Conduction of Oral Hearings: Do’s and Don’ts for Arbitrators

The Importance of the In-Person or Oral Hearing Stage in Arbitration

The in-person or oral hearing stage is the most critical part of arbitration. This is where all the evidence is fully investigated, the legal cases are sharpened, and the final ruling is created directly during the session. For those acting as arbitrators, managing these hearings with fairness, speed, and respect is essential. It goes beyond just following a checklist; it establishes the credibility of the entire arbitration system. This document offers key advice – the essential things to do and avoid – that arbitrators must observe to guarantee a proper and professional hearing.

✅ DO’S – Best Practices for Arbitrators

Preparation & Pre-Hearing Management

1. Prepare Thoroughly & Strategically:
   • Review pleadings, submissions, and evidence in advance, specifically noting key contested facts and legal issues.
   • Familiarize yourself with the applicable law and governing contract, identifying any potential gaps or ambiguities requiring clarification.
   • Develop a Tentative Roadmap: Outline a mental or written structure of the critical steps needed to resolve the dispute, which guides your questioning and time management.
2. Set Clear Ground Rules & Expectations:
   • Clarify time allocations, order of presentations, and evidentiary protocols at the outset.
   • Establish how objections will be raised and ruled upon (e.g., whether to rule immediately or take the objection sub curia).
   • Confirm the Scope of the Hearing: Ensure both parties agree on what issues are definitively excluded from the oral hearing, preventing last-minute expansions.

Tribunal Dynamics & Procedural Fairness

1. Maintain Procedural Fairness & Equality:
   • Give equal opportunity to both sides to present their case, including sufficient time for examination and cross-examination.
   • Avoid interrupting counsel unless necessary to clarify, manage time, or address admissibility.
   • Be Attentive to Non-Verbal Cues: Consciously monitor your own facial expressions and body language to ensure they convey neutrality, especially when evidence or testimony is challenging.
2. Manage Time & Focus Effectively:
   • Keep the hearing focused; gently steer counsel back to the relevant issues if they digress into peripheral matters.
   • Use time limits judiciously, balancing efficiency with fairness.
   • Front-Load the Key Issues: If time is limited, ensure the most critical factual and legal issues are addressed first, rather than leaving them until the end.
3. Facilitate, Don’t Dominate:
   • Ask clarifying and targeted questions that assist the tribunal’s understanding, but avoid conducting a ‘second cross-examination’ of the witness.
   • Pose “Gap-Filling” Questions: Direct inquiries at counsel or witnesses that address gaps in the evidence or contradictions in arguments that you need resolved for the award, rather than questions that merely challenge a party’s theory.

Documentation, Decorum, and Transparency

1. Document the Hearing Precisely:
   • Ensure accurate recording or transcription of proceedings, including all exhibits and demonstratives used.
   • Note key admissions, significant concessions, objections, and all tribunal directions.
   • New: Index Key Testimony/Exhibits: Immediately flag or note the specific transcript page numbers or exhibit references for the most crucial pieces of evidence, aiding rapid retrieval during deliberations.
2. Uphold Tribunal Decorum & Authority:
   • Dress and conduct yourself with dignity to reinforce the gravity and authority of the process.
   • Set an example for punctuality, formal tone, and orderly sequence.
   • Project Calmness Under Pressure: Maintain a composed demeanour even when counsel become heated or the process is technically challenging. Calm leadership inspires confidence.
3. Ensure Effective Communication and Transparency:
   • Explain procedural rulings clearly and concisely, especially when denying a request or objection.
   • Be consistent in applying standards and rules to all parties.
   • Confirm Understanding: After giving a complex ruling or direction, check with both parties that they have understood the next steps or the implication of the ruling.

❌ DON’TS – Pitfalls to Avoid

Bias, Prejudgment, and Conduct

1. Don’t Show Bias or Prejudgment:
   • Avoid comments, leading questions, or side conversations that suggest leaning toward one party’s case.
   • Refrain from expressing preliminary opinions on the merits before deliberation.
   • Avoid the “Why Didn’t You…” Trap: Do not challenge a party or witness by asking why they didn’t do something or submit certain evidence; this can imply a negative judgment before all facts are heard.
2. Don’t Allow Disruptions or Intimidation:
   • Manage aggressive cross-examinations or disrespectful conduct firmly and immediately.
   • Protect vulnerable witnesses or lay witnesses from excessive interruptions or badgering.
   • Don’t Tolerate “Speaking Objections”: Firmly prohibit counsel from using objections as a means to instruct or coach the witness.

Procedure and Evidence Management

1. Don’t Deviate from Agreed Procedure Unilaterally:
   • Stick strictly to the framework established in the Procedural Order unless a change is expressly consented to by all parties.
   • Avoid introducing surprise evidentiary or procedural rules midway through the hearing.
   • Avoid Ex Parte Communication: Never engage in substantive communication with one party without the presence or knowledge of the other, even on logistical matters, unless the rules expressly permit it.
2. Don’t Overstep Evidentiary or Substantive Boundaries:
   • Avoid introducing your own external knowledge, evidence, or conducting independent investigations.
   • Do not rely on materials not formally placed on the record and available to all parties (e.g., from a private Google search).
   • Do Not Engage in Iura Novit Curia Beyond its Scope: While the tribunal knows the law (iura novit curia), avoid applying a legal theory not pleaded by the parties without first inviting their submissions on it.

Rulings, Interventions, and Logistics

1. Don’t Delay Critical Rulings Unnecessarily:
   • Make timely decisions on objections or critical procedural matters. If the ruling is complex, announce that you will rule promptly after a brief break.
   • Avoid postponing rulings that are essential for the parties to know the direction of the hearing (e.g., the admissibility of key expert testimony).
2. Don’t Lecture or Scold:
   • Avoid excessive questioning or commentary that overshadows the advocates.
   • Do not criticize advocacy style: Resist the temptation to lecture parties on how they should have framed their arguments or examined a witness; your role is to judge the case as presented, not the presentation itself.
3. Don’t Ignore the Logistics of Remote Hearings:
   • When conducting virtual or hybrid hearings, do not assume technology will work flawlessly. Pre-test all connections and platform features.
   • Ensure that all remote participants (witnesses, counsel, interpreters) have a fair and equal means of participation, addressing issues like audio lag or poor video quality promptly.
   • Do not permit open microphones/cameras: Prohibit open, unsecured communications between remote witnesses and counsel while the witness is testifying.

Conclusion

Ultimately, an oral hearing is far more than a simple step; it’s the crucial setting where honesty, fairness, and just outcomes truly come alive. Arbitrators are central to this, requiring a careful balance of clear authority with open-mindedness, established rules with quick adaptation, and impartiality with keen attention. By following effective practices, they ensure the process runs smoothly and, more importantly, strengthen trust in arbitration as a respected and legitimate way to settle disagreements.