By Verlyn Francis
One of the advantages of arbitration over litigation is efficiency. Arbitration does not have to contend with the numerous rules of civil procedure. This saves time and, therefore, cost. However, parties to arbitration still expect and do receive procedural fairness in the adjudication of their disputes.
The concept of efficiency combined with procedural fairness is sometimes challenging for arbitration counsel from different jurisdictions who argue that, without all the court system’s procedural steps, parties do not receive fairness.
Trained commercial arbitrators would argue they are misconstruing the whole arbitration process. One of the fundamentals of arbitration is that, at the first pre-hearing conference, the parties have input into the procedural rules that will govern the process before those rules are set out in the first preliminary order.
Unfortunately, document disclosure and witness presentation are two areas that can bedevil the tribunal, arbitration counsel and the parties.
The newly published Protocol on Disclosure of Documents & Presentation of Witnesses in Commercial Arbitration, by CPR, the International Institute for Conflict Prevention and Resolution, will go a long way to providing guidance to tribunals and tribunal counsel on the disclosure of documents and witness presentation in commercial arbitration. This insightful Protocol, a revision of the first Protocol issued in 2009, is the work product of a CPR Arbitration Committee task force co-chaired by Baker McKenzie of counsel Lawrence W. Newman, in New York, and Viren Mascarenhas, a King & Spalding partner who works in the firm’s New York and London offices.
The Protocol’s stated aims are: (1) to give parties to arbitration agreements the opportunity to adopt certain modes of dealing with the disclosure of documents and the presentation of witnesses; and where they have not done so, (2) to assist CPR or other tribunals in carrying out their responsibilities regarding the conduct of arbitral proceedings.
The Protocol does not supersede the institutional rules or ad hoc arbitrations. Instead, it helps tribunals to refer to the Protocol in organizing and managing arbitrations under rules such as those for CPR (for example, CPR’s arbitration rules are available here), other institutions, or ad hoc arbitrations.
In dealing with the disclosure of documents, the Protocol considers the philosophy underlying document disclosure; attorney-client privilege and attorney work-product protection; party-agreed disclosure; disclosure of electronic information, and tribunal orders for the disclosure of documents and information. It provides schedules of the wording that can be adopted by parties in their agreements and tribunals in their orders.
In the section on the presentation of witnesses, the Protocol reminds arbitrators to bring to the attention of the parties at the pre-hearing conference the options for adducing evidence and encourage the exploration of those options with the parties.
The first option is that the parties can agree that the tribunal will decide the arbitration on documents only. It then sets out guidance on how evidence can be submitted by witness statements, oral testimony, depositions, and presentations by party-appointed experts. Also included are procedures that may be applied to the conduct of the hearing.
This does not negate party-agreed procedures for the presentation of witnesses but, of course, the tribunal must be careful not to allow the parties to encumber the arbitration with all the court rules. The Protocol also includes schedules setting out the modes of presenting witnesses, including experts.
This Protocol contains guidance that most commercial arbitrators know, but it is another important tool that tribunals can use to educate counsel and the parties while bringing efficiency into arbitration procedures.
I have added it to my toolkit!
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The author, a mediator and arbitrator who heads Toronto-based Isiko, an ADR consulting firm, conducts adjudicative processes in estates, family, civil, and commercial disputes. She is a Professor of ADR at Centennial College, Toronto, Canada, and a member of the CPR Panel of Distinguished Neutrals.