Pre-Hearing Techniques to Promote Speed and Cost-Effectiveness--Some Thoughts Concerning Arbitral Process Design

This essay considers factors and pre-hearing techniques that bear on international arbitration hearings by attempting to answer this question: "What can be done to promote speed and efficiency in the hearing process?" First, it offers general observations, including the goals and by-products of efficiency, issues related to defining terms and frames of reference, the flexibility of arbitration practice techniques, and the role of technology in arbitration proceedings. Then, it discusses specific factors that influence the expeditiousness of arbitration, especially the arbitration clause and its use to define critical elements of the proceedings, such as situs, number of arbitrators, and time restrictions. The article then discusses the effect of oral vs. written submissions (simultaneous or otherwise) and the issuance of post-hearing briefs on the efficiency of the proceedings. This is followed by discussions of the benefits of pre-hearing conferences, issues related to stipulations and presumptions that narrow the scope of the controversy, and the handling of documents, including core collections, agreed bundles, and other documentary consolidations.

Next, the article discusses the advantages of adjudicative and collaborative narrowing of the controversy, including bifurcation and summary judgment. The final section briefly discusses the advocate's mantra-hope for the best and prepare for the worst. The article concludes with a bibliography of related sources.