Barry Leon & John Siwiec
This article originally appeared in the September 14, 2012, issue of The Lawyers Weekly published by LexisNexis Canada Inc.
A distinguishing feature of arbitration is that the procedural rules, whether legislated or set out in arbitral institutions’ rules, only provide a general framework for arbitral proceedings. Unlike court procedural rules, arbitration rules seldom include detailed provisions on such things as exchanging briefs, producing documents, conducting hearings, and whether and how witnesses should be heard.
This absence of detailed provisions may be due in large part to a desire to preserve “party autonomy”, a cornerstone of arbitration that enables parties to tailor their proceedings to fit their dispute. International arbitration organizations have complemented this freedom by issuing soft rules and guidelines to assist arbitrators, counsel and parties to conduct arbitrations efficiently and cost effectively. Examples include the “Rules on the Taking of Evidence in International Arbitration” of the International Bar Association (“IBA Rules”; www.ibanet.org/LPD/Dispute_Resolution_Section/Arbitration/IBA_Rules_Evidence/Overview.aspx), “Notes on Organizing Arbitral Proceedings” of the United Nations Commission on International Trade Law (UNCITRAL; www.uncitral.org/uncitral/en/uncitral_texts/arbitration/1996Notes_proceedings.html) and “Techniques for Controlling Time and Costs in Arbitration” of the International Chamber of Commerce (ICC; www.iccdrl.com).