Stages of an Arbitration

1. Stages of an Arbitration Arbitration Week in Palestine Session #4 December 9, 2013

2. Commencement of the Action • Request for Arbitration • Answer • Under JAC and ICC Rules, 30 days after Request • May include counterclaims • Constitution of tribunal

3. Initial Procedural Orders • Procedural orders and timetable for arbitration • Shortly after arbitrator is appointed or tribunal is constituted, a procedural timetable will be issued • Will lay out a schedule for the remainder of the arbitration, typically after input from the parties • Terms of Reference • Formal document that identifies the issues in dispute and the parties’ positions • Confirms the parties’ agreement to arbitrate the issues in dispute

4. Written Memorials • Comprehensive statement of the party’s factual and legal positions • Explanation of the factual evidence supporting the party’s position • Description of the relief sought • Typically submitted with fact exhibits • Typically, but not always, the order of submission is: (1) Claimant’s Memorial, (2) Respondent’s Countermemorial, (3) Claimant’s Reply, (4) Respondent’s Rejoinder

5. Documentary Evidence • Parties may need to use not only their own documents, but also documents that are only in the hands of the other side • “Documents” can include email and other electronic files • At a certain stage in the case, the parties typically exchange requests for the other side to produce documents in its possession. • Tribunals often consider the IBA Rules on the Taking of Evidence in International Arbitration when making evidentiary determinations • Under IBA Rule 3(3)(b), document requests must explain why the documents sought “are relevant to the case and material to its outcome” • A party may assert objections to requests that it has received, including on the following grounds: • Requested documents are not sufficiently relevant or material to the case • Requested documents are protected by privilege • Collecting and producing the documents would pose an unreasonable burden • Disputes over document disclosure can be brought to the tribunal for its decision, but the tribunal will typically want the parties to confer with each other before bringing the disagreement to the tribunal • The tribunal has the power to order a party to produce documents to the other side

6. Fact Witnesses • A fact witness is a person with personal experience relevant to the matters at issue in the case • Particularly important where there are gaps in the documentary record • In arbitration, “direct” witness evidence is typically submitted through a written statement. The witness statement contains: • Witness’s name, background, and relationship to the submitting party • Detailed description of the facts to which the witness is testifying, and the source of the witness’s information • Witness’s signature and affirmation of the truth of the testimony • If one side submits a written witness statement, the other side will be given the opportunity to cross-examine the witness orally at the hearing. The witness can be cross-examined about any part of his or her statement. • A party can also request that the other side make available for oral examination a witness that is under the control of the other side but who has not submitted a witness statement • If a witness fails to appear for oral testimony after being asked to do so the tribunal will typically disregard that witness’s written statement

7. Expert Witnesses • An expert witness presents an opinion in an area over which he or she has expertise • Experts can present testimony on a wide range of subjects, including: • Technical issues • Industry practice • Damages • Applicable law • An expert witness typically has no personal experience with the relevant facts • An expert can be appointed by a party or by the tribunal • Party-appointed experts will typically submit an expert report that contains: • The expert’s name, qualifications, background, and relationship with the party • Description of the facts on which the expert bases his or her opinion • Opinions and conclusions based on the review of the facts • Signature and affirmation