The International Council for Commercial Arbitration (“ICCA”) has recently published a so-called “Drafting Sourcebook for Logistical Matters in Procedural Orders” (“ICCA Drafting Sourcebook”). This is a thirty-page booklet which enumerates in no less than thirty-four chapters typical procedural rules which an arbitral tribunal might use to structure the arbitral proceedings. The extent of covered content is impressive and ranges from communication rules and the handling of time limits to formatting issues for submissions, the structure of witness statements and the course of the main hearing. The ICCA Drafting Sourcebook is authored by a multinational group of international arbitration practitioners.
What is the purpose and the background of this book? State laws on arbitration and institutional arbitration rules, such as the ICC Arbitration Rules, provide little guidance on how arbitral proceedings are actually conducted. In essence, arbitration laws and institutional rules only state that the course of arbitral proceedings can be agreed upon by the parties and that, in absence of such an agreement, the arbitral tribunal has the discretion on how to run the proceedings (compare Article 19 of the UNCITRAL Model Law and Article 22 ICC Rules of Arbitration). It stands to reason that such vague reference to a parties’ agreement or to the arbitral tribunal’s discretion is insufficient to establish a structured procedural environment in which the arbitration proceedings can run smoothly and efficiently. The parties, especially those with little experience in international arbitration, need to know how submissions may be filed, how time limits can be extended, how written submissions should be formatted, how the hearing is conducted and how post-hearing briefs and final cost submissions are to be filed. The new ICCA Drafting Sourcebook fills that gap and it does so with great expertise and detailedness.
How can the recommendations contained in the ICCA Drafting Sourcebook be implemented in arbitration proceedings? The recommendable way is the following: The arbitral tribunal drafts a procedural order in which certain rules taken from the ICCA Drafting Sourcebook are set forth. This draft is discussed with the parties in a conference call. Finally, after having considered the parties’ comments, the arbitral tribunal issues the procedural order formally. In this context, it is of utmost importance to clarify that the procedural rules are unilaterally ordered by the arbitral tribunal and do not apply based on the parties’ consent. The reason for this form requirement is twofold: First, the arbitral tribunal should retain control over the procedural rules and agreed-upon rules cannot be changed or altered without the consent of all parties involved. Second, and more importantly, even an unintended deviation from a parties’ agreement can expose an arbitral award to a challenge under Art. V(d) of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards To avoid that danger, a unilateral directive by the arbitral tribunal is clearly preferable.
Finally, a word of caution: A long time ago, arbitration started as a kind of informal proceeding to settle disputes quickly and in a non-formalistic manner. The current trend, however, is towards more and more standardized, formalized arbitral proceedings. Soft law such as the IBA Rules on the Taking of Evidence in International Arbitration and – now – the ICCA Drafting Sourcebook has contributed heavily to this development. For any arbitrator, it is almost risk-free to exercise his procedural discretion in compliance with the recommendations set forth in the mentioned soft law. Therefore, following recommendations in soft law is the obvious choice. That decision then results in most detailed procedural rules. To illustrate this a bit: If the rules proposed in the ICCA Drafting Sourcebook are implemented in an arbitration one-by-one the resulting “legal” framework for the proceedings would be much more detailed than the rules of civil procedure applicable in state court proceedings. The question is whether such standardization is a commendable or deplorable development. The answer depends on the nature and size of the case. The larger and more complex a case is, the higher is the need to structure the proceedings in order to maintain the justiciability of the case and to ease the task of the arbitrators. However, in smaller cases the parties may be shocked if they are confronted with a thirty-page procedural order at the outset of an arbitration. Flexibility is here more important than structure. The advice, therefore, is to use helpful publications such as the ICCA Drafting Sourcebook with care and not as an automatic mechanism. And, to do justice to the ICCA Drafting Sourcebook: This is exactly what its authors propose.