\u00a9 2023 Sherby & Co., Advs.<\/p>\n
At the recently concluded Tel Aviv Arbitration Week conference, one of the Israeli speakers addressed what he perceives to be a significant ailment of international commercial arbitration — the time required to complete the adjudication of a dispute. That speaker proposed that all relevant parties — arbitral institutions, parties to arbitrations, and their counsel — commit to the goal of completing the hearing of evidence in an international case in one day<\/em>.<\/p>\n Is that goal realistic? And if so, is it worth the effort?<\/p>\n The speaker who made the \u201cOne Day Hearing\u201d proposal does indeed have experience as an international arbitrator. Yet he was unable to give an example of any case in which he acted as an arbitrator in which the tribunal completed the entire evidentiary hearing in one day.<\/p>\n Presumably all members of the international arbitration \u201ccommunity\u201d would agree that the timely resolution of cases is important. But it is respectfully submitted that the One Day Hearing proposal is more of a distraction<\/em> than a goal to which significant efforts should be expended.<\/p>\n To what extent has the One Day Hearing idea been adopted in the field of international commercial arbitration?<\/p>\n The rules of multiple arbitral institutions provide that an arbitral tribunal may<\/em> decide a dispute without hearing testimony in person. But such authorization is never used in disputes involving large sums of money, and it is very rarely used in international cases. (The \u201cRules for Expedited Procedure\u201d of the International Chamber of Commerce \u2013 which generally apply to claims not exceeding $3 million \u2013 is one such set of rules.) A. The Rules of Arbitration of the International Chamber of Commerce set forth (articles 19-22 and 26) several provisions for the conduct of the arbitral hearing. Those provisions are completely silent as to the issue of the length<\/em> of the evidentiary hearing;<\/p>\n B. Articles 19 and 20 of the Arbitration Rules of the London Court of International Arbitration describe in detail the powers of the arbitral tribunal with respect to (i) the conduct of the arbitral hearing, and (ii) the hearing of testimony from witnesses. Like the rules of the ICC, the LCIA rules include no provision like the One Day Hearing proposal;<\/p>\n C. Articles 22-23 of the Arbitration Rules of the International Centre for Dispute Resolution set forth multiple obligations upon the tribunal, including that it \u201cconduct the proceedings with a view to expediting the resolution of the dispute.\u201d Those rules also provide that the parties \u201cmake every effort to avoid unnecessary delay and expense in the arbitration.\u201d Despite these express requirements to avoid delays, like the ICC and the LCIA, the ICDR rules do not<\/em> adopt the One Day Hearing proposal.<\/p>\n D. Articles 55 and 56 of the Arbitration Rules of the World Intellectual Property Organization set forth the jurisdiction of the arbitral tribunal with respect to witnesses and the hearing of testimony. There is no provision in those articles (or in any other of the WIPO Arbitration Rules) that comes close to the One Day Hearing proposal.<\/p>\n The same can be said for the major Israeli arbitral institutions:<\/p>\n a. Article 6 of the Rules of the Israeli Institute of Commercial Arbitration sets forth various powers of the arbitrator(s) \u2013 including those relating to timetables and the hearing of witnesses. No provision of Article 6 imposes any<\/em> maximum number of hearings (or dates);<\/p>\n b. Rule 27 of the Israeli Center of Arbitration and Dispute Resolution (known in Hebrew as the Mishkan<\/em>) provides that the parties may agree to have their dispute given \u201cexpedited treatment,\u201d but the CADR rules do not impose any maximum number of hearings (or dates). The main characteristic of an \u201cexpedited\u201d arbitration under the CADR rules is that the case is expected to be completed within sixty days. A review of the rules of the CADR indicates that they are not<\/em> intended to be used for international cases.<\/p>\n In summary, not<\/em> a single arbitral institution before which it is likely that an Israeli company would be a participant in an international case has adopted the One Day Hearing proposal.<\/p>\n In a separate blog post (Part II), we will soon examine one of the reasons that the One Day Hearing is far from the most efficient tool for the management of international commercial arbitrations \u2013 namely, we\u2019ll discuss a superior tool for efficiency \u2013 that of bifurcation<\/em>.<\/p>\n","protected":false},"excerpt":{"rendered":" \u00a9 2023 Sherby & Co., Advs. At the recently concluded Tel Aviv Arbitration Week conference, one of the Israeli speakers addressed what he perceives to be a significant ailment of international commercial arbitration — the time required to complete the adjudication of a dispute. That speaker proposed that all relevant parties — arbitral institutions, parties<\/p>\n
\nMore specifically, none of the major international arbitral institutions has adopted a rule embodying the One Day Hearing proposal. Here\u2019s a quick summary:<\/p>\n