The written phase

The UNCITRAL Arbitration Rules are not specific as to the comparative scope of the Notice of Arbitration, Statement of Claim, Statement of Defense and subsequent written submissions to be allowed by the Tribunal. The resulting uncertainties were evident in

Iran-25

See Remarks by J. van Haersolte-van Hof in Proc:eedings of the ASIUNVIR Second Joint Conference, Contemporary International Law Issues: Opportunities at a time of Momentous Change (22 July 1993), pp.

9-13; sea generally BROWER!BRUESCHKE, supra note 4, pp. 250-252, for a discussion of the questions raised by the Phi/lips Petroleum case.

Phi/lips Petroleum v. Iran, Award on Agreed Terms No. 461-39-2 (10 January 1990), reprinted in 21 Iran U.S. C.T.R. 285.

Phi/lips Petroleum v. Iran, Award on Agreed Terms No. 461-39-2 (19 January 1990), reprinted in 21 Iran U.S. C.T.R. 293, 294 (Aidrich, writing separately).

Award No. 518-131-2 (14 August 1991), reprinted in 27 lran-U.S. C.T.R 64, 81.

Pe/ro/ane, Inc. v. Iran, Decision No. DEC 101-131-2 (25 November 1991), reprinted in 27 lran-U.S. C.T.R.

264.

Ibid., p. 265.

US Claims Tribunal practice, and merit consideration in the context of any amendments to the UNCITRAL Arbitration Rules.

6.1 Initial filing(s)

The first filing contemplated under the UNCITRAL Arbitration Rules is the Notice of Arbitration called for under Article 3. The intended scope is modest. The Claimant is to provide, among other things, the names and addresses of the parties, a demand that the dispute be referred to arbitration, a reference to the arbitration clause, and the relief or remedy sought. The arbitral proceedings are deemed to commence on the date the Respondent receives the Notice of Arbitration. Significantly, the UNCITRAL Arbitration Rules do not require an Answer to the Notice from the Respondent.

The Tribunal Rules deleted the Notice of Arbitration requirement of Article 3. Instead, in Article 18, the Tribunal effectively combined the Notice with the more extensive Statement of Claim to serve as the Claimant's initial filing. The Tribunal also expanded Article 19 to require a Statement of Defense (of similar scope to the Statement of Claim - see below} from the Respondent. This allowed the issues to be joined quite early and hence provided guidance both to the parties and to the Tribunal.

The addition of a requirement for an initial Answer is included in Article 3(7) of the Swiss Rules. Among other things, under Swiss Rule 3(7}, the Answer is to include any challenges to jurisdiction and comments on the nature of the claim and the relief or remedy sought.

Depending on whether amendments are made concerning subsequent filings, the addition of a requirement for an Answer could improve the UNCITRAL Arbitration Rules.

6.2 Statements and memorials

Under Article 18 of the UNCITRAL Arbitration Rules, as implemented in the Tribunal Rules and the Swiss Rules, the Statement of Claim must include at least: (i} the names and addresses of the parties, (ii} a statement of the facts supporting the claim, (iii) a statement of the points at issue, and (iv} the relief or remedy sought. Article 18{1} of the UNCITRAL Arbitration Rules provides that the Claimant "may annex to his Statement of Claim ail documents he deems relevant or may add a reference to the documents or other evidence he will submit" (emphasis added}. In comparison, Article 18(1) of the Swiss Rules provides:

"As a rule. the Claimant shall annex to its Statement of Claim ail documents it deems relevant" (emphasis added).

Under Article 19 of all three sets of Rules, the Respondent must submit a Statement of Defense by a certain deadline set by the Tribunal. The Statement of Defense is to address the facts of the claim, the points at issue and the relief or remedy sought. In the Statement of Defense, the Respondent also is to make any counter-claim and assert any set-off.

Article 22 of the UNCITRAL Arbitration Rules, which is also unchanged in the Tribunal Rules and the Swiss Rules, contemplates further- unspecified -written submissions:

"The Arbitral Tribunal shall decide which further written statements, in addition to the Statement of Claim and the Statement of Defense, shall be required from the parties or may be presented by them and shall fix the periods of time for communicating such statements."

Under this rule, the Tribunal made a general practice of calling for a Reply to the Statement of Defense, a Rejoinder to the Reply, a Memorial, Counter-Memorial and Rebuttals, all to be accompanied by supporting documentary evidence and witness statements. As time passed and this procedural sequence became entrenched, counsel to parties could advise them with relative certainty as to when tiers of argument and evidence could and should be submitted.

Parties to individual arbitrations under the UNCITRAL Arbitration Rules do not have the benefit of such relative certainty. Even the most experienced counsel are faced with the dilemma of whether the Statements of Claim and Defense are meant to be the Memorials or only precursors to the Memorials. For example, should counsel advise the Claimant to collect and submit all the possibly useful documents, witness statements and expert reports for its case-in-chief with the Statement of Claim? Or should counsel advise Claimant to assume there will be a Memorial phase? If the Claimant submits the bulk of the supportive material with the Statement of Claim and there is a subsequent Memorial phase, the Respondent may obtain an advantage by having until its Counter-Memorial is due to address the case-in-chief.

If the Claimant holds off and there is no Memorial phase, the Claimant may be disadvantaged; even though the Tribunal is likely to allow filings, Claimant may be rushed and counsel certainly does not look to be in charge.

Some of this uncertainty is unavoidable as a necessary part of arbitration strategy, but some stems from genuine confusion as to terminology and practice. To spare parties this guesswork, one solution would be to amend the UNCITRAL Arbitration Rules to clarify that the "notice pleading' stage is the filing of a Notice of Arbitration and an Answer, that the Statements of Claim and Defense are full-fledged Memorials, and that the Tribunal should as a rule allow one round of rebuttal filings after the Memorials.

Another solution, based more directly on lran-US Claims Tribunal experience, would be to merge the Notice of Arbitration into the Statement of Claim. Then, the parties would know that they are entitled to a somewhat more substantive exchange of notice pleadings. That is, (i) the Claimant would trigger arbitration by filing a Statement of Claim, including all the provisions that are currently required for the Notice of Arbitration and the Statement of Claim, without full advocacy or submission of all supporting evidence; (ii) the Respondent would file a Statement of Defense of similar scope, including any counterclaims; (iii) each party would file a full-fledged Memorial, comprising the primary written submission of facts, legal

argument and supporting documentary evidence, witness statements and expert reports; and {iv) one or more rounds of rebuttal filings could be left to the Tribunal's discretion.

A third solution would be for the Tribunal to take fun advantage of a pre-hearing conference (ideally in person) and then be specific in an early procedural order as to the sequence and scope of the written submissions. Such a procedural order should, of course, be issued at the close of the notice pleading stage, after the Tribunal has been informed of the basic issues and before the core written filings - whether called Statements of Claim/Defense or Memorials-are due to be submitted.

The third solution is, in fact, often seen in practice and is envisioned in the new Swiss Rules.

it is an example, to revert to the introduction, of how arbitration practitioners informally- and institutions, formally - make adjustments for uncertainties and flaws in the UNCITRAL Arbitration Rules.

SWISS RULES OF INTERNATIONAL ARBITRATION

MODEL ARBITRATION CLAUSE

Any dispute, controversy or claim arising out of or in relation to this contract, including the validity, invalidity, breach or termination thereof, shall be resolved by arbitration In accordance with the Swiss Rules of International Arbitration of the Swiss Chambers of Commerce In force on the date when the Notice of Arbitration is submitted in accordance with these Rules.

The number of arbitrators¹ shall be ... {one or three);

The seat of the arbitration shall be ... (city in Switzerland);

The arbitral proceedings shall be conducted in ... (insert desired language).

INTRODUCTION

(a) In the past, six Chambers of Commerce and Industry in Switzerland had their own different rules of arbitration for the resolution of international commercial disputes.

(b) In order to promote institutional arbitration in Switzerland and to harmonise the existing rules of arbitration, the Chambers of Commerce and Industry of Base!, Bern, Geneva, Ticino, Vaud and Zurich (hereinafter collectively "the Chambers") have adopted the present uniform rules, the Swiss Rules of International Arbitration {hereinafter the "Rules"), which replace the Chambers' former rules of international arbitration.

These Rules are based on the UNCITRAL Arbitration Rules, to which two types of changes and additions have been made:

i. Changes and additions required to adapt the UNCITRAL Arbitration Rules to institutional arbitration;

ii. Changes and additions reflecting modern practice and comparative law in the field of international arbitration.

These changes and additions have been deliberately kept to a minimum. A comparative version of these Rules, in which the modifications to the UNCITRAL Arbitration Rules are italicised, is available on the website of the Chambers: Chambers have appointed an Arbitration Committee (hereinafter the "Arbitration Committee"), which shall exercise the powers vested in the Chambers under these Rules, so that any reference to the Chambers in these Rules shall be deemed to refer to the Arbitration Committee.

(e) The Arbitration Committee is comprised of experienced practitioners of international arbitration. The Arbitration Committee shall designate from among its members the person or persons who will assist the Chambers in the administration and monitoring of the arbltral proceedings. In addition, the Arbitration Committee has designated from among its members a Special Committee {hereinafter the "Special Committee"), which shall render decisions under Articles 11 and 12 on the challenge and revocation of arbitrators and under Article 16 on the seat of arbitration, and advise the Chambers on other procedural matters that may arise in relation to the application of these Rules.

For the sake of convenience only the masculine form is used within theses Rules.

Section I. Introductory rules