Young ICCA Webinars: Negotiating Procedural Order No. 1
Post Event Report
by Yebin Jeong (Associate, Lee & Ko)
On 2 June 2022, Young ICCA held a webinar titled “Negotiating Procedural Order No. 1”. The webinar provided an introduction to drafting and negotiating Procedural Order No. 1 (“PO1”), an important early step in arbitration proceedings. The webinar was organized by Young ICCA Events Co‑Directors, Ms. Saemee Kim and Ms. Ana Coimbra Trigo, along with Ms. Sara Aranjo, Young ICCA Regional Coordinator, Ms. Anastasiia Dulska, Ms. Stefania Efstathiou, and Mr. Paul Kleist, Young ICCA Regional Representatives, and Mr. Matthew Morantz, Ms. Maria Athanasiou, and Mr. Maanas Jain, Young ICCA Co-Chairs. Around 70 participants attended the webinar.
Young ICCA Regional Representative Paul Kleist opened the webinar by giving a brief welcome to the participants and an overview of the webinar, which would consist of a discussion on the ins and outs of PO1 by the panelists, followed by a workshop for the participants.
Matthew Morantz, a Young ICCA Co-Chair, gave an overview of both Young ICCA and ICCA, as well as a description of the programs provided by both organizations. He encouraged participants to become involved in Young ICCA and the broader ICCA community.
Jennifer Wu, a senior disputes lawyer at Pinsent Masons, Hong Kong, was introduced as the moderator for the webinar. Ms. Wu gave a brief background of the topic, introduced the panelists and initiated this interactive panel session.
The first panelist, Leng Sun Chan, Senior Counsel and Chartered Arbitrator at Duxton Hill Chambers, Singapore, presented his views on the purpose of PO1. Mr. Chan emphasized that as a starting point, there is no one-size-fits-all approach. Different parties and counsel from different legal backgrounds and sectors may have different expectations. Differences between arbitration rules should also be accounted for. In this respect, the purpose of PO1 is to help ensure that all parties have an understanding of what to expect in the arbitration going forward. Mr. Chan also addressed two key issues that should be dealt with at the PO1 stage, an agreement on the fundamentals such as the seat and venue, governing law, and language of arbitration, and setting out a procedural timetable, including booking a hearing date in advance. Setting out a preliminary list of issues and dealing with housekeeping issues early is also helpful.
The second panelist, Yoshimi Ohara, Partner at Nagashima Ohno & Tsunematsu, Tokyo, highlighted the significance of PO1 as a great example of party autonomy in arbitration. Institutional rules provide only limited guidance as to how each case should be implemented or handled, and it is up to the parties to decide the specifics of how each case should be managed. Ms. Ohara pointed out that to protect against later grounds for a challenge to the award, it is necessary to include basic points such as the identities of parties and counsel. Getting consent from the parties that there will be no challenge to the constitution of the tribunal, and to the tribunal secretary, is also advisable. Confidentiality may also need to be dealt with in PO1.
The third panelist, Mr. Abinash Barik, Partner at Finvest Legal, New Delhi, and former Senior International Case Counsel at Asian International Arbitration Centre (AIAC), Kuala Lumpur, shared an institutional perspective as well as the perspective of a former tribunal secretary. Mr. Barik noted that the procedural format of the arbitration, such as whether to proceed by fast track, normal, or emergency arbitration rules, should be identified at the outset. Under the AIAC 2021 rules, an arbitral tribunal is in principle required to establish a Procedural Order as soon as practicable, whereas under fast track or emergency proceedings, preliminary arrangements need to be delivered in 10 days or 3 days, respectively. Mr. Barik also pointed out that differences between international arbitration and domestic arbitration Procedural Orders need to be understood.
The panelists then moved on to other discussed parts of PO1, and issues that young practitioners should consider when drafting their first PO1. Mr. Barik noted key factors such as the fee arrangement for arbitrators in circumstances where the value of claims has not yet been quantified, the availability of the arbitrators and counsel, the procedural timetable, means of communication, and whether to conduct in-person, virtual, or hybrid hearings. Ms. Ohara stated that it is important for arbitrators to leave options open, to avoid giving the impression to the parties that the tribunal has already formulated certain perspectives or expectations regarding the procedure. From the perspective of counsel, Ms. Ohara advised trying not to shape PO1 too much and allowing for some flexibility in its arrangements. When considering what would be the most negotiated part of PO1, and where the input from arbitrators or institutions is typically required, Ms. Ohara focused on the procedural timetable. Claimants often prefer to pursue the case more quickly, while Respondents often insist that they need more time for document production. Sometimes it is also difficult to find hearing dates that work for all relevant parties. Whether and to what extent disclosed documents need to be translated and the choice of interpreter (if necessary) are also important issues. Mr. Barik shared his experiences where the format of submissions and fee arrangements were intensely disputed. He also identified venue, the issue of whether to hold a virtual hearing, bifurcation, and jurisdictional challenges as some key areas of potential dispute. Mr. Chan explained that when dealing with such contested issues, parties need to appreciate that the tribunal does not need their consent to fix the timetable. Having consultation and seeking a degree of consensus are beneficial, but the tribunal should not shy away from giving directions. However, it is also important for tribunals to have a good grasp of the relevant institutional rules and be familiar with the limits of their powers.
A Q&A session was conducted at the end of the first part of the Webinar. The panelists responded to questions submitted by participants in advance as well as live questions. The session was closed by Young ICCA Events Co-Director Ms. Saemee Kim and Ms. Ana Coimbra Trigo, who thanked the participants for their participation and informed them of the workshop that would follow.
Meet the Speakers
Abinash is a Senior International Case Counsel with the AIAC. Abinash is involved in the case management portfolio of arbitration, and adjudication disputes. Represents Europe, Middle East, South Asia (EMESA) desk. Responsible for Islamic Finance Disputes (i-Arbitration) portfolio and an AIAC YPG Member for Maritime Arbitration. Specialities include International Commercial Arbitration, International Investment Arbitration, International Construction Contracts & Engineering Arbitrations, International Energy Transactions, and Arbitrations. Abinash is an Arbitration Practitioner since 2014 and has worked in various jurisdictions such as India, the United Kingdom, and Germany, working at leading law firms and chambers. Abinash was awarded a full-merit scholarship on Private International Law by ‘The Mayor of the Hague’ at The Hague Academy of International Law, Netherlands. Admitted to a PhD programme (Law) in Germany.
Leng Sun Chan
Leng Sun is a Senior Counsel of the Supreme Court of Singapore and a Chartered Arbitrator practicing with Duxton Hill Chambers. He is a member of the Singapore International Arbitration Centre Court of Arbitration and the ICC Commission on Arbitration and ADR. He is formerly the Global Head of Arbitration of an international law firm and President of the Singapore Institute of Arbitrators (SIArb). He is the Deputy Chairman of the SGX Appeals Board. Leng Sun is qualified in Malaysia, Singapore and England. He has a broad commercial practice and has acted as counsel or sat as arbitrator in arbitrations seated in Asia, Europe and USA under ad hoc and institutional rules. Leng Sun had also served as a legal officer of the United Nations Compensation Commission in Geneva. Leng Sun is the author of the book, Singapore Law on Arbitral Awards and Co-Editor of Conflict of Laws in Arbitration. He is recognized among the top lawyers worldwide by legal directories, such as "Who's Who Thought Leaders – Litigation 2022", "Who's Who Legal - Arbitration 2022” and Acritas Stars 2021. He is described by WWL as being “among the very best disputes lawyers in the world” and lauded as one of ALB Asia’s Super 50 Dispute Lawyers, which reported him to be “spectacular, with exceptional knowledge and depth of insight”.
Ms. Ohara is a Partner at Nagashima Ohno & Tsunematsu. Her practice focuses on international arbitration, international complex litigation and mediation. She represents both domestic and foreign clients in international arbitration in various venues under the rules of the ICC, AAA/ICDR, SIAC and JCAA. With a strong corporate and IP background, she has extensive experience in dealing with disputes covering a wide range of subjects, including joint ventures, M&A, energy, construction, technology transfer, intellectual property, shipping, sales and distribution. Ms. Ohara also serves as an arbitrator in international arbitration. She has contributed to shaping soft law in international arbitration through IBA activities.
Jennifer Wu is a Senior Disputes Lawyer at Pinsent Masons, specialising in commercial and technology disputes and international arbitration. She has a particular focus on cross border cyber, technology and data governance related issues - protecting systems, software and information held online for businesses. Jennifer has been commended for her handling of disputes in complex projects and cross-border matters in various jurisdictions, such as Europe, England & Wales, China, Singapore, Korea and India. She is one of the thought leaders for the global technology digital markets space and has been praised for her straightforward and practical advice. She is qualified in England & Wales and Hong Kong. She is a HK45 Committee Member and the current Co-Chair of CIArb (EAB) Young Members Group.
Saemee Kim (Young ICCA Events Co-Director)
Ana Coimbra Trigo (Young ICCA Events Co-Director)
Sara Aranjo (Young ICCA Regional Coordinator)
Anastasiia Dulska (Young ICCA Regional Representative)
Stefania Efstathiou (Young ICCA Regional Representative)
Paul Kleist (Young ICCA Regional Representative)
Matthew Morantz (Young ICCA Co-Chair)
Maria Athanasiou (Young ICCA Co-Chair)
Maanas Jain (Young ICCA Co-Chair)
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