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1
PERSPECTIVES ON ARBITRAL INSTITUTIONS AND ON PCERA
11 November 2015
Presenter:
Sarah Leonard, PartnerCorrs Chambers Westgarth
14566462/3
2
AGENDA
PERSPECTIVES ON ARBITRAL INSTITUTIONS AND ON PCERA 11 November 2015
1 Overview of
Arbitral
Institutions
• PCERA and other
arbitral institutions
including:
• ACICA
• ICC
• SIAC
• LCIA
• Important features in
arbitral institutions
3 Comparison of
PCERA with
other arbitral
institutions
• Statement of Facts
and Issues
• Procedural
Conference
• Case Management
Meetings
• Hearings
• Evidence and
Discovery
• Costs
2 Rules of
PCERA and
other Arbitral
Institutions
• Rules of arbitral
institutions
• Agreements
• PCERA’s Rules of
Arbitration
• PCERA’s Principles
and Policies
33
SECTION 1:OVERVIEW OF ARBITRAL INSTITUTIONS
PERSPECTIVES ON ARBITRAL INSTITUTIONS AND ON PCERA 11 November 2015
4
OVERVIEW OF ARBITRAL INSTITUTIONS
• PCERA was established in 2014 and adopts the UNCITRAL Rules (as
amended 2010) with some modifications, including the adoption of PCERA’s
principles and policies
• PCERA competes with other arbitral institutions including:
– Australian Centre from International Commercial Arbitration (ACICA) based in Sydney
– International Chamber of Commerce (ICC) based in Paris
– Singapore International Arbitration Centre (SIAC)
– London Court of International Arbitration (LCIA)
• Each of the above arbitral institutions adopt their own rules which regulate the
conduct of the arbitration
PERSPECTIVES ON ARBITRAL INSTITUTIONS AND ON PCERA 11 November 2015
5
PREFERENCE FOR INSTITUTIONS
• In the 2015 International Arbitration Survey by Queen Mary University, the most
important reasons for preference of certain institutions were (from highest to
lowest):
– High level of administration (proactiveness, facilities, quality of staff)
– Neutrality / “internationalism”
– Global presence
– Free choice of arbitrators
– Early procedural conference
– Scrutiny of award by institution
– Regional presence / knowledge
– Expertise in certain types of cases
– Overall cost of service
• Quality, practices and procedures of the institution are more important than cost
PERSPECTIVES ON ARBITRAL INSTITUTIONS AND ON PCERA 11 November 2015
66
SECTION 2:RULES OF PCERA AND OTHER ARBITRAL INSTITUTIONS
PERSPECTIVES ON ARBITRAL INSTITUTIONS AND ON PCERA 11 November 2015
7
RULES OF ARBITRAL INSTITUTIONS –GENERAL COMMENTS
• Most arbitral institutions have similar rules
– The rules provide the arbitrator or arbitral tribunal with varying levels of discretion
– Some rules have more prescriptive procedural requirements
– For example, PCERA’s policies are more prescriptive than the ICC and ACICA rules which provide
the arbitrator with a lot of discretion
• Remember
– Rules and procedures are always subject to agreement between the parties
– There is time and cost in preparing, negotiating and developing procedural rules if not well
established
– Important to have clear rules where the parties cannot agree
PERSPECTIVES ON ARBITRAL INSTITUTIONS AND ON PCERA 11 November 2015
8
PCERA ARBITRATION RULES AND PRINCIPLES
• PCERA modifies Article 17, paragraph 1 of the UNCITRAL Rules:
• “[s]ubject to these Rules and such principles and policies issued by PCERA, the arbitral tribunal may
conduct the arbitration in such a manner as it considers appropriate..”
• The PCERA Principles govern the arbitrator’s discretion
• The PCERA Principles are intended to save to time and cost through a practical
and commercial approach with the following steps (which are subject to the
arbitration agreement):
– Statement of Material Facts and Issues
– Procedural Conference
– Case Management Meetings
– Hearings
– Evidence and Discovery
– Costs
PERSPECTIVES ON ARBITRAL INSTITUTIONS AND ON PCERA 11 November 2015
99
SECTION 3:COMPARISON OF PCERAWITH OTHER ARBITRAL INSTITUTIONS
PERSPECTIVES ON ARBITRAL INSTITUTIONS AND ON PCERA 11 November 2015
10
STATEMENT OF MATERIAL FACTS AND STATEMENT OF ISSUES
• PCERA requires a detailed statement of material facts to be established prior to
the preliminary conference
• Early information = good procedure
PERSPECTIVES ON ARBITRAL INSTITUTIONS AND ON PCERA 11 November 2015
PCERA•Prior to preliminary conference, each party files:
•Statement of material facts
•Draft statement of issues expressed as questions
•Preliminary outline of contentions
ACICA•Request and Answer with general nature of claim
•Request and Answer may include:
•Statement of Claim
•Statement of Defence
•If not included, arbitrator determines timeframe to submit the Statements
ICC•Request and Answer with nature and circumstances of the dispute and basis for claims
•Arbitrator will draw up Terms of Reference with a summary of claims and list of issues to be determined
LCIA•Request and Response with nature and circumstances of dispute
•Unless otherwise agreed or decided:
•Written Statement of case after 28 Days of appointment of arbitrator
•Statement of defence within 28 days of receipt of the claimant’s case
SIAC•Notice and response with nature and circumstances of the dispute
•Notice and Response may include:
•Statement of Claim
•Statement of Defence
•If not included, arbitrator determines timeframe to submit the Statements
11
PROCEDURAL CONFERENCE
• PCERA requires procedural conference to be face to face and is productive as:
– Parties have already submitted material facts and issues in dispute prior to the preliminary
conference
– There is a clear purpose to clarify the issues in the dispute and establish the procedure
• The procedural conference in other arbitral institutions is at the discretion of the
arbitrator or arbitral tribunal
PERSPECTIVES ON ARBITRAL INSTITUTIONS AND ON PCERA 11 November 2015
PCERA•Face to face discussions of conduct of arbitration
•Arbitrator may:
•adjourn if parties not ready to establish the procedure
•Make interim directions to clarify issues in dispute
ACICA
• No requirement for a procedural conference
• At the discretion of the arbitral tribunal
ICC
• to be conducted when drawing up Terms or Reference or as soon as possible after
LCIA
• Parties are encouraged to make contact by call, conference, or correspondence
• Must be within 21 days of appointment of arbitral tribunal
SIAC
• ASAP after appointment of arbitrators, conference in person or by any other means, discuss most appropriate procedures
12
CASE MANAGEMENT MEETINGS
• PCERA requires ‘senior legal representatives’ to
meet face to face to discuss issues in the preparation
of the hearing
• Other major arbitral institutions have no clear
guidelines as to case management meetings leaving
it to the discretion of the arbitrator
PERSPECTIVES ON ARBITRAL INSTITUTIONS AND ON PCERA 11 November 2015
PCERA
• Timetable to include face to face meetings to discuss any preparation issues
• Senior legal representatives must attend
ACICA
• General discretion of the arbitrator
ICC
• General discretion of the arbitrator
• Can be in person, by phone or video conference
• Can be through an internal representative
LCIA
• General discretion of the arbitrator
SIAC
• General discretion of the arbitrator
13
HEARINGS
• PCERA has a time limit on hearings unless there are
exceptional circumstances
• There are no time limits for the other arbitral
institutions leaving it to the discretion of the arbitrator
• A time limit ensures the parties focus on the key
issues in dispute
PERSPECTIVES ON ARBITRAL INSTITUTIONS AND ON PCERA 11 November 2015
PCERA
• Hearing <12 days
• Hearing > 12 days in exceptional circumstances
ACICA
• Hearing if:
• either party requests; or
• arbitrator decides
• No time limit on Hearing
ICC
• Hearing if:
• either party requests; or
• arbitrator decides
• No time limit on Hearing
LCIA
• Hearing unless otherwise agreed
• Arbitrator to consult with parties
• Arbitrator has authority over hearing date, form, content, procedure, time limits
SIAC
• Hearing unless otherwise agreed
• Arbitrator to fix hearing date, time and place and give parties reasonable notice
14
EVIDENCE – WITNESSES & DISCOVERY
• PCERA requires the arbitrator to review all witness statements and strike out
argumentative material
• ACICA and ICC don’t provide much guidance for witness evidence
• No arbitral institution has rules which require discovery
PERSPECTIVES ON ARBITRAL INSTITUTIONS AND ON PCERA 11 November 2015
PCERA•Arbitrator to review all witness statements and argumentative material to be struck out
•Must provide evidence relied on:
•In witness statements
•Statement of facts
•Oral hearing
•Limited requests for other documents
ACICA
• No specific rules as to witness statements
• Can present evidence by witnesses at a hearing
• Parties may annex evidence to their Statement of claim or defence
ICC
• No specific rules as to witness statements
• Can present evidence by witnesses at a hearing
LCIA
• Discretion of arbitrator to:
• Give directions
• Decide time, manner and form of witness statements
• Request oral testimony
• Put questions to witnesses in testimony
SIAC
• Arbitrator has discretion to:
• allow, refuse or limit the appearance of witnesses
• Determine how the witness is questioned by the parties and the arbitrator
15
EVIDENCE – EXPERTS
• Most arbitral institutions allow the arbitrator to
appoint an independent expert, except for
ACICA
• Should a party be allowed to provide its own
expert, and in what circumstances?
PERSPECTIVES ON ARBITRAL INSTITUTIONS AND ON PCERA 11 November 2015
PCERA
• Arbitrator only to appoint one expert unless exceptional case
• Party may be entitled to bring their own expert report in response to expert
ACICA
• Parties may appoint experts
• No rule for arbitrator to appoint expert
ICC
• Parties may appoint experts
• Arbitrator may appoint one or more experts
• Expert to participate in hearing
LCIA
• Arbitrator may:
• appoint an expert (following consultation)
• require a party to give the expert information
• Expert to participate in hearing
SIAC
• Arbitrator may:
• appoint an expert (following consultation)
• require a party to give the expert information
• Expert to participate in hearing
16
REASONS / AWARD
• PCERA has the shortest time frame in which the
arbitrator must deliver their award
• Is a time frame necessary?
– Provides certainty for the parties
– Restricts and may put unnecessary pressure on the arbitrator
– Extensions to the time frame?
PERSPECTIVES ON ARBITRAL INSTITUTIONS AND ON PCERA 11 November 2015
PCERA
• Within 6 weeks of the hearing
ACICA
• No time limit
ICC
• Within 6 months of the hearing
LCIA
• As soon as possible after the hearing
SIAC
• Within 45 days of the hearing unless otherwise agreed
17
COSTS
• Under PCERA Principles each party must provide a summary of costs to
the arbitrator within 7 days of each month
– Legal fees, counsel fees, arbitrator’s fees, expert fees, disbursements
– No unexpected surprises
– Arbitrator can monitor and query costs if they appear extravagant
PERSPECTIVES ON ARBITRAL INSTITUTIONS AND ON PCERA 11 November 2015
PCERA• Unsuccessful party
to bear costs, but arbitrator may apportion
• Costs include
• Arbitrator fees & disbursements
• Legal fees
• Counsel fees
• Expert fees
• PCERA’s fees
ACICA• Unsuccessful party
to bear costs, but arbitrator may apportion
• Costs include
• Arbitrator fees & disbursements
• Experts & witnesses
• Legal costs
• Administrative fees of ACICA
ICC• ICC Court to fix
costs
• Arbitrator can make decisions other than the court as to costs
• Costs include
• Fees and expenses of arbitrators
• ICC administrative expenses
LCIA• Arbitrator to decide
who bears what portion of:
• Arbitration costs
• Legal costs
• Generally based on success of party
SIAC• Arbitrator to
determine who pays costs:
• Arbitrator’s fees and expenses
• SIAC admin fees
• Expert advice
• Legal fees
1818
THINK ABOUT THE RIGHT INSTITUTION FOR YOUR CONTRACT
PERSPECTIVES ON ARBITRAL INSTITUTIONS AND ON PCERA 11 November 2015
Freedom to choose an arbitral institution and rules
Clear guidelines make for a better procedure
PCERA has a number of innovative and effective
procedural rules
1
2
3
One set of procedural rules does not suit every
arbitration4