Hearing phase

In reality, an oral hearing will take place in virtually all international arbitrations (save where the parties agree otherwise). Conducting an oral hearing is required by many institutional rules and most national laws (unless the parties’ arbitration agreement excludes oral hearings or neither party requests a hearing). A tribunal’s failure to hear oral evidence, when requested by a party to do so, would invite an application to the court to set aside the award for failure to afford an opportunity to be heard. For Model Law states, the provisions of art 24(1) should be had in mind “(1) Subject to any contrary agreement by the parties, the arbitral tribunal shall decide whether to hold oral hearings for the presentation of evidence or for oral argument, or whether the proceedings shall be conducted on the basis of documents and other materials. However, unless the parties have agreed that no hearings shall be held, the arbitral tribunal shall hold such hearings at an appropriate stage of the proceedings, if so requested by a party.”

Consequently, if a party requests a hearing, it will invariably be granted. This does not mean that a party may request a separate hearing on every issue to arise in a case. Rather, a tribunal may make many procedural decisions based on written submissions (or telephonic “hearings”) or may consider multiple (or all) disputed substantive issues at a single hearing.

Documents only hearings or witnesses being called?

Most arbitrations result in a hearing, although it is, of course, possible to have arbitration without a hearing. A hearing may last anywhere from a few hours, for one or two witnesses, to many months, for dozens (or even hundreds) of fact and expert witnesses on multiple issues.

Similarly, although a hearing may be on documents and submissions alone, it is usually the case that witnesses will be called. The reason that witnesses are usually called is that most arbitrations involve the tribunal having to make findings of fact. Civil law practitioners will sometimes contend that the arbitral process is too much slanted to the common law, and that greater reliance should be placed upon written, rather than oral testimony and contemporaneous documents. Such a reaction to the present form of most arbitrations is reflected in the creation of the Rules on the Efficient Conduct of Proceedings in International Arbitration (Prague Rules) (see below), which attempt to redress the balance and present a more civil-law approach to the arbitral process. It is often the case that the representatives in an arbitration come from different legal traditions, and the procedures and approach to evidence agreed between such parties is sometimes the result of the compromises that each tradition has to consider when acting in the arbitral setting.

Witnesses or documents only: considerations

In deciding whether to call witnesses or have a documents-only hearing, parties may wish to consider the following:

Whether the dispute is essentially a dispute on facts and were, therefore, findings of fact need to be made;

Where the parties wish to call oral testimony and/or what the opportunity to cross-examine;

Where, although the dispute is centred around the interpretation of documentary material and matters of law, the issues are such that the parties wish for legal argument to take place and oral submissions to be made;

Whether the dispute is actually centred around documents and oral testimony is not required;

Whether the value of the dispute is such that the parties wish to keep costs to a minimum or where the parties themselves have limited resources.

Where the parties come from a civil law tradition and are more comfortable with evidence being presented in documentary form (see, for example, the procedure envisaged by the Prague Rules).

It should be noted that art 24(1) of the Model Law expressly provides that, unless the parties have agreed that a hearing should not be held, the tribunal should hold one (or indeed more) hearings at an appropriate stage of the proceedings, if a party requests a hearing.

Where documents only is the preferred approach, regard should be had to the Chartered Institute of Arbitrators (CIArb) Guideline 8: Documents Only Arbitration Proceedings – 2016 and to the CIArb Guideline 7: Party-Appointed and Tribunal-Appointed Experts – 2016.
Typically, an arbitration hearing will begin with an introduction by the presiding arbitrator (in the case of a panel) or by the sole arbitrator. The parties will be introduced and any initial logistical matters addressed. At that stage, there may also be some procedural issues that arise in relation to the hearing itself. One of those may be argument as to whether the tribunal actually has jurisdiction (see below).

Thereafter, it is usual for the claimant to give an opening and then, where witnesses are to be called, to call the witnesses. The witnesses of fact are usually called first, followed by any expert. Adopting a common law-like model, as is usually the case, following questioning by the parties, the tribunal may pose questions of its own and then the parties will have the opportunity to ask any further questions in respect of any matters that have risen from the tribunal’s questions.

Following the closure of the claimant’s case, the respondent then opens its case, with witnesses called in a similar manner. There are some variations to this, of course, and it may be that the tribunal will invite the respondent to make its opening immediately after the claimant has opened its case in order to get an early understanding of the issues to be determined. In some jurisdictions, there are restrictions as to whether a party is able to be a witness in its own case. However, that is not the normal position in international arbitration and indeed, art 4(2) of the IBA Rules makes it clear that any person may be called as a witness, including a party, or a party’s employee or other representative. The arbitral tribunal must, however, decide on such issues as to whether a witness is allowed to be present in the hearing room itself before and/or after they have given their evidence. It is a usual practice, almost inevitably, for a witness not to be allowed within the room before giving evidence. Again, there will need to be consultation with the parties.

At the end of the hearing, it is usual for an opportunity to be given for closing submissions. Practitioners should bear in mind that closing submissions provide an opportunity to highlight key features of the evidence that have been heard and to lead the tribunal, through advocacy, to the conclusion that the party in question wishes the tribunal to reach. The opportunities provided by a closing submission should not be neglected. There are, however, some proceedings where the tribunal will give the parties the opportunity to submit a post-hearing brief, rather than to make a closing submission at the end of the hearing itself. Some practitioners find that this is valuable as it gives an opportunity to address the points raised and the evidence heard in more reasoned detail.