8. Rounds of Written Submissions

(Disponible uniquement en anglais)

Introduction. Arbitration proceedings in Canada often follow a sequencing that resembles court litigation. The Ontario Arbitration Act, for example, gives the arbitral tribunal broad authority to determine its own procedure, which may include multiple rounds of written submissions beyond what is typically seen in the courts. Section 25(1) of the Ontario Act expressly authorizes the arbitral tribunal to call for the exchange of statements, creating flexibility and allowing for additional rounds of written submissions as the tribunal considers appropriate.

Some institutional rules offer guidance on the number of written submissions expected in a proceeding. Even then, the arbitral tribunal retains discretion to request additional rounds if this will assist in clarifying the issues or ensuring a fair process. Parties should be prepared for a more flexible and potentially more iterative exchange of written submissions.

Sequence for the exchange of written submissions. Most arbitrations begin with an initial exchange of pleadings, followed by one or more rounds of reply submissions. Each round serves a distinct purpose. The first submission frames the dispute and sets out the core claims or defences. The responding submission clarifies the issues in dispute and challenges the factual or legal foundation of the opposing case. Any subsequent rounds, if ordered, allow the parties to refine their positions, address new arguments, and narrow the matters that truly require a hearing. For in-house counsel, the key is to ensure that each round advances the organization’s objectives rather than repeating earlier points. Focus and discipline are essential.

Internal coordination. Effective management of written submissions requires careful coordination across business units in an organization. Each round demands document collection, witness input, and internal review by management. Thoughtful planning helps ensure that the written record is complete, coherent, and strategically aligned with the organization’s goals.

Cost considerations. The cost of an arbitration increases with every additional round of written submissions. Several approaches can be adopted to control these expenses. Imposing page limits and restricting the issues that parties must address can keep submissions focused on what truly matters and help reduce overall costs.

Key considerations

1. How much procedural flexibility does the arbitral tribunal have to determine the number and structure of written submissions?

Arbitration statutes and rules often give arbitral tribunals broad discretion, which means the process may not mirror court pleadings.
2. Do the applicable rules or the arbitration agreement provide guidance on the expected number of written rounds?

Some rule sets outline a standard sequence, while others leave it entirely to the arbitral tribunal.
3. How paper driven is the arbitration likely to be?

Arbitration often involves more written advocacy than court proceedings, which can increase the number of written submissions.
4. What strategic purpose does each round of submissions serve?

Initial submissions frame the dispute, responses clarify issues, and later rounds refine arguments and narrow what truly requires a hearing.
5. How can each round be used to advance the organization’s theory of the case?

Every submission should reinforce the narrative, highlight weaknesses in the opposing position, and maintain credibility. However, repetition should be avoided in order to make the written submissions effective.
6. What internal coordination is required to support each round of submissions?

Document collection, witness input, and management review must be organized across business units.
7. How can project management tools assist in preparing timely and coherent submissions?

Structured workflows help ensure accuracy, consistency, and efficient use of internal resources.
8. When should new evidence or documents be introduced to avoid admissibility or credibility concerns?

Late disclosure can undermine the organization’s position or raise procedural objections.
9. How can written submissions be used to narrow issues and reduce the scope of the hearing?

Focused advocacy can eliminate unnecessary disputes and streamline the evidentiary phase.
10. How can the organization maintain discipline and avoid repetition across multiple rounds?

Each submission should add value, remain focused, and avoid restating earlier points simply for emphasis.

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Key considerations