Originally from: The Leading Arbitrators' Guide to International Arbitration - 2nd Edition - Hardcover
The Leading Arbitrators' Guide to International Arbitration - 2nd Edition - Electronic
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Organizing an International Arbitration: Practice Pointers
Albert Jan van den Berg
I. INTRODUCTION
During the past twenty-five years that I have been presiding over
arbitral tribunals in international cases, I have not come across a
book that tells you how to do it in practice. Gradually, I developed
the idea of writing such a practice guide to share my experiences with
others. The invitation to write a contribution to the present collection
of essays has provided the impetus for me to develop an outline with
a number of practice pointers.
The limitations of my contribution are obvious. They are based
on the experience in cases in which I acted as chairperson and in
cases where I was able to observe the chairpersons either as coarbitrator
or as counsel. Chairpersons have their own styles and
approaches, which of course differ. Consequently, the practice
pointers I give below are limited to my own experience, and other
approaches naturally exist in practice. However, I notice an increasing
convergence of approaches used by chairpersons in international
arbitration. I believe this is a good thing, since it increases the
predictability of the international arbitral process. Another limitation
is that the practice pointers below are by no means exhaustive. I have
attempted to identify the major ones within the limits of this
contribution.
It should also be borne in mind that international arbitration is a
flexible process that is to be tailored to the needs of each case.
Hence, the practice pointers below are generalizations that do not
necessarily apply to each and every case.
II. GUIDING PRINCIPLES FOR THE CONDUCT OF AN
ARBITRATION
There are a number of principles that any chairperson should
observe in the arbitral process.
The first principle is that of assuring the observance of the rules
of due process (for some unexplained reason English lawyers refer to
this notion as “principles of natural justice”). The principles of due
process mean that the parties are to be treated equally, and that each
party has an opportunity to present its case.
An example of treating the parties on an equal footing is giving
them equal time (within reason) at the hearing. But this need not
necessarily be a rigid chess clock rule. Take as an example the
examination of witnesses. One party has five witnesses and the other
party has ten. Should the examination of the first party’s witnesses be
twice as long? In principle, I do not think so. It very much depends
on the subject matter of the testimony.
Albert van den Berg is the Vice-Chair and past Secretary-General of the Netherlands Arbitration Institute (NAI) and is Professor at Law (NAI Chair) at the Erasmus University in Rotterdam, where he teaches international arbitration. He is a former Vice-President of the London Court of International Arbitration (LCIA). He is member of: the International Council for Commercial Arbitration (ICCA); Commission on International Arbitration of the International Chamber of Commerce (ICC), Paris; Court of Appointment of the Hong Kong International Arbitration Centre; and the International Advisory Board of the Stockholm Chamber of Commerce (SCC). Mr. van den Berg frequently acts as presiding arbitrator, party-appointed arbitrator or counsel in administered and ad hoc arbitrations in many countries around the world.
