Procedural Issues Affecting International Arbitration in the Energy and Resources Sectors
Procedure might appear to some to be of secondary importance in international arbitrations, where the stakes are typically high and the substantive issues complex. Procedure can, however, be very important. Although it is true that the underlying facts will generally, at the end of the day, win or lose a case, issues of procedure may affect a party's ability to prove its case, to put forward a particular legal argument or even to put the claim forward at all. As such, procedure can - and often does - influence the outcome of a case. It can often also affect timing and cost. Early thinking about procedure and the various issues that a party is likely to encounter in proving or defending a claim is essential and may prove critical in many international arbitrations.
When a dispute arises, the arbitration rules applicable to the arbitration will typically already have been chosen. While many institutional rules provide for a broadly similar procedure, in general terms, a number of differences remain and the particularities and nuances of each should be well understood by the parties before selecting them. Further, arbitration rules set out the general aspects of how an arbitration will be governed, but they leave considerable discretion to the parties or, absent agreement of the parties, to the arbitral tribunal to determine procedure. Much is left to be defined by counse
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