international arbitration pre-hearing checklist … · international arbitration pre-hearing...

International Arbitration Pre-Hearing Checklist

1

Aníbal Sabater, Chaffetz Lindsey LLP1 July 2015

Hearing Dates & Location

1. On what day is the hearing scheduled to start?

2. On what day is the hearing expected to end?

3. Are there going to be days “off” between hearing start and end?

4. At what time will sessions start and end every day?

5. When and for how long are breaks expected to take place during the hearing?

6. Are hearing facilities booked with an appropriately sized hearing room? Does this include set-up and break-down time?

7. Have arrangements been made such that the tribunal, each party, and other hearing participants have their respective break-out space as appropriate?

Hearing Sequence & Time Allocation

8. Is there a clearly defined hearing sequence? Specifically:

a) Will the parties deliver opening statements? If so, what is their expected duration?

b) Is there a list of the fact and expert witnesses who will be examined at the hearing?

c) Is it clear in what order, approximately for how long, and approximately when each fact and expert witness will be examined?

d) Will there be any direct examination of witnesses and, if so, how extensive can it be? Is there a different rule for expert witnesses?

e) Will the parties deliver closing statements? If so, when and for how long?

9. Are witness or expert conferences contemplated/possible? If so, on what terms?

10. How will hearing time be allocated? Specifically:

a) Is there party agreement concerning the use of hearing time and how it will be divided between the parties?

b) If there is no party agreement on use of hearing time, has the tribunal addressed the matter?

c) Have the parties budgeted sufficient time into the expected hearing schedule to allow the tribunal to ask questions to counsel and fact and expert witnesses?

1 The author is very grateful for the comments of Alexandra Dosman, NYIAC’s Executive Director, and Alethea Gross, a paralegal at Chaffetz Lindsey LLP on earlier drafts of this Checklist.


2

Attendees

11. Will the hearing be open to the public? If so, what arrangements have been made to that effect?

12. Who is expected/allowed to attend the hearing for each party?

13. Do any of the party’s expected hearing attendees need visas or travel permissions to attend the hearing? Have those been obtained?

14. Are there any circumstances that may limit the time frame during which a witness can testify?

15. Is a court reporter expected to be present at the hearing? If so:

a) Has the court reporter already been identified and engaged?

b) How will the court reporting cost be allocated between the parties prior to definitive allocation in the final award?

c) Will the court reporter use LiveNote or similar software? If so, will the court reported provide laptops or should the parties bring their own?

d) Will rough transcript drafts be provided? If so, when?

e) When is the final hearing transcript expected?

16. Is an interpreter going to be present at the hearing? If so:

a) Has the interpreter already been identified and engaged?

b) How will the interpretation expenses be allocated between the parties prior to definitive allocation in the final award?

c) Will interpretation be simultaneous or consecutive? If simultaneous, is an interpretation booth available and has interpretation equipment been reserved?

Witness Testimony

22. Do the laws of the seat or any other applicable law require that fact or expert witnesses, court reporters, or other personnel be sworn in? If so, is there any specific language that should be followed?

23. Can fact or expert witnesses attend the hearing before they provide oral testimony or will they be “sequestered”? If the general rule is “sequestration,” will exceptions be allowed for fact witnesses who are also corporate representatives?

24. Can witnesses or experts discuss the contents of the hearing or access the transcript before they provide oral testimony?

25. Should the tribunal give any directions on what and with whom a fact or expert witness can discuss during a break in his/her testimony?

26. Is all testimony expected to be provided live, or are fact or expert witnesses expected to join by videoconference or telephone? Are any specific arrangements needed in this regard?


3

27. Is it clear what consequences may follow if a fact or expert witness fails to appear?

28. Should specific provisions be made with respect to witness recall?

Documents

29. Does the party have sufficient sets of exhibits ready for use at the hearing?

30. Is there going to be a party-agreed set of key exhibits?

31. How will exhibits be shown to witnesses and other hearing participants—in hardcopy, electronically, or both? Are arrangements made to that effect?

32. Do provisions need to be made with respect to the introduction of impeachment evidence or any other new evidence in the course of hearing?

Hearing Space Set-up & Technology

33. Have the parties agreed to the layout of the hearing room (e.g., U shape, courtroom style, etc.)?

22. Are IT consultants/personnel expected to be present and assist a party during the hearing? If so, do any specific provisions need to be made in this regard?

23. If screens are going to be used for the display of documents at the hearing, are the screens visible and conveniently placed?

24. Does the party need any A/V equipment, such as projectors, and has it checked the compatibility with its computers?

25. Is special hearing software going to be utilized at the hearing? If so, have appropriate arrangements been made?

26. Will the parties need, and if so will they have access to, phone lines, printing, photocopying, Wi-Fi, scanning or other IT facilities in the course of the hearing? If so, what arrangements will be made to that effect?

27. Has all of the technology to be used been tested prior to the commencement of the hearing?

Logistics & Catering

28. Do the hearing participants have expedited access to the building where the hearing is hosted (for instance as a result of having been granted access cards)?

29. Do special arrangements need to be made for delivery of hearing materials and setting up for the hearing, such as reserving the building’s freight elevator?

30. Have arrangements been made for removal of documents and items at the conclusion of the hearing—reservation of freight elevator, provision of FedEx labels, etc.?

31. Are the parties aware of their catering/food options, especially for lunch breaks?

32. Are there hearing attendees with any special building access needs, dietary restrictions, or health conditions to be taken into account?