Presentation Material for Efficiency Unit Contract Management issues subject to Arbitration

1. Presentation Materialfor Efficiency UnitContract Management issues subject to Arbitration Christopher To Hong Kong International Arbitration Centre www.hkiac.org Christopher@hkiac.org 30 June 2005 2.15 to 2.45 pm

2. Business Disputes Introduction • Should commercial disputes be a hindrance to your company’s success. • How should you prepare for the worst. • What advice and guidance is available. • How can you proactively manage your disputes that could substantially save you in unnecessary costs and time. • Understanding the various dispute resolution mechanisms that are available in market place can assist you in managing your potential disputes in an effective and efficient manner while at the same time minimizing your exposure to potential risks.

3. Business Disputes Introduction • Definition of a Dispute The New Shorter Oxford English Dictionary 1993 defines it as • “A logical argument” or • “An oral or written discussion of a subject in which arguments for and against are put forward and examined” or • “An instance of disputing or arguing against something or someone, argument, a controversy” or • “A heated contention, a disagreement in which opposing views are strongly held” or • “The act of disputing or arguing against something or someone; controversy, debate” or • “A fight, a struggle”

4. Business Disputes Introduction • Examples of International Business Disputes • Contracts on sale of goods (including commodities) • Distributorship, agency and intermediary contracts • Construction, engineering and infrastructure contracts • Intellectual property contracts • Registration of domain names • Joint Venture agreements • Maritime contracts ( such as bills of lading, charter parties) • Dealings with a pre shipment inspection agency • Dealings with customs authorities • Documentary Credit arrangements • Employment Contracts • Where a State or a State owned entity is involved

5. What is Conflict Resolution? Don’t get confused with indecision, disagreement, stress or other common experiences that may cause, or be caused by conflict. By definition, conflict only occurs between parties who need each other and who cannot simply leave the relationship with no negative consequences.

6. What is Conflict Resolution? Six parts of Conflict structure:- • Interdependency • How much do the parties need each other to act cooperatively? If interdependency is high, then the costs of not resolving it are also likely to be high. • Number of interested parties • How many distinct parties have an interest in how the conflict is resolved? As the number and size of parties increase, there are more people to please and the difficulty of resolving the conflict increases. • Constituent representation • Do the parties represent the interests of other people who are not personally and directly involved in the process of resolving the conflict? Reaching an agreement that is acceptable to everyone who is affected by how the issue is resolved, especially those who are not personally involved, is more difficult. • Negotiator authority • If the negotiator authority is high, then resolution is easier, otherwise the process will take longer and will be more difficult. • Critical urgency • Is it absolutely necessary that a solution be found in the very near future? The greater the critical urgency, the less likely a consensual solution. • Communication channels • Same-time-same-place dialogue nearly always produces far better solutions than lesser communication channels.

7. What if there is a Conflict? Being in Conflict is no fun. It’s stressful, unpleasant, distracting, intrusive and annoying. What’s more…

8. What if there is a Conflict? • Costs: Money down the Drain • Wasted Time • Bad Decisions • Lost Employees • Unnecessary Restructuring • Sabotage, Theft and Damage • Lowered Job Motivation • Lost Work Time • Health Costs

9. How to resolve any Conflict? Five Conflict Strategies:- • Integrating • Compromising • Competing • Smoothing • Avoiding

10. Ways to Resolve Disputes Introduction • Violence • Avoidance • Negotiation • Mediation • Adjudication • Arbitration • Litigation

12. 1. What is Arbitration? A. General Issues • Flexible, Inexpensive, Confidential, Fair and Final • Features distinguishing a reference to arbitration from other dispute resolution techniques: • the presence of a dispute or difference between parties which has been formulated in some way or another; • the dispute of difference has been remitted by the parties to a person to resolve in such a manner that he is called upon to exercise a judicial function; • where appropriate, the parties must have been provide with the opportunity to present evidence and / or submissions in support of their respective claims in dispute; • the parties have agreed to accept the decision. • Arbitrators are appointed by or on behalf of the parties in disputes and has to decide a dispute that has already arisen. Inquisitorial powers are not normally given to an arbitrator. • Arbitration is conducted in accordance with the terms of the parties’ arbitration agreement, usually found in the provisions of a commercial contract between the parties.

13. 1. What is Arbitration- Essential Features of Arbitration A. General Issues • Consensual – arbitration agreement • Party autonomy – e.g Choice of tribunal, manner of case presentation, procedure and powers of the tribunal • Jurisdiction of the tribunal is fixed primarily by the terms of the arbitration agreement and the submission to arbitration • Final and legally binding process • Limited scope for intervention by the courts

14. 2. How is the Arbitration started? A. General Issues • Disputes governed by arbitration agreements trigger the arbitration process. • Arbitration agreements come in two forms: • where parties to a contract include a clause in which they agree to resolve any dispute which may arise under the contract by arbitration. This is known as an arbitration clause. Many Hong Kong trades and industries have applicable standard forms of contract with standard arbitration clauses, although parties can tailor clauses to suit their circumstances. • where parties are already in dispute but their contract does not contain an arbitration clause, they may enter into a separate agreement to refer the matter to arbitration. This is known as a submission agreement. • Occasionally disputes are referred to arbitration by a court order or the operation of a statute.

15. 2. How is the Arbitration started? A. General Issues “ Disputes hereunder shall be referred to arbitration, to be carried out by arbitrators named by the International Chamber of Commerce in Geneva in accordance with the arbitration procedure set forth in the Civil Code of Venezuela and in the Civil Code of France, with due regard to the law of the place of arbitration.”

16. 2. How is the Arbitration started – The Agreement A. General Issues MAGIC FORMULA “Any dispute, controversy, or claim arising out of or in connection with this contract, including any question regarding its existence, validity, or termination shall be finally resolved by arbitration under the Rules of [rules/institution]. The tribunal shall consist of [a sole/three] arbitrator[s]. The place of arbitration shall be [city].”

17. 2. How is the Arbitration started – The Agreement A. General Issues OTHER USEFUL POINTS • Language • Expertise and special requirements of arbitrators • Discovery • Multi party proceedings • Costs • Confidentiality • Med-arb, ADR • Sovereign immunity waiver

18. 2. How is the Arbitration started – The Agreement A. General Issues INSANE CLAUSES “(1) Should either party come to feel that the Arbitrator is insane or for reasons it comes to know after commencement of the arbitration, it may consult with the other party, and should both parties agree that the Arbitrator is likely to be insane, they shall serve a notice of doubt on the Arbitrator. “Causes giving rise to a notice of doubt” must be extreme and not be limited to continuous making of senseless remarks, absentmindedness and queer conduct such as dancing alone in the public without cause, and the parties may serve a notice of doubt only once during the arbitration.

19. 2. How is the Arbitration started – The Agreement A. General Issues INSANE CLAUSES (2) On such notice of doubt being served the Arbitrator may not refuse medical examination by a psychiatrist specialist at one of the hospitals listed in Appendix 1 appended to and made a part hereof. (3) If in the opinion of the psychiatrist specialist the examination would require more than four weeks or if the psychiatrist specialist is unable to conclude that the Arbitrator is positively insane, then the Arbitrator shall be deemed to be not insane. The medical examination shall be at the parties’ cost and shall be conducted under the condition that the result will be made known only to the Arbitrator and the parties.

20. 2. How is the Arbitration started – The Agreement A. General Issues INSANE CLAUSES (4) If the Arbitrator is found insane, he shall resign in which event he shall not be entitled to the fee for the services he will have rendered, but each party shall pay to the Arbitrator a get well feeof Yen 100,000 and one-half of the disbursements covering the amount the Arbitrator will have expended in connection with the arbitration. If the Arbitrator is found not insane as the result of the examination, the parties shall jointly provide him with a letter of apology and each party shall pay a so-sorry feeof Yen 1,000,000 to the Arbitrator which he may treat as damages for tax purposes. The arbitrator, however, may not count the time spent for the medical examination as time spent for arbitration.

21. 2. How is the Arbitration started – The Agreement A. General Issues INSANE CLAUSES (5)While the provisions of these clauses are not intended to permit the parties to take the arbitrator to the hospital by dint of force, it does not bar the parties from initiating judicial proceedings for removal of the arbitrator. Such proceedings may be resorted to only where the arbitrator refuses to subject himself to medical examination or where the parties are not satisfied with the findings of the psychiatrist that the arbitrator is not insane. If the parties initiate judicial proceedings and fail to remove the arbitrator, each party shall pay a nuisance-feeof Yen 2,000,000 to the arbitrator. During such proceedings, the arbitrator may proceed, but the arbitrator may not render an award. If rendered, such award may not be enforced.”

22. 3. Arbitration Procedure A. General Issues • Arbitration procedure varies, depending on the agreement between the parties and the applicable statutes and rules. • An arbitration commences with one party serving a notice of arbitration on the other. (The notice briefly describes the dispute and the questions to be put to the arbitrator.) • The arbitrator or arbitrators are selected according to an agreed procedure. • The terms of reference (lay down the framework for the rules and procedures under which the arbitration is to be conducted) are prepared and agreed. It is advisable to take guidance from those provided by local bodies such as the HKIAC Domestic Rules or applicable specialist bodies. • The arbitrator’s fees are agreed. • A detailed timetable and set of ground rules for the arbitration (Directions) are agreed, or imposed by the arbitrator. If the parties are adopting any arbitration rules, they should refer to those rules and make the Directions consistent with them. • A venue is booked and the hearing takes place. • The arbitrator prepares and delivers his award (usually includes recitals, findings of liability, the relief granted, any interest component, findings as to costs and reasons. • The arbitrator (or arbitrators) must execute the award, by signing and dating it.

23. 4. Document-Only Arbitration A. General Issues • The arbitrator makes his determination based solely on any statements of case and an agreed bundle of documents provided to him by the parties. • It dispenses with directions, discovery, experts and the hearing. • Written statements of claim are usually exchanged, as this is usually the only way for a party to put forward its case, since no oral evidence will be received. • Art. 24 of Model Law on International Commercial Arbitration (Model Law) provides that, subject to any contrary agreement by the parties, the arbitral tribunal shall decide whether the proceedings shall be conducted on the basis of documents and other materials. • In an arbitration governed by the HKIAC Domestic Arbitration Rules, Art. 25 allows documents-only arbitrations where the parties agree. The HKIAC documents-only procedure requires the claimant to deliver submissions and documents within 28 days, defence and counterclaim submissions within 28 days afterwards, reply and defence to counterclaim within 28 days afterwards, followed by the respondent’s final submissions within 21 days.

24. 5. Small Claims Arbitration A. General Issues • Introduced by the HKIAC primarily for low value shipping disputes, small quality or quantity claims arising from commodities trading. • The procedure is only available where the parties agree to it, either by a contractual term or by agreement after the dispute has arisen. • There is only limited power to extend time for service of pleadings and late pleadings are inadmissible. • There is no discovery, although the arbitrator may order the production of a relevant document. • There is usually no hearing and no right of appeal to court. • The fees payable by a claimant to an arbitrator are limited to a fixed HK$15,000. • If there is a counterclaim which exceeds the amount of the claim, the respondent must pay the additional fee of HK$7,500. • HKIAC charges HK$1,500 to appoint an arbitrator. • The arbitration has power to direct which party must bear the ultimate responsibility for the small claims fee, tribunal’s expenses and the legal costs of the successful party. • The arbitrator may assess the recoverable costs on a commercial basis, but not exceeding HK30,000.

25. 6. Statute Governing Arbitrations in Hong Kong A. General Issues • Arbitration in Hong Kong is governed by the Arbitration Ordinance (Cap. 341) of the Laws of Hong Kong SAR. • The Arbitration Ordinance provides two regimes for arbitration: • Domestic arbitration agreement regime • International arbitration agreement regime • The domestic regime is based on the English Arbitration Acts 1950, 1975 and 1979 with additional clauses influenced by Singapore’s International Arbitration Act and the English Arbitration Act 1996. • The international regime incorporates the Model Law. • Parties can opt in to either regime. • Arbitration Ordinance is designed to support arbitration as a fair, speedy and cost-effective means to resolve disputes. • It gives the parties maximum scope for autonomy during arbitration. • The role of the courts is confined to occasions where it is obvious that either the arbitral process needs assistance or that there has been, or is likely to be, an obvious denial of justice.

26. 7. Rules Applicable to Arbitrations in Hong Kong A. General Issues • In addition to the Arbitration Ordinance, the parties may agree to adopt a particular set of rules in the event of an arbitration. • The HKIAC commends the use of the HKIAC Domestic Arbitration Rules which took effect from 1 April 1993 for domestic arbitrations. • The HKIAC commends the use of the UNCITRAL (United Nations Commission on International Trade Law) Arbitration Rules promulgated by UNCITRAL in 1976 for international arbitrations.

27. 8. Arbitration Institutions in Hong Kong A. General Issues • The Hong Kong International Arbitration Centre (HKIAC) • The Hong Kong Institute of Arbitrators; and • The East-Asia Branch of the Chartered Institute of Arbitrators

28. 9. Strengths of Arbitration A. General Issues • Freedom to choose the arbitrator • Informality • Secrecy • Economy • Speed • Finality

29. 10. Weaknesses of Arbitration A. General Issues • The tendency to treat the arbitration as a court hearing • Costs of the arbitrator and court facilities • Unavailability of legal aid • Incompetent arbitrators • Arbitrator unavailability • Lack of legal expertise • Lack of control over proceedings

30. 1. General B. Role of the Court in Arbitration • The Arbitration Ordinance expressly restricts the court’s role by providing that it “should interfere in the arbitration of a dispute only as expressly provided by this Ordinance”. • By virtue of the provisions in the UNCITRAL Model Law, the court’s role in international arbitrations is very limited. • Broadly speaking, the court has a role in the following activities: • enforcing an arbitration agreement; • supporting the conduct of arbitration proceedings; • appeals; and • enforcing an award

31. 2. Enforcing an Arbitration Agreement B. Role of the Court in Arbitration • The court has to stay any action commenced in defiance of an arbitration agreement, unless it is satisfied that the agreement is null and void, inoperative or incapable of being performed. • An agreement is a valid arbitration agreement notwithstanding the fact that it confers upon the claimant the option of commencing action by litigation or arbitration or it gives only one of the parties the right to refer any dispute to arbitration. • The court’s approach is to lean “in favour of making the parties who have agreed to settle their disputes by arbitration stick to that method of dispute resolution rather than resorting to litigation when it suits them to do so”.

32. 3. Support for the Conduct of Arbitration Proceedings B. Role of the Court in Arbitration • The court has powers to enable it to support arbitral proceedings. • Granting an extension of contractual time to commence arbitration proceedings (or some other dispute resolution procedure that must be exhausted before the commencement of arbitration proceedings); • Dismissing a party’s claim and prohibiting it from commencing further arbitration proceedings in respect of the claim if the court is satisfied that the party or its adviser has unreasonably delayed bringing the claim; • Granting interim relief (such as making an order directing an amount in dispute to be secured or granting an interim injunction or any other interim measure); • Determining a preliminary point of law in a domestic arbitration; • Consolidating domestic arbitrations; and • Removing arbitrators for failure to use all reasonable dispatch or for misconduct in a domestic arbitration. • The court has residual jurisdiction to dismiss a party’s claim if the party or its adviser has unreasonably delayed bringing the claim and, at relevant time, there is no arbitral tribunal in existence. • In a domestic arbitration, the court has the power to determine any question of law arising in the course of a reference, where the application is made with the consent of all the parties or with the consent of the arbitrator concerned. • The court’s role is one of support. It is not to be abused by parties for the purpose of frustrating or delaying the arbitral process. Thus, the court will discourage applications by awarding costs on an indemnity basis.

33. 4. Appeals B. Role of the Court in Arbitration • Under the UNCITRAL Model Law, recourse to a court against an arbitral award may only be made on “procedural” ground which are set out in Art. 34. • In domestic arbitration, there is a limited right of appeal against the award to the court on any question of law. This limited right of appeal may also be excluded by agreement. • On determining such an appeal, the court may order: • Confirm, vary or set aside the award; or • Remit the award together with the court’s opinion on the question of law to the reconsideration of the arbitrator.

34. 5. Enforcing an Award B. Role of the Court in Arbitration • The court has the power to enforce an award, order or direction made by an arbitral tribunal in the same way as a judgment, order or direction of the court of the same effect, regardless of whether the same is made in or outside Hong Kong. • Award governed by the New York Convention may be enforced in the same manner as an arbitrator’s award enforceable by virtue of s.2GG of the Arbitration Ordinance. • The court generally takes a narrow approach in construing the meaning of “public policy” under the New York Convention. It looks at the “fundamental conceptions of morality and justice of Hong Kong” when it comes to a matter of public policy.

35. 1. Procedural Meetings C. Arbitration Proceedings • Arbitration merges the adversarial system and inquisitorial system. • Abstracts the best of both systems • The principle that arbitral tribunals cannot “enter into the arena” remains applicable under both the adversarial and inquisitorial systems. • s. 26B(6) and (9) of the Arbitration Ordinance allows the arbitral tribunal in Hong Kong to inquire into the facts and law to the extent it see fit.

36. 2. Separation of Procedural and Substantive Matters C. Arbitration Proceedings • The general practice in Hong Kong is for the procedural matters and the substantive matters to be dealt with separately. • In dealing with procedural matters, preliminary meetings or procedural meetings can be convened to deal with various interlocutory applications in addition to the use of submissions in writing. • Rulings of the arbitrator in procedural matters are not subject to challenge or review by the courts. • It limits court intervention while retaining the court’s supervisory jurisdiction. • However, there are advantages to avoid clear separation of the procedural and substantive matters when the issues are narrow or the amount in dispute is relatively small.

37. 3. Arbitration Rules C. Arbitration Proceedings • Arbitration in Hong Kong are generally ad hoc arbitrations or non-institutional arbitrations. • Non-institutional arbitrations can “tailor make” procedures for each arbitration based on the fundamental procedural guidelines laid down by the lex arbitri. • Commonly used Arbitration rules: • HKIAC Domestic Arbitration Rules; • UNCITRAL Model Rules; and • HKIAC Short Form Arbitration Rules. • The above give the arbitral tribunal power to vary the procedures. • Administered arbitrations in Hong Kong include ICC arbitrations and arbitration administered by HKIAC. • The adoption of arbitration rules is not essential. • The procedural law of arbitration in Hong Kong is governed by the Arbitration Ordinance and the common law, where the tribunal is given the powers and duties to manage the arbitration proceedings. • Rigidity of procedures is one of the disadvantages of institutional arbitration.

38. 4. Fundamental Guidelines C. Arbitration Proceedings • There are certain fundamental guidelines that have to be adopted for all procedural and interlocutory matters: • The rules of natural justice must be observed at all times; • Notice must be given for any meetings or hearings; and • Rulings and decisions of the arbitral tribunal must be sent to both parties. • Failure to observe the above principles may result in the arbitrator being removed, the award being set aside or not enforced.

39. 5. Preliminary Meetings C. Arbitration Proceedings (a) Necessity, Purpose and Timing of Preliminary Meetings • The main purpose of a preliminary meeting is for the arbitral tribunal to lay down procedures and set a time frame for complying with the same. • This is the first meeting between the arbitrator and the parties and the representatives. • In international arbitrations involving parties from different jurisdictions, preliminary meetings should be avoided. • Where the issues are straightforward and simple, the arbitral tribunal can actually lay down procedures right up to the main hearing at the first preliminary meeting. • For longer arbitrations, more than one preliminary meeting would be necessary.

40. 5. Preliminary Meetings C. Arbitration Proceedings (b) Agenda of Preliminary Meetings • A typical agenda of the first preliminary meeting could include the following: • Confirmation of a written arbitration agreement; • confirmation of the appointment of an arbitrator and terms of appointment; • Check whether or not there is any challenge on jurisdiction; • Decide whether any arbitration rules should be adopted; • Confirmation of time-table for exchange of pleadings / statement of case; • Decide whether documents to be relied on should be appended to the pleadings / statement of case; • How discovery of documents is to be dealt with; • Mode of service of documents / pleadings / statement of case; • Whether oral evidence will be required; • If there is no oral evidence, whether documents-only arbitration should be adopted; and • If there is oral evidence, whether directions leading to the main hearing can be dealt with. • If the parties are able to dealt with further directions leading to the main hearing, the typical matters to be dealt with would include: • Exchange of factual witnesses statements; • Number of expert witnesses (if any) and areas of expertise / issues to be dealt with; • Exchange of experts reports and meetings of experts; • Venue, duration and dates of oral hearing; • Preparation of hearing bundles; • Exchange of opening submissions; • Agreed lists of facts / issues; and • Other supporting facilities such as interpretation, transcripts, video conference.

41. 5. Preliminary Meetings C. Arbitration Proceedings (b) Agenda of Preliminary Meetings (i) Appointment of arbitral tribunal • The appointment should have been formalised when the preliminary meeting is called. • The terms of appointment may have been passed to the parties. • Any matters that may be seen to give rise to actual or potential conflict of interest should have been raised at the time when the nomination process took place and before the acceptance of appointment. • The duty to disclose is a continuous one. • The arbitral tribunal should be satisfied that it has been properly constituted under the arbitration agreement.

42. 5. Preliminary Meetings C. Arbitration Proceedings (b) Agenda of Preliminary Meetings (ii) Written arbitration agreement and jurisdiction • The arbitral tribunal should always ensure that at least prima facie it has jurisdiction to deal with the dispute referred to it. • A copy of the arbitration agreement should be given to the arbitrator before or at least immediately after the appointment. • The notice of arbitration should be placed before the arbitrator at an early stage. • The notice of arbitration provides a framework on which to check which dispute can be raised in the subsequent pleadings or statement of case. • As the arbitration progress, the parties may continue to give the arbitral tribunal jurisdiction to deal with issues which were not previously before it.

43. 5. Preliminary Meetings C. Arbitration Proceedings (b) Agenda of Preliminary Meetings (iii) Timetable for exchange of pleadings • In simple international sale of goods disputes, parties have frequently set out their contentions with substantiating evidence in correspondence before the action. • The duration of preparation will depend on the type of pleadings to be adopted as well as whether documents relied upon are to be appended to such pleadings or whether discovery is to take place after the exchange of pleadings. • Even if a set of rules has been adopted and a timetable for exchange of pleadings been laid down, the tribunal always has a discretion to re-evaluate the time frame if appropriate.

44. 5. Preliminary Meetings C. Arbitration Proceedings (b) Agenda of Preliminary Meetings (iv) Mode of discovery • Discovery is the process by which documents are disclosed. • The mode of discovery in Arbitration is more limited that that of court-style discovery. • The common practice is that documents to be relied upon by a party are appended to the pleadings / statement of case. • Arbitral tribunals are vested with the power to order specific discovery of documents. • Limited discovery starts with disclosure of documents substantiating the claim or defence and is supplemented by specific discovery of documents which have not been voluntarily disclosed. • However, there are instances where court-style discovery may be more suitable, for instance, in insurance arbitrations. • After discovery, it may be necessary to deal with potential issues on the authenticity of the documents disclosed.

45. 5. Preliminary Meetings C. Arbitration Proceedings (c) Preliminary Issues (i) Documents-only or oral hearings • At the early preliminary meetings, it is not possible to determine whether an oral hearing is necessary. • Even when a documents-only arbitration is to be adopted, the parties and arbitrator still tend to reserve their right to call for a short oral hearing to deal with matters which need clarification or elaboration. • If it is definite that an oral hearing is required, another procedural meeting may be convened. • In international arbitrations involving experienced and often busy counsel and arbitrators, hearing dates tend to be fixed well in advance. • Parties should be prepared to advise the tribunal as to the likely number of witnesses to be called.

46. 5. Preliminary Meetings C. Arbitration Proceedings (c) Preliminary Issues (ii) Collection of real evidence • In certain cases, there may be the need for site visits or surveys / records to be conducted in the presence of the arbitrator. • In conducting these visits, it is important that the purpose be clearly identified and the evidence sought to be viewed be listed. • If the site visit or inspection is to familiarise the arbitrator with the layout of the site generally so that the evidence can be more easily understood, the statements made by the parties should be confined to that. • Photographs are useful source of real evidence. • Collection of samples should be conducted in the presence of both parties.

47. 5. Preliminary Meetings C. Arbitration Proceedings (c) Preliminary Issues (iii) Exclusion agreement (for domestic arbitrations) • An exclusion agreement would only be considered for domestic arbitrations under s.23B which allow parties to agree to exclude the court’s right to grant leave to appeal.

48. 5. Preliminary Meetings C. Arbitration Proceedings (c) Preliminary Issues (iv) Communication with arbitrator • Any communication with the arbitrator must be copied to the other side to ensure impartiality and independence of the arbitrator. • Where communication electronically is permitted, these should be digitally signed and encrypted to ensure reliability, confidentiality and accuracy.

49. 6. Order for Directions C. Arbitration Proceedings • The decisions and directions made by the arbitral tribunal in these procedural meetings must be recorded in writing. • They must be clear so that parties know what to follow and more importantly, the court can enforce it if necessary. • The directions should set out the acts to be carried out and the time frame by which they should be completed. • It is not necessary to give any reasons for the directions or orders but where appropriate, the arbitral tribunal should indicate briefly why it has come to the views it did. • The arbitrator’s fee note should be itemised so that costs incurred by him in relation to each application can be identified. If costs need to be reserved they must be dealt with before the final award.

50. 7. Identification of Issues C. Arbitration Proceedings (a) General • A difficult issue is when and how the issues in contention should be identified. • Parties need time to fully appreciate the relevant facts, law and other features of their own case and that of their opponent. • It is common for arbitration agreements to specify the procedural rules to be adopted for the arbitration. • In the absence of any agreement, the tribunal is empowered to conduct the reference in such manner as it considers appropriate.