Introduction
In the past I have written articles on arbitration, particularly commercial arbitration.
I have explained that arbitration is part of alternative dispute resolution (ADR) where parties to a dispute refer their dispute for resolution by an independent arbitrator agreed upon by the parties.
They may agree that another professional body such as the Commercial Arbitration Centre in Harare, Law Society of Zimbabwe or the Institute of Chartered Accountants of Zimbabwe (ICAZ) appoints such an arbitrator.Zimbabwe trade fair
In this article I share with you what is involved in a pre-arbitration meeting.
Pre-arbitration meeting
This is a meeting held pre or before the actual arbitration, usually convened by the arbitrator soon after he or she has been appointed. The parties and their legal representatives usually attend the meeting which is chaired by the arbitrator. It is simply a meeting to plan the arbitration. Some of the common issues considered at that meeting include the following:
The parties
Nature of dispute
General ground rules
Determination of rules of procedure
Hearing and written proceedings
Place of arbitration.
Timelines
Language
Statement of claim
Statement of defence.
Any replications
Default of a party.
Use of any experts.
Costs of arbitration.
Most of the issues are covered under Chapter V (Conduct of Arbitral Proceedings) in the Arbitration Act (Chapter 7:15) (the Act).
The arbitration agreement, which may be a clause in the main agreement or contract between the parties or as parties may agree at the material time, may also provide for some of the issues.
Parties
At the meeting the arbitrator and the parties will agree who the parties to the arbitration or dispute are, for example the claimant and the defendant/respondent, as the case may be.
Nature of dispute
An understanding of the nature of the dispute is important to the arbitrator for him/her to appreciate the dispute before him / her, area of laws involved, evidence required, right procedure, estimated time, costs of arbitration, etc.
General rules
This may involve equal treatment of parties, management of time, dress code, conduct of parties or their legal representatives, manner of exchange of documents, etc.
Determination of rules of procedure
Subject to the provisions of this Model Law in the Act, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings.
Failing such agreement, the arbitral tribunal may, subject to the provisions of this Model Law, conduct the arbitration in such manner as it considers appropriate. The power conferred upon the arbitral tribunal includes the power to determine the admissibility, relevance, materiality and weight of any evidence.
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Every witness giving evidence, and every person appearing before an arbitral tribunal, shall have the same privileges and immunities as witnesses and legal practitioners in proceedings before a court.
Hearings and written proceedings
At the pre-arbitration meeting or after filing of documents, subject to any contrary agreement by the parties, the arbitrator and the parties shall decide whether to hold oral hearings for the presentation of evidence or for oral argument, or whether the proceedings shall be conducted on the basis of documents and other materials.
However, unless the parties have agreed that no hearing shall be held, the arbitral tribunal shall hold such hearings at an appropriate stage of the proceedings, if so requested by a party.
The parties shall be given sufficient advance notice of any hearing and of any meeting of the arbitral tribunal for the purposes of inspection of goods, other property or documents.
All statements, documents or other information supplied to the arbitral tribunal by one party shall be communicated to the other party.
Also any expert report or evidentiary document on which the arbitral tribunal may rely in making its decision shall be communicated to the parties.
Place of arbitration
Parties and the arbitrator usually agree on a neutral and convenient place for the arbitration, particularly where a hearing will be held. The hearing may be held virtually.
Timelines
Parties and the arbitrator usually agree on when parties shall file or exchange their papers, date of hearing, etc. Parties usually agree on the specific documents to be filed.
Statement of claim
It will be agreed when the claimant will file his / her statement of claim.
Statement of defence
It will also be agreed when the defendant or respondent, as the case may be, shall file his/her opposing papers in the form of a statement of defence.
Replications by parties
The parties may also agree if there will be replications by each of the parties.
Default by a party
Parties may also agree on how to treat default by a party i.e. failure to submit documents by due dates or failure to attend a hearing.
Use of experts
Parties and the arbitrator may agree to use experts as witnesses or reports of such experts, for example auditors or property valuers.
Cost of arbitration
This usually includes the fees due to the arbitrator and any other costs of the arbitration.
Conclusion
A pre-arbitration meeting is important as it gives direction to the conduct of an arbitration.
Disclaimer
This simplified article is for general information purposes only and does not constitute the writer’s professional advice.
Godknows (GK) Hofisi, LLB(UNISA), B.Acc(UZ), Hons BCompt (UNISA), CA(Z), ACCA (Business Valuations) MBA(EBS, Heriot- Watt, UK) is the Managing Partner of Hofisi & Partners Commercial Attorneys, chartered accountant, insolvency practitioner, commercial arbitrator, registered tax accountant and advises on deals and transactions. He can be contacted on +263 772 246 900 or ghofisi@ hofisilaw.com or gohofisi@ gmail.com. Visit www//:hofisilaw.com for more articles.-herald
