Title

XIV.3.6 - Hearings and written proceedings

Content

No. XIV.3.6 - Hearings and written proceedings

(a) Subject to any contrary agreement by the parties, the arbitral tribunal shall decide whether to hold oral hearings for the presentation of evidence or for oral argument, or whether the proceedings shall be conducted only on the basis of documents and other materials (“documents-only”). However, unless the parties have agreed that no hearings shall be held, the arbitral tribunal shall hold such hearings at an appropriate stage of the proceedings, if so requested by a party.

(b) The parties shall be given sufficient advance notice of any hearing and any meeting of the arbitral tribunal for the purposes of inspection of goods, other property or documents.

Commentary

1 Due to the primacy of party autonomy in international arbitration, an agreement by the parties that oral hearings are to be held is binding on the arbitral tribunal. If the parties have agreed not to hold hearings, such agreement is binding on the parties and the arbitral tribunal. In exceptional cases, the parties' fundamental due process right to be heard may provide a compelling reason for holding an oral hearing even though the parties have agreed not to hold one. Here, the mandatory due process rules prevail over the parties' autonomy. In any event, parties which have agreed not to hold hearings are not precluded from later modifying their agreement, and thus to allow a party to request oral hearings.

2 In the vast majority of cases, there is no agreement of the parties on the mode of the proceedings (oral or written). In that case, the arbitral tribunal is free to decide whether to hold a hearing or whether to conduct the arbitration on the basis of documents and other materials (even though the latter approach is not recommended). If one of the parties requests a hearing, the arbitral tribunal must hold hearings in order to ensure that that party's due process rights are preserved.

3 The question whether a hearing will be conducted must be distinguished from the question how such a hearing will be conducted. This issue falls within the procedural discretion of the arbitral tribunal pursuant to Principle XIII.3.2. (b), but the parties must be heard before the arbitral tribunal makes a decision on the structure of the hearing.

References

Arbitration Rules

Swiss Rules of International Arbitration 2006UNCITRAL Arbitration Rules 1976UNCITRAL Arbitration Rules 2010 (revised)WIPO Arbitration Rules

International Legislation

UNCITRAL Model Law on International Commercial Arbitration

Miscellaneous

UNCITRAL Notes on Organizing Arbitral Proceedings 1996

Model Laws

UNCITRAL Model Law on International Commercial Arbitration with Amendments, 2006

National Legislation

Austrian Arbiration Law 2006Zivilprozessordnung - German Code of Civil Procedure

Contract Clauses

1. Contractual Agreement Binding on Arbitral TribunalSales & Purchase ContractSubmission to Arbitration

(...) Any arbitration hearing shall be held in New-York City before a single neutral arbitrator. Such arbitration shall be submitted to the offices of Judicial Arbitration & Mediation Services, Inc. (JAMS) or to such other arbitration service and in such other location as Company, in its sole discretion, shall select (...)


2003Accounts Receivable AgreementArbitration (Contracts Not Secured by Real Property)

(...) The hearing shall be conducted at a location determined by the arbitrator in Los Angeles, California (or such other city as may be agreed upon by the parties) and shall be administered by and in accordance with the then existing Rules of Practice and Procedure of JAMS and judgement upon any award rendered by the arbitrator may be entered by any State or Federal Court having jurisdiction thereof (...)


19962. Initiation of ProceedingsServices ContractInitiation of Arbitration

The aggrieved party may initiate arbitration by sending written notice of an intention to arbitrate to all parties, such notice to include a description of the dispute, the amount involved, and the remedy sought. Each party irrevocably agrees that service of process, notes or other communications relationg to the arbitration procedure shall be deemed served and accepted by the other if given in accordance with the precisions of this agreement.


2003