G. UNCITRAL Exp - Consultation with the parties

UNCITRAL Exp
UNCITRAL Expedited Arbitration Rules (2021)

ZivilrechtZivilprozessrecht

Consultation between the arbitral tribunal and the parties at an early stage of the proceedings is particularly key to an efficient and fair organization of expedited arbitration. The terms “consult” and “consultation” are used in article 9 to highlight the interactive nature of the engagement between the arbitral tribunal and the parties when discussing how the arbitration would be conducted. In general, the phrase “after inviting the parties to express their views” is used throughout the UARs as well as in articles 2, 3, 10, 11, 14 and 16 of the Expedited Rules to refer to a situation where the arbitral tribunal is required to give the parties an opportunity to express their support, concerns or objections before the arbitral tribunal takes a decision on a certain matter.

Article 9 requires the arbitral tribunal to consult the parties on how to organize the proceedings. It thus conveys the expectation that the arbitral tribunal will engage actively with the parties rather than to simply invite them to express their views. A case management conference is one way of conducting such consultation and can be an important procedural tool, particularly in expedited arbitration, as it permits an arbitral tribunal to give parties a timely indication as to the organization of the proceedings and the manner in which it intends to proceed.

A number of issues could be discussed during consultations so as to create a basis for a common understanding of the proceedings, for example: (i) a list of points at issue including those that need to be addressed with priority; (ii) the need for further written statements and evidence; (iii) whether and how to conduct further consultations as well as hearings, including whether they would be in person or using technological means, including remotely; (iv) other procedural issues as well as the timetable. Similarly, if the parties indicate that they intend to present witnesses, whether statements by witnesses shall be in writing and the time for the presentation of the witness statements could be discussed during consultations.

Article 9 introduces a short time frame within which the arbitral tribunal should consult the parties as it is useful for this to be done at the very early stages of the proceedings. The arbitral tribunal should conduct the consultation with the parties promptly after and within 15 days of its constitution. In certain cases, the respondent might not yet have communicated its statement of defence as it is to be communicated within 15 days of the constitution of the arbitral tribunal (see article 5(2)). Nonetheless, it would be useful for the arbitral tribunal to consult the parties at an early stage based on the notice of arbitration, response thereto as well as the statement of claim. Upon receipt of the statement of defence from the respondent, further consultations may be required, particularly if an agreement on a provisional timetable has been deferred pending the arbitral tribunal’s review of the statement of defence or if the agreed timetable requires an update following such review.

Consultations may be conducted through a meeting in person, in writing, by telephone or videoconference or other means of communication as provided for in article 3(3). Considering that sufficient flexibility is provided to the arbitral tribunal, it should not be burdensome to meet the 15-day time frame in article 9.

In accordance with article 17(2) of the UARs, the arbitral tribunal should establish the provisional timetable. In so doing, the arbitral tribunal should be mindful of the time frames in the Expedited Rules, in particular those in article 16. Similarly, following the consultations, the arbitral tribunal should communicate to the parties the outcome of the consultations to ensure that the parties are fully aware of the time frames and avoid delays.

Import: 20.11.2024