Procedures for Arbitration
There are no fixed procedures for the conduct of arbitration proceedings. Procedural rules should be informal. The arbitrator generally has control over the procedures. If the arbitration agreement sets out the applicable rules, the arbitrator must follow them. If none have been agreed, we generally recommend that parties adopt the Arbitration Rules of HKMAAC.
There is also no particular venue prescribed for the hearing of the arbitration. The parties can agree to meet at any convenient place, such as the office of the lawyers for either party. The HKMAAC (Level 12, Infinitus Plaza, 199 Des Doeux Road Central, Hong Kong) also provides good facilities for arbitration hearings at reasonable charges.
The usual arbitration procedures are as follows:-
The Claimant will ask the arbitrator to hold a preliminary meeting with the parties. During the preliminary meeting, the arbitrator will decide the rules to be used for the arbitration (if none have been agreed), his fee structure (if this has not already been agreed) and most importantly, the timetable for service of pleadings, exchange of lists of documents and exchange of witness statements.
The preparation of pleadings is similar to that in court, except that the style can be less formal and in many cases, supporting documents will be annexed to the pleadings to assist each party to understand the other’s case. That will also save considerable time by dispensing with the need for formal discovery.
The exchange of lists of documents can be limited to certain types of documents or completely dispensed with, especially where the parties have annexed all supporting documents to their pleadings. We normally recommend dispensing with the exercise of exchanging lists of documents to reduce the time and cost of resolving the dispute.
Either party may ask the arbitrator to fix a date for the main hearing at any time. It may be fixed at the directions hearing before the arbitrator. Usually, the main hearing will be fixed after the completion of documents submission or whenever the parties are ready for it. It is also possible to agree on a “documents-only arbitration” for which no hearing is required. This may be appropriate where only the law, rather than the facts, is in dispute.
It is usual in most arbitrations for evidence (both factual and expert) to be exchanged in advance of the hearing. The arbitrator may direct that the experts meet to see if there is common ground, or if facts can be agreed. Opening submissions of the parties may also be exchanged in advance of the hearing. These measures can frequently reduce the time required in the actual arbitration hearing with possible cost savings.
After considering the evidence and the parties’ submissions, the arbitrator will make an award, which may be provided with or without reasons, depending on the prior request of the parties. The arbitrator will also deal with the question of the costs of the arbitration after submissions from both parties. Typically the losing party will have to bear the costs reasonably incurred by the winning party and the arbitrator’s fees. The arbitrator will take into account whether the losing party has made any offer of settlement.