By Leslie King O’Neal
Although arbitration is widely used to resolve disputes globally, not all arbitrations look the same. Arbitration proceedings vary widely depending on the parties’, counsels’, and arbitrators’ legal traditions.[1] At the American College of Construction Lawyers’ annual meeting, four seasoned international arbitrators[2] discussed how “importing” some international arbitration practices can make U.S. arbitrations more effective and efficient. In their paper (cited below) and their panel discussion, the speakers described some unique international arbitration practices that attorneys could adapt in U.S. arbitration proceedings.
Pleadings/Statements of Claim—Understanding the Case
U.S. Practice–Notice Pleading: Following U.S. state and federal court practice, claimants in U.S. arbitrations typically provide relatively short statements of claim providing limited specific facts. These are intended to give the respondent basic notice of the claims. Under AAA Rules[3] a respondent has 14 days to submit an answering statement and any counterclaims. Frequently, the parties don’t describe their cases in detail until relatively late in the arbitration proceeding.[4]
The U.S. process often drives the need for broad discovery, which is expensive and time consuming. Also, it assumes each party will present its entire case live at the hearing, lengthening hearing time (also increasing cost). Often neither the parties nor the arbitrators can accurately evaluate the strengths and weaknesses of their positions prior to the hearing.
International Practice–Detailed Statements: In international arbitration practice, short arbitration demands and answering statements are followed by a second round of detailed written submissions, including statement of facts, legal grounds for the claims, and copies of contracts or other documents claimant relies upon.[5]
Benefits of Detailed Statements: Having the parties describe their cases in detail and provide supporting evidence early allows more focused, limited discovery. Additionally, the parties understand the key issues, allowing the hearing to focus on these issues. The arbitrators should already understand the facts and issues so less hearing time is needed to provide this information. The international approach may save hearing time (and cost) and may result in better outcomes. However, preparing these detailed statements of claims is time intensive, requiring parties to incur legal and expert costs earlier in the process.
Could Detailed Claims Replace Dispositive Motions?
In many U.S. arbitrations, parties file dispositive motions setting out the facts and evidence supporting some or all their positions. Attorneys sometimes say they file these motions, in part, to “educate the tribunal” about key facts and issues. Perhaps dispositive motion practice could be transformed into providing detailed claims. This would reduce the arbitrator time needed to rule on dispositive motions (which are infrequently granted) but would educate the tribunal. Of course, parties could still request leave to file dispositive motions where appropriate.
Document Disclosure & Exchange—Getting the Facts
A major difference between international and U. S. arbitrations is document exchange. U.S. practice is often similar to civil litigation with broad pre-hearing discovery. While document disclosure practices can vary widely in international arbitration, document disclosure is usually more limited than in U.S. arbitrations. “There is a general consensus among international arbitration practitioners that some disclosure should be allowed and the most common set of procedures used to govern disclosure in international arbitration can be found in the IBA Rules.”[6]
IBA Rules Limit Document Requests: The IBA Rules require document requests to: (a) identify documents or describe a narrow and specific category of documents believed to exist; (b) state how the documents are relevant to the case and material to the outcome; (c) state that the requesting party does not have possession, custody or control of the documents and state why the requesting party assumes another party has possession, custody or control of the documents. These rules prevent expansive document requests, require documents requested be relevant and material and prevent requests for documents unless the party reasonably believes they exist.
Objections and “Redfern Schedules”: “ . . . [U]nlike U.S. practice . . . it is very common for the tribunal to decide many, if not the majority, of the parties’ document request in international arbitration.”[7] “Requests, objections, replies, and tribunal’s orders are set out in . . . a “Redfern Schedule.”[8] This is a table exchanged between the parties and which the parties fill in during the proceedings. An example of a Redfern Schedule is attached. If the tribunal orders a party to produce a document or a category of documents and the party fails to do so, the tribunal may make an adverse inference regarding the document.
Redfern Schedule Example
Benefits of the International Approach to Document Disclosure: Limiting the scope of document discovery results in time and cost savings, particularly with ESI discovery. When used with a detailed statement of claim, it creates targeted document exchange that satisfies parties’ needs while limiting the expense and time involved in document collection and review. The Redfern schedule creates a streamlined record of the parties’ positions, allowing the tribunal to address the requests efficiently. To ensure due process while limiting discovery, counsel must tailor the discovery process to fit the case.[9]
Witness Statements in Lieu of Direct Testimony: As noted in prior posts, international arbitrations often use witness statements in lieu of direct examination. However, it is critical that counsel review the statement with the witness, line by line, before its submission, to prevent embarrassing and possibly dire consequences.
Tips on using and drafting witness statements:
All Together Now–Joint Expert Procedures
International arbitration tribunals are using joint expert procedures, such as joint reports and witness conference (a/k/a “hot tubbing”) more often.
Finding Common Ground–Joint Expert Reports: Tribunals may ask the parties’ experts to meet and confer independently (without counsel) to discuss where their opinions agree. The experts issue joint reports highlighting the areas of agreement and disagreement. In practice, however, this approach may be limited by counsel’s reluctance to allow their expert to meet with the opposing expert, fearing an unintended admission. Also, the experts may consider it an opportunity to change or add to prior opinions.
Everyone in the “Hot Tub”—Witness Conferencing: In witness conferencing (a/k/a “hot tubbing”), both parties’ experts testify concurrently. The tribunal or parties’ counsel may question them. The experts answer questions and respond to their counterparts in real time. This approach improves arbitrators’ ability to compare each expert’s opinions and may improve the quality of the expert’s testimony. Compared to single expert testimony and cross examination, it may save time and cost. However, the experts may be hostile or argumentative, making their testimony less valuable. This approach benefits experts who are better at speaking extemporaneously.
Takeaways:
- U.S. attorneys and arbitrators can benefit from learning about and adapting international arbitration practices.
- For additional resources on international arbitration see our “Recommendations and Resources” page:
[1] A. Bates, D. Mastin, A. Ness, A. Snyder, S. Vogel, International Arbitration Techniques and Their Application in Domestic Disputes, paper presented at the American College of Construction Lawyers 37th Annual Meeting, February 19-22, 2026, Scottsdale, AZ. (hereafter, Int’l Arb. Techniques)
[2] Albert Bates,http://linkedin.com/in/albert-bates-jr-fciarb-23592911 Andrew Ness,http://linkedin.com/in/andrew-ness-10b30b40 Allison Snyderhttp://linkedin.com/in/allison-snyder-0530b619 and Sharon Vogelhttp://linkedin.com/in/sharon-vogel-0a695811 pictured at the American College of Construction Lawyers Annual Meeting, Scottsdale, AZ, February 22, 2026.
[3] Rule R-4(c), AAA Construction Arbitration Rules.
[4] In the author’s experience some attorneys file lengthy complaints, answers, affirmative defenses and counterclaims, similar to those used in court. However, despite their length, often they contain few details about the claims and counterclaims.
[5] Int’l Arb. Techniques, supra, citing UNCITRAL Arbitration Rules, arts. 20-21.
[6] Int’l. Arb. Techniques, supra, citing IBA Rules, art. 3.
[7] Id.
[8] Named for Alan Redfern, KC, a prominent London Barrister and Arbitrator who popularized their use.
[9] Id. citing, ICDR Guidelines for Arbitrators Concerning Exchanges of Information.
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