By: Rima Baskoro, S.H., ACIArb.
It is called the initial preliminary hearing ("initial pre-hearing") because this process is carried out before the parties enter and commence the dispute examination in the arbitration forum. There are quite striking differences between the pre-hearing and the process of examining cases in the arbitration forum. If during the case examination process the parties discuss their respective arguments regarding the substance of the case, then in the pre-hearing the parties discuss the formal law or the procedural law.
One of the advantage of arbitration over the traditional litigation process is that the arbitration forum provides the widest possible discretion to the parties to determine the rules of the game of procedural law in case examination procedures. This flexibility and discretion is given by the arbitration forum to the parties solely not to create wild balls in the forum. However, it is actually as a proof that the arbitration forum treats the parties fairly, without taking sides, and provides the parties an equal opportunity to present their case. Even though it gets discretion from the arbitration forum, parties shall not let the flexibility of procedure in the arbitration forum to become a boomerang in the case examination process which can ultimately harm the principals.
The initial pre-hearing stage is an important stage given the flexible procedures in arbitration forums. Because in this initial pre-earing stage, the attorneys have an important opportunity to determine the procedure for case examination, starting from simple matters such as the summoning of the parties, to the time frame and location of the case examination. In addition, the pre-hearing is also an important stage for arbitrators because there is an obligation for the arbitrator to examine the provisions of the arbitration clause in the agreement, regulations related to arbitrator selection, including the matter of case fees, which become the determining point for the initiation of case examination in the arbitration forum.
The following are some of the issues that should be addressed in the initial pre-hearing stage of the International Arbitration forum:
- Effective and efficient explanation regarding the subject matter of the case, including legal issues and legal facts that deserve the attention of the arbitral panel in examining and deciding this dispute;
- Trial schedule and location;
- Summons of witnesses and related requests for documents;
- Applicable law related to the subject matter and related to proceeding procedures in the International Arbitration forum, as well as the language to be used during the dispute examination process in the International Arbitration forum;
- If the case involves technical matters, it is worth discussing the local examination to review issues that are disputed by the parties
This initial pre-hearing stage becomes a "good strategic investment" in case handling for the parties, especially if the parties are from two different countries with different legal systems. This difference will certainly be a big gap in understanding and proceed of carrying out an examination of disputes in the International Arbitration forum. By agreeing the procedure for proceeding in an international arbitration forum through the initial pre-hearing stage, it will benefit the principal of parties because it can speed up the proceedings of the trial because the arguments of the attorneys regarding the validity of the proceeding procedure in the international arbitration forum are minimal.
With the minimum number of arguments regarding the validity of procedural proceedings, the arbitrator panel can focus on examining the subject matter of the case. With the speed and timeliness of examination of the principal of the case, there are principal parties' benefit for their case examination. The principal parties will not need to waste a lot of time and money related to dispute resolution in the arbitration forum since the time efficiency is well measured and scheduled.
Based on this initial pre-hearing, the arbitral institution issues a procedural order that establishes the actual arbitration trial procedure and the issues to be decided. The results of the Initial Pre-hearing will be used as guidance for the parties in carrying out a dispute examination in the arbitration forum. Naturally, the arbitrator will prefer to put forward and agree to the parties for the procedural results of the Initial Pre-hearing. The attitude of the arbitrator is a concrete form of the implementation of the "party autonomy" doctrine. The success of the attorneys in reaching procedural agreements through this initial pre-hearing is proof that at this early stage the attorneys are in a fairly good position of knowledge about how this dispute should proceed.
The most important thing in the initial pre-hearing process in the arbitration forum is that it is attended by attorneys and principal of parties who have the authority to make decisions in this stage. So that all agreed procedures are based on the client's decision. There should be no loss suffered by the principal of parties due to strategy errors and decision making during the initial pre-hearing stage in this international arbitration forum.