Pre-hearing preparation and post-hearing response to arbitration

As a means for resolving disputes, commercial arbitration has the characteristics of confidentiality, convenience, flexibility and high efficiency. An arbitration hearing, being the core of arbitration procedure, is the concentrated expression of parties actively exercising and striving for their legitimate rights and interests, and also the main way for the arbitration tribunal to establish and identify facts of the case.

From the perspective of an arbitration secretary, the author of this article suggests how parties prepare and respond, before and after the hearing.

Pre-hearing: serving documents

To actively promote the arbitration procedure, the arbitration institution serves all kinds of documents to the parties after accepting the case, and parties should first choose the service method convenient for receipt, providing the corresponding service address.

In particular, the claimant should submit the accurate service address of the respondent and actively co-operate with the arbitration institution in the service, ensuring a clear understanding of the case process, improving service efficiency and avoiding any procedural delay.

Pre-hearing: preparing evidence

Parties need to find and record any missing information before the hearing. To further improve efficiency, the claimant should make a plan before filing the case, since there is no change of claims and other matters allowed after the filing, especially after a tribunal is constituted. If all preparation work is not completed before filing, try to complete it before, but not after, the hearing begins.

Before the hearing, parties should further examine all the evidence, prepare complete evidential material and make an evidence list. Evidence, an essential element to directly reflect the objective facts of a case, plays a vital role in the hearing. When collecting and preparing evidence, parties should ensure that evidential material is complete, forming an entire evidence chain to fully prove the legal and objective facts.

When preparing the evidence list, attention should be paid to the evidence name, source, purpose and page number. Evidence should be clearly classified, labelled and numbered consecutively, corresponding to the arbitration claim or defence. Precisely, the evidence list should be closely related to case facts and dispute focus, and each group of evidence should correspond to one fact or dispute focus.

It should be emphasised that claims for actual expenses, such as attorney fees, interim measure fees, preservation insurance premiums and travel expenses, should be made at one time with sufficient evidence to support during the hearing.

Avoiding evidence ambush

In arbitration practice, “evidence ambush” occurs from time to time, meaning submission of evidence when the hearing is approaching or underway. On one hand, evidence ambush causes procedural delay, and the other party may refuse cross-examination or even raise objections during the hearing, which is likely to lead to repeated hearings. On the other hand, additional costs may occur due to the procedural delay.

To avoid evidence ambush and improve efficiency, some arbitration tribunals make procedural arrangements before the hearing, setting limits on the time for parties to submit evidence. Therefore, parties should pay attention to the arranged submission time and submit materials as scheduled.

The arbitration tribunal has the right to reject delayed submission of evidential material. However, if it impacts the hearing of the case or is conducive to ascertaining facts, the tribunal may accept delayed evidence after examination. It should be noted that this will inevitably lead to procedural delays, which is not usually ignored, and may be included in consideration of various expenses, dissuading or preventing parties from maliciously delaying the procedure and abusing their arbitration rights.

If the arbitration tribunal fails to make procedural arrangements, it is recommended that parties submit evidence as early as possible before the hearing, and reserve time for service and cross-examination of the evidence to avoid evidence ambush.

Post-hearing: materials submission

Sufficient preparatory work before the hearing will help to deal with all kinds of situations more freely and calmly at the hearing stage. But “the end of the hearing” does not mean the end of the parties’ work. Before the end, the arbitration tribunal usually makes corresponding procedural arrangements, including requiring parties to provide written replies to questions during the hearing and submit their opinions and supplementary evidence, as well as exchange and cross-examination of supplementary evidence.

In addition to ensuring timely submission of this material, the parties should also pay attention to the so-called high quality of them. This means that submitted opinions are helpful for the tribunal to uncover facts, or for parties to express their own opinions, which requires taking into account the circumstances of the hearing and concerns of the tribunal to strengthen claims in a targeted way, summarising views or understandings more comprehensively and in-depth, and even adding new views or claims. It is not appropriate to repeat the stated claims and contents.

Post-hearing: active participation

As the saying goes: “A good worker first sharpens his tools.” To best achieve the arbitration goal, parties should actively co-operate with the tribunal, becoming active participants in the procedure. They should arrange the evidence catalogue for convenience of the tribunal’s review, sorting out facts of the case and the factual, legal basis of its claims through mind maps, so the tribunal has a clear understanding of their logic.

In summary, the parties should assist the arbitration tribunal in handling cases, strengthening attention to their own opinions and viewpoints, and striving for their own ideal arbitration results to the greatest possible extent.

Li Fei is director of the Operations Division at Langfang Arbitration Commission. She can be contacted at +86 316 701 8822 or by e-mail at lifei@lfac.org.cn