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