Documents only Arbitration
The flexible nature of arbitration means that it is well-placed to adjust, not
just to short-term disruption, but also to any broader changes in working
practice that might arise as people across the world become accustomed to, and
comfortable with, remote-working. In arbitral proceedings speed is of
the essence for the claimant, it is difficult then to justify so-called fast
track arbitration, or that there could be accelerated arbitration, slow, and
possibly also very slow proceedings.
Flexibility in procedure is a hallmark of
arbitration. Arbitration allows parties to choose the most suitable procedure to
achieve an expeditious and cost-effective resolution of their disputes. One of
the major advantages of Arbitration as an ADR is its procedural flexibility.
flexible nature of arbitration means that it is well-placed to adjust, to not
just short-term disputes, but also to long-term broader changes. It allows the
parties to choose a procedure which is most suitable to their circumstances in
order to achieve the most quick and cost-effective resolution to their disputes.
One of the many procedures of Arbitration is the Documents-only Arbitration,
which generally applies to straightforward, mid-to-low value disputes.
Generally, high-value and complex disputes require a fairly standard arbitration
procedure – this usually involves three arbitrators, two rounds of pleadings,
document production, examination of witnesses, an oral hearing and post-hearing
submissions. However, low-value or less complex disputes may not necessarily
warrant the standard procedural steps. Depending on the value and complexity of
a dispute, it may be appropriate to choose from different procedural innovations
to significantly reduce time and costs.
The disruption caused by the COVID-19
pandemic has left companies across the world scrambling to maintain a sense of
continuity, as their executives, employees and advisers adjust to life under
government-imposed 'social-distancing' measures. For many, 'business as usual'
includes ensuring that commercial disputes are resolved quickly if not more
quickly than usual, so that they can remain focussed on their business.
the first in a series of articles exploring different procedures that parties
may adopt in order to allow arbitrations to proceed, both in the short-term, in
a world where people cannot travel, and the long-term, in a world where they may
choose not to for other reasons. This article considers arbitrations conducted
on a 'documents-only' basis, and sets out some issues to bear in mind when
considering such an approach.
View of Indian Law
The Act always contemplated a scenario where parties could opt for a documents
only arbitration, where it was not mandatory to have oral hearings. With the
growing trend of emergency and expedited arbitrations, in the 2015 amendments to
the Indian Arbitration Act, Section 29B was inserted, which introduced fast
track arbitration. Under the fast track provision, the parties can before the
constitution of the arbitral tribunal, agree in writing to conduct the
arbitration under a fast track procedure.
This mechanism allows the parties to
make a request for an oral hearing which will be permitted if the arbitral
tribunal considers it necessary, otherwise the arbitral tribunal shall decide
based on written pleadings, documents, and submissions filed by the parties
without any oral hearing.
The award in fast track procedure must be made within
six months from the date the arbitral tribunal enters reference. Since the
adoption of the expedited procedure is solely based on the consent of the
parties as opposed to the institution rules, we have not seen much such
arbitration. But given the current circumstances with a national lock-down
continuing, for a large number of relatively simple disputes (i.e. not
complex/data heavy), it is worth a try to convince the opponent to agree on the
fast track mechanism provided under the Indian Arbitration Act. These are only
indicative solutions which will allow parties to resolve their disputes quickly.
One needs to be mindful this may not work for high-value complex disputes where
evaluation of evidence is critical.
Documents-only Arbitration procedures arise, most frequently, as a result of the
parties' arbitration agreement and/or the incorporation of specific rules
providing for such a procedure.
These include industry-specific arbitration
rules designed for a particular sector, such as commodity, domain name and/or
intellectual property rights disputes, small-claims schemes for consumer
disputes, among others. In addition, in large and complex arbitrations which
require the resolution of multiple issues, discrete issues may be dealt with by
way of documents alone. Although arbitrators have a very broad discretion to
give directions for a procedure which best suits the particular circumstances of
a case, they may not be able to impose documents-only procedures on the parties.
This is because most national laws and arbitration rules specifically provide
that each party has the right to request a hearing, unless they had waived that
right. Accordingly, if the arbitrators consider that a dispute or certain issues
within a dispute are suitable for resolution on documents alone, rather than
imposing it on the parties, it is good practice to invite the parties to agree
to proceed on that basis. This Guideline examines the matters that arbitrators
need to take into account when considering whether to give directions for
documents-only procedures and summarises the various steps they should follow in
the conduct of such procedures.
One example of an innovation that is gaining traction for straightforward,
mid-to-low value disputes is documents-only arbitration
. In a documents-only
arbitration, the parties agree for the dispute to be determined without an oral
hearing. Accordingly, a tribunal (which may consist of a sole arbitrator)
reviews the written documents submitted by the parties, but it does not receive
oral pleadings or testimony at an evidentiary hearing before making the award.
Written documents may include pleadings, evidence, and statements of witnesses.
A documents-only arbitration may be especially useful in cases where there is no
need to cross-examine any witnesses. Proceeding without an oral hearing enables
a tribunal to render its award within a shorter time-frame and eliminates the
high costs typically associated with a hearing, including travel costs for the
tribunal, lawyers and witnesses. Documents-only arbitrations also generally
enhance efficiency and convenience given that travel is not required and email
is the primary means of communication.
Though as far as the speed in the certain Arbitration is concerned, speed should
depend on the circumstances and on the diligence of the arbitrators, rather than
on the proceedings' rapidity being granted or refused depending on the type of
dispute, such as the amount in dispute or the subject matter. However, speed,
important as it is, cannot solve by itself all the difficulties that are met
with in arbitral proceedings, such as the costs of the proceedings.
very large disputes may be indifferent to costs, when it comes to middle-size or
small disputes costs become a delicate issue, since frequently they are out
of proportion to the amount in dispute. In such situations, reducing the number
of the arbitrators from three to one may be the solution.
possibility the tendency of many arbitration rules is to provide for three
arbitrators. Some arbitration rules are very explicit about the number, such as
the rules of the German Institution of Arbitration which provide.
Procedure for the same
As the name suggests, documents-only arbitrations are those in which tribunals
base their determinations entirely on written submissions and documentary
evidence, with no opportunity to hear from counsel or take evidence from
witnesses at oral hearings. In this kind of Arbitration, the parties agree for
the dispute to be resolved without an oral hearing. Written documents include
pleadings, evidence, and statements of witnesses.
This kind of Arbitration may
be useful in cases where there is no need for cross-examination of
witnesses. Documents-only Arbitration is also a cost efficient form of
arbitration, since a proceeding without an oral hearing eliminates the costs
such as travel costs, lawyers, witnesses, etc. It enables the tribunal to render
the award in a shorter time-frame and hence it is not time-consuming.
generally enhances the efficiency of the tribunal because email becomes the
primary means of communication when travel is not required. For a case to
proceed on documents-only basis, it is essential for all the parties to the
dispute to agree to the same since party autonomy is a significant ingredient of
However, when this approach is being adopted, there are certain
points to consider. This method may not always be possible as a matter of law
and it may not be suitable for all cases (for acting as a counsel and sitting on
the arbitral tribunal at the same time may not be applicable to many cases).
It must be mentioned that any decision to proceed on this basis should be made
as early as possible so that parties can prepare their respective submissions
and approach to the proceedings accordingly.
This also has converse effects for
if one party makes objections early on, then the proceedings will appear to
favor the material approach of one party over another. Considering the above
mentioned issues, it may not be possible for all disputes to be determined on a
documents-only basis. However, in the current scenario, where COVID-19 has
disrupted the daily lives of the people and where companies are struggling to
adjust with the new rules of social-distancing, this method seems highly
recommended as well as applicable.
Parties faced with low-to-mid value disputes
should consider whether the benefits of a documents-only arbitration outweigh
the perceived benefits of an oral hearing. It provides parties with an
innovative tool to manage time and costs while maintaining their right to be
heard in a neutral forum. Given that remote working is (for now) the “new
normal”, the call for documents-only arbitrations may well increase.
Issues to Consider
If we only consider and focus on adopting a Document only Arbitration approach
following things should be borne in mind:
- A documents-only approach may not always be possible as a matter of law.
Counsel and arbitrators should, as a first step, assess the extent to which
mandatory provisions of the lex arbitri may prevent arbitration from being
determined on a documents-only basis.
- A documents-only approach will not be suitable for all cases. In our
experience, acting both as counsel and sitting on arbitral tribunals, the
documents-only approach appears less suitable in cases where
- Determination of the central issues in dispute is likely to be require
the assessment of or an adjudication of oral evidence (for example, of
competing recollections of conversations alleged to amount to an oral
- Highly detailed and technical expert evidence is required to 'educate
the tribunal', and
- There is limited contemporaneous written evidence. In such cases, the
lack of a hearing at which evidence can be tested, either through
cross-examination by counsel or by questioning from the arbitrator, can
cause difficulties for tribunals in assessing and giving weight to
- Any decision to proceed on a documents-only basis should be made as
early as possible, ideally as part of the first procedural order so that
parties can prepare their submissions and approach to the proceedings
- That said, should developments in the case allow it (for example, if
compelling evidence comes to light), it may be possible to switch to a
documents-only approach mid-way through the proceedings. In such cases, the
benefits of the documents-only approach mean that serious consideration
should be given to changing approach.
- Conversely, difficulties may arise where a decision to proceed on a
documents-only basis is made at an early stage, only for one party to raise
objections should it become apparent that the approach materially favours one
party over the other.
- Who should make the decision to proceed on documents-only basis? The
arbitral rules of most of the major arbitration institutions require the
parties' consent for an arbitration to be dealt with on a documents-only basis,
although in some cases (such as the HKIAC rules) tribunals themselves have
discretion to order the approach. There are clear benefits to tribunals in
ensuring that any decision to proceed on a documents-only basis is taken with
the consent of the parties, as otherwise the tribunal leaves itself open to a
potential challenge to the enforceability of its award. However, institutions
and parties could do more to empower tribunals to order a documents only
procedure, or at least recommend it to the parties.
- Who should propose proceeding on a documents-only basis? Even where a
case may be suitable for assessment on a documents-only basis, there may not
be sufficient trust between the parties to allow either party to feel
comfortable making such a proposal. As such, tribunals should be proactive
in taking the lead in identifying suitable cases and making proposals to the
parties. Some institutions do encourage tribunals to consider this approach
but to date; it is an option that is rarely explored.
Circumstances arising on different fields with issues
It will not appropriate or even possible for all disputes to be determined on an
entirely documents-only basis. However, given that remote working is (for now)
the “new normal” and as parties become more cognisant of the environmental
impact of international travel, the call for documents-only arbitrations may
This will require a change of attitude on the part of parties and tribunals.
Parties will have to become more flexible in their attitudes towards
non-traditional arbitrations, whilst tribunals should be more proactive in
identifying cases that are suitable for determination on a documents-only basis
and more robust in adopting such measures.
Other institutions may now follow the example of the HKIAC, in order to offer
more options to parties in the current environment, and amend their rules to
give tribunals discretion to decide whether to proceed on a documents-only
basis. Doing so could allow for international arbitrations to be dealt with more
speedily and at a reduced cost, but for some institutions, it will be quite a