WHY ARBITRATION PARTIES MEET BEFORE THE TRIBUNAL HEARS THE CASE
The reasons for tribunals insisting that parties meet before the tribunal makes a hearing of the case are usually aimed at ensuring that the parties make sure that the agreements stated in their foundational documents, such as the seat are clear and the case qualifies for hearing. Without prior hearing, sometimes the foundational seat for the cases might have slight confusions, which might end up creating difficulties for tribunals.
Secondly, the tribunal requires that the correct choice and application of law of the contract is enforced. Whereas parties make varied choices for the law for adoption in case their contractual agreements fail, meeting prior the tribunal helps the parties in coming to collective agreement on the choice of the governing law to be applied (Joyce 16). This way, the tribunal will not have to adopt a substantive law, if such provision was not made in the parties’ agreements. One instance to indicate this requirement might involve different law states, then choosing the appropriate law will have to consider what the parties initially agreed upon as their background law for the arbitration process.
For instance, different countries seats as the governing laws for disputes may present different scenarios as the outcomes of the case. A good example is to consider the German as a seat, while using the English law as the governing law for the contractual agreement. Choosing a law that does not fit into the contractual agreement might lead to differences, and parties must have considered this aspect prior to the tribunal discourse. This way, the negative consequences of applying the wrong law are avoided.
In the instances that there lacks a specific law to govern the arbitration process, then the tribunal will have to undertake the process according to the ad hoc clauses. In some situations, the clauses are either highly complex in application or may lack the necessary parts to make them sufficient.
Sometimes, in cases involving international arbitration, more than one law applies during a tribunal hearing. Sometimes, the parties may not have involved an expressed choice. In this regard, the tribunal requires that the parties meet to make clarification on the most applicable law, for use in the case. If for instance, multiple laws might be required to be applied through, then the parties must understand this concept before the commencement of the tribunal hearing. Choosing the most appropriate law for adoption and use in the arbitration process would require that all the parties involved in the case be contented with the chosen law, as arbitration involves bringing parties together through their collective agreements from previous cases.
Sometimes parties are encouraged to meet in order to set out the required directions that should be followed to ensure that the hearing goes on well. For instance, the tribunal might require some documents for use in the case. In the situation that documents would be required, such requirements are met during this meeting (Fellas 80). Additionally, if the case requires that some witnesses be availed, then it becomes automatic that the parties involved ensure that they are availed for the appropriateness and smooth running of the case.
While the aim of the arbitration process is to ensure that parties come to an agreement, the prior meetings of parties ensure that there is an understandable co-operate amongst them. This aspect is crucial in allowing the case to run smoothly. In the instances that lack co-operation, then reaching an agreeable end becomes elusive for the tribunal. Owing to this, the tribunal then requires that parties meet to ensure that there is a collaborative approach in reaching this agreeable end.
In some other instances, parties may have chosen a specific tribunal for their hearing of the case. In such cases, there is usually little knowledge on how that tribunal handles the case. The tribunal then requires that such parties involved in the case make prior visits to the hearing center, to get a glimpse on how that tribunal handles the cases presented to it. This would then prepare the parties involved to continue with the case using the same tribunal or simply make changes based on how they found the tribunal handling hearings. Such invites are usually done in open scenarios for parties to attend.
Based on the discussions, there are numerous reasons for prior party meetings. Such reasons arise out of the numerous needs of the arbitration process. For instance, when the parties do not have an adequate understanding of the tribunal involved in their arbitration process, invitations to attend prepare the parties. Adequate preparation is another key aspect. Without sufficient co-operation, parties might never reach a collectively agreeable end. Varied positions will only continue to make it difficult for the process, hence the encouragements of the initial meetings. Also, consideration of the type of tribunal to handle the case, choosing between an Upper Tier Tribunal and Lower Chamber tribunal is also determined during these prior party meetings.
Fellas, John. “A FAIR AND EFFICIENT INTERNATIONAL ARBITRATION PROCESS.” Dispute Resolution Journal 59.1 (2004): 78-83.
Joyce, William R. “Returning Arbitration to an Effective Process in CONSTRUCTION CONTRACTS.” Dispute Resolution Journal 63.2 (2008): 14-8.
Lanni, Adriaan. “Protecting Public Rights in Private Arbitration.” The Yale law journal 107.4 (2008): 1157-62.