由於國際仲裁是一個全球現象, 它的做法是分散在各大洲和靈活性已經成為其關鍵因素之一. A growing debate in International Arbitration highlights the tensions between the diversity of culture and practice in proceedings, and the need for harmonization. While harmonization would increase predictability in the procedural process, 在訴訟程序的靈活性允許, 其他益處之外, 自定義配合的可能性, 案件具體過程, 由法律團隊與設計實用, 戰略, 和記創造性的因素.
仲裁已經發展成為解決爭端的首選方法，並導致相互作用來自不同法律背景的人之間. In the interest of efficiency, 這些相互作用引發通過條約和軟法律對程序的統一通用的舉動.
當事人可以自由他們認為最合適的制度規則適用於他們的特定爭端. Despite the suitability of party autonomy and the great number of procedural alternatives available, it is a fact that parties often end up doing things in the same way and choosing a set of rules they believe to be more efficient (or that is simply more popular).
Counsel’s and arbitrator’s influence and guidance also contribute to harmonization. Lawyers will often suggest rules that they are familiar with and that seem preferable to them. Arbitrators regularly suggest the same or similar procedures across cases for reasons of comfort and ease.
國際文書設定的總體框架, represent a political desire to move toward harmonization and create a model ground for procedural rules. The Geneva treaties of 1923 和 1927 were the first steps toward the recognition of arbitral clauses and awards (later to be crystallized in the New York Convention of 1958).
The underlying purpose of UNCITRAL was to provide for general harmonization and set up a minimal standard to cope with the flaws that disparities can create. The UNCITRAL Model Law has been used by many countries as a basis to adopt their own domestic law and become more arbitration friendly. Its purpose was to achieve uniformity of procedural law throughout the world. While it is true that choosing a place / 仲裁的位子將在一組特定的規則帶來, 事實上，這些國家的規則趨同感謝示範法懇求一個統一的程序.
The availability of the jurisprudence and its global use has also influenced and contributed to harmonization. The ICSID Convention has played a key role in this matter.
許多客戶在合同中加入仲裁條款，主要是因為他們不希望去法院, not because they know what going to arbitration entails. For this reason, it is crucial that the arbitration community provides them with a strong degree of guidance. The epistemic community shares the same expertise and is moved by similar objectives, 無疑在促進仲裁實踐中以類似的方式興趣.
雖然這是可以理解的，各國在採取類似的法律有很大的政治利益, 人們可能不知道為什麼他們幾乎總是做同樣的事情以同樣的方式考慮提供很大程度的靈活性. That they want to attract business to their own countries (and do so by adopting an arbitration friendly framework with greater predictability) is one thing, but don’t they also have a strong interest in distinguishing themselves? Arbitration is a business in itself and the very existence of 仲裁地點巴黎 顯示國家的意志，在聲譽方面和最佳實踐的相互競爭.
Arbitration institutions have historically been very influential in this process. When the ICC changes its arbitration rules, it is likely that other institutions will consider those changes and use the guidance provided by the leading institution to modify their own rules. More and more arbitrations are institutional and rules now tend to converge rather than differ.
Professional associations such as the IBA provide guidance through their notes and rules. While civil and common lawyers often disagree on what to do with the evidence, 國際律師協會規則設置如何處理這個問題的共同而靈活的基礎, 現在正在使用 60% of arbitrations. It can be argued that soft law relating to the law of evidence provides for a degree of convergence of the two legal traditions and for a common ground that lawyers often need.
該 2012 International Arbitration Survey conducted by the University of Queen Mary and sponsored by White & Case dealt with current and preferred practices in the arbitral process. It led to the conclusion that there is indeed a general common practice on how proceedings are conducted and how evidence is managed. 例如, 有盤問的成效準共識, 專家證人的證據, and that fact witness evidence should be offered by exchange of witness statements. This has become a general global framework.
Arguments opposing a move toward a model procedure
雖然這是事實因素並匯聚朝著國際仲裁程序的最佳實踐, 若干因素防止統一. 第一, 雖然我們不能懷疑仲裁界的目標和期望有關程序可以支持融合的存在, one cannot argue that the practice of arbitration is limited to the arbitration community. The majority of arbitration cases involve lawyers whose practices are not arbitration. These lawyers may not see many arbitration cases in their careers and their individual litigation backgrounds will guide their conduct, 從而導致了不同的程序之間的目標從業. Said differently, 仲裁專家組成的全球仲裁界不會共享相同的意見，參與仲裁的當地律師的幾次在他們的生活.
此外, the existence of a model procedure assumes that all players have reached a consensus on the practice. Such uniformity is not the reality of arbitration and there are many grounds for debate. 例如, some lawyers appoint an arbitrator that they wish to be assisted by an administrative assistant. The debate relates to his duties, should he be drafting the award? Opinions diverge on this point.
There are many new local markets becoming places of arbitrations. The emergence of these new players leads to an increasing number of arbitrations being handled locally, where practice may differ greatly from other places. New emerging players may not agree that best practices for others also constitute best practices for themselves and would, 例如, 考慮黨派代表律師協會準則非常不同.
經常在程序影響最大的一個是仲裁員本人. Arbitrators’ preferences for procedure remain fairly consistent across their caseloads and vary greatly when compared to other arbitrators. Some may not want post-hearing briefs whereas others do away with direct examination. 然而, 誰主張聽力後內褲仲裁人可以預期該過程適用於他的許多情況下.
沿著相同的路線, 當事人可能會猶豫，提出修改仲裁員的實際原因程序期望. One wants the arbitrator to like him and like his case; if the arbitrator suggests something in the procedural order, 一個人必須真的不知道，如果提出修正案的程序真的是個好主意.
在國際仲裁模型程序將確保案件準備穩定性和安全性. It could reduce costs by promoting predictability and allowing parties to organize their cases quicker and with ease. 今天已經, 有從業者可以期待在每個仲裁遇到某些可靠的程序方面的問題.
They will agree that the ability to rely on the following features is indeed a good thing:
- 第一, 申索陳述書，預計將詳細介紹和證據支持. 這不是在所有的法律傳統的情況下普通法律師們通常會提供索賠骨骼聲明通過發現來補充.
- 第二, 有限的發現是可用. 雙方可以從對方要求的文件如果這些文件有助於建立自己的案例.
- 第三, 當事人有聽證的權利. Hearings are automatic in common law jurisdictions whereas they are not in civil law jurisdictions. International Arbitration practitioners can rely on the fact that they always have a right to a hearing but may also decide to waive this right.
- 第四, 這是沒有必要引入或在聆訊進行身份驗證的證據. 證據引進和認證是目前在普通法司法管轄區的做法負擔.
- 第五, 當事人和仲裁庭決定程序一起. Whether or not parties decide to exercise their right to participate in determining the procedural process is another consideration.
- 第六, witnesses are examined by both arbitrators and counsel. Counsel examines witnesses in common law jurisdictions while the judge examines witnesses in civil law jurisdictions.
- 第七, 律師將在他進行直接檢查的能力是有限的. The witness statement usually serves as the direct examination and one will have an opportunity to supplement this statement only if something new comes up afterwards.
- 第八, 雙方和仲裁庭可以指定專家. Parties should always anticipate the appointment of experts and plan accordingly.
- 第九, 律師可以準備並支付證人和專家. 該IBA指引黨的代表證實，當事人可以支付在聽證會的籌備合理開支證人和專家, 時間上的損失, 和專家的合理收費.
- 最後, 律師可, 明知不, make false submissions of facts to the tribunal. This is analogous to the rule in the United States whereas French law does not address the issue. If parties do make false submissions of facts, 審裁處可作出不利的推論或修改雙方的律師費和法庭費的分配.
A model procedure would be evil
國際仲裁程序的特點是它的靈活性. Parties can tailor the procedure to their individual needs and choose from a wide range of procedural options. Many arbitration proceedings look similar but, 作為絕不會有相同的情況下, 永遠不應該有相同的程序.
對模型過程中的解決方案必然損害這種靈活性. 正如一位醫生沉思, “Why buy IKEA when you can have custom-made furniture?”
該 2012 由瑪麗皇后大學進行的國際仲裁調查顯示，從業者擔心，這個過程已經變得過於調控.
國際仲裁的做法需要考慮到文化方面和地方差異, and respect the expectations of the parties. This is what arbitration should be about. 例如, there are many issues to be considered when trying to enforce an award in the Middle East and that will be typical to the local culture (in Dubai the oath of the witnesses can be problematic if the proper administrative form was not use, and the Qatari Court of cassation set aside an award because it was not rendered in the name of the emir of Qatar).
Clients may eventually feel cheated by the use of a model procedure as they chose arbitration as a means to settle their disputes at least in part for its procedural flexibility. Clients may also view a harmonized procedure as taking less of their individual expectations into account.
Arguments presented during a Young Arbitrator’s Forum Panel Presentation by speakers:
- Eleonore Caroit (Castaldi, Mourre, & Partners)
- Lorraine de Germiny (King & Spalding)
- Matthew Secomb – Moderator (White & Case)
- Thomas Granier (ICC)
- Florian Grisel (Dechert)