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MANAGEMENT
OF ARBITRATION
A Guide for In-House
Counsel and Other Party
Representatives
International Chamber of Commerce (ICC)
33-43 avenue du Président Wilson
75116 Paris, France
www.iccwbo.org
The views and suggestions contained in this guide originate from
the ICC Commission on Arbitration and ADR and the widespread
consultations conducted during the drafting of the guide. They
should not be thought to represent views and suggestions of the
ICC International Court of Arbitration or the ICC International
Centre for ADR, nor are they in any way binding on either body.
Copyright © 2014
International Chamber of Commerce (ICC)
Designed by Fishburn™
www.thisisfishburn.com
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EFFECTIVE MANAGEMENT OF ARBITRATION
TABLE OF CONTENTS
INTRODUCTION 03
SETTLEMENT CONSIDERATIONS 09
TOPIC SHEETS 15
3. Multiparty Arbitration 25
6. Document Production 33
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EFFECTIVE MANAGEMENT OF ARBITRATION
INTRODUCTION
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EFFECTIVE MANAGEMENT OF ARBITRATION
INTRODUCTION
07
EFFECTIVE MANAGEMENT OF ARBITRATION
09
EFFECTIVE MANAGEMENT OF ARBITRATION
SETTLEMENT CONSIDERATIONS
METHODS OF SETTLEMENT
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EFFECTIVE MANAGEMENT OF ARBITRATION
CASE MANAGEMENT CONFERENCE
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OPTIONS
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1. REQUEST FOR ARBITRATION
COST/BENEFIT ANALYSIS
QUESTIONS TO ASK
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EFFECTIVE MANAGEMENT OF ARBITRATION
OPTIONS
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2. ANSWER AND COUNTERCLAIMS
COST/BENEFIT ANALYSIS
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EFFECTIVE MANAGEMENT OF ARBITRATION
2. ANSWER AND COUNTERCLAIMS
QUESTIONS TO ASK
OPTIONS
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3. MULTIPARTY ARBITRATION
COST/BENEFIT ANALYSIS
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EFFECTIVE MANAGEMENT OF ARBITRATION
4. EARLY DETERMINATION OF ISSUES
OPTIONS
COST/BENEFIT ANALYSIS
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EFFECTIVE MANAGEMENT OF ARBITRATION
4. EARLY DETERMINATION OF ISSUES
QUESTIONS TO ASK
OPTIONS
COST/BENEFIT ANALYSIS
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5. ROUNDS OF WRITTEN SUBMISSIONS
QUESTIONS TO ASK
1. Does the case justify the extra time and cost caused
by additional written submissions?
And, in particular,
2. Are additional rounds of submissions genuinely useful
or necessary for a party to make its case to the arbitral
tribunal, and if so, why?
3. What is the estimated cost of such additional rounds?
4. Is the benefit worth the cost, and if so, why?
OPTIONS
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EFFECTIVE MANAGEMENT OF ARBITRATION
6. DOCUMENT PRODUCTION
A. No document production.
• The parties may decide to seek no documents from
each other and to rely solely on the documents each
of them possesses.
• The parties are always free to submit their own
documents.
• The parties are also free to request the arbitral
tribunal to order the production of specific
documents.
B. Production limited to specific documents or narrow
categories of documents, which are relevant and
material to deciding an issue in the arbitration.
Consider using:
• the IBA Rules on the Taking of Evidence in
International Arbitration (“IBA Rules”) as a standard;
• the suggestions in the report of the ICC Commission
on Arbitration and ADR entitled “Controlling Time
and Costs in Arbitration”;
• the report of the ICC Commission on Arbitration and
ADR entitled “Managing E-Document Production”.
C. Broad document production as used in some
common law jurisdictions.
• The parties may agree upon broad requests for
documents.
• In rare cases, the parties may agree to common law
style “discovery” including depositions and/or
interrogatories.
When document production is to occur, the parties may
agree upon the ground rules for requesting documents
from and producing documents to each other.
If the parties cannot agree on whether to have
document production or on the extent of document
production or the ground rules for such production, the
tribunal will decide.
COST/BENEFIT ANALYSIS
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EFFECTIVE MANAGEMENT OF ARBITRATION
6. DOCUMENT PRODUCTION
QUESTIONS TO ASK
1. Are any requests for document production genuinely
useful or necessary for a party to make its case or can
the party rely effectively on the documents in its
possession?
2. What extent of document production is genuinely
useful and necessary?
3. When should document production occur?
4. What is the estimated cost of searching for and
producing documents, as well as the cost of reviewing
and analysing documents that have been produced?
5. Is the benefit of document production worth the cost,
and if so, why?
OPTIONS
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7. NEED FOR FACT WITNESSES
COST/BENEFIT ANALYSIS
QUESTIONS TO ASK
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OPTIONS
Form
A. No written witness statements.
B. Brief summary of the scope of witness evidence
(witness summary).
C. Full witness statements.
Scope of full witness statements
A. Lengthy and comprehensive statement.
B. Short statement limited to key factual issues in
dispute.
Number and timing
A. One or more rounds of witness statements.
B. Witness statements submitted with written
submissions.
C. Witness statements submitted following the
exchange of written submissions.
D. Witness statements submitted simultaneously or
sequentially.
Form
Written witness statements increase the length and
cost of the pre-hearing phase, but can reduce the length
and cost of the hearing by replacing direct examination
and allowing for a more focused cross-examination. The
absence of witness statements, or the submission of
witness summaries only, will reduce pre-hearing costs
but can increase the length and cost of the hearing.
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EFFECTIVE MANAGEMENT OF ARBITRATION
8. FACT WITNESS STATEMENTS
Scope
Comprehensive witness statements can be a valuable
part of case presentation, allowing witnesses to tell the
story of the dispute and place documentary evidence in
its context. However, lengthy witness statements will
increase time and cost as well as the scope of cross-
examination.
Number and timing
More than one round of witness statements provides
witnesses with the opportunity to rebut the evidence of
other witnesses, but will increase time and cost prior to
the hearing.
Submitting witness statements with the written
submissions provides direct proof of the facts at the
time they are alleged. It also allows the parties to
identify and progressively narrow down the factual
issues, which may make for shorter, more targeted
submissions later.
Submitting witness statements only after the exchange
of written submissions may allow the parties to narrow
down the factual issues in dispute before preparing and
submitting witness statements, which may
consequently be more focused on the disputed issues.
COST/BENEFIT ANALYSIS
QUESTIONS TO ASK
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OPTIONS
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9. EXPERT WITNESSES
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9. EXPERT WITNESSES
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9. EXPERT WITNESSES
QUESTIONS TO ASK
OPTIONS
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10. HEARING ON THE MERITS
COST/BENEFIT ANALYSIS
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10. HEARING ON THE MERITS
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10. HEARING ON THE MERITS
QUESTIONS TO ASK
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OPTIONS
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11. POST HEARING BRIEFS
COST/BENEFIT ANALYSIS
QUESTIONS TO ASK
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ICC COMMISSION ON ARBITRATION AND ADR