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Before commencing witness conferencing in arbitration鈥攃hecklist This Checklist sets out the issues to consider prior to agreeing to or commencing witness conferencing (also known as 'hot-tubbing') in arbitration: 鈥 How much advance warning have you had? To have a fair opportunity to present its case, counsel should fully agree the basic rules for witness conferencing with the arbitral tribunal well in advance of the hearing. Tribunals can sometimes suggest witness conferencing once the hearing has already begun and parties will feel under pressure to accept. Counsel should carefully consider the implications it may have in terms of procedural fairness and ensure that clients are completely comfortable with proposals before any agreement is given. 鈥 How does your witness compare with the other witnesses? Witness conferencing may be a risk if your witness is likely to become confused or meek when challenged. This is equally true if your witness is likely to become hostile or defensive when challenged. A witness with a dominating character may appear uncooperative...
Drafting arbitration agreements鈥攃hecklist This Checklist provides a list of matters to consider when drafting an arbitration agreement/arbitration clause. Although the parties may not be focussed on potential disputes when negotiating their substantive agreement, it is advisable to consider carefully the provisions of the arbitration agreement in some detail, with the benefit of specialist advice as necessary. Should an issue arise under the substantive agreement, the parties will not want to spend time deciding on, and even litigating, how to resolve the dispute. A Precedent arbitration clause for inclusion in a contract is available here: Arbitration clause. When drafting an arbitration agreement, consider: 鈥 in general: 鈼 is the agreement clearly drafted? Avoiding ambiguity is generally considered to be important when drafting any form of agreement, and that advice applies with equal force to arbitration agreements 鈼 have you used a standard or model clause from an arbitral organisation, another agreement, or a precedent bank? If so, is it current, and/or does it need to be adapted for your agreement? If...
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Choosing an arbitral seat鈥擜ustria Due to Austria鈥檚 geographical location and political neutrality, the country鈥檚 reputation for resolving international commercial disputes is traditionally strong. Accordingly, Austria can be considered one of the major centres for arbitral proceedings in Europe. This Practice Note considers information relevant for those considering Austria as a legal seat of arbitration. For more information on the arbitral seat, see Practice Notes: The seat of the arbitration and Choosing the seat of arbitration. Why Austria? 鈥 political neutrality 鈥 modern and well-developed arbitration law (a UNCITRAL Model Law country) 鈥 sophisticated international administering institution (Vienna International Arbitral Centre (VIAC)) 鈥 arbitration-friendly courts 鈥 proceedings to set-aside an arbitral award are to be decided by the Supreme Court as first and only instance 鈥 very active arbitration community 鈥 strong ties with Central and Eastern Europe as well South Eastern Europe, as well as increased ties with China The legal environment Austrian arbitration law forms part of the Austrian Code of Civil Procedure (sections 577...
Expert witnesses in arbitration This Practice Note considers the framework within which expert witness evidence is presented in arbitration proceedings. The role of the expert witness in arbitration proceedings is broadly the same as that of the expert in civil litigation proceedings. Whether appointed by the parties or, less commonly, by the tribunal, the expert is required to give their independent expert opinion on the issue(s) referred to them, based on the facts presented to them, and applying their own expertise and experience. The parties and the tribunal may question or challenge the expert, and the tribunal must decide which expert鈥檚 evidence it prefers or, in the case of a single expert, whether to accept their evidence. While an arbitrator may have been selected for their relevant experience or expertise, typically this is to ensure the arbitrator has an understanding of the issues in the dispute and is not intended to put the arbitrator in the role of an expert giving and relying on their own opinion in...
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Preliminary meeting in arbitration鈥攁genda and submissions Between: [Insert name of CLAIMANT]聽聽聽聽聽聽聽聽Claimant -and- [Insert name of RESPONDENT]聽聽聽聽聽聽聽聽Respondent CLAIMANT鈥檚 proposed agenda and submissions for preliminary meeting to be held on [insert date] 1 Prior to this preliminary hearing, the parties have sought to agree in correspondence on various procedural matters. [Refer to any key correspondence copied to the tribunal on these matters.] 2 The Claimant respectfully submits that the following key issues regarding the arbitration should be addressed at the procedural hearing: 2.1 the applicable rules and law: [insert text, eg: The parties agree that the arbitration shall be governed by [insert applicable arbitration rules][in force as of [insert date]]]. 2.2 seat and language: [[insert text, eg: The parties agree that the seat of arbitration should be [insert place] and that the language of the arbitration should be [insert language]. Where documents are submitted in any language other than [insert language], they should be accompanied by translations.]]. 2.3 venue for hearings: [insert text]. 2.4 jurisdiction: [insert text]....
ICC鈥擜nswer to Request for Arbitration The Secretariat of the International Court of Arbitration International Chamber of Commerce [Address of an approved ICC office and by email to the relevant address for the office] [Date] Dear [ICC Secretariat], [Insert ICC Reference number] Answer to Request for Arbitration: [Party names] [Law firm case reference number] We confirm that we act on behalf of [name of respondent party], the Respondent party in the above arbitration proceedings. The Respondent received your letter dated [Insert date] plus enclosures including the request for arbitration (the Request) on [Insert ]. Pursuant to article 5 of the 2021 ICC Rules of Arbitration (ICC Rules), we enclose the Respondent鈥檚 answer to the request for arbitration and counterclaim (the Answer). [The Respondent requests, in accordance with art 5(3) of the ICC Rules, that the Secretariat transmits the Answer by delivery against receipt, registered post or courier. We enclose [number] copies.] Kindly acknowledge receipt of this Answer. Yours faithfully, [Name of Respondent's counsel] IN THE...
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To what extent do arbitral tribunals (governed by English law) apply the Halsey approach following a failure to mediate under a tiered dispute resolution clause? The English courts have imposed costs sanctions on litigating parties who have unreasonably failed to mediate and one of the leading cases in this regard is Halsey v Milton Keynes General NHS Trust. See Practice Note: Costs consequences of refusing to consider ADR in civil proceedings for, among other matters, more information on that case and how it has been interpreted by the English courts in the context of litigation proceedings. One of public policy reasons for the English court鈥檚 decision to sanction parties in costs for unreasonable refusing to mediate in litigation is that the court resources are finite and, if possible, the parties should resolve their disputes without recourse to the courts or with limited court intervention. However, it may be suggested that no equivalent public policy exists in arbitration as arbitration is a private, consensual dispute resolution procedure...
Freeholder claimant issued proceedings against residential long leaseholder defendant for service charge arrears and cost following failure to respond to letter of claim. The defence raised is that the service charge arrears and any consequent costs are not payable because statute requires that service charges are not due and payable until they have been agreed or there is a court or tribunal determination as to reasonableness. This applies as a precondition to forfeiture proceedings, but does it apply generally? There are statutory limitations on forfeiture of long residential leases, ie under section 81 of the Housing Act 1996, the landlord cannot forfeit for non-payment of service charge or administration charge unless the amount payable has been: 鈥 admitted by the tenant, or 鈥 finally determined by a court, First-tier Tribunal (FTT) (Property Chamber), or arbitral tribunal See Practice Note: Statutory limitations on the landlord鈥檚 right to forfeit a long residential lease for further information. Any service charge demand and reminder letter sent after 1 October 2007...
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This week's edition of Arbitration weekly highlights includes: coverage of arbitration-related decisions from England, Netherlands and Singapore; updates from the LCAM and JAMS; and coverage of the White & Case and QMUL 2025 International Arbitration Survey report. All this, and more, in our weekly highlights.
Arbitration analysis: On 22 April 2025, the Amsterdam Court of Appeal granted Poland鈥檚 request for an order prohibiting a Dutch investor from pursuing a claim for expropriation in London-seated arbitral proceedings administered by the Permanent Court of Arbitration (PCA). The court鈥檚 order is immediately enforceable and requires the Dutch investor to cooperate in a joint request to the arbitral tribunal to terminate the ongoing arbitral proceedings within two weeks of the judgment date. A penalty of 鈧100,000 per day will become payable to Poland for every day the Dutch investor fails to comply with this order. The court further declared that the offer to arbitrate contained in the Dutch Polish Bilateral Investment Treaty (BIT) was invalidated by the Court of Justice decision in Slowakische Republik v Achmea BV Case C- 284-16, and the joint statement of EU Member States on 15 January 2019, which stated that any offer to arbitrate intra-EU investment disputes violates EU law. The court order, effectively blocking an intra-EU investment arbitration, is a first for the...
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