Special Types of Practice: Arbitration - Guides
Arbitration
4. The Arbitral Process
Last updated: 18 Jun 2015
- It is possible to adopt a tailor-made approach in an arbitral proceeding to make it suitable for a particular dispute.
- In general an arbitral process starts with the filing of a notice for arbitration.
- The content of the notice of arbitration is prescribed by the Arbitration Rules of various institutions including the Australian Centre for International Commercial Arbitration (ACICA) and the Institute of Arbitrators and Mediators Australia (IAMA).
- Generally it should include:
- the demand for which the dispute is referred to arbitration;
- the details of the parties and their counsels;
- a copy of the arbitration clause or the separate agreement;
- a reference to the relevant contract;
- the general nature and the amount of the claim;
- the relief or remedy sought; and
- a proposal in relation to the number of arbitrators if not agreed before (Article 4.3 of the ACICA Rules).
- The next step after receiving notice is the appointment of an arbitrator or arbitrators as provided under sections 10 to 15 of the CAAs.
- After establishing the tribunal a procedural meeting generally takes place between the parties and the tribunal in order to decide on the procedural issues prior to the start of the hearing.
- Engaging in a procedural meeting is standard practice and a good case management strategy. It will help to clarify all the necessary and urgent issues to be discussed at the earliest point of the arbitral process.
- The decisions of a procedural meeting are formalised by the issuance of a ‘procedural directive.’
- Statements of claim and defence can be exchanged at any time agreed on by the parties or ordered by the tribunal. The standard practice of exchanging such documents is during the supply of notice or after the procedural meeting.
- The parties need to submit all the relevant documents with their statements and can refer to those documents in their statements.
- Normally the statements include facts, evidence and legal arguments.
- You may amend the statements or submit any supplementary documents during the arbitration.
- After the exchange a process of ‘document production’ is followed. It is generally limited to the necessary documents that are related to the issues raised in the statements.
- Next the hearing takes place. The hearing may be oral or based on written documents depending on what the tribunal has decided. If the parties agree on a particular mode of proceedings then that agreement will prevail.
- The final step of the arbitral process is the making of an award by the tribunal. It must be in writing and must be signed by the arbitrator or arbitrators.
- The arbitral proceedings are terminated by the final award.
- The arbitral tribunal also has the power to grant interim measures of protection if a party to the proceedings applies for one under s 17 of the CAAs.
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