When do the parties have to develop their full case? Can the witness hearing and/or witness statements be used to raise new issues? The desire to base an award on as broad and complete a factual basis as possible would suggest that the arbitral tribunal should take a very liberal attitude towards accepting new facts even after the ?pleading phase?. Efficiency considerations, however, require a strict deadline ending with the exchange of briefs, not allowing the tribunal to consider new facts brought forward in the course of the evidentiary proceedings. Arbitrators must decide whether their primary goal is to render a ?just? award or an ?efficient? award. Both are valid approaches depending on the circumstances of a case. The author discusses various techniques used by parties when ?pleading through the back door? and how arbitral tribunals cope with them. The author stresses the importance of the tribunal addressing the issue of new facts in a procedural order early in the proceedings, in particular in proceedings involving opposing parties/lawyers with a common law approach (development of the case on cross-examination) and parties/lawyers used to the continental view (clear distinction between fact presentation and evidentiary phase).
ASA Bulletin