- The ICC, AAA, WIPO, and UNCITRAL rules each contain provisions that enable the arbitral tribunal to indicate that, once the parties have had the opportunity to present their respective cases in full, the proceedings, record, or hearings are closed. In fact, it is generally good practice for the arbitral tribunal to formally declare the evidentiary record closed. It is fairly common for such closure to occur only after the parties have submitted post-hearing memoranda, summarizing the evidence adduced during the hearing, presenting legal and factual arguments supporting the parties’ respective claims and/or defenses, and/or presenting proposed form awards of damages, costs, and other relief.
- Post-hearing memoranda – a phenomenon developed in US arbitration that has been increasingly embraced by European practitioners and arbitrators – generally are designed to assist the arbitral tribunal in sifting through and evaluating the evidence presented in light of the applicable law. As such, whether such memoranda will be required or permitted generally rests in the discretion of the tribunal. Although the rules and procedures of the various international arbitral bodies do not specifically provide for the submission of post-hearing memoranda, most arbitral tribunals will permit their submission, particularly if the parties so insist. It is customary for the arbitral tribunal to assign page limits and, in some instances, limit the scope of the issues or evidence addressed.
- Post-hearing memoranda can be particularly useful either where the complexity of the legal issues or factual disputes remains high (despite the full vetting of those issues and/or disputes at the hearing) or where the relative brevity of the hearing did not enable the parties to make a full and complete submission. Arbitral tribunals sometimes will request the submission of post-hearing memoranda where issues have arisen either late in the hearing or during the parties’ closing arguments. Post-hearing memoranda can provide the parties with an opportunity to address these and other issues after giving careful consideration to the impact that the issues may have on their client’s case.
- Although post-hearing memoranda may be used to present and develop new legal arguments that might arise given the evidence presented at the hearing, they should not be used for the submission of new factual evidence. When evidence comes to light only after the conclusion of the hearing (or after the arbitral tribunal has declared the record closed) but before the issuance of the tribunal’s award, the arbitral tribunal has discretion to reopen the proceedings. If such new evidence is not needed for the tribunal’s deliberations or the tribunal considers a request to present “new” evidence as unnecessary or an inappropriate attempt to delay the proceedings, the arbitral tribunal will not reopen the proceedings. That said, however, there is a general and encouraging trend for arbitral tribunals to attempt to make a determination with regard to the parties’ dispute with the benefit of all relevant and otherwise unobjectionable evidence.
- The particular circumstances and procedures according to which an arbitration hearing may be reopened, of course, are fact dependent, arising in light of the needs and exigencies of the particular case.
Ch. 20 Stages of the Arbitral Process
PETER SHERWIN, KENNETH E. ALDOUS