Martin Dillon | Technology Arbitrator

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Draft Arbitration Preliminary Meeting Agenda

To be considered prior to a first preliminary meeting in commercial arbitral proceedings. 

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1. Date of Preliminary Meeting: Date
1.1.Commencement time of preliminary meeting:Time
2. Claimant Details
2.1.Claimant Name:
Contact: Claimant’s counsel
2.2.Claimant Counsel Name: 
Email: 
Phone: 
3. Respondent Details
3.1.Respondent Name:
Contact: Respondent’s counsel
3.2.Respondent Counsel Name: 
Email: 
Phone:
4. Confirmation of Appointment of Arbitrator
4.1.Written submission appointing Arbitrator sighted:Yes/No
4.2.Brief outline of the issues that are to be determined:
4.3.Acceptance of Arbitrator’s agreement:Yes
4.3.1.Fees:As per agreement.
4.3.2.Disbursements:As per agreement.
4.3.3.The Arbitrator is not liable to the parties and indemnity is agreed:Yes
4.4.The Arbitrator is permitted to act as an Arbitrator under the applicable mandatory laws of the seat of arbitration:Yes/No
4.5.The Arbitrator accepts appointment:Yes/No
4.6.Amount of initial deposit on account of the Arbitrator’s fees and expenses:
5. Representation
5.1.Contract for services, power of attorney or other authority for counsel to represent parties:
5.2.Are the parties’ representatives permitted to represent their clients in arbitral proceedings under the applicable mandatory laws of the seat of arbitration?Yes/No
6. Protocol for Communications
6.1.Confirm email addresses for communications:(Refer above)
6.2.Delivery of documents by email / other electronic means:
6.3Agreement as to the time zone to apply to all temporal deadlines: 
6.4Communications to Arbitrator by email: martin@martindillon.nzYes
6.5Agreement as to deemed receipt of email to Arbitrator: At the time received in the Arbitrator’s email inbox as recorded by the Arbitrator’s email service provider, adjusted for any difference between the time zone of the Arbitrator’s email inbox and the time zone for temporal deadlines in the arbitral proceedings.
7. Confidentiality Provisions Agreed:Yes/No
8. Preliminary Jurisdictional Matters
8.1.Compliance with any prerequisites to commencement of arbitration.Yes/No
8.2.Any jurisdictional challenge:
8.2.3Should any jurisdictional challenge be determined as a preliminary issue?Yes/No
8.3.Appointment of Arbitrator:

A. Disclosure of any known grounds for challenging appointment / any interest in the arbitration by the Arbitrator:

B. Any challenge to the Arbitrator’s appointment: Yes/No.
9. The Arbitration Agreement
9.1Are the following matters agreed and, if not, the parties’ positions on:
9.1.1.Parties:
9.1.2.Seat:Seat
9.1.3.Language: English, with interpreters for witnesses as required.
9.1.4.Governing law:Law
9.1.5.Arbitration rules:Rules
9.1.6.(Other bespoke features relating to the dispute or the parties)
10. Other Rules and ‘Soft Law’ to Apply
10.1.Application of the Arbitration Rules of the Australian Centre for International Commercial Arbitration / Application of the Expedited Arbitration Rules:Yes/No/Guide
10.2.Application of the International Bar Association Rules for the Taking of Evidence in International Arbitration:Yes/No/Guide
10.3.Application of the Prague Rules on the Efficient Conduct of Proceedings in International Arbitration:Yes/No/Guide
10.4.Application of any codes of conduct:

A. for expert witnesses (such as the CIArb Protocol for the Use of Party-Appointed Expert Witnesses in International Arbitration);

B. for party representatives (such as the IBA Guidelines on Party Representation in International Arbitration);

C. for the Arbitrator (such as the IBA Guidelines on Conflicts of Interest in International Arbitration).
10.5.Whether any other rules are adopted:Yes/No/Guide
11. Arbitrator’s Powers
11.1.Adopt inquisitorial processes:
11.2.Draw on own knowledge and expertise:
11.3.Order the provision of further particulars in a statement of claim or defence:
11.4.Order the provision of security for costs:
11.5.Fix and amend deadlines by which various steps in the arbitral proceedings must be completed:
11.6.Order the discovery and production of documents or materials within the possession or power of a party:
11.7.Order the answering of interrogatories:
11.8.Order that any evidence be given orally or by affidavit or otherwise:
11.9.Order that any evidence be given on oath or affirmation:
11.10.Order any party to do all such other things during the arbitral proceedings as may reasonably be needed to enable an award to be made properly and efficiently:
11.11.Make an interim, interlocutory and partial awards:
12. Preliminary Issues for Advance Determination
12.1.Any jurisdictional challenge:(Refer above)
12.2.Any applications for interim measures:
12.3.Any consolidation and/or joinder applications:
12.4.Any security for costs application:
12.5.Procedure for determining preliminary issues:
13. Substantive Issues in Dispute
13.1Are the issues in dispute agreed between the parties?
13.1.1.Should a jointly-prepared list of issues be provided, and if so when?Deadline
13.2Are there any issues of law to be decided?
14. Form of Arbitration
14.1.Documents only / Online / On-site / Formal in-person:
14.2Technology platform for online arbitration:
15. Discovery of Documents / Evidence
15.1.Whether a discovery process is necessary:Yes/No
15.2.Appropriate procedural requirements and exchange protocol:
15.3.Whether the Arbitrator should be able to draw adverse inferences if properly discoverable documents are not produced:Yes/No
16. Common Bundle of Documentary Evidence
16.1.Whether a common bundle of documentary evidence is to be produced to the Arbitrator by the parties:
16.2Whether the common bundle is to be indexed and paginated, and contain all documents relied upon by the parties:
16.3.Whether any documents other than those contained in the common bundle may be received by the Arbitrator at the hearing in the absence of agreement between the parties or leave of the Arbitrator:
17. Witness Statements
17.1.Whether all non-expert witness statements must contain:

A. The full name and address of the witness and a description of their background, qualifications, training and experience, if such a description may be relevant and material to the dispute or to the contents of the statement;

B. A detailed description of the facts, and the source of the witness’s information as to those facts, sufficient to serve as that witness’s evidence in the matter in dispute;

C. An affirmation of the truth of the statement; and

D. The signature of the witness and its date and place.
17.2.Whether all expert witness statements must contain:

A. The full name and address of the expert, their present and past relationship, if any, with any of the parties, their qualifications and experience, and current academic or professional position;

B. A statement of the facts on which they are basing their expert opinions and conclusions;

C. Their expert opinions and conclusions, including a description of the method, evidence and information used in arriving at the conclusions;

D. A statement that the expert is familiar with the applicable code of conduct for expert witnesses (if any), and that their report conforms with that code, and that the expert will comply with that code in relation to these arbitral proceedings; and

E. The signature of the expert and its date and place.		Code of conduct for expert witnesses
18. Expert Witnesses
18.1.Whether the Arbitrator should determine the matters for which expert evidence is permissible, or whether there should be broader party autonomy to adduce expert evidence:
18.2.Whether there should be common instructions to experts, and whether any such instructions should be approved by the Arbitrator:
18.3.Whether, at an early stage, the parties should be required to disclose the identity of their experts and the issues they intend to address by way of expert evidence:
18.4.Whether there should be a tribunal expert in addition to, or in lieu of, party-appointed experts:
18.5.Whether supporting documents that underpin expert evidence should be identified by the experts and provided to the parties:
19. Notice of Requirement for Witness Attendance
19.1.Whether the parties are to give notice of which of the other party’s witnesses are required to attend the hearing for cross-examination.
19.2.If a party does not indicate it wishes to cross-examine a particular witness, then whether:

A. the party producing the witness may not call the witness without leave of the Arbitrator; and

B. the Arbitrator may require the witness to be called at the hearing or may accept the signed statement of the witness as admissible evidence with relevance, materiality and weight to be determined by the Arbitrator after submissions from the parties.
19.3.If a witness is required by an opposing party to attend for cross-examination and fails to do so, then whether the Arbitrator may in his discretion accept or disregard their statement, or accept it but attach less weight to it.
20. Draft Procedural Timetable
20.1.Claim and supporting evidence from claimant to be filed and served by:Deadline
20.2.Defence, any counterclaim and supporting evidence from respondent to be filed and served by:Deadline
20.3.Defence to counterclaim (if any) and supporting evidence from counterclaim respondent to be filed and served by:Deadline
20.4.Reply evidence to defence from claimant to be filed and served by:Deadline
20.5.Reply evidence to counterclaim defence (if any) from counterclaimant to be filed and served by:Deadline
20.6.Notices requiring witnesses to attend hearing for cross-examination to be exchanged:Deadline
20.7Additional procedural meeting scheduled:

To be conducted remotely. Online video platform: 		Deadline



Platform
20.8.Common bundle of documentary evidence to be filed and served by:Deadline
20.9.Written opening submissions to be filed and served by:Deadline
20.10.Either party may request a change in process at any time.

After considering submissions from both parties, the Arbitrator may order a change to the process at the Arbitrator’s discretion.		Yes/No
21. Hearing Details
21.1.Form of hearing: Online / On-site / Formal in-person(Refer above)
21.2.Place of hearing (if in-person):Location
21.3.Viewing or inspections required:Location
21.4.Technology platform (if online hearing):Platform
21.5.Estimated duration of hearing:Time
21.6.Date of hearing:Date
21.7.Daily hearing opening time:Time
21.8.Daily hearing closing time:Time
22. Oral Submissions
22.1.Opening oral submissions: 

A. Order of addresses:

B. Time estimates / limits:
22.2.Closing oral submissions: 

A. Order of addresses:

B. Time estimates / limits:
23. Evidence at the Hearing
23.1.Applicable rules of evidence:
23.2.Time estimates / limits:Time
23.3.Number of witnesses to be called by the claimant:
23.4.Names of the claimant’s witnesses:
23.5Number of witnesses to be called by the respondent:
23.6Names of the respondent’s witnesses:
23.7Expert evidence intended to be adduced:
23.8Whether witness evidence is to be taken on oath/affirmation:
23.9Whether it is necessary to introduce documents via witness evidence:
23.10Whether fact witnesses are permitted to be present in the arbitral forum before/during/after opening submissions and/or testimony of other witnesses:
23.11If the hearing is otherwise in-person, whether witnesses may give evidence remotely:
23.12Interpreter or communications assistant required for any witness:

A. Identification of interpreter/assistant, statement as to neutrality and provision of credentials in advance:

B. Extent to which translation/assistance is required:
23.13Whether the order of witnesses to be called is to be:

A. Claimant’s factual witnesses;

B. Respondent’s factual witnesses;

C. Claimant’s expert witnesses;

D. Respondent’s expert witnesses;

E. Tribunal expert witnesses.
23.14Evidence to be recorded:

A. notes only – Yes/No

B. audio only – Yes/No

C. audio/visual – Yes/No
23.15Audio and visual recordings of evidence are for the Arbitrator’s use only:
23.16Transcription of recorded audio evidence by computer program is authorised but subject to any objections as to accuracy of transcriptions produced:Yes/No
23.16.1.Transcription program to be used:Transcription program
24. Additional Written Submissions
24.1.Additional written submissions following completion of evidence concerning the substantive issues in dispute: Deadline
24.2.Written submissions as to costs after partial final award on the substantive issues in dispute:Deadline
25. The Award
25.1.Whether reasons are required:Yes/No
25.2.Whether the Arbitrator has the power to award interest:Yes/No
25.3.Whether costs are to be at the Arbitrator’s discretion:Yes/No
25.4.Whether the Arbitrator may award any remedy or relief that could have been awarded by a specific Court (such as the High Court of New Zealand):
25.5.Payment of Arbitrator’s fees prior to uplifting award is required.Yes
25.6.The award is to be distributed by email.Yes
25.7.The award is to be final and binding.Yes
25.8.Whether there is agreement as to rights of appeal:
25.9.Partial final award as to liability to be completed by:Deadline
25.10.Partial final award as to quantum (if required) to be completed by:Deadline
25.11.Partial final award as to costs to be completed by:Deadline
26. Additional Procedural Meetings
26.1.An additional procedural meeting is scheduled as per the procedural timetable.Yes/No
26.2.Either party may request an additional procedural meeting at any time. 

The Arbitrator may convene an additional procedural meeting at the Arbitrator’s discretion.		Yes/No
27. Other Matters Advanced by the Parties
27.1.Claimant:
27.2.Respondent: