International Arbitration in practice
Greg Fullelove (Osborne Clarke LLP)
25 April 2022, University of West London
The Arbitral Process: Overview
Appointment of the
‘heartbeat’ of the case
Early engagement /
Procedural Order No.1
Security for costs?
Could the Respondent
derail the case?
Statements of case:
‘Memorial style’ or
pleadings and witness
Witness evidence of
fact / expert evidence
Where? How? How
Post-hearing briefs The Award
Challenges to the
Expedited proceedings: the need for speed?
Expedited Proceedings Under the ICC Rules
• From 1 March 2017 – but new rules came into force on 1 January 2021
• Applies automatically to any dispute up to USD2 million – this is increasing to USD3 million under the
new 2021 rules (parties can opt out)
• Sole arbitrator (appointed by ICC Court but parties may nominate), regardless of arbitration agreement
• CMC within 15 days of the arbitrator receiving the file.
• Parties may not raise new claims without the arbitrator’s authorisation
• No Terms of Reference
• Broad discretion of arbitrator on procedure (e.g. restricted disclosure and evidence, dispense with oral
• Awards must be rendered within six months of the CMC.
• London Court of International Arbitration (LCIA) case.
• The Request for Arbitration was filed on 8 June.
• The three member tribunal was constituted on 15 June.
• A witness hearing was held on 6 July following the exchange of submissions and evidence.
• A reasoned award was rendered on 21 July.
• Fast paced, strongly contested, high value, and multi-jurisdictional.
• Key feature: both parties required resolution.
Chapter One: The expedited arbitration
• Began negotiating arbitration agreement – 28 June (Day 1)
• Information gathering by OC commences – 30 June – and continues until the day of the
• Arbitration agreement signed – 5 July (Day 8)
• Claimant’s first submission (two witness statements) – 6 July (Day 9)
• Sole arbitrator appointed – 13 July (candidates proposed by LCIA, parties each vetoed one) (Day 16)
• Respondent’s Defence (plus two witness statements) – 14 July (Day 17)
• Telephone CMC – 18 July (Day 18)
• Claimant’s Reply (two witness statements) – midday 19 July (Day 22)
• Respondent’s Response (three witness statements) – 20 July (Day 23)
Chapter Two: The compromis
• Hearing – Friday 22 July (4 hours) (Day 25)
• Costs submissions – Wednesday 27 July (Day 25)
• Replies to costs submissions – 12.30 Friday 29 July (Day 32)
• Award available – 13:05 3 August (8 working days from hearing) (Day 37)
Chapter Two (continued)
The powers of the tribunal / the court – some key points
Powers of Arbitrators
• Source: arbitration agreement, institutional rules (if applicable) and procedural law of the seat.
• Wide powers over procedure of the claim
• Limited powers of enforcement. Tribunal cannot enforce its own orders (but can make costs orders,
draw adverse inferences or refuse to admit evidence)
• Only the courts can enforce orders.
• For example, in England see section 41(5) AA 96 (mandatory): tribunal can make a peremptory order if
a party fails to comply with an order. This will usually be in the form of an unless order.
• Section 42 court can make an order requiring a party to comply with a peremptory order (where seat is
in England). A breach of that order will be a contempt of court (fine/prison).
Interim relief? Powers of the Arbitral Tribunal
and the Courts
• Types of interim or conservatory relief
• Purposes for which it may be available
• Do you need to freeze assets?
• From the courts or the Tribunal?
• Availability of an emergency arbitrator?
• A potentially decisive, or even determinative, factor in a dispute
• Enforcement as the ‘heartbeat’ of the case
Security for costs?
• Available only from the Tribunal (not the courts)
• Where the claimant is unlikely to be able to satisfy a costs order against it
➢ Especially where assets are located out of the jurisdiction
• Consider timing of application
➢ Requirement to disclose financial information or provide security can apply significant pressure
• Relevant factors
➢ Claimant’s financial strength
➢ Foreign residence/nationality?
➢ Respondent’s counterclaims
Heading for the hearing: key stages
Statements of case and supporting evidence
• Typically two rounds of statements of case:
➢ Claimant’s statement of claim
➢ Respondent’s statement of defence (and any counterclaim)
➢ Claimant’s reply (and any defence to counterclaim)
➢ Respondent’s rejoinder (and any reply to defence to counterclaim)
• Precise form is not specified in statute or arbitration rules
➢ cf. Court pleadings vs ‘memorial approach’
• Importance of enumerating all heads of claim
Document production – Redfern Schedule
|Request||Reason for request &
rebuttal to objection
All documents relating to the
steps taken to establish and
appoint members to the ABC
|Relevance to pleading
Relevant to paragraph 10 of the
Request for Arbitration.
Reason for request
This category of document is
relevant to the claimant’s claim
for breach of the respondent’s
obligation to create favourable
conditions for investment and to
accord the claimant fair and
Rebuttal to respondent’s
1. The request relates to all
documents within a specific and
clearly identified category of
documents which are material
2. The respondent must
establish the application of this
exemption to particular
|1. The request is unduly
burdensome as it relates to “all”
documents “relating to” the
subject matter of the request and
no time limit is specified.
2. The respondent also objects
insofar as the request calls for
government deliberations which
are subject to public interest
|Although the documents
requested are relevant, their
production is unduly
burdensome insofar as the
request relates to “all”
documents “relating to” the
subject matter of the request.
The respondent should produce
to the claimant documents
relating to the appointment of
members to the ABC Association
between 1 June 2008 and 31
If the claimant does not consider
the documents supplied
sufficient, the claimant will have
an opportunity to file a request
for additional specific documents
on the second round of requests
for document production
*Source: Practical Law Company ‘Specimen Redfern Schedule and drafting note‘ © 2015 Thompson Reuters.
• Typically < one week
• Administrative arrangements for the hearing
• Representation of the Parties
• Hearings are private
• Typical order of proceedings:
➢ Opening statements
➢ Examination of witnesses (direct, cross and re-direct)
➢ Closing submissions
International arbitration in a pandemic: any change?
Impact of COVID-19 on international arbitration
• The pandemic had increased the move towards remote hearings. Remote hearings were regularly
used pre-pandemic too, given the international nature of arbitration
• Various institutions have published guidance for remote hearings, including the ICC and Seoul
Protocol for Video Conferencing
• When nominating arbitrators, take into account their likely familiarity with remote technology
• Consider confidentiality and privacy
• Platform choice – some institutions offer their own online platforms
• Electronic bundles
• Not just hearings that are challenging: logistics of fully remote filings, witness coordination, evidencetaking, client-care, etc.
• Need for technical support during hearing time
Remote hearings during the pandemic
• Already existed pre-pandemic. However now the ‘norm’.
• Witnesses: practice runs and ensuring no coaching/interference during testimony
• No need for the hearings to take place in arbitral seat so no impact if arbitrators joining remotely
• Although remote hearings can be more efficient and cheaper than in-person hearings, and a less
stressful experience for witnesses, there are downsides too e.g., harder to “read” the arbitrators and
• On the other hand, there is a chance to note reaction of a witness’s evidence on the other side and
• Harder for arbitrators to interrupt and ask questions?
International arbitration: common tricky issues
The problem of the ‘non-responder’ / ‘nonparticipant’
• What happens when a party does not participate?
• Or participates then drops out?
• Can the Arbitral Tribunal continue?
• Who pays?
• How should you approach a hearing with only one party present?
• The importance of giving both sides an opportunity to present their cases.
➢ CIArb Guidelines for Party Non-Participation
• Limited powers of tribunals;
• Greater influence of parties over procedure (e.g. deadlines); and
• Limited rules regulating conduct of counsel
• Delay generally and frustrating an orderly and fair hearing;
• Witness tampering;
• Satellite court applications / injunctions designed to delay or obstruct; and
• Frivolous challenges of arbitrators – a number of recent decisions – usually
LCIA Schedule regarding ethical issues
The guidelines include:
• not unfairly obstructing the arbitration / award. E.g. repeated unfounded jurisdiction or arbitrator
• not making any false statement to the tribunal or LCIA Court.
• not procuring, preparing or relying on any false evidence.
• not concealing any document that the tribunal has ordered be produced.
• not initiating any ex parte contact with an arbitrator without prior written disclosure.
Parties must ensure their counsel have agreed to comply with these guidelines.
Remedies for breaches:
• Written reprimand,
• written caution,
• “any other measure” (could include the exclusion of counsel from a case).
Do the guidelines turn a tribunal into a type of disciplinary body?
|Greg is the Head of the International Arbitration Group at Osborne Clarke. He
has acted in international disputes across the world, including acting as
counsel in hearings in the US, Luxembourg, France, Germany and the UK.
He has particular experience of energy and financial services disputes. As
well as oil and gas disputes, Greg has acted on renewables disputes
including in relation to solar and hydroelectric power projects.
Greg was recently recognised as a Global Leader by the respected directory
Who’s Who Legal, which has said that his “ability to come up with quick
solutions for complex problems is extremely impressive”. He was praised as
“superb under pressure” and “very well liked and respected by both his
clients and colleagues“.
Greg has acted as counsel and advocate in both international commercial
and bilateral investment treaty arbitrations. He has conducted both ad hoc
and institutional arbitrations to final award, including under the LCIA, ICC,
ICSID and UNCITRAL rules. He has also sat as arbitrator.
Before joining Osborne Clarke as a Partner in 2012, Greg practised from
2000 to 2012 at Freshfields Bruckhaus Deringer LLP, where he was a
member of the International Arbitration Group and qualified as a solicitor
Together with Julian D.M. Lew QC and others, Greg is an editor of the
practitioner text on arbitration law and practice, Arbitration in England (2013).
T+44 20 7105 7564