Out-Law Analysis | 18 Dec 2019 | 10:43 am | 4 min. read
A report published earlier this year by the International Chamber of Commerce (the ICC) Commission on Arbitration and ADR, and a subsequent study by the School of International Arbitration at Queen Mary University of London (QMUL) in partnership with Pinsent Masons, have identified areas for improvement in the context of submissions and hearings.
Maximising the efficiency of arbitration proceedings is a central theme in both the report and the study, and there is scope to improve efficiency across the whole process, from the selection of the arbitral tribunal, in the conduct of the arbitration itself – including in how the tribunal manages issues and claims, evidence, and submissions and hearings – and in the issuance of the arbitral award.
Here we look at the opportunities to improve the handling of submissions and hearings to make international arbitration more efficient.
Once all of the documentary, witness and expert evidence in chief has been served, the parties and arbitral tribunal will turn their minds to the submissions and the evidential hearing. Especially in the case of arbitrations in the construction industry, the volume of evidence will likely be great and so strategic decisions will need to be made as to how best to marshal, present and test that evidence before the arbitral tribunal.
The presentation of written and oral submissions before, during and following a hearing on the merits and the examination of witnesses and experts during the hearing are all considered in the ICC Commission's report and recommendations are made with respect to each of these aspects of a typical arbitration in the construction industry. The main recommendations principally concern the refinement of the relevant issues and documents and the management of the order and timing of events at the hearing.
Of the procedural elements considered by respondents to the QMUL survey to have the greatest potential for increasing efficiency in international construction arbitrations, the streamlining of evidential hearings and submissions was ranked third and thus appears to be perceived by participants in arbitration proceedings as a core area for improvement.
The generally accepted view, and practice, that written opening submissions should be served sufficiently in advance of any evidential hearing is confirmed in the ICC Commission's report. One of the benefits to this approach, where oral submissions are not being relied upon exclusively, is that the duration of the evidential hearing can be maximised for the examination and cross-examination of witnesses and experts.
The ICC Commission also considers the use of written closing submissions in its report. It notes that closing submissions are often best presented in writing, although some parties may have a valid reason for preferring oral closing submissions instead. Guidance is offered in the report as well for managing timing for the service of written closing submissions and any attempts to submit further evidence.
The QMUL survey addressed written and oral submissions and, in particular, the possibility of imposing caps with respect to such submissions. Survey respondents were asked to indicate which due process elements they would be prepared to forgo in order to save time and money in international construction disputes. The top two responses were uncapped written submissions and multiple rounds of (written) submissions. The fourth most selected response was oral closing arguments.
On the subject of what procedural constraints would improve efficiency, participants are in favour of imposing constraints on written and oral submissions. The third most selected feature was time-capped opening and/or closing submissions. Fewer respondents indicated that restricting parties to written opening and/or closing submissions, to the exclusion of oral submissions, would improve the efficiency of hearings and submissions in international construction arbitrations.
It is suggested in the ICC Commission's report that the evidential hearing should be principally, if not entirely, devoted to the examination and cross-examination of witnesses and experts, and that oral opening and closing submissions could be dispensed with entirely in favour of written submissions.
As to how the available time during the evidential hearing should be allotted, the ICC Commission recommends that the arbitral tribunal should require the parties to decide on the allocation between them, bearing in mind its duty to treat the parties fairly and impartially, ensuring that the parties have a reasonable opportunity to present their respective cases.
It appears that participants in arbitration proceedings agree that the cross-examination of witnesses could be more efficiently managed from a temporal perspective. In terms of the time devoted to cross-examination during the evidential hearing, more than a third of respondents to the QMUL survey indicated that they would be willing to forgo uncapped witness evidence to save time and money in international construction arbitrations.
The findings indicate that there may be scope for the parties and tribunal to work towards a stricter allocation of time for the examination of witnesses and experts.
As to the actual approach to conducting cross-examination, the ICC Commission further suggests that, in the event witnesses or experts are expected to tender evidence on the same topic, they should be questioned together, with a view to resolving any misunderstandings that may exist between them.
This method of questioning witnesses or experts together was not addressed directly in the QMUL questionnaire, but some survey respondents perceive the efficiency of hearings and submissions in international construction arbitrations would improve if the arbitral tribunal itself posed questions to witnesses and experts.
There is therefore clearly an openness from the institution and participants alike to departing from the strict traditional law approach to the cross-examination of witnesses and experts.
Although the two proposed approaches are different, it would appear that both are likely to have a positive impact on efficiency and could, in practice, be deployed in combination. For factual witnesses, the arbitral tribunal could question two witnesses addressing the same topic together. This is already common practice in the case of hot-tubbing with respect to experts in international construction arbitrations. There appears therefore to be an appetite among both the institution and participants for an increase in the use of these methods of examination.
16 Dec 2019
18 Dec 2019