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The Abu Dhabi Global Market Arbitration Centre (‘ADGMAC’) published its Arbitration Guidelines (the ‘Guidelines’) in September 2019. The Guidelines comprise a series of ‘Modules’, which offer a set of procedures that parties may utilise in ad hoc or institutional arbitral proceedings, in whole or in part (due to their modular nature), at any stage, and in any seat (subject to any local mandatory rules, of course). In this article, we review key aspects of each of the Modules.
The purpose of Module 1 is to ensure that the tribunal, the parties to the arbitration, and their counsel conduct the arbitration in an efficient and cost-effective manner. In summary, Module 1 provides that:
In addition, Module 1:
The purpose of Module 2 is to provide tribunals, the parties to the arbitration, and their counsel with practical guidance relating to the submission of fact witness evidence in the arbitral proceeding, with a view to avoiding the wasted time and costs associated with the unnecessarily voluminous submission of factual evidence in arbitral proceedings.
In addition, Module 2:
The purpose of Module 3 is to provide tribunals, the parties to the arbitration, and their counsel with practical guidance relating to the submission of expert witness evidence, which aims to avoid the wasted time and costs associated with the unnecessarily voluminous submission of expert evidence in arbitral proceedings.
In addition, Module 3 enables the tribunal to:
The purpose of Module 4 is to provide the tribunal, the parties to the arbitration, and their counsel with practical guidance relating to the request and production of documents, with the aim of avoiding time-wasting and costs associated with the production of documents in arbitral proceedings. The Guidelines provide that document requests should be organised in a ‘Redfern Schedule’ format.
Significantly, Module 4 does not allow parties to use the document requests’ process as a method to point out evidentiary gaps in the other party’s claim.
The purpose of Module 5 is to provide the tribunal, the parties to the arbitration, and their counsel with practical guidance relating to the procedural and evidentiary hearings in the arbitral proceeding, with the aim of ensuring that the hearings are conducted in a fair, efficient and cost-effective manner, having regard to the complexity, value and significance of the issues in dispute.
In addition, Module 5 stipulates:
Module 5 also encourages the parties to make use of an electronic document management system for merits’ hearings, and minimise the use of hard-copy document bundles.
Finally, Module 5 provides that all documents, recordings, transcripts and other records of case management conferences and merits hearings are confidential.
The purpose of Module 6 is to promote procedural fairness between the parties by setting out the expected standards of the conduct of party representatives. Module 6 defines ‘party representatives’ as
“any person, including an employee of a party, who appears in an arbitration on behalf of a party and makes submissions, arguments or representations to the Tribunal on behalf of such Party (other than as a witness or expert), whether or not they hold a legal qualification or are admitted to practice law in any jurisdiction”.
Module 6 prohibits party representatives from:
Where the party representative becomes aware of a document that should have been produced, but was not, the party representative must advise that party of its duty to produce that document and the consequences of failing to do so. And where the party representative becomes aware that a document that should have been produced was destroyed, the party representative should inform the opposing party and the tribunal as soon as practicable explaining the circumstances of the document’s destruction.
Module 6 sets out the process of complaints for a party representatives’ breach of Module 6. A party, or the tribunal on its own initiative, may file a complaint against a party representative. The complaint must be accompanied by the proposed consequences of the breach. Where the tribunal decides to uphold a complaint, the Guidelines empower the tribunal to order any one or more sanctions including; (a) a written reprimand to the party representative;(b) a written caution as to the party representative’s future conduct in the arbitration; (c) adverse inferences may be drawn when assessing the evidence relied upon, or legal submissions made, by the party representative; (d) an award of costs in relation to the conduct the subject of party representative’s breach, against the party instructing the party representative; or (e) any other appropriate measure the tribunal considers necessary to preserve the fairness and integrity of the proceedings. The submission of an unwarranted complaint may itself constitute a breach of the Guidelines.
As can be seen, the Guidelines provide parties and tribunals with a set of innovative best practice procedures to assist in bringing greater efficiency to the arbitral process, while endeavouring to ensure fairness, equality and due process. The Guidelines allow the parties and tribunals to adopt all, or some of the provisions in the Modules, in order to give greater structure to certain aspects of the arbitral process and better control time and costs of the proceedings. The Guidelines also have built-in flexibility and procedural safeguards, which enables parties to adapt the Guidelines to the unique circumstances of their dispute.