Hearings are an integral part of most arbitrations. They provide each party with an opportunity to present its case directly before the arbitral tribunal and can be pivotal to the eventual outcome. However, their importance also makes them a daunting and complex procedure. This note examines some of the most important elements to expect from an arbitration hearing.
Hearing Location
The physical location of an arbitration hearing will usually be determined by the arbitral tribunal. For instance, Article 26(1) of the 2021 Arbitration Rules of the International Chamber of Commerce provides that “the arbitral tribunal, giving reasonable notice, shall summon the parties to appear before it on the day and at the place fixed by it.”
Arbitral tribunals also generally have the power to determine whether a hearing will be remote or in person. This is an important factor in determining what to expect from an arbitration hearing.
Crucially, the venue of an arbitration hearing has no bearing on the seat of the arbitration, i.e., the jurisdiction which determines the procedural law of a case (the lex arbitri). For example, Article 16.3 of the LCIA Arbitration Rules 2020 stipulates that if the venue of a hearing is not in the same jurisdiction as the seat of the arbitration, “the arbitration shall nonetheless be treated for all purposes as an arbitration conducted at the arbitral seat and any order or award as having been made at that seat.”
To illustrate, an arbitration with its seat in England and Wales (which will usually be determined in the arbitration agreement) can contain a hearing held in New York, without affecting the fact that English and Welsh procedural law applies to the arbitration.
Hearing Arrangements
Once the arbitral tribunal has decided on a venue, the parties are responsible for conferring with each other and arranging the hearing and all necessary logistical aspects.
In the case of a physical hearing, the most obvious thing to do is to book (and pay for) a venue in which to hold the hearing. Certain arbitral institutions provide designated hearing rooms for arbitrations, such as the International Chamber of Commerce’s Hearing Centre in Paris or the International Dispute Resolution Centre’s hearing rooms in London. General-purpose conference rooms, such as those found in hotels, can also be attractive options. It is generally less expensive to have entirely virtual hearings rather than physical hearings. Both parties are expected to share the costs of the hearing.
Parties must also hire court reporters, and if a dispute involves more than one language, they may need to find interpreters (and if simultaneous interpretation is to be used, the necessary equipment will also need to be arranged). Finally, parties must make provision for a number of miscellaneous expenses such as catering costs, and the travel, accommodation, and subsistence costs of the arbitral tribunal, witnesses and experts.
Arbitration institutions can also provide varying degrees of assistance with arranging a hearing. The International Centre for the Settlement of Investment Disputes, for example, can provide reporters, translators, and interpreters, if needed.
Pre-Hearing Requirements
Arbitral tribunals typically hold pre-hearing case management conferences shortly before a hearing to discuss logistics, whether a chess-clock approach will be followed for the time allocated to both parties and the hearing timetable.
Furthermore, parties will often be requested to provide the arbitral tribunal with indexed hearing bundles containing all prior submissions and exhibits. These bundles can be physical and/or digital and can be prepared by the parties individually or together. Parties are also frequently asked to prepare a dramatis personae, a document that lists the key individuals and entities involved in the case, along with their respective roles, titles, or relationships. They are also frequently asked to prepare an agreed list of issues for the arbitral tribunal to decide.
The Hearing
Arbitration hearings are similar to court hearings, although they tend to be more flexible and less formal. This flexibility means that there is no single hearing procedure which will be followed in all arbitrations. Instead, it is a matter of the rules of the arbitration institution and the decisions of the arbitral tribunal.
Nevertheless, an arbitration hearing will typically consist of the following four steps:
- Opening statements: The parties will first present an overview of their case, often with a supporting slideshow demonstrating the evidence they rely on. It is standard for the claimant to go first.
- Witness examinations: Each party will then have the opportunity to examine its factual witnesses and to cross-examine the other factual witnesses, if there are any. Again, it is standard for the claimant’s witnesses to be examined first.
- Expert examinations: If either party relies on expert evidence, then they will typically have the opportunity to examine their own experts and cross-examine any others. Experts are generally examined following witness testimony.
- Closing statements: The parties will finish by summarising their case, typically drawing upon the events of the hearing in some way to emphasise their points.
However, these steps are not fixed. It is not uncommon, for example, for closing statements to be foregone in favour of post-hearing briefs, a final round of written submissions.
At each step of an arbitration hearing, the claimant will typically go first as the moving party. In certain circumstances, the arbitral tribunal may determine that it is appropriate for a respondent to go first instead. A court reporter will also be following the hearing and preparing a transcript. Often, this transcript is simultaneously generated.
It is also common practice for arbitrators to ask questions after any of the above steps, either to the parties, their witnesses, or their experts. In general, arbitrators from civil law backgrounds will tend to appear more inquisitive and ask more questions, whereas arbitrators from common law jurisdictions will tend to place more emphasis on the parties’ pleadings.
Post-Hearing Procedure
After a hearing, a transcript will be provided to the parties. The parties are free to submit corrections but, if they cannot agree on them, the arbitral tribunal has the final say. The arbitral tribunal may also record the arbitration and make this recording available to participants.
Hearings are usually the last major step of an arbitration. Unless there are other rounds of submissions provided for in the arbitration’s procedural timetable, the parties will then submit their respective submissions on costs, in which they explain the costs they have incurred in the arbitration and often make a case for how the total costs of the arbitration should be allocated between the parties. Parties may also be given the opportunity to respond to each other’s submissions on costs.
Then, the arbitral tribunal will declare the arbitration closed and focus on its most important task: drafting the arbitration award.