Conduct of the Proceedings
The purpose of the arbitration hearing is to give each party a full and fair opportunity to present its case to the arbitrator. At the hearing, a party to the arbitration has a right to be heard, to present evidence material to the controversy, and to cross-examine witnesses appearing at the hearing. Under the Revised Uniform Arbitration Act, an arbitrator may decide a request for summary disposition of a claim or particular issue.
Each party must be allowed an opportunity to present the claims the party has in full. Where a party having a fair opportunity to do so fails to offer any evidence, the party cannot later complain that the arbitrators did not hear the party.
Compared with judicial proceedings, arbitration hearings are relatively informal. rbitrators are not bound by formal rules of procedure so long as the hearing is fairly conducted. An arbitrator has broad discretion in conducting the hearing and determines what the rules governing the arbitraiton are.
Because most arbitration agreements provide little guidance with respect to hearings, it may be helpful if the parties’ agreement refers to the arbitration rules of an administering organization providing for the proper conduct of the proceedings. Arbitrators are bound to the procedure specified by the arbitration agreement, unless it is in violation of law or public policy.
With respect to the authority of the arbitrator in an employment arbitration, the Employment Due Process Protocol provides that the arbitrator should be bound by applicable agreements, statuts, regulations and rules of procedure of the designating agency, including the authority to determine the time and place of the hearing, permit reasonable discovery, issue subpoenas, decide arbitrability issues, preserve order and privacy in the hearing adn procedures for post-hearing submissions, and issue an award resolving the submitted dispute. The Protocol provides that the arbitrator should be empowered to award whatever relief would be available in court under the law.
Arbitration is much more flexible than a judicial process, and there are no compulsory procedural rules to be followed by the parties, provided that the procedure complies with certain mandatory principles (i.e., full defense and proper response, equal treatment of the parties, arbitrators’ impartiality and free convincement).
Therefore, parties have certain freedom to set forth in the arbitration agreement the procedure that will apply. The parties may either: (i) choose the arbitration rules of an institution or entity such as
UNCITRAL; or (ii) spell out in the arbitration agreement the applicable arbitration rules; or even (iii) assign to the arbitrators the power to define the procedure. The first alternative is usually the best choice, since the
arbitration rules of renowned institutions have been continuously tested in practice and are less likely to give rise to disputes or doubts.
It is usual to choose a set of arbitration rules, as well as to foresee in the arbitration agreement certain changes thereto to better suit the intentions of the parties. This is a possible alternative, but the parties
should carefully verify in advance whether the arbitration rules allow the intended amendment, so as not to create a pathologic clause. To quote an example, it may not be possible to conduct an ICC arbitration if the
institution does not have a body similar to the International Court of Arbitration to perform acts such as the scrutiny of the draft award.
A similar problem may arise when the parties select the rules of a given arbitral institution, but choose another institution to manage the arbitration. It is also strongly advisable that such a thorough compatibility
review should precede such a choice, therefore preventing the development of a situation in which the competent arbitral institution is unable to perform all the procedural acts contemplated in the applicable
In the case both the arbitration agreement and the arbitration rules are silent on a given procedural issue, the arbitrators have powers to regulate it. In arbitrations with the seat in Brazil, arbitration agreements
sometimes stipulate the subsidiary application of the Brazilian Civil Procedure Code as a parameter for conducting the proceeding. This raises the issue of the law applicable to the procedure, which will be
analyzed in the following section.
The UAE’s New Arbitration Law
On 3 May 2018 a new arbitration law was issued by the President of the United Arab Emirates and it is expected to be published as Federal Law No. 6 of 2018 on Arbitration (the Arbitration Law). The Arbitration Law repeals Articles 203 to 218 of the UAE Civil Procedure Code (Federal Law No. 11 of 1992) applicable to arbitration, and any other provisions contrary to the Arbitration Law. In this short briefing, we cover key features of the new law: what you need to know in a nutshell.
Bringing the UAE in line with international norms – The new law is broadly based on the UNCITRAL Model Law on International Commercial Arbitration adopted by the United Nations Commission on International Trade (the UNCITRAL Model Law). The UNCITRAL Model Law is a standard designed to assist States in uniformly reforming and modernising their laws so as to take into account the features of international commercial arbitration. The UNCITRAL Model Law provides a pattern that lawmakers can adopt or adapt as a basis for their national arbitration law. The UAE’s new Arbitration Law is an adaptation of the UNCITRAL Model Law.
Consistent with the UNCITRAL Model Law, for example, the Arbitration Law features limited grounds to annul an arbitral award, and provides for the authority of an arbitral tribunal to rule on its own jurisdiction.
Scope of application
Based on the UNCITRAL Model Law, the Arbitration Law distinguishes between international arbitration and domestic arbitration. The Arbitration Law applies to both.
Article 2 of the Arbitration Law titled “Scope of Application” exhaustively sets out the cases in which the Arbitration Law will apply. According to Article 2, the Arbitration Law shall apply to: any arbitration conducted in the UAE, unless the parties have agreed that the dispute shall be subject to any other arbitration law and provided that such law does not contravene public policy; any international commercial arbitration conducted outside of the UAE, if the parties have agreed that the UAE Arbitration Law shall apply; and any arbitration arising from a legal relationship (whether or not contractual), where the relationship is regulated by the laws of the UAE, except where a more specific provision of UAE law provides otherwise.