In popular legal culture, arbitration is often considered to be a creature of superlative efficiency, flexibility and international enforceability. Unfortunately, this vision often discords with reality. The increasing complexity of arbitration has seen an associated increase in the time and costs involved, and these were rated arbitration’s worst features in the 2015 White & Case International Arbitration Survey.

However, this need not be the case. Arbitration as a system is specifically designed to provide the parties and the tribunal with a broad procedural discretion in the handling and disposition of any individual case. Through using this discretion to adopt effective case management practices, the tribunal can help avoid the dilation of both costs and time.

This will lead not only to greater efficiency in the immediate case, but also strengthen the broader appeal of arbitration as an alternative dispute resolution process.

Case management practices

As a preliminary step, the tribunal should hold a Case Management Conference (CMC). This will allow the arbitration to be tailored to the specific factual and legal issues of the case. The purpose of this initial conference is to ascertain and limit the key areas of dispute, discuss procedural timetables and identify unreasonable behaviours the tribunal will take into account when allocating costs. This conference should then be supplemented by a Procedural Order.

This initial stage is important because many issues in arbitration that cause delay and increased costs are related to, or within the control of, the parties. Through setting the tone of mutual collaboration on these issues, the parties can limit the costs that they both incur.

Beyond this general advice, as each case is fact specific, it would be a futile attempt to lay down a comprehensive list of ‘rules’ that practitioners can use in all circumstances. Rather, this article seeks to briefly examine some areas relevant to facilitating the efficient resolution of the dispute.

Oct-Dec 2016 issue

Professor Doug Jones AO