving a gap between the hearing and deliberations, Reed advocated for post-hearing deliberations to be scheduled in short order after the hearing. By doing so, the time spent by the tribunal reacquainting themselves with the case will be reduced, if not avoided altogether.

Panel views

The consensus of the panel was that the ethos behind Reed’s proposals was sound, and they agreed that arbitral timetables could, and should, be streamlined in line with the majority of, if not all, Reed’s proposals.

Dorothy Ufot noted that many arbitral processes were becoming more akin to court litigation, which is not what users desire. As such, Reed’s proposals – aimed at increasing cost-effectiveness and efficiency – were welcome. Commenting specifically on the mediation window, Ufot considered that making the parties aware of a designated time to discuss settlement, and removing any inference of weakness, was a positive step forward. Similarly, the Reed retreat was welcome as it would present an opportunity for tribunal members to fine-tune the issues in dispute: at the relevant time, they could therefore endeavour to reach faster agreement on the award. With respect to the award, Ufot applauded the comprehensive use of an agreed list of issues, which could serve as a base document for the tribunal to draft the award.

Georges Affaki expressed his agreement with all of Reed’s proposals and emphasised the importance of collaboration throughout the arbitral process. With respect to the post-hearing briefs, however, he indicated that bullet point submissions may not always be appropriate. He referenced his own experience of there being a turn of events during a hearing which meant that new information came to light. Accordingly, the post-hearing briefs were a useful way to synthesise such information. Affaki also suggested that corporate representatives may have a useful place at the mediation window, and should therefore be invited to attend.

Yoshimi Ohara echoed the sentiments of the other panellists and made the (self-proclaimed) provocative comment that the midstream meeting would be welcome to ensure the tribunal had covered the basics of reading the parties’ submissions. Ohara queried whether it would be appropriate for the tribunal to draft the agreed list of issues rather than the parties, as is done under the auspices of certain arbitral rules in Japan. Reed disagreed, noting that the agreed list of issues was a detailed document that required the parties’ input; by drafting it, the parties would become aware of any gaps in their evidence.