Conduct of the Proceedings

Ad hoc and institutional rules of arbitration only provide an outline of the various steps; detailed
regulation of the procedure that is to be followed is established either by the agreements by the
parties or by directions from the arbitral tribunal.

PARTY AUTONOMY

Guiding principle in determining the procedure to be followed in an international arbitration.

E.g.

Model Law, Art. 19(1) subject to the provisions of this law, the parties are free to agree on the
procedure to be followed by the arbitration tribunal in conducting the proceedings.

[similar provision art. 2 of 1923 Geneva Protocol and art. 19 Arbitration rules, ICC and art. 14(2)
LCIA and rule 20(1) ICSID Rules]

LIMITATIONS ON PARTY AUTONOMY

1. Equal treatment

New York Convention, Art. V(1)(b): Recognition and enforcement of the award may be refused if
[t]he party against whom the award is invoked was unable to present his case

Model law, art. 18 the parties shall be treated with equality and each party shall be given a full
opportunity of presenting his case.

Even the provision under UNCITRAL to the effect that the arbitral tribunal may conduct the arbitration
in such a manner as it considers appropriate (Art. 17(1)) is qualified by the proviso that it must
treat the parties with equality.

Therefore, a provision in the submission agreement that only one party should be heard by the arbitral
tribunal might well be treated as invalid (by enforcement court or otherwise) even if both the parties
originally agreed to the same.

2. Public policy

The parties shall not confer powers upon an arbitral tribunal that would cause the arbitration to be
conducted in a manner contrary to the mandatory rules or public policy of the state in which the
arbitration is held (seat of arbitration).

A party needs to be given only a reasonable opportunity to present its case. Any agreement between
countries to confer power on the tribunal to perform acts contrary to public policy of the seat of
arbitration would be unenforceable in that country to the extent of the offending provision.

3. Arbitration rules

Pg 3 Redfern and Hunter.

4. Third parties
The parties may not validly agree to confer powers on an arbitral tribunal that directly affect persons
who are not parties to the arbitration agreement unless a special provision of an applicable law
enables them to do so. (very rare)

The tribunal may direct the parties to produce documents/ attend meetings/ submit to examination
but it usually has no power to compel a third party to do so even if the arbitrating parties have
conferred such powers on the tribunal. (Compulsion may only be invoked through assistance of of
national court of competent jurisdiction).

A request: it is the demand for arbitration delivered to the institution (in case of institutional
arbitration). Whereas, a notice is delivered to the opposing party in ad hoc arbitrations.

Premium time: the time spent at hearings in terms of cost to the parties.

CATEGORIES OF EVIDENCE-

1. Production of contemporaneous documents

2. Testimony of witnesses of facts (written/oral)
3. Opinions of expert witness (written/oral)
4. Inspection of the subject matter of the dispute