The procedural timetable is a procedural tool used by the parties to set timelines and deadlines for the arbitration proceeding. The procedural timetable is established by agreement of the parties during the case management conference and is subject to the approval of the arbitral tribunal.
The 2021 ICC Arbitration Rules (“ICC Rules”) expressly set forth the establishment of the procedural timetable in an arbitration rule to promote efficiency. Article 24(2) of the ICC Rules reads as follows:[1]
Purpose of the Procedural Timetable
The procedural timetable is an important tool for managing the arbitration process, as it helps to ensure that the parties have sufficient time to prepare their case and present their arguments, and that the arbitration is completed in a timely manner. It also helps to ensure that the parties are treated fairly and that the arbitration proceedings are conducted in accordance with the rules and procedures set out in the ICC Rules.
Article 24(2) of the ICC Rules requires the parties and the arbitral tribunal to plan ahead and anticipate the steps of the arbitration proceeding by establishing the procedural timetable. It is worth noting that the procedural timetable is not final and may be revised throughout the proceeding, to adjust to the parties’ and the case’s needs. In case of revision, any modification must be communicated to the parties and the Court.
The establishment of the procedural timetable is necessary to avoid time-consuming proceedings. In this regard, the procedural timetable is a means to ensure a speedier process by framing the procedure with time limits. This is even more important as it supports the ICC’s goal to respect a time limit to render the final award. The procedural timetable has thus become a tool by which the Court can monitor the progress of a case.
In theory, the time limit to render an ICC arbitration award is six months from the date of the last signature of the Terms of Reference (Article 31(1) of the ICC Rules). In practice, the actual time it takes to complete an arbitration will depend on the specific circumstances of the case. However, the ICC aims to complete arbitrations as efficiently as possible, and will take steps to ensure that the arbitration is conducted in a timely and cost-effective manner, while taking into account the procedural timetable that has been established by the arbitral tribunal.
Form of the Procedural Timetable
Article 24(2) does not provide for guidance or restrictions on the form of the procedural timetable. The only requirement is for the procedural timetable to be in writing. The document should also be concise and clear to avoid any doubt and ensure compliance. Although there are no specific formal requirements, the ICC does provide a model ICC procedural timetable that may be used by arbitrators.
The procedural timetable constitutes a procedural order that is signed by the sole arbitrator or, typically, the president of a three-member arbitral tribunal. The parties are not required to sign the procedural timetable.
Often, claimants will push for a short procedural timetable, whereas respondents will request a long and drawn-out procedure. Some of the possible reasons why a respondent might seek to have a slow procedural timetable include:
- To gain an advantage: By dragging out the arbitration process, a respondent may be able to gain an advantage over the claimant by wearing down its resources or creating uncertainty around the outcome of the case.
- To delay a final resolution: A respondent may try to delay a final resolution in order to postpone or avoid paying any damages or other relief that may be awarded by the arbitral tribunal. For instance, a respondent may seek time to try to transfer ownership of its assets to a third party in order to seek to shield its assets from potential creditors, or to file for bankruptcy.
- To buy time: A respondent may try to slow down the procedural timetable in order to buy time to prepare its case or gather additional evidence.
- To increase costs: A slow procedural timetable may also increase the costs of the arbitration for both parties, which may be a factor for some respondents, especially when the claimant lacks significant financial resources to prosecute the arbitration.
Content of the Procedural Timetable
Again, Article 24(2) remains silent on the requirements concerning the content of the procedural timetable. The ICC Rules give discretion to the arbitral tribunal to decide, in conjunction with the parties, what should be included and what is best left unspecified. The procedural timetable is thus case specific and may vary from one case to another. Generally, the procedural timetable will list all the major stages of the arbitration including dates for meetings and hearings and deadlines for the filing of written submissions, document production, and witness statements.
Process of Establishing the Procedural Timetable
When deciding on dates and timelines, the arbitral tribunal and the parties should consider other provisions of the ICC Rules. First, the arbitral tribunal and the parties should take into account Article 22(1) which provides that “[t]he arbitral tribunal and the parties shall make every effort to conduct the arbitration in an expeditious and cost-effective manner, having regard to the complexity and value of the dispute.”[2]
The arbitral tribunal must also comply with Article 22(4), which provides that “[i]n all cases, the arbitral tribunal shall act fairly and impartially and ensure that each party has a reasonable opportunity to present its case.””[3] This means that the procedural timetable should be designed with ample input from the parties, or the parties should at least be given opportunities for input.
Lastly, the arbitral tribunal must take into account any specific agreements the parties have made on procedure, in accordance with Article 22(2), which states that “[i]n order to ensure effective case management, after consulting the parties, the arbitral tribunal shall adopt such procedural measures as it considers appropriate, provided that they are not contrary to any agreement of the parties. Such measures may include one or more of the case management techniques described in Appendix IV.”[4]
Non-Respect of the Procedural Timetable
In general, if a party fails to meet a deadline set out in the procedural timetable, the arbitrators may decide to proceed with the arbitration without considering the relevant document or evidence that was not submitted on time. This could potentially prejudice the rights of the party that failed to meet the deadline, as it may not be able to present its case fully or effectively.
In some cases, the arbitrators may decide to extend the deadlines set out in the procedural timetable if there are good reasons for doing so. This could happen, for example, if a party can demonstrate that it was unable to meet a deadline due to circumstances beyond its control.
If a party repeatedly fails to meet deadlines or otherwise fails to comply with the procedural timetable, the arbitrators may decide to impose sanctions on that party. This could include ordering the party to pay the costs of the arbitration, or taking another action deemed appropriate by the tribunal.
Thus, it is important for the parties to respect the procedural timetable, as a failure to do so can have significant consequences for the arbitration proceedings.
[1] 2021 ICC Arbitration Rules, Article 24(2)
[2] 2021 ICC Arbitration Rules, Article 22(1)
[3] 2021 ICC Arbitration Rules, Article 22(4)
[4] 2021 ICC Arbitration Rules, Article 22(2)
