Organizing an International Arbitration: Practice Pointers - Chapter 9

Albert van den Berg is the Vice-Chair and past Secretary-General of the Netherlands Arbitration Institute (NAI) and is Professor at Law (NAI Chair) at the Erasmus University in Rotterdam, where he teaches international arbitration. He is a former Vice-President of the London Court of International Arbitration (LCIA). He is member of: the International Council for Commercial Arbitration (ICCA); Commission on International Arbitration of the International Chamber of Commerce (ICC), Paris; Court of Appointment of the Hong Kong International Arbitration Centre; and the International Advisory Board of the Stockholm Chamber of Commerce (SCC). Mr. van den Berg frequently acts as presiding arbitrator, party-appointed arbitrator or counsel in administered and ad hoc arbitrations in many countries around the world.

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Originally from Leading Arbitrators' Guide to International Arbitration - 2nd Edition

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I. INTRODUCTION

During the past twenty-five years that I have been presiding over arbitral tribunals in international cases, I have not come across a book that tells you how to do it in practice. Gradually, I developed the idea of writing such a practice guide to share my experiences with others. The invitation to write a contribution to the present collection of essays has provided the impetus for me to develop an outline with a number of practice pointers.

The limitations of my contribution are obvious. They are based on the experience in cases in which I acted as chairperson and in cases where I was able to observe the chairpersons either as coarbitrator or as counsel. Chairpersons have their own styles and approaches, which of course differ. Consequently, the practice pointers I give below are limited to my own experience, and other approaches naturally exist in practice. However, I notice an increasing convergence of approaches used by chairpersons in international arbitration. I believe this is a good thing, since it increases the predictability of the international arbitral process. Another limitation is that the practice pointers below are by no means exhaustive. I have attempted to identify the major ones within the limits of this contribution.

It should also be borne in mind that international arbitration is a flexible process that is to be tailored to the needs of each case. Hence, the practice pointers below are generalizations that do not necessarily apply to each and every case.

II. GUIDING PRINCIPLES FOR THE CONDUCT OF AN ARBITRATION

There are a number of principles that any chairperson should observe in the arbitral process.

The first principle is that of assuring the observance of the rules of due process (for some unexplained reason English lawyers refer to this notion as “principles of natural justice”). The principles of due process mean that the parties are to be treated equally, and that each party has an opportunity to present its case.

An example of treating the parties on an equal footing is giving them equal time (within reason) at the hearing. But this need not necessarily be a rigid chess clock rule. Take as an example the examination of witnesses. One party has five witnesses and the other party has ten. Should the examination of the first party’s witnesses be twice as long? In principle, I do not think so. It very much depends on the subject matter of the testimony.