WilmerHale

This Practice Note sets out what confidentiality and privacy obligations apply in international arbitration proceedings. The Practice Note covers whether there is a specific or implied confidentiality obligation between the parties, national legislation and case law on confidentiality, and the position on confidentiality under some of the key institutional arbitration rules, including those of the International Court of Arbitration of the International Chamber of Commerce (ICC) and the London Court of International Arbitration (LCIA). This topic may be referred to as: the confidential nature of arbitral proceedings; privacy in arbitration; the duty of confidentiality in international arbitration; the implied duty of confidentiality in arbitration; the rule or principle of confidentiality in international arbitration; is international arbitration confidential?; how far does confidentiality extend in international arbitration?; international arbitration as a confidential process; the advantages of confidentiality and privacy in international arbitration.

This Practice Note considers the United Nations Commission on International Trade Law (UNCITRAL) Rules on Transparency in Treaty-based Investor-State Arbitration (the Transparency Rules). On 16 December 2013, the UN General Assembly adopted Resolution 68/109 that, among other things, requested that the UN Secretary-General publish the Transparency Rules. Accordingly, in February 2014, the Transparency Rules were duly published with an effective date of 1 April 2014. This Practice Note summarises the key provisions of the Transparency Rules. The Practice Note also covers the Mauritius Convention adopted in December 2014 by which the Transparency Rules will apply to disputes under bilateral and multilateral investment treaties. The Mauritius Convention entered into force on 18 October 2017. It discusses the application of this Convention and the Transparency Rules in cases governed by the Arbitration Rules of the Stockholm Chamber of Commerce (SCC) Arbitration Institute and the International Centre for the Settlement of Investment Disputes (ICSID).

This Practice Note considers how to appoint the tribunal (arbitrators) under the United Nations Commission on International Trade Law Arbitration Rules (UNCITRAL Rules) including what the default position is in the absence of agreement between the parties. As UNCITRAL is not an arbitral institution, this Practice Note discusses the use of an appointing authority if necessary. The Practice Note also covers challenges to, and replacement of, arbitrators in UNCITRAL proceedings.

This Practice Note provides an introduction to the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules 1976 and 2010. The Practice Note also provides an overview of the UNCITRAL Rules and provides links to more detailed guidance on key aspects of those rules.

This Practice Note considers the costs provisions of the United Nations Commission on International Trade Law Arbitration Rules (the UNCITRAL Rules). The Practice Note also considers the ability to challenge the tribunal’s proposed and/or determined costs to the Permanent Court of Arbitration (PCA) or other relevant authority. The Practice Note contains links to the information on administering UNCITRAL arbitrations and discusses the information on UNCITRAL costs contained in the ICC Commission’s report on decisions on costs.

This Practice Note considers the provisions for dealing with matters of evidence in arbitrations under the United Nations Commission on International Trade Law Arbitration Rules (UNCITRAL Rules). The Practice Note covers documentary, witness (factual) and expert evidence.

This Practice Note considers the powers of the arbitral tribunal in an arbitration conducted under the United Nations Commission on International Trade Law Arbitration Rules (UNCITRAL Rules). The Practice Note considers the tribunal’s ability to determine its own jurisdiction and award interim remedies (also referred to as interim measures or interim relief). The tribunal’s ability to join third parties (joinder) is also considered.

This Practice Note considers how an arbitration under the United Nations Commission on International Trade Law Arbitration Rules (UNCITRAL Rules) will proceed. The Practice Note considers issues from the notice of the arbitration through timing and scheduling, bifurcation of the proceedings, periods of time and communication, the statements of claim and defence, written submissions, evidence, interim measures, settlement and hearings through to the award.

This Practice Note considers how a respondent should respond to a Notice of Arbitration received pursuant to the United Nations Commission on International Trade Law Arbitration Rules (UNCITRAL Rules). The Practice Note considers what the response to the notice of arbitration must contain and how it should be delivered to the claimant.

This Practice Note considers how to start, initiate or commence an arbitration under the United Nations Commission on International Trade Law Arbitration Rules (UNCITRAL Rules). It considers what a Notice of Arbitration under the UNCITRAL Rules must contain, and what determines the date of commencement of arbitration under the UNCITRAL Rules.

This Practice Note discusses the practice of witness conferencing in international and domestic arbitration whereby witness evidence is taken simultaneously. This is often known as hot-tubbing or concurrent (expert) evidence. The Practice Note covers tribunal-led and counsel-led witness conferencing in arbitration. It considers the advantages and disadvantages (pros and cons) of witness conferencing and the relevant provisions in leading institutional arbitration rules. Witness conferencing can be used for expert witnesses and witnesses of fact in arbitration (arbitral) proceedings. The Practice Note also considers managing witness conferencing in remote hearings.

<section><section><section><h2>Before commencing witness conferencing in arbitration—checklist</h2><p>This Checklist sets out the issues to consider prior to agreeing to or commencing witness conferencing (also known as 'hot-tubbing') in arbitration:</p><ol><li><span class="label">•</span><p><em>How much advance warning have you had?</em></p><p>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.</p></li><li><span class="label">•</span><p><em>How does your witness compare with the other witnesses?</em></p><p>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 or dogmatic. Counsel must consider the dynamics with the other witnesses. There may be bad feelings (particularly between fact witnesses), or simply clashing personalities, both of which could interfere with evidence being effectively given.</p></li><li><span class="label">•</span><p><em>How good is your witness evidence?</em></p><p>Witness conferencing will expose the credibility of any witness’ evidence. Counsel has less control over the questions being asked and will need to be sure that the evidence of its witnesses can withstand direct challenges. Preparation of witnesses becomes more difficult and counsel will need to carefully consider those specific topics which may arise.</p></li><li><span class="label">•</span><p><em>How discrete is the issue?</em></p><p>Witness conferencing is designed to get to the heart of the matters in dispute. It will therefore be at its most effective when limited to specific topics or issues. In some cases, the nature of the case being heard does not lend itself to focus on specific topics of issues and there would be no discernible benefit from witness conferencing. Instead, there is a risk that conferenced evidence will meander and become inefficient or that witnesses who are relevant to multiple issues may only address common ones.</p></li><li><span class="label">•</span><p><em>How much experience does the tribunal have with witness conferencing?</em></p><p>Witness conferencing is heavily reliant on a skilled and prepared tribunal. Without careful management, witness conferencing can become chaotic and not necessarily helpful to either side’s pleaded case. Parties should therefore consider carefully the tribunal’s experience in witness conferencing before agreeing to this technique.</p></li></ol></section></section></section>

This Checklist considers what you need to consider when preparing for a preliminary meeting in an (international) arbitration (whether institutional or ad-hoc).