It is often said (with good reason) that tribunals should never waste a meeting with the parties in order to find ways to foster agreement (on points in dispute, on organizational matters), and to better structure and organize the proceedings so that they are seamless, cost effective and adapted to the complexity of the issues at stake. Case management conferences or, as they are known colloquially, CMCs, offer such opportunities.
More often than not, CMCs are organized at the outset of the proceedings (to agree on the applicable procedural rules and to set the calendar, among others) and before the hearing (to organize various issues that concern the hearing).
Initial CMCs are the first official meeting between the tribunal and the parties (including, often, their in house counsel). Initial CMCs are as much an opportunity for the tribunal to give guidance as they are an occasion to learn. This is a time when the tribunal sees for the first time who are the people behind the dispute and how they want to plead their case – all of which constitutes essential information for effective case management further down the line. At this initial point in the proceedings, arbitral tribunals can give some early indications as to the issues which they consider pertinent. They can also structure the proceedings accordingly – for instance, in construction cases, tribunals can already set a time for a meeting of the parties’ experts to discuss points of agreement and disagreement.
However, in some cases, it may be that the Request for Arbitration and the Answer provide very little information on the pertinent issues at stake. This may be deliberate, when parties make strategic choices for the prosecution of their case, or the result of inexperience. Either way, arbitral tribunals should carefully weigh what issues they wish to raise with the parties at this early stage and how they wish to raise them. One common pitfall to avoid is to make one of the parties’ case for it by raising an issue which that particular party had omitted due to inexperience or otherwise. Of course, this is provided that the issue is not one which the tribunal may raise sua sponte; however even in this case, the how component remains important as the tribunal needs to make sure that it maintains an open mind vis-à-vis that particular issue.
In one of my first cases as arbitrator, where I was sitting as sole arbitrator and the respondents were not appearing (as is so often the case), there were important jurisdictional issues that needed to be addressed from the outset. Concretely, several respondents were non-signatories. It was therefore clear from the very beginning that the claimant needed to explain why they had started arbitration proceedings against respondents who were not parties to the arbitration agreement. Since the Request for Arbitration provided little clarity on this point, I pointed out to the claimant at the initial CMC that I expected it to fully set out its position on jurisdiction in their statement of claim. I also scheduled a second CMC after the first round of submissions in case I had any unanswered questions.
This CMC, colloquially called the mid-stream CMC, proved decisive. Indeed, as expected, the claimant’s arguments on jurisdiction in the statement of claim left a lot of important questions unanswered, questions that would have had to be addressed in the eventual award. It was therefore at the mid-stream CMC that I put these questions to the parties to be answered in their subsequent submissions.
The mid-stream CMC proved to be a very useful case management tool in many other cases where I sat as arbitrator. Just by way of example, in a dispute that I chaired, where the proceedings were bifurcated into jurisdiction and liability, the parties had failed to identify numerous conflicts of laws questions in their submissions on jurisdiction. At the mid-stream CMC, the tribunal set out a lengthy list of questions going to the applicable laws and directed the parties to answer these questions, one by one, in their second round of submissions. We also took advantage of this opportunity to ask the parties to fill obvious evidentiary gaps in the record. In this case as well, the questions and directions were very helpful in drafting the award on jurisdiction and avoided complicated issues of iura novit curia down the line.
Needless to say, in both of the cases discussed above, the directions and questions to the parties were worded in a broad and open-ended manner, in order to avoid any questions of prejudgment.
As these examples show, one way in which mid-stream CMCs can be used is to focus the parties’ attention on the truly important points in dispute. Being scheduled after a round of submissions, when the parties have presumably set out their full case, mid-stream CMCs allow tribunals to ask more informed questions and give more tailored directions than they could have done at the very outset of the proceedings. However, mid-stream CMCs can be used for other purposes as well. For instance, tribunals can foster agreement between the parties on points in dispute that can more easily be conceded, thus limiting the number of open issues. While this may seem like an overly optimistic goal in some cases, we should not underestimate the impact that tribunals can have on how the parties plead their case by simply meeting with them and guiding them. Tribunals can amend the calendar in order to schedule a meeting of the experts and already set out questions for the experts or simply indicate that the experts come back with their points of agreement and disagreement. Tribunals can also hear the parties on various pending applications – for instance, concerning the production of documents or requests for adverse inferences.
In other words, beyond making sure that both parties are heard and treated with equality, and that the tribunal is mindful of its duty of impartiality, there are very few limits to what can be achieved at a mid-stream CMC.
As a result of their inherent flexibility and their timing, mid-stream CMCs are a very useful tool in every arbitrator’s toolbox.