INTERNATIONAL COUNCIL FOR

COMMERCIAL ARBITRATION

ICCA DRAFTING SOURCEBOOK FOR LOGISTICAL

MATTERS IN PROCEDURAL ORDERS

THE ICCA REPORTS NO. 2

ICCA is pleased to present the ICCA Reports series
in the hope that these occasional papers, prepared
by ICCA interest groups and project groups, will
stimulate discussion and debate.
 INTERNATIONAL COUNCIL FOR
COMMERCIAL ARBITRATION

ICCA DRAFTING SOURCEBOOK FOR LOGISTICAL

MATTERS IN PROCEDURAL ORDERS

THE ICCA REPORTS NO. 2

with the assistance of the

Permanent Court of Arbitration
Peace Palace, The Hague

www.arbitration-icca.org
 Published by the International Council for Commercial Arbitration
<www.arbitration-icca.org>

ISBN 978-90-821478-6-5

All rights reserved.

© 2015 International Council for Commercial Arbitration

© International Council for Commercial Arbitration (ICCA). All rights reserved. ICCA
wishes to encourage the use of this publication for the promotion of arbitration.
Accordingly, it is permitted to reproduce or copy this publication, provided that the
publication is reproduced accurately, without alteration and in a non-misleading
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For further information, please contact us at [email protected].

Printing: Ridderprint BV, The Netherlands

 Drafting Committee

Catherine M. Amirfar Kap-You (Kevin) Kim

US Department of State (Drafting Committee Chairman)
Counselor on International Law Bae, Kim & Lee LLC
Partner
John Bang
Bae, Kim & Lee LLC Noiana Marigo
Partner (Foreign Legal Adviser) Freshfields Bruckhaus Deringer
Partner
Lisa Bingham
ICCA James Morrison
Editor and Project Officer Allens
Permanent Court of Arbitration Senior Associate
Legal Counsel
Dirk Pulkowski
Philippe Cavalieros Permanent Court of Arbitration
Winston & Strawn SELARL Senior Legal Counsel
Partner
Jan K. Schäfer
Utku Coșar King & Spalding LLP
Coșar Avukatlik Bürosu Partner
Partner
Ben Sheppard
Stephen Drymer University of Houston Law Center
Woods LLP Director, A.A. White Dispute
Partner Resolution Center

The Drafting Committee wishes to thank the ICCA Volunteer Taskforce members for
their valuable input and assistance:
Azab Alaziz, Lyda Bier, Dominique Brown-Berset, George Burn, Jamal Chaykhouni,
Karel Daele, Bernd Ehle, Daniel Gal, Jacob Grierson, Jean-Christophe Honlet, David
Joseph, Carolyn Lamm, Giselle Leonardo, Bo Nilsson, Dharmendra Rautray, Alfred
Habib Sioufi Filho, Albert So, Barbara Helene Steindl, Hiroyuki Tezuka, Daniel Eric
Vielleville, Carita Wallgren-Lindholm and Fan Yang.

The Drafting Committee also wishes to thank the following ICCA Governing Board
Members for their contribution to this project:
Guillermo Aguilar-Alvarez, Albert Jan van den Berg, Nael Bunni, Michael Hwang SC,
Lucy Reed and David Williams QC.

v
 Foreword
Kap-You (Kevin) Kim
Drafting Committee Chairman

I am very pleased to introduce the ICCA Drafting Sourcebook for Logistical Matters in
Procedural Orders (the “ICCA Sourcebook”).
The ICCA Sourcebook reflects countless hours of work by members of the ICCA
Sourcebook Drafting Committee, representing regions from around the globe and
arbitration practices of various sizes and shapes, who have, in turn, tapped their own
network of practitioners to share and compile various views on the issues being
considered.
The Committee’s goal was both simple and challenging: to prepare a list of
pragmatic solutions to common logistical issues that present themselves to parties and
arbitrators who often have widely varying habits, preferences and levels of experience
in international arbitration, without becoming dogmatic or rigid.
This ICCA Sourcebook is not intended as another “best practices” or “soft law”
guide. Rather, it is an evolving work containing an amalgam of suggestions for parties
and arbitrators to consider, and adapt, and even contribute their own ideas to.
This first edition addresses a wide range of issues, some as basic and practical as
paper size, paragraph numbering, and presentation of translated documents. By
prompting parties to consider such issues collectively with the arbitrator at the outset of
an arbitration, the ICCA Sourcebook, it is hoped, can help smooth out and prevent
avoidable bumps further down the procedural road. That said, the ICCA Sourcebook is
not a complete template procedural order and is not intended to be. It is a collection of
draft clauses dealing with logistical issues that frequently arise in international
arbitrations. Some of these are issues that very few people have strong opinions about,
but drafting the procedural orders dealing with them can nonetheless take up a lot of
time.
This first edition of the ICCA Sourcebook is the beginning of our project. We will
keep the online version (at <www.arbitration-icca.org>) updated with new language as
we develop it, and as it is submitted to us. I would ask you please to consider sending
us your own model clauses to [email protected] – we would be happy to
credit you, or to let you remain anonymous if you wish.
I would like to thank you for taking the time to read our publication, to thank the
members of the Drafting Committee for their hard work, and to thank ICCA for
bringing the Drafting Committee together and giving us the opportunity to think about
these issues and to learn from each other.

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 Please Read This First

The ICCA Sourcebook deals with logistical issues: matters that

tend not to be addressed in arbitration laws or rules. You can copy
from the clauses we have included if they work for your situation,
or adapt them to fit your needs. They are written in language that
can be copied straight into a procedural order.
Usually, practitioners get to know how logistical issues are
dealt with by looking at procedural orders from earlier
arbitrations. Some practitioners have much easier access to
previously-used procedural orders than do others. With that in
mind, we are publishing these clauses with two aims.
The first aim is to save time: these clauses provide a starting
point for practitioners tasked with preparing draft orders.
The second aim is to give less-experienced practitioners an
idea of what to expect in an international arbitration proceeding:
to familiarize them with the types of clauses they might see in a
draft first procedural order from the arbitral tribunal or opposing
counsel.
The drafting in the ICCA Sourcebook sets out approaches that
have been used in international arbitration proceedings, but we do
not claim that it represents the only way, or even the best way, to
proceed.
You may not want to use the language that these clauses set
out. You may have a way of dealing with an issue that works
better in your situation. If that is the case, would you consider
sending your drafting to [email protected]? This will be
a living document, with options and new topics added over time.
The electronic version of this document will be kept updated at
<www.arbitration-icca.org>, so, if you are reading this in hard
copy, please also refer to the website to see if something useful
has been added.

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 Table of Contents

DRAFTING COMMITTEE v

FOREWORD Kap-You (Kevin) Kim vii

PLEASE READ THIS FIRST ix

TABLE OF CONTENTS xi

A. GENERAL 1

1. Communications 1
2. Pre-hearing Filing (Time Zones) 2
3. Time Limits 2
4. Default 2
5. Unscheduled Applications and Submissions 2
6. Presence of Party Representatives 3
7. IBA Rules on the Taking of Evidence in International Arbitration 3

B. WRITTEN PHASE OF PROCEEDINGS 5

8. Written Submissions 5
9. Formatting 6
10. Witness Statements 7
11. Expert Reports 8
12. Documentary Evidence and Legal Authorities 9
13. Document Translations 9

C. PREPARING FOR THE HEARING 11

14. Pre-hearing Deliberations of the Arbitral Tribunal 11

15. Pre-hearing Meeting or Teleconference 11
16. Pre-hearing Conference for Experts 12

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 THE ICCA REPORTS

D. THE HEARING 13

17. New Evidence 13

18. Time Allocation and Chess Clock 13
19. Hearing Bundles 14
20. Direct and Cross Bundles 16
21. Interpretation of Oral Testimony 17
22. Hearing Transcript 18
23. Appearance of Witnesses and Experts at the Hearing 19
24. Experts Appointed by the Arbitral Tribunal 20
25. Party Communication with Witnesses and Experts 20
26. Presence of Witnesses and Experts Before and After Testimony 21
27. Sequence of Witness and Expert Examinations 21
28. Testimony of Co-signing Experts 22
29. Scope of Examinations 23
30. Closing Statements 24

E. THE POST-HEARING PHASE 25

31. Post-hearing Briefs 25

32. Costs Submissions 25
33. Closing the Proceedings 26
34. Decision 26

ANNEX – USEFUL RESOURCES 27

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 ICCA Drafting Sourcebook
for Logistical Matters in Procedural Orders

A. General
1. Communications

1.1. Written communications shall be deemed to have been validly made when they
have been submitted as follows:

Parties: to the addresses of counsel set forth in Section [__] of [the Terms of
Appointment/Procedural Order No. __];

Tribunal: to the addresses set forth in Section [__] of [the Terms of

Appointment/Procedural Order No. __] [including address of tribunal secretary,
if applicable];

[Institution: to the address set forth in Section [__] of [the Terms of

Appointment/Procedural Order No. __].].

1.2. All communications from the arbitral tribunal to the parties will be made by email,
[by the presiding arbitrator/by the institution on behalf of the arbitral tribunal]. As a
general rule, the arbitral tribunal will not provide confirmation copies by facsimile,
mail or courier.

1.3. The parties will acknowledge without undue delay receipt of any communication
from the arbitral tribunal by reply email to the presiding arbitrator [and the
institution]. It is sufficient to state in the email “Receipt confirmed”. This rule also
applies to communications from a party to the arbitral tribunal. In such case, [the
presiding arbitrator/the institution] as well as the opposing party shall acknowledge
receipt by reply email. Each party shall designate one representative to receive and
send the confirmations in order to avoid duplication.

1.4. The parties shall send copies of correspondence between them to the arbitral
tribunal [and to the institution] only if the correspondence pertains to a matter on
which the arbitral tribunal is required to take action or of which it needs to be made
aware.

1.5. The parties must not communicate with any member(s) of the arbitral tribunal on an
ex parte basis and all statements, documents or other information supplied to the
arbitral tribunal by one party shall simultaneously and by the same means be
communicated to all tribunal members and parties [and to the institution].

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 THE ICCA REPORTS

2. Pre-hearing Filing (Time Zones)

2.1. If the parties and/or counsel are located in different time zones, the deadlines for
filing written submissions shall be set according to the time zone at the place of
arbitration.

3. Time Limits

3.1. Time limits are fixed and extended by the arbitral tribunal in appropriate
circumstances as determined by the arbitral tribunal. [Short extensions may be
agreed between the parties as long as they do not affect any subsequent time limits,
and provided that the arbitral tribunal is informed before the original due date.]

3.2. The parties shall strictly comply with the time limits set by the arbitral tribunal. For
any extension, a reasoned request shall be made promptly after the need for
extension arises and, in any event, before the date of expiration of the time limit.

4. Default

4.1. If one of the parties fails to observe a time limit or to adhere to the procedural rules
as set forth in this Procedural Order or any subsequent Procedural Order without
giving sufficient reasons for such default or non-compliance, the arbitral tribunal
may disregard the factual allegations, denials and offers of evidence submitted in
such manner, but is not bound to do so.

5. Unscheduled Applications and Submissions

5.1. Parties shall seek permission from the arbitral tribunal before submitting any
unscheduled application or Submission.1 When seeking permission, the parties shall
submit a brief description of the matter to be addressed in the application or
Submission but should not include any supporting documentation. If permission is
granted for the unscheduled application or Submission, the arbitral tribunal will
inform the parties of the schedule to be followed.

1. See definition under Topic 8 below: “a ‘Submission’ is a pleading/memorial together with its
accompanying witness statements, expert reports, exhibits and attachments.”

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 ICCA DRAFTING SOURCEBOOK FOR LOGISTICAL MATTERS IN PROCEDURAL ORDERS

6. Presence of Party Representatives

6.1. The arbitral tribunal may request the attendance of the parties in person or through
an internal representative at any management conference, procedural meeting, or
hearing.

7. IBA Rules on the Taking of Evidence in International Arbitration

7.1. [Option 1] [In addition to the institutional, ad hoc or other rules chosen by the
parties,] [t]he parties agree that the arbitration shall be conducted according to the
IBA Rules on the Taking of Evidence in International Arbitration as current on the
date of [this agreement/the commencement of the arbitration].2

7.2. [Option 2] [In addition to the institutional, ad hoc or other rules chosen by the
parties,] [t]he parties agree that in determining any question regarding the taking of
evidence, the arbitral tribunal [shall/may] refer to the IBA Rules on the Taking of
Evidence in International Arbitration as current on the date of [this agreement/the
commencement of the arbitration], as guidelines.

7.3. [Option 3] [In addition to the institutional, ad hoc or other rules chosen by the
parties,] [t]he parties agree that [the hearing/document production/etc.] shall be
conducted according to the relevant provisions of the IBA Rules on the Taking of
Evidence in International Arbitration as current on the date of [this agreement/the
commencement of the arbitration].

7.4. [Option 4] [In addition to the institutional, ad hoc or other rules chosen by the
parties,] [t]he parties agree that in determining any question regarding [the
hearing/document production/etc.], the arbitral tribunal [shall/may] refer to the
relevant provisions of the IBA Rules on the Taking of Evidence in International
Arbitration as current on the date of [this agreement/the commencement of the
arbitration], as guidelines.

2. This formulation is proposed in the Foreword to the current (2010) edition of the IBA Rules
on the Taking of Evidence in International Arbitration.

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 ICCA DRAFTING SOURCEBOOK FOR LOGISTICAL MATTERS IN PROCEDURAL ORDERS

B. Written Phase of Proceedings

8. Written Submissions3

8.1. In the context of these arbitral proceedings, a “Submission” is a pleading/memorial

together with its accompanying witness statements, expert reports, exhibits and
attachments.

8.2. The claimant shall submit with its Statement of Claim and the respondent shall
submit with its Statement of Defence, respectively, all evidence and authorities on
which they intend to rely in support of the factual and legal arguments contained
therein, including witness statements, expert reports, and documentary and all other
evidence in whatever form.

8.3. The claimant in its Reply and the respondent in its Rejoinder shall submit only such
additional evidence as is necessary to respond to or rebut the matters raised in the
other party’s immediately-preceding pleading/memorial or evidence, or additional
evidence that was not previously available to it.

8.4. On the due date, the submitting party shall send its pleading/memorial, witness
statements and expert reports (without exhibits or attachments) by email
simultaneously to the opposing party, [and] each member of the arbitral tribunal
[and to the institution].

8.5. On the following [business] day, the submitting party shall dispatch, by express
courier, [hard copies of the documents sent electronically as well as] all exhibits or
attachments to the opposing party, [and] each member of the arbitral tribunal [and
to the institution].

8.6. In addition, the submitting party shall include, with each set of hard copies,
electronic versions of all documents submitted by that party in paper format during
the entire course of the proceedings, if possible in searchable Adobe Portable
Document Format (“PDF”). The electronic documents shall be provided on a USB
flash drive, or via an FTP download link or other convenient means of transmission.
Documents shall be grouped together in folders by category (i.e.,

3. Typically in international arbitration proceedings, at the same time as filing its

pleading/memorial a party also provides all written evidence it seeks to put on record. This
includes documents, written witness statements and, potentially, expert reports. Our proposed
wording adopts this approach. However, it is also possible to postpone the submission of
written witness statements, expert reports and/or documents until after the filing of
pleadings/memorials. It is also possible not to use written witness statements or expert reports
at all.

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 THE ICCA REPORTS

pleadings/memorials, fact exhibits, witness statements and expert reports, legal

authorities). Within each folder, documents shall be identified by their unique
exhibit numbers as file names (i.e., C-1.pdf, C-2.pdf, etc.).

8.7. [Alternative language in the event of electronic briefs] [In addition,] [t]he parties
shall dispatch to the arbitral tribunal [, the institution] and the opposing party,
within [15] days of the due date, a full electronic version of the Submission,
including all exhibits, witness statements, expert reports and legal authorities, in the
form of a hyperlinked electronic brief (“eBrief”) on a USB flash drive or via an FTP
download link or other convenient means of transmission.

8.8. [Alternative language in the event of electronic briefs] In the eBrief, any references
within the main pleading/memorial to documentary exhibits, witness statements,
expert reports and legal authorities shall be hyperlinked. There is no need to create
hyperlinks for references within exhibits, witness statements, expert reports or legal
authorities.

8.9. [Option in the event that evidence is to be provided later in the proceedings] The
parties shall submit their Statement of Claim and Statement of Defence without
enclosing, at that stage, any evidence or authorities on which they intend to rely in
support of the factual and legal arguments advanced therein. The parties shall not
submit to the arbitral tribunal at this initial stage any witness statements, expert
reports, or documentary evidence.

8.10. [Option in the event that evidence is to be provided later in the proceedings] With
their Reply and Rejoinder, the parties shall then submit any evidence pertaining to
facts that are disputed between the parties, including [witness statements, expert
reports, and] documentary and all other evidence in whatever form.

9. Formatting

9.1. All hard copies of the Submissions4 shall be filed in [A4/A5/US Letter] paper size.
All Submissions shall be unbound, have [two/three] punch-holes and be contained
in ring binders.5 [Submissions on A5 paper may instead be spiral bound.] Individual
documents within the Submissions shall not be stapled but shall be separated by
tabbed dividers. Parties shall use double-sided printing.

4. See definition under Topic 8 above: “a ‘Submission’ is a pleading/memorial together with its
accompanying witness statements, expert reports, exhibits and attachments.”
5. In some jurisdictions, a common form of two-ring binder is referred to as a lever arch folder.

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 ICCA DRAFTING SOURCEBOOK FOR LOGISTICAL MATTERS IN PROCEDURAL ORDERS

9.2. Binders must be of high quality such as to minimize damage to, or loss of, pages,
and facilitate easy page-turning. When transported, the binders must be carefully
packaged to prevent damage.

9.3. All ring binders shall contain spine labels which provide the name(s) of the
submitting law firm(s), the case number, the parties to the dispute, a description of
contents (e.g., Reply, Witness Statements, or Exhibits) and the date of the
Submission. The same information shall be included in the cover sheet of each
binder. The cover sheet shall not contain any further information.

9.4. Each party shall submit a (consolidated) table of contents of its ring binders. Each
document shall be identified by its date, a description and the tab number.

9.5. Each paragraph in every pleading/memorial shall be numbered in Arabic numerals.

9.6. All pleadings/memorials shall contain a table of contents that shows all headings
down to the fifth level. [Option 1] [The parties shall adopt a suitable numbering
scheme to identify the level of headings used in any pleadings/memorials.]
[Option 2] [All pleadings/memorials shall use headings in the following format: 1st
level “A., B., C. etc.”, 2nd level “I., II., III. etc.”, 3rd level “1., 2., 3. etc.”, 4th level
“a), b), c) etc.” and 5th level “(i), (ii), (iii) etc.”.]

9.7. Each pleading/memorial shall also contain a (consolidated) chronology of all events
mentioned in the narrative of the submitting party’s pleadings/memorials and
reference the paragraphs of the relevant pleadings/memorials and/or evidence.

9.8. Pleadings/memorials, witness statements and expert reports shall use font size [11
pt] and leave a margin on the right hand side of the paper of [4 cm] and on the left
hand side of [2 cm].

10. Witness Statements

10.1. Subject to any contrary provision in any applicable law, rule or ruling of the arbitral
tribunal, any person [, including a party or an employee or representative of a
party,] may provide a witness statement.

10.2. For each witness, a written and signed witness statement shall be submitted to the
arbitral tribunal. [Witness statements shall stand in lieu of direct examination during
the oral hearing.] Each witness statement shall contain at least the following:

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 THE ICCA REPORTS

– the name, birth date, and present address of the witness;

– a photograph of the witness;
– a description of the witness’s position and qualifications, if relevant to the
dispute or to the contents of the statement;
– a description of any past and present relationship between the witness and the
parties, counsel, or members of the arbitral tribunal;
– a description of the facts on which the witness’s testimony is offered and, if
applicable, the source of the witness’s knowledge; and
– the signature of the witness.6

10.3. Witness statements shall be numbered discretely from other documents and
properly identified as such. Witness statements submitted by the Claimant shall
begin with the letters “CWS” followed by the name of the witness (i.e., CWS-
Picasso, CWS-Da Vinci, etc.); witness statements submitted by the Respondent
shall begin with the letters “RWS” followed by the name of the witness (i.e., RWS-
Rembrandt, RWS-Rubens, etc.). [Witness statements shall stand in lieu of direct
examination during the oral hearing.]

10.4. [Option in the event that prior witness contacts are considered appropriate] It shall
not be improper for counsel to meet witnesses and potential witnesses to establish
the facts and prepare the witness statements.7

10.5. [Option in the event that prior witness contacts are considered inappropriate] The
parties shall indicate in their Submissions any witnesses that they invite the arbitral
tribunal to call to provide evidence of specific facts. While it shall not be
inappropriate for a party or its counsel to speak to any potential witnesses in order
to establish the facts of the case, the parties shall refrain from discussing with any
witnesses or potential witnesses the content of any testimony that they may be
invited to give to the tribunal, from rehearsing their testimony, and from any other
form of witness preparation. No written witness statements shall be submitted to the
arbitral tribunal with the parties’ Submissions.

11. Expert Reports

11.1. Each party may retain and submit the evidence of one or more experts to the arbitral
tribunal.

6. For additional drafting regarding the content of witness statements, see Article 4 of the IBA
Rules on the Taking of Evidence in International Arbitration (2010).
7. If required, add qualification to preclude certain forms of contact with witnesses.

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 ICCA DRAFTING SOURCEBOOK FOR LOGISTICAL MATTERS IN PROCEDURAL ORDERS

11.2. Expert reports shall be accompanied by any documents or information upon which
the experts rely, unless such documents or information have already been submitted
with the parties’ written Submissions.8

11.3. Subject to any further orders that the arbitral tribunal may make in consultation with
the parties, the provisions set out in relation to witnesses shall also apply to the
evidence of experts.

11.4. [Option for tribunal-appointed experts] In any event, the arbitral tribunal shall be
competent to appoint one or several experts, in consultation with the parties, should
it consider that it would be assisted by the opinion of such experts in assessing
questions of fact [or law].

12. Documentary Evidence and Legal Authorities

12.1. Exhibits and legal authorities shall be consecutively numbered throughout the
proceedings. Exhibits submitted by the claimant shall begin with the letter “C”
followed by the applicable number (i.e., C-1, C-2, etc.); exhibits submitted by the
respondent shall begin with the letter “R” followed by the applicable number (i.e.,
R-1, R-2, etc.). Similarly, legal authorities submitted by the claimant shall begin
with the letters “CLA” followed by the applicable number (i.e., CLA-1, CLA-2,
etc.); legal authorities submitted by the respondent shall begin with the letters
“RLA” followed by the applicable number (i.e., RLA-1, RLA-2, etc.).

12.2. The parties shall provide with each written Submission a full (consolidated) index
of all exhibits and legal authorities. The index shall be organized in a table format
setting forth the exhibit number in the first column; the date of the exhibit in the
second column; a short description of the exhibit by type, author(s), recipient(s) and
content (e.g., Email by X to Y dated … concerning …) in the third column; and the
pleading/memorial, witness statement and/or expert report in which reference is
made to the exhibit in the fourth column.

13. Document Translations

13.1. Documents submitted into evidence which have contents not in the language of the
arbitration shall be accompanied by a translation into the language of the arbitration
at the cost of the submitting party, subject to a final award on costs. The translation

8. For additional drafting regarding the content of expert reports, see Article 5 of the IBA Rules
on the Taking of Evidence in International Arbitration (2010).

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 THE ICCA REPORTS

need not be prepared by a certified translator unless so required by the applicable

rules or laws, or so ordered by the arbitral tribunal.

13.2. To the extent feasible, the translation must be in similar format to the original
document, including: pagination; page layout; indentation; bullet and numbered
lists; tables and charts; font and font variations such as size, bolding, italicization
and underlining; etc. For witness statements and expert reports filed in another
language, the translation of each page must be formatted as identically as possible
to the original page utilizing these protocols.

13.3. Each page of the translation must be marked to indicate that it is a translation, for
example by adding the annotation “[Translation]” in the upper left corner. The
translation must be presented in front of the original, with a colored sheet separating
them.

13.4. If a party disputes the accuracy of a translation, the parties shall confer and try to
come to an agreement on the translation. If the parties cannot agree, the arbitral
tribunal shall decide on a manner of handling the disagreement. If the parties agree
on a revised translation, the party that submitted the document shall make
arrangements to replace the translation in whole or in the relevant part (for instance,
by providing the correction on a sticker to be placed over the relevant portion of the
prior translation) for all members of the arbitral tribunal, counsel for the other party
and any others who require it.

13.5. A party must, in principle, translate the entirety of any document or part of a
document that is not in the language of the arbitration. A partial or excerpt
translation may be submitted where, due to length or otherwise, the submitting
party considers that the burden of translating outweighs the relevance and
materiality of the excluded portions. However, in such cases:

(i) the partial translation must provide sufficient context so as to not

misrepresent or distort the document as a whole;
(ii) in principle, the entire original document must be submitted into evidence
with the partial translation, except for reason of excessive length, lack of
relevance or other good cause; and
(iii) the submitting party must submit a complete or additional translation upon
reasonable request by the other party or an order of the arbitral tribunal.

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 ICCA DRAFTING SOURCEBOOK FOR LOGISTICAL MATTERS IN PROCEDURAL ORDERS

C. Preparing for the Hearing

14. Pre-hearing Deliberations of the Arbitral Tribunal

14.1. The members of the arbitral tribunal shall agree to meet in person in advance of the
hearing at a specified time and for a specified duration in order to examine the case
file. Following this pre-hearing meeting, the arbitral tribunal shall notify the parties
of those issues that it would like the parties to address at the hearing.

15. Pre-hearing Meeting or Teleconference

15.1. No later than [14] days prior to the hearing, the arbitral tribunal shall [hold an in-
person meeting/convene a teleconference call] with the parties to confirm the
logistical details and procedures for the hearing, including but not limited to (where
applicable):

(i) Logistical details related to the venue;

(ii) Persons attending the hearing for each party;
(iii) Hearing start and end times, with expected schedule of breaks;9
(iv) Allocation of time to each party based on the chess-clock system or any other
time-keeping system permitted by the arbitral tribunal;10
(v) Each party’s expected order of presentation of its evidence, including whether
the witnesses will be grouped by subject matter (e.g., fact witnesses, technical
experts, legal experts, damages experts);
(vi) Scope and manner of witness examination (e.g., tribunal-led (inquisitorial) or
party-led (adversarial));
(vii) Sequestration of witnesses;
(viii) Arrangements for interpretation11 and/or transcription;12
(ix) Use of demonstrative exhibits (such as PowerPoint presentations) at the
hearing, including whether they will be shared with the opposing party prior
to introduction to allow for an opportunity to object;
(x) Use of visual aids (e.g., projector);
(xi) Possible list of questions from the arbitral tribunal;13

9. See Topic 18, “Time Allocation and Chess Clock”, below.

10. See Topic 18, “Time Allocation and Chess Clock”, below.
11. To be discussed in teleconference if not already dealt with in an earlier procedural order as
per Topic 21, “Interpretation of Oral Testimony”, below.
12. To be discussed in teleconference if not already dealt with in an earlier procedural order as
per Topic 22, “Hearing Transcript”, below.
13. See Topic 14, “Pre-hearing Deliberations of the Arbitral Tribunal”, above.

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 THE ICCA REPORTS

(xii) Possible preparation by the parties of an agreed chronology of the events

giving rise to the dispute between them;
(xiii) Any outstanding evidentiary objections;
(xiv) Post-hearing briefs;14
(xv) Costs submissions;15 and
(xvi) Any other matters.

15.2. Each party shall notify the arbitral tribunal and opposing party at least [7] days prior
to the [meeting/teleconference] of its position with respect to these or any other
procedural matters to be discussed at the [meeting/teleconference].

16. Pre-hearing Conference for Experts

16.1. The arbitral tribunal may order the party-appointed experts to meet to discuss issues
in advance of the hearing, in order to identify points of agreement and narrow the
dispute. In addition, the experts may convene during the evidentiary hearing.

16.2. The parties must attempt to agree a protocol for such expert meetings, including
whether counsel should be present, minutes should be taken, or a joint report should
be prepared. In the absence of such agreement, the arbitral tribunal may order a
protocol.

14. See Topic 31, “Post-hearing Briefs”, below.

15. See Topic 32, “Costs Submissions”, below.

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 ICCA DRAFTING SOURCEBOOK FOR LOGISTICAL MATTERS IN PROCEDURAL ORDERS

D. The Hearing
17. New Evidence

17.1. Parties must not use new evidence during the hearing without the prior approval of
the arbitral tribunal.16 All evidence presented during the hearing (i.e., evidence
referenced in opening and closing PowerPoints) shall refer to the relevant exhibit
number so that the other party can ascertain that the evidence is not new to the
record. Demonstrative exhibits are permissible, as long as they rely solely upon
documents in the record.

18. Time Allocation and Chess Clock

18.1. Prior to the hearing, the parties must attempt to agree to the schedule for the hearing
days, including start and stop times, and lunch and coffee breaks, taking into
account how many hours are to be devoted to the hearing each day. In the absence
of party agreement by [date], the arbitral tribunal will decide on the schedule.
Unless otherwise agreed, the chess-clock system shall be used to police the timing
and shall be administered by the arbitral tribunal/institution.

18.2. [Time allocation – Option 1] Each party will have an equal amount of time to
present its case.

18.3. [Time allocation – Option 2] The amount of time allocated to each party during the
oral procedure shall be determined by the arbitral tribunal based upon the relevant
factors, including the number of witnesses for each side.

18.4. The time spent by a party on opening, closing, direct (and re-direct) examination of
its own witnesses/experts and the cross (and re-cross) examination of the other
party’s witnesses/experts is counted against that party’s time. The time allocated to
each party will also include (i) time of interpretation, if any, and (ii) time devoted to
discussing and addressing any procedural objection raised by a party. The time
spent by any witness/expert answering questions from the arbitral tribunal is not
counted against any party’s time.

18.5. The parties may agree in advance the maximum time to be allocated for opening
and closing statements (if any).

16. The parties may consider building in an opportunity to submit new documents prior to the
hearing.

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 THE ICCA REPORTS

19. Hearing Bundles

19.1. If the tribunal so requests, hard-copy hearing bundles – compilations of the parties’
pleadings/memorials, witness statements, documentary evidence, legal authorities
and other selected materials – shall be prepared and provided reasonably in advance
of the hearing at which they are required.

19.2. Unless it is technically unfeasible or overly burdensome, the hearing bundles shall
also be provided in a digital format such as Adobe PDF, which may be indexed and
searchable.

19.3. The parties, in consultation with the arbitral tribunal (if necessary), must discuss
and try to agree on the contents, structure and preparation of the hearing bundles.17

19.4. The bundles must be well organized in a logical structure suited to the
particularities of the case and its documents, such as the following example:

(i) BUNDLE A: the parties’ written pleadings/memorials, in chronological

order.
(ii) BUNDLE B: the witness statements submitted by the parties, in sub-bundles
for each party. Optionally, legal and technical expert reports may also be
included in this bundle.
(iii) BUNDLE C: fact exhibits, presented in sub-bundles for each party, or
combined into chronological or other order. If the exhibits are presented in a
different order than that in which they were submitted, and thus renumbered,
a cross-reference chart must be provided.
(iv) BUNDLE D: legal expert reports and legal authority exhibits, in sub-bundles
for each party. Alternatively, legal expert reports may be included in Bundle
B, in which case Bundle D would only contain legal authority exhibits.
(v) BUNDLE E: other expert reports, e.g., technical or quantum, with attendant
exhibits, in sub-bundles for each party. Alternatively, the expert reports may
be included in Bundle B, particularly if they have no exhibits or the exhibits
have been included in Bundle C.
(vi) Optional bundles:
(1) If the exhibits are voluminous, the parties may also jointly agree on and
prepare other bundles they deem to be helpful, such as a “Key Exhibits
Bundle” or “Core Bundle”.

17. Often, the claimant will take a primary role in preparing the hearing bundles and the
respondent should cooperate so that the process is completed smoothly, efficiently and to
mutual satisfaction.

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 ICCA DRAFTING SOURCEBOOK FOR LOGISTICAL MATTERS IN PROCEDURAL ORDERS

(2) If there have been many procedural disputes and decisions, it may be
helpful to prepare a bundle of procedural orders and procedure-related
correspondence.18

If a bundle requires multiple binders, the binders shall be sub-numbered, e.g.,

BUNDLE A-1, BUNDLE A-2, etc.

19.5. Unless otherwise agreed or ordered by the arbitral tribunal, hearing bundles shall be
provided in hard copy by the party preparing them in the following quantities:

(i) one set for each member of the arbitral tribunal and the arbitral tribunal’s
secretary, if any;
(ii) one set for the witness seat at the hearing for reference by witnesses and
experts being questioned; and
(iii) two or more sets for use by opposing counsel, as may be agreed between
counsel for the parties.

19.6. The party preparing the hearing bundles must try to produce them in sizes preferred
by the recipients, e.g., A4, A5 or US Letter, and print on both sides of each page to
minimize bulk.

19.7. The duplication of documents among the hearing bundles must be avoided, except
to the extent that a “Key Exhibits Bundle”, above, is created.

19.8. Each bundle shall:

(i) have a cover page and spine clearly labeled with the case number, party
names and binder number and contents, which must be color-coded by party;
(ii) include a contents list at the beginning;
(iii) use tabbed cardstock pages before each document to identify the document
contents, e.g., exhibit number (in case exhibits are reordered and renumbered
in Bundle C, then chronologically numbered tabs would be used in lieu of
exhibit number tabs), pleading/memorial title, witness name, etc.; and
(iv) as a general rule, be organized with claimant’s materials first followed by
respondent’s, unless the contents dictate otherwise (e.g., if the parties agree to
compile all exhibits in chronological order to form Bundle C).

18. Parties may also want to bring to the hearing, in digital form, copies of all other documents
produced between the parties but not submitted as exhibits, for convenient reference.

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 THE ICCA REPORTS

19.9. When pagination is added to the hearing bundle by the parties, it must be inserted in
the bottom right corner of each page, in square brackets.19

19.10. Hearing bundles must be presented in high-quality binders that minimize damage to
or loss of pages, and facilitate easy page-turning. When transported, the binders
must be carefully packaged to prevent damage, and timely delivered to the hearing
venue or other location specified by each recipient.

20. Direct and Cross Bundles

20.1. Before beginning any direct examination, a party may submit to its witness or
expert a binder containing a clean copy of the witness’s or expert’s written
testimony submitted during the proceedings and any other document to which the
party intends to refer during the direct examination. A copy of the binder must be
distributed to each member of the arbitral tribunal, to the secretary of the arbitral
tribunal, to the other party, and to the court reporter.

20.2. Before beginning any cross-examination, a party may submit to the other party’s
witness or expert a binder containing documents to which the party intends to refer
during its cross-examination. A copy of the binder must be distributed to each
member of the arbitral tribunal, to the secretary of the arbitral tribunal, to the other
party, and to the court reporter.

20.3. All documents in a direct or cross bundle shall be identified by using the exhibit
numbers recorded over the course of the arbitration. If an exhibit is voluminous, an
extract from it may be used provided it is identified as an extract and gives
sufficient context to avoid misrepresenting its meaning within the whole document.

20.4. Translations of exhibits used during cross-examination shall be provided to

witnesses or experts who do not understand the original language of the document.
The translation must be sufficient for the witness to understand its context.20

19. Hearing bundles must be paginated to enable the hearing participants to cite precisely to
particular content and quickly locate it. This is particularly important for exhibits, which
generally do not have consistent internal pagination.
20. The parties may consider ICSID Administrative and Financial Regulation Rule 30(4), which
requires a statement that the omission of the remainder of the text does not render the portion
presented misleading.

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 ICCA DRAFTING SOURCEBOOK FOR LOGISTICAL MATTERS IN PROCEDURAL ORDERS

21. Interpretation of Oral Testimony

21.1. Witnesses and experts who are to give oral evidence in a language other than the
language of the arbitration shall be assisted by an interpreter at the cost of the party
presenting the witness, subject to a final award on costs.

21.2. Parties may retain any competent interpreter21 [without regard to licensing or
certification] unless otherwise required by applicable rules or by order of the
arbitral tribunal.

21.3. Parties may retain an interpreter jointly or independently.

(i) In the case of jointly retained interpreters, the costs shall be shared by the parties,
subject to a final award on costs. In the case of independently retained interpreters,
the retaining party shall bear the costs, subject to a final award on costs.
(ii) An independently retained interpreter may be present during a hearing to
check the accuracy of the interpreter retained by the other party. [In addition,
except to the extent restricted by applicable rules of ethics or other rules,
independently retained interpreters may assist in preparations outside of the
hearing, including simulated cross-examination sessions, in order to aid the
interpreter in providing accurate interpretation at the hearing and to assist
witnesses and experts in becoming familiar the process of providing
testimony with interpretation.]

21.4. Any interpreter appointed by either or both parties must agree to be bound by the
same confidentiality rules as those to which the parties have agreed.

21.5. The parties must attempt to reach an agreement as to whether interpretation at the
hearing will be consecutive,22 simultaneous23 or a hybrid.24

21. Parties should try to retain the best quality interpretation services available to aid the tribunal
in understanding the interpreted testimony. Although interpretation services can be expensive,
poor quality interpretation can, in the longer term, be far more costly (both substantively and
monetarily). Therefore, parties should retain interpreters who are skilled in providing accurate
and natural interpretation in the environment of an arbitration hearing and who are able to
handle the technical, legal or other terminology that will be used by the particular witnesses or
experts they will interpret for.
22. In consecutive interpretation, the interpreter waits for a pause in the speaker’s words – i.e., after
a sentence or group of sentences – and then provides the interpretation while the speaker waits.
This approach is more drawn out than simultaneous interpretation but is less costly on an hourly
basis and provides an opportunity for another interpreter or bilingual counsel to check the
accuracy of the interpretation.
23. In simultaneous interpretation, rather than waiting for the speaker to reach a pause or finish
his or her statement, the interpreter, usually listening in a separate room or enclosed booth,
begins interpreting through an audio link in real time as the speaker is speaking. Listeners

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 THE ICCA REPORTS

21.6. Parties may assist the interpreter(s) by providing an agreed list of important terms
and names in advance of the hearing. They may also provide copies of any other
materials submitted in the arbitration to assist the interpreter in becoming familiar
with the case and therefore provide more accurate interpretation.25

21.7. Objections to the accuracy of interpretation must be raised, in principle, promptly

after the alleged error is made.

22. Hearing Transcript

22.1. Unless the arbitral tribunal otherwise orders, the parties shall jointly engage a court
reporter (transcriber).26

22.2. The court reporter must agree to be bound by the same confidentiality rules as those
to which the parties have agreed.

22.3. The costs of provision of the transcript shall be shared equally between the parties in
the first instance, subject to any later award of costs. Parties shall, after consultation
with the arbitral tribunal, agree on any necessary arrangements and shall inform the
tribunal of such arrangements at the pre-hearing [teleconference/meeting].

22.4. Prior to the hearing, the parties may provide the court reporter with all written
Submissions to facilitate accurate transcription during the hearing.

22.5. The court reporter shall make an audio recording of the hearing, including the
original and interpreted versions of all witness testimony, in order to help the
arbitral tribunal decide on requests to correct the transcript. The court reporter must
make this audio recording available to the arbitral tribunal on request.

generally hear the interpretation through earpieces. This approach is speedier, though not
necessarily cheaper since interpreters with this skill charge higher rates and use additional
equipment. It also hinders effective checking of the interpretation since both the testimony
and the interpretation are being heard at the same time.
24. A third option is to use a hybrid approach, such as having simultaneous interpretation of the
question, and consecutive interpretation of the answer. This provides a happy medium in
terms of speed, but is even more expensive since it requires multiple interpreters. It also
hinders effective checking of the interpretation of the questions by others in the room during
the simultaneous translation, as mentioned.
25. If real-time transcription services are retained, access to the real-time transcript should be
provided to the interpreter(s).
26. Unless required by the applicable law or rules, or otherwise ordered by the arbitral tribunal,
the court reporter need not be qualified to act as a court reporter in the courts of any State.

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 ICCA DRAFTING SOURCEBOOK FOR LOGISTICAL MATTERS IN PROCEDURAL ORDERS

22.6. [Option for daily transcript] Unless otherwise agreed by the parties and upon
consent of the arbitral tribunal, the court reporter shall email the transcript to the
parties and the arbitral tribunal on a daily basis.

22.7. [Option for real-time transcript] Unless otherwise agreed by the parties and upon
consent of the arbitral tribunal, real-time transcript shall be made at the hearing and
made available to the parties and arbitral tribunal. Screens shall be provided to the
tribunal, the parties and, while they are testifying, to witnesses requiring
interpretation. The court reporter shall email the transcript to the arbitral tribunal
and the parties on a daily basis.

22.8. Any party proposing corrections to the transcript must notify the opposing party and
arbitral tribunal no later than [10] days after the final transcript has been received
by the parties. All agreed corrections must be in the form of an errata sheet,
showing the original transcription and agreed corrections. Any remaining disputes
over the proposed corrections will be decided by the arbitral tribunal. The arbitral
tribunal may correct the transcript on its own initiative.

23. Appearance of Witnesses and Experts at the Hearing27

23.1. Prior to the hearing, the parties must notify the tribunal of the factual witnesses and
expert witnesses (who have filed written statements and expert reports) whom the
parties intend to cross-examine.

23.2. [Option for calling opposing witnesses only] Each party will identify the experts
and witnesses of the opposing party whom it intends to cross-examine; those not
named by the opposing party will not appear at the hearing unless called by the
arbitral tribunal.

23.3. [Option for calling own witnesses as well as opposing witnesses] Each party must
identify the experts and witnesses of the opposing party whom it intends to cross-
examine; a witness or expert not called by the opposing party can still be called up
by the arbitral tribunal or by the party putting up that expert or witness.

23.4. [Alternative wording in the event of witness examination led by the arbitral
tribunal] Prior to the hearing, the parties shall inform the tribunal of the factual
witnesses and expert witnesses whose appearance at the hearing they would
consider useful. The tribunal shall then notify the parties of the witnesses and
experts whom the tribunal calls for examination.

27. Paragraphs 23.1-23.3 assume a party-led process, while paragraph 23.4 assumes that witness
examination is led by the arbitral tribunal.

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 THE ICCA REPORTS

23.5. Any witness who submits written testimony in support of a party’s case shall appear
for examination by the other party or the arbitral tribunal, should he or she be called
upon to do so.

23.6. [Effect of witness’s failure to appear – Option 1] The prior testimony of a witness
or expert who does not appear is set aside, absent extraordinary circumstances
and/or a showing of good cause.

23.7. [Effect of witness’s failure to appear – Option 2] In the event that a party does not
make a witness or expert available, the requesting party may apply for any
additional ruling from the arbitral tribunal, including the setting aside of the prior
testimony of that witness or expert, or the drawing of an adverse inference.

23.8. Where legally permissible,28 examination by videoconference may be permitted for

justified reasons at the discretion of the arbitral tribunal. Any party may apply for
permission for a particular witness to appear by videoconference, stating the
reasons why that particular witness is unable to appear in person and a proposed
protocol. The parties must ensure that the witness testifies under the same conditions
as he/she would in the hearing, i.e., without conferring with anyone else during the
testimony and having access to the relevant direct and cross bundles (if any).

24. Experts Appointed by the Arbitral Tribunal

24.1. The tribunal-appointed expert must be present at the evidentiary hearing and
available for questioning at that hearing, so long as any party or the arbitral tribunal
requests such presence. The parties or their party-appointed experts may question
the tribunal-appointed expert at the hearing. However, the scope of this questioning
is limited to the issues covered in his or her expert report and parties’ submissions
including pleadings, witness statements, and party-appointed expert reports.

25. Party Communication with Witnesses and Experts

25.1. Once their testimonies have begun, witnesses and experts shall have no contact with
the party who put them forward, or that party’s lawyers, during any recesses or
interruptions that may arise, until they have completed their testimony. The parties
must make their best efforts to start and finish the examination of a witness/expert
on the same day.

28. Note that certain countries do not allow an examination under oath to be conducted for foreign
legal proceedings. See Vienna Convention on Consular Relations, 1963, Article 5(j); Convention
on the Taking of Evidence Abroad in Civil or Commercial Matters, 18 March 1970, Article 1.

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 ICCA DRAFTING SOURCEBOOK FOR LOGISTICAL MATTERS IN PROCEDURAL ORDERS

26. Presence of Witnesses and Experts Before and After Testimony

26.1. The parties must attempt to agree regarding whether witnesses and experts can be
present in the hearing room when they are not testifying.

26.2. [Option 1] Fact witnesses and experts shall not be allowed in the hearing room
before giving their oral evidence.

26.3. [Option 2] Fact witnesses shall not be allowed in the hearing room before giving
their oral evidence.

26.4. [Option 3] Fact witnesses and experts shall not be allowed in the hearing room
before or after giving their oral evidence.

26.5. [Exception for party representatives] Notwithstanding the general rule, fact
witnesses who are also party representatives shall be allowed in the hearing room at
any time. The identity of persons falling within this category should be agreed by
the parties in advance of the hearing. The arbitral tribunal, using its discretion in
view of the circumstances, may order such witnesses to undergo examination first
or during the early stages of the hearing.

26.6. [Exception where tribunal expressly permits] Notwithstanding the general rule,
witnesses or experts shall be allowed in the hearing room at any time with the
express permission of the arbitral tribunal upon request from a party.

27. Sequence of Witness and Expert Examinations

27.1. [Option 1 – party-led witness examination] Prior to the hearing, the parties may
agree on the general sequence of witness and expert examinations. If no agreement
is reached, the sequence will be:

(i) Direct examination by the party putting forward the witness/expert in question;
(ii) Cross-examination by the opposing party;
(iii) Re-direct examination by the party putting forward the witness/expert;
(iv) Re-cross examination (only where there has been a re-direct examination and
in exceptional circumstances where authorized by the arbitral tribunal).

27.2. [Option 2 – witness examination led by the arbitral tribunal] Unless the parties
agree, prior to the hearing, on a different approach, the sequence of witness and
expert examinations at the hearing shall be as follows:

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 THE ICCA REPORTS

(i) Examination of the witness/expert by the arbitral tribunal;

(ii) If applicable, direct examination by the party putting forward the
witness/expert in question;
(iii) If applicable, cross-examination by the opposing party;
(iv) Further opportunities for re-direct examination by the party putting forward
the witness/expert and re-cross examination as the arbitral tribunal may
authorize.

27.3. Prior to the hearing, the parties must try to agree to a specific sequence of witnesses
and experts to be heard at the hearing. If the parties are unable to agree to a given
sequence, the order proposed by each party must be submitted to the arbitral
tribunal for its consideration. If no agreement is reached, claimant’s witnesses shall
appear first, followed by respondent’s witnesses, followed by claimant’s experts,
followed by respondent’s experts.

27.4. The parties may agree or the arbitral tribunal may order scheduling by issue or
phase, so that each topic is dealt with discretely.29

27.5. The arbitral tribunal may at any stage put further questions to the witness/expert.

28. Testimony of Co-signing Experts

28.1. [Option 1] If two or more experts have signed a report jointly, they shall be jointly
and simultaneously cross-examined. If the experts have identified in their joint
report that one of them is responsible only for a selected part of the report, then
he/she shall only be cross-examined on that part of the report.30

28.2. [Option 2] In the event that two or more experts have jointly authored a report, the
primary author may be called for cross-examination to answer questions regarding
the entirety of the report. In the event that the primary author is not competent to
testify as to the entirety of the report, the party shall so inform the other party by
[date], and indicate with particularity (i.e., with reference to specific sections and/or
paragraphs) which sections of the report each co-author is competent to address.
The other party may then decide to call one or both authors to be cross-examined
with respect to the portions of the report for which they are responsible.

29. This sequence is helpful for arbitrations organized into separate issues or phases (such as
jurisdiction, liability and damages or technical and legal issues).
30. When experts submit joint reports, parties sometimes require them to attribute specific
sections to specific experts and each expert is then required to testify on his or her own
section/s at the hearing.

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 ICCA DRAFTING SOURCEBOOK FOR LOGISTICAL MATTERS IN PROCEDURAL ORDERS

28.3. [Option 3] If two or more experts have signed a report jointly, they shall be
separately cross-examined.

29. Scope of Examinations31

29.1. [Direct examination] The party presenting the witness or expert may conduct a brief
direct examination limited to introducing the witness or expert, confirming the
written testimony or report and identifying any corrections that such witness or
expert might wish to make.

29.2. [Option for more extensive direct examination] In addition, the party presenting the
witness or expert may conduct a brief direct examination (e.g., 20 minutes) as
agreed by the parties or determined by the tribunal solely on matters covered by the
witness statement or expert report. Such direct examination may not introduce new
matters not already covered by the written statement or report, save in response to
new matters raised in the Rejoinder or in any material filed after the Rejoinder. In
such a case, the opposing party’s witnesses or experts may respond to the issues
raised in direct examination related to allegations raised in the Rejoinder or other
later-filed material.

29.3. [Option for expert to summarize report] In addition, each expert may briefly (e.g.,
20 minutes) summarize or explain his or her expert report to the arbitral tribunal.

29.4. [Cross-examination – Option 1] The cross-examination may include any matter

relevant to the arbitration.

29.5. [Cross-examination – Option 2] The scope of the cross-examination must be limited

to the content of the witness/expert’s written statement, his/her credibility, any
issues raised in direct examination and any question directly related to the dispute
with which the witness had direct personal involvement.

29.6. [Re-direct examination] The scope of a re-direct examination will be determined

solely based on the content of the other party’s cross-examination, such that no
questions may be asked on issues not raised in that cross-examination.

29.7. [Re-cross examination] Re-cross examination should take place only in exceptional
circumstances where authorized by the arbitral tribunal, and not in every instance
where a witness/expert has had re-direct examination. The scope of a re-cross
examination shall be determined solely by the content of the other party’s re-direct

31. The parties may consider limiting the scope of witness examination as provided under this
heading.

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 THE ICCA REPORTS

examination, such that no questions may be asked on issues not raised in that
examination.

29.8. Notwithstanding any agreement between the parties regarding the scope of witness
examination, each party shall have leave to apply to the arbitral tribunal to add to or
limit the scope of examination.

30. Closing Statements

30.1. The parties may agree to have closing statements in addition to, or in lieu of, post-
hearing briefs.

30.2. The parties may agree to a maximum length of closing statements or they may
agree to use any remaining time under the chess clock.

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 ICCA DRAFTING SOURCEBOOK FOR LOGISTICAL MATTERS IN PROCEDURAL ORDERS

E. The Post-hearing Phase

31. Post-hearing Briefs

31.1. [Option 1 – where decision to order post-hearing briefs is made before hearing]
The parties must submit simultaneous post-hearing briefs on [date], with the length
to be decided by the arbitral tribunal, following consultation with the parties
[before/during] the hearing. The parties shall submit simultaneous reply post-
hearing briefs on [date], with the length to be decided by the arbitral tribunal,
following consultation with the parties [before/during] the hearing.

31.2. [Option 2 – where decision whether to order post-hearing briefs is left until the
hearing] The parties will determine the necessity of post-hearing briefs at the close
of the hearing, with the length to be decided by the arbitral tribunal, following
consultation with the parties.32

31.3. The scope of the post-hearing briefs shall be limited to the issues that arose during
the hearing, and the parties shall not reiterate what has already been said in their
pleadings. In addition, the arbitral tribunal shall indicate specific topics upon which
it would like the parties to comment.

32. Costs Submissions

32.1. [Option 1 – included in post-hearing briefs] The post-hearing briefs shall contain
the parties’ costs submissions, which should set out the legal fees and related
expenses incurred by the submitting party. In its costs submission, each party shall
include its legal arguments on entitlement to costs and its method for allocating the
costs between the parties. The parties may submit simultaneous reply costs
submissions on [date].

32.2. [Option 2 – separate costs submissions] The parties shall submit simultaneous costs
submissions by [date]. Each costs submission should set out the legal fees and
related expenses incurred by the submitting party, as well as its legal arguments on
entitlement to costs and its method for allocating the costs between the parties. The
parties may submit simultaneous reply costs submissions on [date].

32. Oftentimes, the parties agree to a closing presentation in lieu of the post-hearing briefs.

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 THE ICCA REPORTS

33. Closing the Proceedings

33.1. The arbitral tribunal shall officially close the proceedings when deemed appropriate
following the last hearing or filing. The arbitral tribunal may in exceptional
circumstances decide on its own initiative or upon application of the parties to
reopen the proceedings at any time before the award is made.

34. Decision

34.1. At the end of the hearing, the arbitral tribunal shall indicate to the parties the date
by which it expects to submit its award.

26
 ANNEX
Useful Resources*

Chartered Institute of Arbitrators (“CIArb”)

CIArb Practice Guideline 5: Guidelines for Arbitrators Regarding Documents-Only
Arbitrations (<www.ciarb.org/guidelines-and-ethics/guidelines/ practice-guidelines-
protocols-and-rules>)

CIArb Practice Guideline 10: Guidelines on the use of Tribunal-Appointed Experts,

Legal Advisers and Assessors (<www.ciarb.org/guidelines-and-ethics/guidelines/
practice-guidelines-protocols-and-rules>)

CIArb Practice Guideline 15: Guidelines for Arbitrators on How to Approach Issues
Relating to Multi-Party Arbitrations (<www.ciarb.org/guidelines-and-ethics/
guidelines/practice-guidelines-protocols-and-rules>)

CIArb Protocol for E-Disclosure in Arbitration (<www.ciarb.org/ guidelines-and-

ethics/guidelines/practice-guidelines-protocols-and-rules>)

CIArb Protocol for the Use of Party-Appointed Expert Witnesses in International

Arbitration (<www.ciarb.org/guidelines-and-ethics/guidelines/practice-guidelines-
protocols-and-rules>)

College of Commercial Arbitrators

The College of Commercial Arbitrators Protocols for Expeditious, Cost-Effective
Commercial Arbitration (2010) (Thomas J. Stipanowich, Editor-in-Chief; Curtis E.
von Kann and Deborah Rothman, Associate Editors) (<www.thecca.net/cca-
protocols-expeditious-cost-effective-commercial-arbitration>)

Debevoise & Plimpton

Protocol to Promote Efficiency in International Arbitration (2010)
(<www.debevoise.com>)

Hanotiau, Bernard
“Document Production in International Arbitration: A Tentative Definition of ‘Best
Practices’”, ICC Bulletin 2006 Special Supplement, Document Production in
International Arbitration, pp. 113-116

*
All electronic resources last accessed on 23 February 2015.

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 THE ICCA REPORTS

Hwang, Michael and Thio, Nicholas

“A Proposed Model Procedural Order on Confidentiality in International Arbitration:
a Comprehensive and Self-Governing Code”, 29 J. Int. Arb. (2012) pp. 137-169

International Bar Association (“IBA”)

IBA Rules on the Taking of Evidence in International Arbitration (2010)
(<www.ibanet.org>)

International Centre for Dispute Resolution (“ICDR”)

ICDR Guidelines for Arbitrators Concerning Exchanges of Information
(<www.icdr.org>)

International Chamber of Commerce (“ICC”) Commission on Arbitration and ADR

Effective Management of Arbitration – A Guide for In-House Counsel and Other
Party Representatives, <www.iccwbo.org/advocacy-codes-and-rules/document-
centre/2014/effective-management-of-arbitration-a-guide-for-in-house-counsel-and-
other-party-representatives/>

Controlling Time and Costs in Arbitration, 2nd edn. (2012) at

<www.iccwbo.org/Advocacy-Codes-and-Rules/Document-centre/2012/ICC-Arbitration-
Commission-Report-on-Techniques-for-Controlling-Time-and-Costs-in-Arbitration/>

Managing E-Document Production (2012) <www.iccwbo.org/Advocacy-Codes-

and-Rules/Document-centre/2012/ICC-Arbitration-Commission-Report-on-Managing-
E-Document-Production/>

ICC International Court of Arbitration

Bulletin Vol. 21 No. 1 (2010), Issues for Arbitrators to Consider Regarding Experts,
pp. 31-51

Note on the Appointment, Duties and Remuneration of Administrative Secretaries

(<www.iccwbo.org/Products-and-Services/Arbitration-and-ADR/Flash-news/Introduction-
of-revised-Note-on-the-Appointment,-Duties-and-Remuneration-of-Administrative-
Secretaries/>)

International Institute for Conflict Preservation and Resolution

Guidelines for Arbitrators Conducting Complex Arbitrations (<www.cpradr.org/
Portals/0/Resources/ADR%20Tools/Tools/Arbitration%20Award%20Slimjim%20f
or%20download.pdf>)

Guidelines on Early Disposition of Issues in Arbitration (<www.cpradr.org/

Portals/0/Resources/ADR%20Tools/Clauses%20&%20Rules/CPR%20Guidelines%
20on%20Early%20Disposition%20of%20Issues%20In%20Arbitration.pdf>)

28
 ANNEX: USEFUL RESOURCES

CPR Protocol on Disclosure of Documents and Presentation of Witnesses

(<www.cpradr.org/About/CPRStore.aspx>)

JAMS
JAMS Efficiency Guidelines for the Pre-Hearing Phase of International Arbitrations
(Effective 1 February 2011) (<www.jamsinternational.com/wp-content/uploads/
JAMS-International-Efficiency-Guidelines.pdf>)

Lévy, Laurent and Reed, Lucy

“Managing Fact Evidence in International Arbitration” in International Arbitration
2006: Back to Basics? ICCA Congress Series no. 13 (Kluwer 2007) pp. 633-644

Moser, Michael J.
“The ‘Pre-Hearing Checklist’ – A Technique for Enhancing Efficiency in
International Arbitral Proceedings”, 30 J. Int. Arb. (2013) pp. 155-159

Newmark, Christopher
“Controlling Time and Costs in Arbitration”, Ch. 6 in L.W. Newman and R.D. Hill,
eds., The Leading Arbitrators’ Guide to International Arbitration 2nd edn.
(JurisNet 2008) <www.cedr.com/about_us/arbitration_commission/LAG_2nd_
Edition_CCN_Chapter.pdf>

Reed, Lucy
“The 2013 Hong Kong International Arbitration Centre Kaplan Lecture – Arbitral
Decision-Making: Art, Science or Sport?”, 30 J. Int. Arb. (2013) pp. 85-99

Risse, Joerg
“Ten Drastic Proposals for Saving Time and Costs in Arbitral Proceedings”, 29
Arbitration International (2013) pp. 453-466

United Nations Commission on International Trade Law (UNCITRAL)

UNCITRAL Notes on Organizing Arbitration Proceedings (<www.uncitral.org/pdf/
english/texts/arbitration/arb-notes/arb-notes-e.pdf>)

Welser, Irene and De Berti, Giovanni

“Best Practices in Arbitration: A Selection of Established and Possible Future Best
Practice”, Austrian Yearbook on International Arbitration 2010 (eds: Klausegger,
Klein, Kremslehner, Petsche, Pitkowitz, Power, Welser and Zeiler), pp. 79-101
(<www.dejalex.com/pdf/pubb_1001.pdf>)

29
 THE ICCA REPORTS

White & Case LL.P and Queen Mary University of London School of International
Arbitration
2012 International Arbitration Survey – Current and Preferred Practices in the
Arbitral Process (<www.whitecase.com/files/Uploads/Documents/Arbitration/
Queen-Mary-University-London-International-Arbitration-Survey-2012.pdf> (See
also Executive Summary of same: <http://arbitrationpractices.whitecase.com/
files/Uploads/Documents/Arbitration/Executive-Summary-Queen-Mary-University-
London-International-Arbitration-Survey-2012-update.pdf>)

2010 International Arbitration Survey – Choices in International Arbitration

(<www.whitecase.com/files/Publication/839d2762-bf8e-4daa-b40a-1b643081b801/
Presentation/PublicationAttachment/3c346b83-27ba-4ed1-a99e-e1811e47b997/2010
International_Arbitration_Survey_Choices_in_International_Arbitration.pdf>)

Young ICCA
Young ICCA Guide on Arbitral Secretaries, The ICCA Reports No. 1 (<www.arbitration-
icca.org/media/1/14123769188350/aa_arbitral_sec_guide_composite_11_march_2014.
pdf>)

30