General information

Bifurcation consists in deciding certain issues before others, depending on the solution given to the first ones (liability before quantum; jurisdiction before merits, etc.). This allows avoiding covering the dispute in full, whereas parts of it may become moot. Bifurcating is to be decided on a case-by-case basis.

After a first exchange of submissions, or at any other appropriate moment, the arbitral tribunal may identify the problems it considers, without prejudice, as the issues at the heart of the dispute. This would not prevent the parties from addressing other questions, but, at least, this would give them a sense of what the arbitral tribunal considers relevant.

Another technique to improve efficiency consists, for the parties, in requesting preliminary views from the arbitral tribunal on all or some of the issues involved. Receiving a non-binding preliminary evaluation – most often without reasons - might indeed help parties to negotiate.

Subject to the agreement of the parties, a preliminary view may be given at any stage of the proceeding, but, in practice, it is generally only possible after the parties’ first exchange of submissions. 

Parties may engage in a parallel mediation, as they may engage in parallel direct negotiations, the arbitral tribunal being aware or not of those discussions. It is also possible to have recourse to mediation within the arbitration process itself. Arbitrators may indeed help parties to settle their case and if a true mediation is helpful (with caucuses, etc.) refer the parties (with their agreement) to mediator(s), the arbitration being suspended during that external mediation, or terminated if the parties so wish.

Different questions may arise as to when and how the parties will ask the arbitral tribunal to play this role. Here again, it is all about flexibility. At any moment, one party, or even the arbitral tribunal, may suggest having recourse to this process. This may have an impact on the calendar. Avoiding that risk may be achieved by agreeing, for instance during the first CMC, to reserve “a mediation window” during the arbitration.

With an early determination, parties receive an expeditious binding determination generally based on the manifest lack of merits of a claim or the manifest absence of arbitral jurisdiction.

Sealed offers are conceived to encourage parties to accept reasonable offers made by their opponents. Basic idea is thus to favour a settlement on the merits by ‘playing’ on the circumstances that could be invoked, in the absence of such a settlement, when the tribunal will have to decide on the allocation of the costs.

A party sends an offer to the other to settle. This offer is confidential and made “without prejudice save as to costs”. It must be non-conditional. If the offer is accepted, that is the end of the process. If it is not, the sealed offer is transmitted to the arbitral tribunal and kept sealed until its decision on the merits. In many cases, the party making the offer (most of the time respondent(s)), will not want the tribunal to know that it has made such an offer (fearing of a negative impact on the perception of the case by the tribunal). That is the reason why parties often agree to communicate the offer to a third neutral or to the arbitral institution. Once the decision is taken on the merits, the offer is then transmitted to the tribunal. If it appears that the offer was better than what is granted to the winning party or very close to it, the tribunal may decide that this is a reason not to strictly follow the principle of “costs follow the event”, considering the offer and the fact that, if accepted, it could have led to the end of the dispute earlier, which would have saved costs. Arbitral tribunals are not obliged to draw consequences from such a fact (subject to an express agreement of the parties to the contrary). However, it will normally be one of the elements taken into account when allocating the costs.