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Stages of International Commercial Arbitration in detail

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There are different stages in International Commercial Arbitration, for a law student, it is important to know about these stages and learn their relevance in an arbitration proceeding. These stages help in keeping the entire arbitration procedure intact and simpler. 

1. Client Counselling- Client Counselling refers to talking and interacting with the client to know what they are seeking from the lawyers. This helps in knowing the needs of the client and then work further accordingly. 

2. Finding the Dispute- After consulting the client, it is also essential to check the matter of dispute. It is extremely important to check where, when and how the breach of contract occurred. This also helps in knowing the next possible steps that the lawyers can take. 

 

3. Reading the Arbitration Agreement- It is also important to read the arbitration agreement and know about the things that are crucial to contract. Such as-

 

a.  Seat of Arbitration

b.  Venue of Arbitration

c.  Type of Arbitration (Ad Hoc or Institutional)

d.  No. of Arbitrators that are to be appointed

e.  Laws Governing the Arbitration

 

4. Legal Notice- The next procedure is sending the legal notice. The notice would include the names of the parties, explaining the dispute, the damages suffered by the suffering party and specifying the quantum of compensation.

 

5. Waiting for Response- It is important to wait for respondent’s reply and acknowledgment of receiving the legal notice. There can be chances that the respondent accepts the mistake and tries to rectify the same. If the same is done, parties won’t have to proceed with arbitration and bear costs.

 

6. Issuing an Arbitration Notice- If the respondent does not respond to the legal notice, or does but does not rectify the dispute, the parties shall proceed with Arbitration. The procedure starts with sending the Arbitration Notice. The notice majorly includes-

 

a.  Name of Parties

b.  Contractual Relationship

c.  Nature of Dispute

d.  Damages

e.  Appointment of Arbitrators

 

7. Understanding the type of Arbitration-


a.  Ad Hoc Arbitration- The proceedings shall not be governed by the rules of an Institution.


b.  Institutional Arbitration- The proceedings shall be governed by the rules of an Institution.


c.  Hybrid Arbitration – Institution will only to help in appointment, rest all the proceedings shall be governed by the parties themselves.

 

8. Sending information to the Respondent- The claimant shall inform the respondent of all the proceedings and stages that are being conducted via letters/mail in case the respondent does not respond.

 

9. Before appointing the Arbitrator, understanding the arbitrator by background check-

 

a.  Academic writings of the arbitrator

b.  Try to read other awards that have been passed by him

c.  See his understanding of the concerned subject

d.  Someone who can write a legal award

e.  Arbitrator’s work history

f.   See who appointed the arbitrator in previous proceedings

g.  Check the combination of the arbitrators appointed

 

(Experts can be appointed to assist the arbitrators)

 

10. How to approach the Arbitrators- It is important to send a mail to the arbitrator asking whether the Arbitrator has any subject of Conflict in deciding the matter-

 

a.  Write to the arbitrator without disclosing the facts

b.  Provide basic brief of parties

c.  Specify the Quantum of Compensation

d.  Seat and Venue of Arbitration

e.  Ask if there is any conflict

 

11. Identify someone from the other side who can identify all the things-

 

a.  Confirmation or denial of claims made by claimant

b.  State reasons of objections, if any

c.  Counter-claim or any other relief seeked by respondent to be identified

d.  Nominate an arbitrator

e.  Agree to nomination, seek assistance of institution if appointment cannot be finalised

 

12.  Appointment and finalisation of tribunal

 

13.  Setting a time table through a procedural hearing-

 

a.  Draft procedural timetable

b.  Parties are requested to comment

c.  Identify different options

d.  Parties are requested to mutually agree/disagree

e.  If no draft given from tribunal, parties shall make one

 

14.  Virtual Hearings-

 

a.  Arbitrator, Claimant, Respondent

b.  List of witnesses beforehand

c.  Begins with claimant

d.  Procedural order passed generally in 10 days.

 

15.  Procedural order-

 

a.  Determine how the proceeding will take place

b. Details of procedure including, submission of document, type of document (original or duplicate), through email or pen drive

c.  If order not followed, extension of time can be asked for (before deadline)

d.  If extension is not agreed by other party, then the tribunal will be approached

 

16.  Procedural Conference- Parties will have to represent themselves

 

17.Sending the statement of claim, the same shall include- Exhaustive list of document, laying down the entire case and explaining why the party is entitled to compensation. The claim can be done via-

 

a.  Pleading style- Drafting the facts, cause of dispute and quantum of compensation in brief manner.

 

b.  Memorial style- The statement of claim shall include everything in detail, including various legal provisions and relevant case laws.

 

18.  Statement of reply/counterclaim- The respondent shall send a statement of reply or send a counterclaim to the statement of claim made by the claimant.

 

19.  Claimant’s response- Post receiving Respondent’s reply, the claimant can further defend the case. If the Respondent sends a counterclaim, the claimant can send a statement of reply.

 

20.  Document Disclosure Phase- Next important step is to disclose the documents that are relevant to the case. These documents shall be used as evidence to support or neglect the claim.

 

21.  Witness Statement- The witnesses that were mentioned earlier in the virtual hearings, shall be present and provide their statements.

 

22.  Export Report- This is an essential step, wherein a person having expertise in the matter shall inspect and send a report. The expertise may be sought in the following subject areas-


a. Deciding the Quantum of Compensation

b. Providing Technical Expertise

c. Seeking Legal Expertise in order to conduct the proceedings as per the law

 

23Oral Hearing – in this stage the parties meet for the first time to have a physical hearing and all the legal experts, parties, tribunal/arbitrators would be present. The oral hearing stage lasts generally for 8-10 days and in the oral hearing both the parties first begin with their: -

 

i.    Opening Statements- The parties set the tone for the arbitration in the opening statement.

ii.   Cross Examination

iii.  Legal Submission

iv.  Closing Statement- Summary of whatever happened in the oral hearing of the arbitration, it is the most important phase in oral hearing.

 

24Post Hearing Brief – Parties will synchronize all the arguments that was done in oral hearing in one concrete document & submit it to the tribunal.

 

25Award- This is the last stage in the arbitration proceedings , and the court would determine in it-

 

(i)      Name and nationality of parties

(ii)     Name of Arbitrators

(iii)    Identify Issue

(iv)    Identify procedural aspects

(v)     Rule on merits of case

(vi)    Identify relief that has to be granted

(vii)   Date of award, place of arbitration

(viii)  Signatures- End of process

 

Also read- 
Difference between Ad Hoc Arbitration and Institutional Arbitration

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