Chapter 22 - Preliminary Issues And Initial Stage - International Arbitration Law And Practice, Third Edition

Mauro Rubino-Sammartano is a Partner at LawFed-BRSA. Mr. Rubino-Sammartano is currently the President of the European Court of Arbitration and of the Mediation Centre of Europe, the Mediterranean and Middle East. He is also an associate member, as Italian advocate of Littleton Chambers in London. Mr. Rubino-Sammartano has acted and regularly acts as chairman, party-appointed, sole arbitrator and counsel in a large number of arbitral proceedings. His practice is largely based on international and national litigation and arbitration in the field of contracts, construction law, mergers and acquisitions, sales of goods, joint ventures and interlocutory injunctions.

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Originally from International Arbitration Law and Practice, Third Edition

22.1. Basic Premise of Arbitral Proceedings

The basic premise for arbitral proceedings to take place is the existence of a dispute. In the absence of a dispute, no proceedings would be justified.

The requirement of a dispute does not in turn imply that the claim is indisputable. Saville J. addressed this issue in Hayter1 starting with the remark:

“In some cases the suggestion seems to be made that if it can be shown that a claim under a contract is indisputable, i.e., a claim which cannot be resisted on either the facts or the law, then there is no dispute or difference within the meaning of the arbitration clause in that context.”

This is a view with which he disagreed by holding:

“The fact that it can be easily and immediately demonstrated beyond any doubt that the one (party) is right and the other is wrong does not and cannot mean that a dispute did not in the present exist.”

Similarly in Pertamina we find expressed:2

“Guided by the constitutional command in Art. III that our power extends only to actual cases or controversies, we require that an actual controversy exist at every stage in the judicial process. Federal courts ‘may not give opinions upon moot questions or abstracts propositions.”

Table of Contents:

CHAPTER 22: PRELIMINARY ISSUES AND INITIAL STAGE

The Premises
22.1 Basic Premise to Arbitral Proceedings

Conditions Precedents
22.2 Effects of Lack of Recourse to Earlier Mediation or of Lack of Referral of the Dispute to the Engineer
22.3 Legal Representation
22.4 Arbitral Advocacy
22.5 Privilege
22.6 Overlawyering –A Full Armour

Formation of the Arbitral Tribunal
22.7 Formation of the Arbitral Tribunal

Commencement of the Proceedings
22.8 Commencement of the Proceedings

Language of the Proceedings
22.9 Language of the Proceedings

Preliminary Issues
22.10 Preliminary Issues – Bifurcation

Kompetenz-Kompetenz
22.11 Decision on Arbitral Jurisdiction : Kompetenz-Kompetenz
22.12 Connection with Non-Arbitrable Disputes
22.13 Defenses Based on an Other Relationship – Set Offs
22.14 Duty of Good Faith and Loyalty
22.15 Counterclaims
22.16 Lis Pendens between Arbitral and Court Proceedings
22.17 Multi Fora Disputes
22.18 Dilatory Tactics

Terms of Reference
22.19 Nature and Limits of the Terms of Reference

Case Management
22.20 Pre-Trial Conference versus Order for Directions – Case Management

Timetable of the Proceedings
22.21 Timetable of the Proceedings

The Role of the Arbitrator
22.22 The Arbitrator’s Duty to Assist
22.23 The Role of the Chairman of the Arbitral Tribunal
22.24 Decision on Ex-Officio Issues
22.25 Minutes of Meetings

Progress of the Proceedings
22.26 Exchange of Pleadings
22.27 Deadlines
22.28 Amended Claims and New Claims
22.29 Issue Estoppel
22.30 Promissory Estoppel