Like any complex human activity, the practice of international arbitration
takes place in a context wider than its rules and its “book learning” can
articulate. Its hallmark combination of fairness and efficiency is actually
accomplished through a web of deliberation and judgment in which particular
circumstances play an ever-present role. This highly distinctive book combines
an unparalleled familiarity with the key theoretical and practical books in
the field and a keen awareness, from procedural and evidentiary perspectives,
of what arbitral tribunals and practitioners actually do – or should do.
Central to the book’s purpose is the procedural challenge facing arbitrators
at each and every stage of the arbitral process when fairness arguments
conflict with efficiency concerns and trade-offs must be determined. Some key
themes include how can a tribunal be fair, and in particular be neutral, if
parties are so diverse? How can arbitration be made efficient and
cost-effective without undue inroads into fairness and accuracy? How does a
tribunal do what is best if the parties are choosing a suboptimal process?
When can or must an arbitrator ignore procedural choices made by the parties?
The author thoroughly evaluates competing arguments and adds his own practical
tips, expertly synthesizing and engaging with the conference literature and
differing authors’ views. He identifies criteria that offer a harmonized
approach to each stage of the arbitral process, with particular attention to
such aspects of international arbitration as:
appropriate trade-offs between flexibility and certainty;
the rights, duties and powers of arbitrators;
appointment and challenge of arbitrators;
responses to ‘guerilla’ tactics;
drafting of arbitration agreements, including specialty clauses;
drafting of required commencement notices and response documents;
fast track arbitration and other efficiency options;
strategic use of preliminary conferences and timetabling;
multi-party, multi-contract, class arbitration;
amicus and third party funders;
pre-arbitral referees and interim relief;
witness evidence, both factual and expert;
documentary evidence, production obligations, and challenges to production;
identifying applicable law; and
remedies and costs.
The discussion of each stage offers practical suggestions informed by insights
from various theoretical debates and empirical studies, and a unique appendix
outlines the facts of numerous reported challenges to arbitrators.
No previous book has tackled so directly, in an utterly practical context, the
question of how issues of fairness interrelate with efficiency concerns and
how this should act as a guide to best arbitral practice. Seeking to identify
the essential character and spirit of desirable norms rather than technical
detail, the author shows how the exercise of discretion will have a
fundamental impact on the outcome of arbitration and the respect in which the
practice is held. No one using international arbitration, or considering the
use of it, can afford to ignore this book.
Part I. Policy and Principles.
Chapter 1 – The Nature of Procedure and Policy Considerations.
Chapter 2 – Powers, Rights and Duties of Arbitrators.
Part II. The Process of an Arbitration.
Chapter 3 – The Procedural Framework for International Arbitration.
Chapter 4 – Written Notices, Submissions and the Articulation of Claims and
Chapter 5 – Selection, Challenge and Change of Arbitrators.
Chapter 6 – Establishing the Procedural Framework.
Chapter 7 – Complex Arbitration.
Chapter 8 – Preliminary, Interim and Dispositive Determinations.
Chapter 9 – Hearings.
Chapter 10 – Approaches to Evidence and Fact Finding.
Chapter 11 – Documentary Evidence.
Chapter 12 - General Witness and Expert Evidence.
Chapter 13 – Procedure and Evidence in Choice of Law and Interpretation.
Part III. The Award.
Chapter 14 – Remedies and Interest.
Chapter 15 – Costs in Arbitration.
Chapter 16 – The Award.
"While the title of his new book is unassuming, the book itself is anything
but unassuming. It is a mammoth volume, coming in at just under 1400 pages.
The book doesn’t only cover procedure and evidence; it is divided into three
sections, covering policy and principles, arbitration procedure, and
arbitration awards, respectively."
"This book has been a monumental undertaking, and it is a monumental
accomplishment. It should be a valuable resource for any arbitration
practitioner—arbitrator and counselor alike—and deserves a place on the
arbitration bookshelf next to Born or Redfern and Hunter." Reviewed by
Peter Frankenstein in Association for International Arbitration February 2013