- Other than the arbitral award, and because it is the event toward which all of the prior proceedings are focused, the arbitral hearing is arguably the most important aspect of any international arbitration. The reason for this is simple: It is at the hearing that the parties present to the arbitrator(s) their respective claims and defenses, as well as evidence and arguments supporting their factual and legal assertions. Even in those instances where evidence predominantly takes the form of written submissions (see Section III(C)), hearings are held. The notable exception is a situation where the relevant arbitration agreement expressly precludes a hearing.
- One or more hearing days are usually scheduled well in advance, either at the insistence of one or more of the parties or at the insistence of the arbitrator(s). The administrative tasks and costs of organizing and conducting the hearing can be considerable, and properly anticipating both the tasks involved and the costs well in advance can make a real difference. Where an arbitral organization is involved, many administrative details and arrangements relating to the hearing will be undertaken by that organization.
- Pre-hearing Conferences and Legal Memoranda
- Particularly where an arbitration is complex, pre-hearing conferences with the parties can greatly benefit all of those concerned, potentially defraying significant time, cost, and effort. It is important that any pre-hearing conference is held sufficiently in advance of the hearing so that the proceedings can be organized rationally, but not so far in advance that the issues and the evidence has not (yet) been sufficiently developed so that the arbitrator(s) (and the parties) can construct an appropriate pre-hearing schedule.
- As the first hearing date approaches, one common and important method for refining the issues to be presented, educating the arbitrator(s), and making one’s case involves the submission of pre-hearing memoranda. It is often the case that the pre-hearing memoranda effectively serve to update the parties’ prior written submissions (e.g., Request to Arbitrate/Statement of Claim, Statement of Defense, Statement of Counterclaim).
- In essence, pre-hearing memoranda serve as the “roadmap” for the arbitral hearing. For this reason, they are not only important for the arbitrator(s) during the hearing, they also serve as an effective mechanism by which the parties are able to refine their respective arguments and strategies.
Ch. 20 Stages of the Arbitral Process
PETER SHERWIN, KENNETH E. ALDOUS