The Preliminary Meeting
PRELIMINARY MEETINGS IN ARBITRATION
CRITICAL FIRST STEPS IN COMPLEX COMMERCIAL ARBITRATION
Arbitration, a means of settling disputes, has been practised in Dubai & UAE, and indeed worldwide for a number of years. Arbitration is defined as “a legal enforceable procedure to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay and experience”.
One of the main attractions of international arbitration is the flexibility of the process which can be tailor-made according to the parties’ specific needs and the particular circumstances of each dispute. Most arbitration laws and rules reflect this flexibility and do not prescribe how the procedure should be managed. Instead they mostly confirm that, absent an agreement between the parties to the contrary, arbitrators have a broad discretion to design the procedure to suit each arbitration, subject to ensuring that all parties are treated even-handedly and given a fair opportunity to present their case. Nevertheless, arbitrators should take great care to establish whether there are any other applicable mandatory provisions and comply with them.
Determination of the procedure To begin, the arbitrators may take the initiative and make suggestions as to the proposed procedural directions for the conduct of the arbitration and ask the parties for their comments. If the parties have reached an agreement as to the procedure to be followed, arbitrators should respect the parties’ agreement provided that it is not contrary to any overriding mandatory laws and/or principles of public policy at the place of arbitration and/or would cause the proceedings to be conducted in a manner which is inefficient and unnecessarily costly. In these circumstances, arbitrators should consider encouraging the parties to adopt a more suitable procedure and, if appropriate, make a procedural order to that effect.
Avoiding unnecessary delay and cost Arbitrators should be mindful of their duty to conduct the proceedings in a manner so as to avoid unnecessary delay and cost. The efficiency and fairness can be enhanced when the arbitrators effectively managed the proceedings. The principal tool to fulfil this duty is the arbitrators’ ability to give directions linked to an agreed timetable for each step of the arbitration so that the parties always know what they have to do and by when.
What are the purpose and advantages of the Preliminary Meeting?
The Preliminary Meeting is the first meeting the arbitrator will hold with the parties and/or their representatives. This meeting is normally held after the appointment of the arbitrator but before the substantive issues of the dispute are discussed and before any exchange of documents and evidence. The PM can be held at any location with the agreement of the arbitrator and the parties.
The primary purpose of the preliminary meeting is to set out the procedure for the entire arbitration. The preliminary meeting helps to introduce the parties to the arbitration process so that all parties understand what the process involves and a clear agenda can be established.
Parties to arbitration expect that they will have a full and fair opportunity to present their claims and defenses and the supporting evidence to the arbitrator. But when a commercial case is large or complicated in that it involves multiple parties, difficult or unusual features, or simply a large amount of money, everyone involved—the parties, their counsel and the arbitrators—must strive in earnest to keep costs down and avoid unnecessary delay while ensuring a fair process. Achieving these dual—and seemingly conflicting—goals requires foresight and planning during the initial stages of arbitration.
Whilst the Preliminary Meeting is overall procedural in nature, it has the following aims and benefits:-
- The jurisdiction of the arbitrator can be confirmed.
- Any challenges to the jurisdiction of the arbitrator can be raised by the parties.
- The nature of the dispute is defined and where possible narrowed and clarified.
- The role of the arbitrator and the terms and the conditions of the arbitration are discussed and agreed.
- The timetable/agenda of the arbitration can be agreed.
- The procedure for evidence, submissions and disclosure, witnesses and expert reports are discussed and agreed.
Consideration may also be given to the potential for an oral hearing (if agreed between the parties), the issue of arbitration costs and the ultimate award. The question of security of costs may also be considered and discussed.
- Finally, it is a useful forum for the arbitrator to outline the consequence of any failure to comply with the arbitror’s timetable and directions. The arbitrator can use this meeting to stress his authority to all parties.
Because decisions reached at a preliminary conference will shape the future course of the arbitration, the attorneys and the arbitrators need to work cooperatively to adopt practical procedures and a workable schedule.
Arbitrators have a broad discretion to organise the conduct of the proceedings, subject to the arbitration agreement, including the arbitration rules and/or the lex arbitri, and any agreement between the parties. To assist arbitrators in issuing procedural orders and managing the proceedings, this Guideline summarises matters that typically arise and techniques that can be used to conduct the arbitration in an efficient and cost-effective manner.