Peter Aeberli has, on a number of occasions, conduced fast track arbitrations and expert determinations in accordance with the inquisitorial procedures described in his SCL Paper: Inquisitorial Procedures in Adjudication and Arbitration, posted on this website under Papers.
Model directions for the conduct of such an arbitration, assuming a counterclaim, are set out below, together with a model arbitration agreement for use with these directions. These directions, suitably adapted, can also be used for the conduct of expert determinations.
The timescale envisaged from the procedure is 22 to 30 weeks from the directions being made, 10 to 12 weeks after the last Case Statement is served, to the Award being made. This compares favourably with the time scales provided for in the Society of Construction Arbitrators’ 100 day procedure under which the arbitrator has 100 days from the date on which the last pleading is delivered to render his award.
Comments on the model procedure are welcome and should be sent to email@example.com
INQUISITORIAL ARBITRATION – Model Procedure
1. The parties shall exchange Case Statements, with a copy to the arbitrator, in accordance with the following time table.
1.1 The Claimant shall submit his initial Case Statement setting out its claims against the Respondent by 5.30pm on Friday … [generally a date four to six weeks after the Directions are made].
1.2 The Respondent shall submit its initial Case Statement setting out its defence to the Claimant’s claims and any counterclaims against the Claimant by 5.30pm on Friday … [generally a date four to six weeks after the Claimant’s initial Case Statement is to be submitted].
1.3 The Claimant shall submit a second Case Statement setting out its reply to the Respondent’s defence and its defence to the Respondent’s counterclaims, if any, by 5.30pm on Friday … [generally a date two to three weeks after the Respondent’s initial Case Statement is to be submitted].
1.4 The Respondent shall submit a second Case Statement setting out its reply to the Claimant’s defence to the Respondents counterclaims, by 5.30p on Friday … [generally a date two to three weeks after the Respondent’s initial Case Statement is to be submitted].
2. Each Case Statement shall be signed by or on behalf of the party submitting that statement against a statement stating that the facts stated are true to the best of that person’s knowledge and belief and, if not obvious, the sources of that person’s knowledge and belief.
3. Each Case Statement shall comprise:
3.1 A narrative, in numbered paragraphs and pages, setting out the party’s claims and/or defences, as the case may be, and the facts and legal propositions relied on cross referenced to documents and statements relied on in support.
3.2 In the case of an initial Case Statement, the amount of any monetary claims and a concluding summary of the remedies and/or relief claimed.
3.3 Paginated copies of all documents on which reliance is placed by that party, cross referenced to the paragraphs in the Case Statement to which they are said to be relevant, unless such documents have already been provided with a previous Case Statement served by either party.
3.4 Statements, which may be in the form or letters or reports, from any person, in addition to those signing the Case Statement, on whose evidence reliance in placed. Such statements to set out the evidence to be relied on in numbered paragraphs and to be signed by the maker against a statement stating that the facts stated are true to the best of that person’s knowledge and belief.
4. The Arbitrator shall prepare in the light of the parties’ Case Statements a List of Issues and Observations and submit this to the parties on or before 5.30pm on Friday … [generally a date four weeks after the last Case Statement is served] giving directions at that time for the provision of any further documents or information expressly identified in the List of Issues and Observations as being required before the hearing, and, unless the parties wish costs to be reserved, for the exchange prior to the hearing, of submissions and information concerned with the allocation and determination of costs.
[Although there is no provision for applications for specific disclosure, the Arbitrator can, in the List of Issues and Observations, call on either party to produce documents other than those voluntarily disclosed, where, having regard to the Case Statements, this appears to be necessary for the resolution of the dispute.]
5. There shall be a … [generally one or two days is sufficient] day hearing and site visit during the period from the …. [generally, a two week hearing window starting four weeks or so after the List of Issues and Observations is provided], at a date, time and venue to be fixed by the Arbitrator following consultation with the parties once the List of Issues and Observations is issued.
6. The hearing shall be conducted in accordance with the following procedure.
6.1 Each party and the Adjudicator shall bring to the hearing, their own copy of all Case Statements and other material exchanged between the parties, in response to the Arbitrator’s directions, any directions issued by the Arbitrator and the Arbitrator’s List of Issues and Observations.
6.2 Unless previously released by the Arbitrator, each party shall be present at the hearing with their representatives and those on whose evidence reliance is placed.
6.3 To the extent allowed by section 34(2)(f) of the Arbitration Act 1996 (“the Act”), the rules of evidence shall not apply.
6.4 There shall be no opening or closing submissions. There shall be no examination of those attending to give evidence for one party by the other party. Instead, the Arbitrator shall take the initiative to ascertain the facts and the law, as provided for under s. 34(2)(g) of the Act by questioning in witness conference those attending about the matters in dispute, using his List of Issues and Observations as the agenda for this purpose.
6.5 If either party wishes to ask questions of those giving evidence, supplementary to the questions asked by the Arbitrator, they may do so with the permission of and through the Arbitrator.
7. The Arbitrator may, at or following, the conclusion of the hearing, invite further written comments from the parties on particular issues before making his Award. Apart from in response to such invitations, there shall be no submissions from either party after the hearing is closed.
8. The Arbitrator shall give his Award, which shall be reasoned, thereafter, dealing with all issues in dispute including, unless the parties have requested otherwise, the allocation and determination of costs. [In practice it should be possible to complete the award within two weeks or so after the hearing or any later submissions]
9. These directions may be amended by the Arbitrator on application of either party or of his own motion.
MODEL ARBITRATION AGREEMENT – Inquisitorial procedure
Arbitration agreement made between (“the parties”):
(1) [name and address] Claimant
(2) [name and address] Respondent
The parties being in dispute about … [set out a brief description of the dispute, ensuring that all claims and counterclaim are covered].
Agree to arbitrate that dispute before [add name and address of arbitrator] as arbitrator in accordance with the inquisitorial procedure annexed to this agreement [A copy of the procedure should be annexed, with amendments, if any, agreed by the parties. Alternatively reference can be made to the version posted on this website] and that, in giving effect to that procedure, the Arbitrator should endeavour to ensure that the hearing is concluded in sufficient time for the Award to be made within 100 days of the date on which the last Case Statement is provided.
Further agree that the recoverable costs of the arbitration, excluding VAT and arbitrator’s fees and expenses, shall be limited to … [add figure, if appropriate, or strike out clause].
The seat of the Arbitration shall be England and Wales.