(Disponible uniquement en anglais)
Introduction. A hearing on the merits takes place once the written phase of the arbitration is complete. However, a hearing is not mandatory in every case. If both parties agree to proceed on a paper‑only basis, the arbitral tribunal may decide the dispute solely on the written record. An oral hearing becomes mandatory the moment one party requests it. Paper proceedings are not uncommon, particularly where the parties have filed comprehensive fact witness statements. In some cases, the parties may even jointly request that the arbitral tribunal cancel the hearing and issue an order to that effect.
Logistical considerations. When a hearing is to be held, a number of procedural matters must be settled in advance. The arbitral tribunal must determine the location and dates of the hearing, identify the attendees, allocate time between the parties, and decide whether a chess‑clock system will be used. It must also determine whether opening and closing statements will be permitted, whether witnesses will be examined and cross‑examined, whether expert witnesses will testify concurrently in a hot‑tub format, and whether the hearing will be transcribed. All of these matters should be discussed with the arbitral tribunal ahead of time and clearly reflected in the scheduling order.
Process and scheduling requirements. The hearing on the merits differs significantly from what is typically seen in court. The arbitral tribunal may ask questions of witnesses at any point, even on lines of inquiry not raised by the parties. Parties can benefit from the tribunal’s subject‑matter knowledge, but they must also be prepared for active engagement by the arbitrators. Direct examination is generally brief, as the witness statement stands as the witness’s evidence‑in‑chief. Counsel will highlight only key points before turning the witness over for cross‑examination. In some cases, a party may choose not to call a witness at all and rely solely on the written statement.
The role of in-house counsel at the hearing. In‑house counsel plays an important coordinating role throughout this process. They must ensure that fact witnesses are available for preparation and for the hearing itself, that the factual and expert evidence is coherent, and that internal witnesses understand both their role and the evidence they will address. They also ensure that the organization’s broader commercial objectives remain aligned with the litigation strategy being presented.
During the hearing, in‑house counsel serves as the institutional reference point for the legal team. They understand the organization’s commercial priorities, internal decision‑making, and operational realities. This allows them to support external counsel in real time, clarify factual issues, and help adjust strategy as needed. They also monitor how the arbitral tribunal is responding to the evidence and arguments and can communicate these impressions internally.
The hearing is also a moment of risk management. In‑house counsel must anticipate reputational or operational sensitivities that may arise during testimony. When expert evidence is involved, they can assist with the expert’s preparation and ensure that the expert’s presentation remains consistent with the organization’s broader objectives. Some legal narratives may be persuasive in the arbitration but carry longer‑term commercial or regulatory consequences that only in‑house counsel can properly assess.