International Commercial Arbitration: Principles of Arbitral Tribunal Proceedings

International Commercial Arbitration: Principles of Arbitral Tribunal Proceedings
 
Arbitral tribunals should hold hearings to hear arbitration cases unless the parties agree otherwise or the arbitration rules specify otherwise. During the hearing, all parties should attend and have the opportunity to present relevant evidence, request witnesses to appear, cross-examine evidence, and engage in oral arguments.
According to the rules and practices of international commercial arbitration, the procedures must comply with the minimum principle of procedural justice, which means that the arbitral tribunal must treat all parties equally, provide reasonable opportunities for parties to present their case, avoid unnecessary procedural delays and costs, and refrain from abusing its discretion.
Applicable Law
Unless otherwise required by law, the arbitral tribunal must apply the law chosen by the parties, including the law of the place of arbitration, the law applicable to the main contract, or any other law chosen by the parties. Therefore, in international commercial arbitration, legal representatives should carefully consider various factors and select laws that are advantageous for protecting the legitimate rights and interests of their clients.
In international commercial arbitration, the arbitral tribunal may use "soft law," such as commercial customs and legal principles, to make judgments in special circumstances.
Representatives of Parties
In international commercial arbitration proceedings, parties can appoint lawyers to represent them, or they can participate in the proceedings personally or appoint other representatives. The arbitration rules of the arbitral institution or tribunal usually determine the number of representatives for each party.
Lawyers representing the parties or other designated representatives should provide appropriate guidance or training to ensure they understand the arbitration procedures and specific rules without violating laws and professional ethics.
Arbitration Preliminary Conference
In international commercial arbitration, the preliminary arbitration conference is crucial, as it addresses many procedural issues, such as the management of arbitration procedures, methods of submitting documents, confidentiality, exchange of written documents, the number of witnesses for each party, and the dates and deadlines for future hearings.
Depending on the case's circumstances, the arbitral tribunal can arrange face-to-face interviews, telephone or video conferences at the preliminary arbitration conference. It is recommended that lawyers strictly follow the schedule determined at the preliminary conference to track the case's progress.
Rules of Evidence
Arbitral institutions usually have corresponding rules of evidence. Therefore, before applying these rules, lawyers should fully evaluate the rules of evidence. For the rules of evidence selected, lawyers should be familiar with and confident in their ability to use them proficiently. For example, if the rules of evidence require cross-examination of witnesses, this rule places higher demands on the trial skills of lawyers.
The most commonly used rules of evidence in international commercial arbitration are the "International Bar Association Rules on the Taking of Evidence in International Arbitration" (IBA Rules). In international commercial arbitration cases, lawyers should be familiar with the IBA Rules, as many arbitral institutions and arbitrators use these rules in practice.
Written Evidence
For original copies of important evidence, lawyers should remind their clients to keep them safe to prevent the evidence from being destroyed or lost. According to the laws or arbitration rules of relevant countries, some copies of documents can be regarded as original copies.
If copies of evidence are required for arbitration, lawyers should strictly follow the relevant regulations for notarization and authentication unless special circumstances exist. If the evidence required for arbitration needs to be translated, lawyers should strictly follow the relevant regulations for translation and authentication.
Lawyers should provide reasonable explanations or proof of their preservation or origin for too-old documents.
Witness Attendance Issues
Countries’ laws or arbitration rules have different provisions for training witnesses or representatives. Lawyers should study the relevant regulations carefully.