Summary
- Written submissions are the backbone of any arbitration. They are the primary means by which a party presents its case, setting out the facts, advancing the legal arguments, and framing the issues the tribunal must decide. While hearings often receive the most attention, it is the written submissions that shape the tribunal’s understanding of the dispute, guide its analysis, and, in many cases, form the basis of the final award. A well-prepared submission does more than record a party’s position; it tells a coherent and persuasive story, anticipates and addresses the opponent’s case, and provides the tribunal with a clear pathway to the outcome sought.
- Arbitral proceedings are typically commenced by a written submission made by the claimant, whether in the form of a Request for Arbitration or a notice of arbitration, depending on the applicable rules/law of the seat and how they define the initiating document. It is then followed by a response to the notice or Request for Arbitration submitted by the respondent. These two documents, in turn, typically provide for the nomination of the tribunal or set out the mechanism for its formation.
- These steps have been discussed in the prior chapters. This chapter addresses the subsequent submission, with a focus on written evidence.
Written Submissions
After the tribunal is formed, the next step for the claimant is to submit its Statement of Claim. Where the proceedings are governed by institutional rules, these will usually specify both the timing and sequence of written submissions. For example, pursuant to Article 15 of the LCIA Rules, the claimant is required to file its statement of case within 28 days of the tribunal’s formation.
In ad hoc arbitration, there are no institutional rules to prescribe the timing or sequence of written submissions. Instead, these matters are determined either by the parties’ agreement or, failing that, by the tribunal once it has been constituted. In practice, the tribunal will usually consult the parties at an early stage and issue a procedural timetable setting out when the Statement of Claim, Statement of Defence, and any further submissions are to be filed. Where the parties have agreed to adopt a set of rules, such as the UNCITRAL Arbitration Rules, those rules will provide a framework similar to institutional arbitration, including guidance on the exchange of written submissions.
Statement of Case
A Statement of Case should set out the party’s position in a clear and structured way, bringing together the facts, the law and the relief sought.
It should start with the relevant facts. This is more than just a timeline. The aim is to explain, in a logical and readable way, how the dispute arose and why the party says it is in the right. The narrative should be supported by references to the key documents, but without overwhelming the reader, in this case, the tribunal, with unnecessary detail.
The submission should then deal with the legal basis of the claim or defence. This means identifying the applicable law, the relevant contractual provisions and the legal principles relied on, and applying them to the facts already set out. The tribunal should be able to follow, step by step, how the party moves from the facts to the conclusion it invites the tribunal to reach.
The Statement of Case should also make clear what is being asked of the tribunal. The relief sought should be set out precisely, including any sums claimed, interest and costs, together with a brief explanation of how those figures are calculated.
Finally, the submission should indicate the evidence on which the party relies. This will usually include the key documents and, where appropriate, references to witness or expert evidence.
In practice, a good Statement of Case is easy to follow, avoids unnecessary repetition, and gives the tribunal a clear sense of both what the dispute is about and how it should be decided.
Statement of Defence and Counterclaim
Following the Statement of Case, the respondent will usually be required to file its Statement of Defence within 28 days. Should the respondent like to raise a Counterclaim, this is the proper time to do so, in which case it will be required to file the Statement of Defence and Counterclaim in one document. Again, the deadline is set either by the applicable rules, the law of the seat or by the tribunal in agreement with the parties. In that document, the respondent addresses the allegations made by the claimant, sets out its own version of the facts and advances the legal arguments on which it relies. In essence, it explains why the claimant’s case should not succeed in contrast to the Counterclaim (if submitted).
When dealing only with the Defence, the claimant is often given an opportunity, whether by the tribunal, the applicable rules, or the law of the seat, to file a Reply, typically within 28 days of receiving the Statement of Defence. The purpose of the Reply is to address any new matters raised in the Defence. It is not intended as an opportunity to repeat earlier submissions or to introduce entirely new arguments. The claimant is not obliged to file a Reply and may choose not to do so if it considers that its position has already been adequately set out.
When the respondent has filed a Statement of Defence and Counterclaim, the respondent will also be required to file its Defence to Counterclaim. The same document may contain its Reply. The Claimant may then have an opportunity to file its Reply to Counterclaim.
In ad hoc arbitrations, that is, arbitrations not administered by an institution, it is for the parties to agree on the sequence and timing of written submissions. Failing agreement, the tribunal will determine the procedure. In practice, tribunals tend to adopt a timetable similar to that found in institutional rules, adjusting the deadlines as necessary to reflect the complexity and particular circumstances of the case.
The role of the Statement of Defence is essentially to address the claimant’s case directly and explain why it should fail. In practice, it should include the following:
First, the respondent should address the claimant’s factual case. This usually involves going through the key allegations and either admitting, denying or requiring the claimant to prove them. Where facts are disputed, the respondent should set out its own version clearly and coherently, rather than simply reacting line by line.
Secondly, the Defence should deal with the legal position. This means identifying the applicable law, responding to the legal arguments made in the Statement of Case, and explaining why, on that law, the claimant is not entitled to the relief sought.
Thirdly, the respondent should set out its own positive case. This may include affirmative defences (for example, limitation, lack of jurisdiction, or contractual defences) and, where appropriate, a Counterclaim (as mentioned above). If a counterclaim is advanced, it should be pleaded with the same level of detail as a claim: facts, legal basis and relief sought.
The Statement of Defence should also state the relief sought by the respondent, which will usually include dismissal of the claim, together with costs, and may include any relief arising from a counterclaim.
Finally, as with any written submission, the respondent should identify the evidence on which it relies, such as key documents, and, where relevant, witness or expert evidence.
A good defence does more than simply push back against the claim. It should present a clear alternative account of the dispute and give the tribunal a straightforward basis on which to reject the claimant’s case.
Disclosure
Disclosure is a procedural step, usually included in the procedural timetable agreed between the parties and confirmed by the tribunal. It is designed to ensure that each party, as well as the tribunal, has appropriate access to the documentary evidence necessary for the just adjudication of the case.
In practice, the disclosure process usually consists of several steps:
- First, the parties make the relevant requests as to the specific documents or the group of documents they would like the other party to disclose. Such requests should be substantiated on the grounds that the documents are relevant (e.g. because they are mentioned in pleadings) and their disclosure is necessary to the proper resolution of the dispute.
- Secondly, the parties reply to each request by either agreeing to each disclosure request in full, partially, or providing a substantiated objection (e.g. that the documents sought are not relevant to the issues in dispute, that they are not in the party’s control or possession or that the requests are too broad and disproportionate).
- Thirdly, the opposing party will have an opportunity to reply to the objections (e.g. explain why the documents are relevant despite the objections, explain why the request is proportionate etc).
- Finally, after the above steps, the disclosure document will be sent to the tribunal, which will then rule on each disclosure request.
Where parties choose Redfern Schedules as their disclosure mechanism, it is normal for each party to be given between two and four weeks from the final written submission to file their requests for disclosure of documents. Any objections are normally due within two weeks of receipt of the Schedules, and any replies are due within two weeks of receipt of the objections. Upon receipt of the completed Redfern Schedules, the tribunal will normally take between two and four weeks to rule on the various requests for disclosure, depending on the number and complexity of the requests and the tribunal’s availability.
Once the tribunal rules on the requests, the parties will be given a time limit, usually also between two and four weeks, to conduct their searches and disclose the relevant documents to their opponents.
Witness Statements
Once the parties disclose the relevant documents to each other, they will usually have to exchange witness statements.
Witness statements are documents where the parties’ witnesses set out their recollection of the relevant events and facts. There may be arbitrations without witnesses, particularly where the amounts at stake are low and the legal and factual positions are clear from the documents submitted by the parties. Where there are witnesses, each party will normally produce a witness statement from their employees, consultants, business partners or other third parties who are aware of the relevant events.
The order for directions will normally specify a deadline by which each party has to confirm the identities of the witnesses upon whose evidence it will seek to rely. It will also set a deadline for the exchange of those witness statements.
It would be common for the parties to agree that the witness statements be accompanied by documents upon which each witness relies, and that if the documents are not already in the language of the arbitration proceedings, they be translated into that language.
Once the witness statements are exchanged, the parties normally have the opportunity to file one set of reply witness statements. These are normally limited to commenting upon the first set of witness statements. Reply witness statements are normally due within 2 to 4 weeks of the initial statements.
Expert Reports
When disputes are complex and cannot be resolved with documents and factual witnesses alone, the tribunal may require an expert. This usually happens in technical, financial, or industry-specific areas, where the tribunal needs an expert opinion to make sense of the evidence or address difficult questions. It also happens where the dispute raises issues of foreign law (i.e. law other than that applicable to the substance of the dispute).
In such cases, the tribunal will seek expert evidence.
There are generally two approaches for this procedural step:
One option is for the tribunal to appoint its own expert. In that case, the tribunal often invites both parties to agree on the expert’s terms of reference and methodology. If the parties cannot agree, the tribunal will determine those matters.
More often, each party selects its own expert and submits reports in support of its case.
It is important to note that experts are appointed to assist the tribunal in understanding the issues, not merely to advocate for the instructing party. Where the tribunal perceives an expert as an advocate rather than an independent adviser, it may find the expert’s evidence unreliable.
Typically, the tribunal sets a schedule for the exchange of expert reports, usually around the same time as witness statements. The initial reports are often followed by responsive reports addressing points raised by the opposing expert. In some cases, the tribunal may direct the experts to confer on points of agreement and disagreement, or to give concurrent evidence at the hearing. The objective is to streamline the proceedings and present technical evidence in a manner that assists the tribunal in reaching its decision.
Hearing Bundles
Once the parties exchange all the documents (i.e. disclosure, witness statements and expert reports) they have to produce hearing bundles. A hearing bundle is a collection of all the documents produced during the arbitration in a logical order.
Bundles will normally include:
- Request for Arbitration and Response thereto;
- all written submissions with all annexes thereto;
- all witness statements;
- all expert reports; and
- pertinent (or in some cases all) documents produced as a result of the parties’ disclosure.
The purpose of the bundles is to enable the tribunal and the parties to easily find and refer to the various documents at the final hearing.
Skeleton Arguments
Skeleton arguments are written submissions that both parties file in advance of the hearing. They are not intended to repeat the content of the pleadings, but rather to distil the case to its essential points. By this stage, most of the evidence is already in place: documents have been disclosed, witness statements and expert reports have been exchanged, and each party has a clearer picture of the strengths and weaknesses of its case. Skeleton arguments serve to consolidate the parties’ positions in a clear, organised and coherent format.
These arguments usually outline the key issues the tribunal must decide, each party’s position on those issues, and the principal legal and factual submissions relied upon. They also identify issues that are no longer in dispute or have been abandoned. As cases progress, certain arguments may fall away or evolve. Skeleton arguments provide an opportunity to present the parties’ positions as they stand immediately before the hearing, rather than as they were initially advanced.
From a practical standpoint, skeleton arguments help the hearing run more efficiently. They enable the tribunal to prepare effectively, identify the real areas of disagreement, and understand which documents are central to each party’s case. This assists all participants in focusing oral submissions, streamlining witness and expert questioning, and avoiding unnecessary repetition. Well-prepared skeleton arguments can significantly reduce the length of the hearing and ensure that time is devoted to the issues that matter.
Post-hearing Submissions
Post-hearing submissions are written briefs that the parties file after a hearing, usually within a timeline set by the tribunal. The tribunal decides whether these submissions are needed and, if so, sets the deadlines. The timing can vary depending on how complicated the case is, but post-hearing submissions are typically filed within two to four weeks from the last day of the final hearing.
These submissions pull together all the evidence and arguments that were discussed during the hearing. By this stage, the tribunal has heard from factual and expert witnesses, looked over relevant documents, and tested the parties’ cases through questioning and oral argument.
Whether these submissions are necessary depends on what the tribunal considers would assist it. In simpler cases, or when the hearing was sufficiently focused and there was plenty of time to cover all aspects, the tribunal might proceed straight to deliberation. But in more complex cases, especially those with multiple witnesses, clashing expert opinions, or complex legal matters, they often ask for post-hearing submissions. This gives both sides a chance to address points that arose during the hearing, answer questions from the tribunal, and clarify any inconsistencies that emerged during cross-examination.
From a practical perspective, these submissions tend to be more analytical than earlier arguments. They take a closer look at key issues one by one, tying them back to what was actually heard during the hearing and explaining how the tribunal should weigh credibility and conflicting expert views. It is also common to reference the hearing transcript, highlighting specific exchanges they consider crucial.
That said, there are limits. Post-hearing submissions are not intended to reshape the case or introduce new evidence. Tribunals will generally not entertain arguments that could have been raised earlier, nor will they permit attempts to reopen factual issues. The process is designed to assist with deliberations, not to prolong the proceedings unnecessarily. Well-prepared post-hearing submissions can be highly influential, as they are often the final substantive submission the tribunal receives before rendering its decision.
Statements of Costs
A statement of costs is a document that lists legal fees, the tribunal’s fees and expenses, any institutional costs and expenses such as expert fees, the cost of attendance at the hearing of the party, its legal representatives, witnesses and experts, the cost of couriers, printing, translations, transcriptions and so forth. In essence, a statement of costs explains what a party has spent on the arbitration and invites the tribunal to make a costs order – i.e. an order requiring the other party to compensate it.
In addition to listing the various fees and expenses, the statement of costs may make submissions as to why it is appropriate for the other side to be liable for all the relevant costs incurred. For example, it can explain that the costs are reasonable and proportionate in view of the amount in dispute. It can explain that the amount of costs is justified by the complexity of the issue. It can explain that the hourly rates claimed are reasonable by reference to the market. It can explain that while a party lost on some issues, those issues made no difference to the overall outcome of the case.
In practice, parties usually break down their legal fees by different stages of the process, such as pleadings, disclosure, hearing preparation and so on, and list the fees charged by each fee earner on each stage of the process. Expenses are then usually listed in one block at the end of the statement.
When it comes to timing, the tribunal typically decides when these cost statements should be filed. Sometimes, parties exchange them right before or during the final hearing so they can address costs along with the main issues. But more often than not, cost discussions are pushed until after the tribunal has made its decision on the merits.
