sarah leonard - corrs chambers westgarth - perspectives on arbitral institutions and on pcera

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PERSPECTIVES ON ARBITRAL INSTITUTIONS AND ON PCERA

11 November 2015

Presenter:

Sarah Leonard, PartnerCorrs Chambers Westgarth

14566462/3

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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

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SECTION 1:OVERVIEW OF ARBITRAL INSTITUTIONS


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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


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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


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SECTION 2:RULES OF PCERA AND OTHER ARBITRAL INSTITUTIONS


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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


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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


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SECTION 3:COMPARISON OF PCERAWITH OTHER ARBITRAL INSTITUTIONS


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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


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

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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


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

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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


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


• Can be in person, by phone or video conference

• Can be through an internal representative

LCIA


SIAC


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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


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

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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


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

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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?


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


SIAC

• Arbitrator may:

• appoint an expert (following consultation)

• require a party to give the expert information


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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?


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

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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


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

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THINK ABOUT THE RIGHT INSTITUTION FOR YOUR CONTRACT


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

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One set of procedural rules does not suit every

arbitration4

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QUESTIONS?


sarah leonard - corrs chambers westgarth - perspectives on arbitral institutions and on pcera

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