The preliminary conference and directions hearings

Commercial Arbitration - The Procedural Conference and Directions Hearings

Resolution Institute

Professor John Sharkey AM



• Commercial Arbitration Act 2011 (Vic)

• The paramount object - s.1AC (1)

“…………..to facilitate the fair and final resolution of commercial disputes by impartial arbitral tribunals without unnecessary delay or expense.”



• The Act aims to achieve the paramount object by:

(a) enabling parties to agree on the appropriate processes; and

(b) providing procedures that enable cost effective, informal and quick resolutions.

s.1AC (2)



Before the procedural conference –

the arbitration agreement

the arbitrator’s terms fees the right to draw down on funds deposited

the form of the conference

the conference agenda



Agenda for procedural conference

1. Representation

2. Arbitrator’s terms 3. Confirmation of jurisdiction 4. Governing law (a) of the contract (b) of the arbitration 5. The adoption of any institutional rules



Agenda for procedural conference (cont)

6. The treatment of documentary evidence (a) The IBA Rules on the Taking of Evidence in International Arbitration (b) CIArb Protocol for E-disclosure in Arbitration 7. Oral hearing or documentation only 8. Hearing



Agenda for procedural conference (cont)8. Hearing

• Program for statements of case/ factual witnesses’ statements/expert reports • Appointment of first day of hearing

• Duration of hearing

• Witnesses sworn or not?

• The form of submissions

• Recording and transcription



Agenda for procedural conference (cont) 9. View

10. Venue

11. Communications with the tribunal

12. Date for further procedural conference



After the procedural conference –

Procedural Order no. 1



Procedural Order no.1 - General provisions

1. The parties shall conduct themselves in a manner consistent with the efficient use of time and resources. The arbitral tribunal shall take into account when using its discretion to allocate costs any unreasonable behaviour by a party. Unreasonable behaviour could include excessive document requests, excessive legal argument, excessive cross examination, dilatory tactics, exaggerated claims, failure to comply with procedural orders, unjustified interim applications and unjustified failure to meet the deadlines contained in this order.

© Professor Doug Jones AO



Procedural Order no.1 - General provisions

2. Should a party seek any variation or supplement to these directions that party should first seek the agreement of the other party to any proposed changes. Should agreement be reached the tribunal shall promptly be informed of the changes agreed. Failing agreement the parties are at liberty to apply on written notice to the other party and to the tribunal to vary or add to these directions.



Professor John Sharkey AM

Government & Nonprofit

The preliminary conference and directions hearings