I. UNCITRAL Exp - Hearings

UNCITRAL Exp
UNCITRAL Expedited Arbitration Rules (2021)

ZivilrechtZivilprozessrecht

Article 11 emphasizes the discretionary power of the arbitral tribunal to not hold hearings in expedited arbitration in the absence of a request by any party. It should be read together with article 17(3) of the UARs, which provides that: (i) the arbitral tribunal shall hold hearings if any party so requests at an appropriate stage of the proceedings; and (ii) in the absence of such a request, the arbitral tribunal shall decide whether to hold hearings. Parties themselves may agree to hold hearings, in which case that agreement is binding on the arbitral tribunal.

A hearing may cause delays particularly if the scheduling of the parties and the arbitral tribunal need to be coordinated. A hearing may be useful, however, when witness testimony and expert opinions are critical for the arbitral tribunal’s decision-making. Moreover, a direct exchange between the parties and the arbitral tribunal at a hearing (whether in person or remotely) may facilitate a better understanding of the case and make the proceedings more efficient.

Considering the short time frame of six months for rendering the award in expedited arbitration, the arbitral tribunal may wish to decide at an early stage of the proceedings whether to hold hearings. A request to hold a hearing at a later stage may delay the proceedings and may have a negative impact on the arbitral tribunal complying with that time frame.

As parties have a right to request the holding of a hearing, article 11 requires the arbitral tribunal to invite the parties to express their views on whether hearings are to be held. This may also be done during the consultation with the parties (see para. 62 above). If a party so requests at that stage, the arbitral tribunal will need to hold a hearing in accordance with article 17(3) of the UARs. In the absence of such a request prior to and during the consultation, the arbitral tribunal may go ahead and decide to not hold a hearing.

This means that the proceedings shall be conducted on the basis of documents and other materials. A request by a party to hold a hearing after a decision by the arbitral tribunal to not hold one can be denied as the request might no longer be considered as being made at “an appropriate stage of the proceedings” (see article 17(3) of the UARs). Insofar, article 11 could have the effect of limiting the time frame during which a request for holding a hearing can be made.

As provided for in article 3(3) of the Expedited Rules and article 28(4) of the UARs, the arbitral tribunal may utilize any technological means to hold hearings without the physical presence of the parties or witnesses, including remotely. The remaining paragraphs of article 28 of the UARs also apply to the conduct of hearings in expedited arbitration. The arbitral tribunal has a broad discretion on how to conduct the hearings in a streamlined manner. Efforts should be made to limit the duration of the hearings, the number of witnesses as well as cross-examination and at the same time, to maintain due process.

Import: 25.11.2024