Reasonable expedition is rightly regarded as one of the main advantages of arbitration over court litigation. 1 However, this objective may be achieved with varying degrees of success.

National laws deal with expedition (or the avoidance of undue delay) 2 in different ways. A few systems set time limits within which an award must be made; this is notably the case in French, 3 Italian44and Spanish law. 5 Most systems of law, however, see no need for such time limits and emphasis is placed on freedom and flexibility. The time scale within which an arbitration should be concluded is then properly a matter for the parties and the arbitrators-and the arbitral[Page575:]

institution when there is one. 6 Yet there may be a general, statutory duty on arbitrators to proceed with reasonable dispatch7 (or to avoid undue delay, as [Page576:]

the case may be). 8Failure to do so may result in the arbitrator being challenged and finally removed. 9

Aware of the fact that proclaiming general principles is not enough to keep time in check, arbitral institutions have been more proactive than national parliaments in this respect, as is often the case when it comes to arbitration. They have come up with a number of devices designed to expedite arbitrations. The procedural timetable10 is the most important of the devices11 meant to ensure that arbitrations are not conducted ritardando. It would be an exaggeration, however, to give arbitral institutions the entire credit for the recent evolution referred to in these pages. To some extent, the progressive emergence of an international arbitral Bar has also brought about some changes in arbitral culture, a phenomenon which is conceptually distinct from the existence of institutional rules. To name but one example, the old idea that the longer the proceedings, [Page577:]

the better for the parties, is gradually receding, even in those jurisdictions in which it has been deeply rooted. 12

Based on the general practice of international commercial arbitration, these pages attempt to offer a few thoughts on a number of practical points arbitrators and counsel may wish to consider when a provisional timetable is drawn up. Much has been written on general aspects of the need for speed in international arbitration. 13 This paper will try to deal with concrete aspects as well, for drawing up a timetable and discussing it with the parties is, above all, a practical exercise. Particular areas in which the present writers have no experience, such as commodity and maritime arbitration, have been excluded.

A paper in honour of Robert Briner should properly reflect a few of Robert's many talents. Efficiency and reasonable expedition immediately spring to mind, for they fittingly encapsulate Robert's approach to the management of international arbitration and professional life in general.

I

Let us begin by taking a look at the wider context. Three distinct aspects may be recalled by way of introduction: (i) the arbitrator's power and duty to act as a case manager; (ii) the limits on arbitral prerogative and (iii) the objectives which a timetable seeks to achieve.

(i) The proposition that 'the arbitral tribunal . . . shall establish . . . a provisional timetable that it intends to follow for the conduct of the arbitration'14 plainly assumes that arbitrators are under a duty-and have the power-to act as case managers. 15 The arbitral tribunal is in charge not only of the hearings, 16 but of the arbitration as a whole. 17[Page578:]

Many procedural rules and devices are meant to help the arbitrators manage the arbitration in an effective manner. Preparatory conferences taking place at the beginning of the arbitration and pre-hearing conferences to streamline hearings are examples of ways in which an arbitral tribunal may play an active role in management, so as to lead and to be seen to lead the arbitral process. 18 One of the desired consequences, if not the very objective, of Terms of Reference under the ICC Rules of Arbitration is that the arbitrators should get to grips with the dispute at an early stage of the arbitration. 19Yet it was felt that, despite the short time limit within which they have to be executed, 20 Terms of Reference were insufficient to expedite arbitrations and enable the parties to understand how the proceedings would be conducted. 21 The provisional timetable was thus introduced in the 1998 edition of the ICC Rules of Arbitration as a further tool to ensure that arbitrators have time on their minds from the outset of the arbitration.

(ii) In the exercise of their duty to manage the proceedings, arbitrators will have to tread carefully as the parties may limit arbitral prerogative in more than one respect. Firstly, the parties may agree on points of procedure. 22 Secondly, the parties are to be consulted in any event before a provisional timetable is finalised, 23 irrespective of whether they have been able to make arrangements of their own. [Page579:]

The need to consult the parties has not so much to do with due process or natural justice, it is submitted, but with common sense. Before setting time limits relating to procedural activities to be carried out by the parties, it is only natural that the arbitral tribunal should take into account the parties' views. A fortiori, any arrangements that may have been made by the parties in the arbitration agreement in relation to the timetable will have to be respected by the arbitrators, as failure to do so may amount to a breach of the rules of procedure agreed upon between the parties. 24 The need to consult the parties has a further advantage: hearing those whose interests are at stake will enable the arbitrators to appreciate how urgent the matter is in the eyes of the parties.

The requirement that 'the arbitral tribunal . . . shall establish . . . a provisional timetable that it intends to follow for the conduct of the arbitration' is thus to be viewed against the background of general principles of procedure, in particular

(i) any rules imposing time limits for the making of the award, (ii) the rule that arbitrators are entitled to conduct the arbitration as they deem fit, whilst acting as diligent case managers, (iii) the mandatory rules limiting such power, notably party autonomy, due process and equal treatment of the parties.

The arbitrators' power to act as diligent case managers further implies a reasonable exercise of arbitral discretion. International arbitration needs flexibility, which ranks above reasonable expedition in all legal systems, including those in which there are statutory time limits within which an award is to be made. Justice and due process rank above reasonable expedition too. There is not, and cannot be, any such thing as a standard timetable capable of doing justice to each and every arbitration; such a straightjacket would make little sense and do no justice. Reasonable expedition is not an end in itself, but a means to an end.

One may well wonder, therefore, whether arbitrators should show more concern over the time scale of an arbitration than the more diligent party-whichever that may be. 25 Arbitrators may indeed have no business to impose a tight time[Page580:]

schedule whenever a claimant appears to wish an arbitration to be conducted at a leisurely pace, and there are no objections from the respondent's side and both parties are aware of, and agree to bear, the increased costs normally associated with longer proceedings. Absent any time limits for the making of the award, expedition could be said to be reasonable or sufficient whenever the party more interested in a speedy resolution of the dispute is happy with the pace at which the arbitration is being conducted. Also, there are legitimate circumstances in which an arbitration cannot proceed, or cannot proceed to the merits, until certain preliminary matters have been dealt with. 26

Yet, old ideas based on common wisdom may be worth revisiting in light of the new requirement of a provisional timetable set out in Article 18(4) of the ICC Rules of Arbitration: should it not be for arbitrators, after all, to set the pace, rather than the parties themselves?

(iii) A timetable is more than a tool to avoid or reduce delay. The exchange of views between the parties and the arbitrators in relation to the timetable is not just about dates; it is about which procedural tasks are to be carried out by the dates set and by whom. There is an obvious correlation between each time limit on the one hand, and the activities to which such time limit refers on the other. 27 The parties and the arbitral tribunal may discuss how the proceedings are best mapped out in relation to each and every stage of the arbitration; the procedural activities mentioned in a timetable are thus as important as the dates themselves: Is jurisdiction to be determined by a preliminary or a final award? Is the principle of liability to be decided in a preliminary or a final award, and, if so, are there any other issues which should sensibly be decided at that stage? Are there vital or urgent issues to be decided prior to the execution of the Terms of Reference, or immediately afterwards? [Page581:]

Such discussions, and the timetable that will finally emerge, generally by consensus, will help the parties and their counsel to see how the arbitration will unfold almost step by step; the risk of surprises or misunderstandings for either party or the arbitrators will be significantly reduced, if not altogether avoided. 28 The ultimate objective of a timetable is thus to provide information and guidance on the manner in which the arbitration will be conducted, not so much through what it contains, but because of the exchange of views by which it was preceded. 29 There is a natural convergence between the list of topics set out in the UNCITRAL Notes on Organising Arbitral Proceedings and the topics one may wish to discuss when a provisional timetable is drawn up, leaving aside mundane details relating to the practical organisation of the hearings. The difference is purely one of emphasis: whilst the UNCITRAL Notes are essentially a checklist setting out a host of procedural tasks, the provisional timetable focuses on the sequence in which such tasks are to be discharged.

The parties will not be alone in gaining information and guidance from the exchange of views with the arbitrators. The arbitral tribunal will acquire useful information too, not only on the wishes and background of the parties and their counsel, but also on the respondent's readiness and willingness to participate in the arbitration.

Exchanges of views in the early stages of an arbitration will also help to avoid misunderstandings, especially in arbitrations in which the parties, counsel and the arbitrators come from different cultural or legal backgrounds. A discussion on the provisional timetable should in particular ensure that the various steps in the timetable are understood by all players in the same way. If a time limit is set for the filing of witness statements, that will then be a good opportunity to discuss the main procedural points in relation to witness statements (format, whether documents may be attached to witness statements, whether rebuttal witness statements are admissible and when, how witnesses who are not under the control of either party can be examined if they are unwilling to file a witness statement, etc.). Many other examples could be given of procedural points that can be difficult to deal with due to the cultural diversity of the various participants in an arbitration, such as production of documents and settlement talks involving the parties and the arbitral tribunal. [Page582:]

A timetable may also be significant for what it fails to mention. The question often arises as to whether procedural steps or activities not contemplated by the timetable are deemed to be excluded by implication. This is to some extent tantamount to asking the question whether the timetable is to be regarded as a comprehensive and exhaustive roadmap to the award. There is no presumption whatsoever that it should, as the adjective 'provisional' makes clear in Article 18(4) of the ICC Rules of Arbitration. In any event, the parties and counsel should be invited to check from the outset that all the procedural activities they would expect to carry out, in terms of briefs, filing of documents etc., feature in the timetable, in order to avoid the filing of unsolicited briefs or documents in the course of the proceedings.

Whilst flexibility ranks above the need for management, effective management will inevitably impose some limits on flexibility; 30 the difficulty lies in striking the right balance. In some cases, the issues to be dealt with can be identified pretty accurately from the outset in the Terms of Reference, either because the substance of the dispute is not unduly complicated, or because counsel filed carefully drafted briefs providing the tribunal with sufficient information to allow the arbitrators to feel confident enough to propose a comprehensive timetable. The rule of thumb seems to be that a provisional timetable can limit those procedural activities of the parties which it contemplates in express terms and only those. 31 This would be so, it is submitted, even in arbitrations conducted under the UNCITRAL Arbitration Rules, despite the language of Article 15(1). 32

A timetable carefully designed and based on proper consultation of the parties may thus be regarded as one of the most effective devices to ensure that no party will eventually complain of a breach of the principles of due process or equal treatment. With these considerations in mind, we will now turn to the rules which are the condicio sine qua non of a timetable, that is to say the rules relating to the arbitrator's power to set, amend and, if need be, enforce time limits.

II

1. The arbitrators' power and duty to set time limits are at the core of the arbitrators' duty to act as diligent case managers. If arbitrators are entitled to[Page583:]

set time limits, both reason and common sense require that the parties should be bound to comply with such time limits. The consequence will then inexorably follow that failure by a party to comply with a time limit may attract a sanction, in that the time limit is enforced by the arbitrator. So trite and self-evident are these propositions in all systems of procedure that they are hardly to be found in statutes on arbitration. 33 Absent an express provision in the system of law governing the arbitration, the reasonable assumption is that an arbitrator has no lesser powers than a judge. Issues of this kind are seldom covered by the arbitration agreement; institutional arbitration rules sometimes contain express provisions. 34

The arbitrator's power to set time limits includes the power to extend a time limit upon application by either party. This principle is often stated in timetables or procedural rules made by arbitrators, which may require the application to be filed prior to the expiry of the time limit. Timetables or procedural orders may further require that applications for an extension of a time limit should set out and substantiate the reasons upon which they are based. Such provisions may be helpful, particularly if the timetables or orders were adopted without objections from either party, for an extension may in such cases be granted only for objective and compelling reasons. Many applications in practice amount to little more than a confession by counsel that they are overburdened with work. Despite the difficulty of finding abstract solutions capable of dealing with all cases in an appropriate manner, such a reason, it is submitted, is not compelling, particularly if the arbitral tribunal has made it clear from the outset that it would allow extensions only in exceptional and unforeseen circumstances. This is all the more so when the time limit for which an extension is sought had been agreed upon. However, an arbitral tribunal should always carefully determine the concrete consequences likely to be caused by an extension before refusing to grant it. When the application for an extension would cause a hearing to be postponed, that might well be a good reason in itself to reject the application, particularly if the hearing had been scheduled with the agreement of all participants in the arbitration when the provisional timetable was originally drawn up. [Page584:]

2. It is settled law in Switzerland that arbitrators have the power to set, extend and, if need be, enforce time limits. The matter of the enforcement of time limits by arbitrators was dealt with by the Basle Court of Appeal in enforcement proceedings under the New York Convention. The court ruled that the refusal by the chairman of the arbitral tribunal to extend a time limit under the arbitration rules of the Nederlands Huiden- en Lederbeurzen, in order for the respondent to file an answer to the request for arbitration and to nominate its arbitrator, did not offend Swiss public policy. The respondent company had sought an extension on the ground that the officer in charge of the proceedings was absent due to military service. 35 The same approach would be followed in principle by the Swiss Federal Supreme Court, it is submitted, if a party sought to have an award set aside on the ground that an arbitral tribunal had refused to extend a time limit.

The rules of good faith36 (la bonne foi, Treu und Glauben) and due process37 (le droit d'être entendu, rechtliches Gehör) will nonetheless require, as a prerequisite to enforcement of a time limit, that (i) such time limit be clear and unambiguous, particularly concerning the activities required of the parties, and that (ii) the party against which the time limit is enforced be given sufficient time to do what it was required to do. There have been some interesting judgments in this respect: the Swiss Federal Supreme Court refused to recognise a French judgment on the ground that the Swiss defendant had had only one working day to prepare its defence. 38

Ambiguities and uncertainties in a timetable are in principle to be clarified in favour of the party contending that it is not precluded by the timetable from carrying out a given procedural activity-especially if the timetable was drawn up by the arbitral tribunal (in dubio mitius)-be it the filing of a brief, a document, a procedural objection or a request for the production of documents. [Page585:]

The sanction resulting from the arbitrator's power to enforce time limits is more difficult to determine as there are no hard-and-fast rules. It is not necessary for arbitrators to specify in a timetable that they will enforce time limits, if need be, in order for enforcement to be legal, as the power to enforce time limits is simply a corollary of their power to set time limits. This, it is submitted, is the better view in Switzerland. 39 Litigators more accustomed to court proceedings than arbitration are often dismayed at the arbitrator's refusal to strike off the record a brief that was filed by their opponents belatedly and without excuse. Although an arbitral tribunal has a duty to hear both parties when objections of this kind are raised, it nevertheless has discretion to weigh the adverse consequences, if any, which such delay may have caused to the party objecting to the belated filing. The belated filing of a brief by a party, unannounced and inexcusable as it may be, cannot be treated as amounting to default per se, irrespective of the circumstances and the disruption caused to the other party and the arbitral tribunal.

A fortiori, time limits set for purely administrative matters call for much the same considerations. If a party fails to comply with a time limit for filing the names of its representatives at the hearing, surely that cannot amount to a waiver of the right to have those representatives attend the hearing, and ought not to be treated as such. It would be a gross breach of due process to hold otherwise.

Failure by a party to comply with a cut-off date will bar the party from carrying out the procedural task caught by the time limit, provided, however, that the final and peremptory nature of the time limit was clear and unambiguous. Arbitrators may decide that such is the case even without objections from the other side.

3. Swiss law is not alone in this respect, as the law in a number of countries gives arbitrators the power to set and enforce time limits. That is particularly true of French law, 40 the UNCITRAL Model Law41 and the systems based on[Page586:]

the Model Law such as German law. 42 In English law, arbitrators have statutory power to enforce time limits: 43 the provisions in section 41 of the English Arbitration Act 1996 represent the most detailed (and coherent) set of principles enacted to date in Europe.

Some of our neighbours have more elaborate theories in which the rather stark approach of Swiss law, whereby time limits are set by arbitrators simply to be complied with or, if necessary, enforced, is tempered by a number of qualifications. In Italian law, the question whether arbitrators have the power to enforce time limits at all arises against the background of two general provisions of the Code of Civil Procedure, under which courts of law do not always have such power themselves. 44 This has led some commentators to doubt whether an arbitrator could have more far-reaching powers than a judge. These rules do not, in the present writers' view, apply to arbitration, and the question whether arbitrators have the power to set peremptory time limits and enforce them if need be does not depend on whether arbitrators have imperium. 45 The view, it is submitted, that arbitrators do have the power to set and enforce time limits: 46 in order to be[Page587:]

effective, even timetables must have teeth. The recent Arbitration Rules of the Chamber of National and International Arbitration of Milan contain a useful provision to that effect, in that arbitrators are entitled to state in their orders or timetables that some, or all, of the time limits set therein are peremptory. The peremptory nature of a time limit must, however, be stated expressly. 47

III

Turning to more specific aspects of form, four points will be briefly addressed at this juncture: (i) when should arbitrators draw up a timetable? (ii) how are the parties to be consulted? (iii) in what form should the timetable be drawn up? and finally (iv) what is the role, if any, of the arbitral institution in charge of administering and supervising a particular arbitration?

1. Under most arbitration rules arbitrators would be expected to draw up a provisional timetable in the early stages of an arbitration. 48 In ICC proceedings, according to Article 18(4) of the ICC Rules of Arbitration, the provisional timetable should initially be drawn up not much later than the Terms of Reference. In ad hoc proceedings, much the same would apply in principle: if the arbitral tribunal makes a first procedural order to confirm that it is duly constituted and another procedural order to set out procedural rules, then such would seem to be the appropriate time to let the parties have a timetable too. If the parties are to be informed as to the timescale of their arbitration and the different procedural stages and time limits, then it is almost self-evident that a timetable should in principle be provided sooner rather than later.

The question of the most appropriate time to draw up a timetable and the content of the timetable are closely related matters. In complex arbitrations and in some special cases, providing a detailed timetable covering the whole of the arbitration may turn out to be impractical or inappropriate. Where a party to a civil engineering project brings an arbitration in which it makes a sizeable number of claims, arbitrators will be able to provide a timetable covering the[Page588:]

entire arbitration provided that the relationship between the individual claims, or categories of claims, is relatively clear from the outset. Even in less complex cases, if the request for arbitration and the answer to the request for arbitration contain only very general information, it may be too early for an arbitral tribunal to decide whether a bifurcation of the arbitration makes sense at all. In a recent ICC multi-party arbitration, important issues of procedure were raised by one of the respondents prior to the execution of the Terms of Reference. Each party filed two separate briefs on those issues, and the arbitral tribunal heard oral argument at a hearing which was also used to finalise and execute the Terms of Reference. The arbitral tribunal and the parties agreed at the hearing that the subsequent course of the arbitration depended so significantly on the decision on those procedural issues that it would make little sense to provide a comprehensive timetable.

These examples show that if a timetable is provided very early on, it may in certain cases not be able to cover the whole arbitration, but only a few stages of it.

Arbitrations in which arbitral jurisdiction is challenged deserve special mention, for it is a matter of taste and opinion whether such a challenge necessarily means that the arbitral tribunal should limit the timetable to the stage on jurisdiction. The more serious the objection to jurisdiction, the more cautious an arbitral tribunal will be before drawing up a timetable purporting to cover the arbitration as a whole, including those stages of the arbitration which will take place if the arbitral tribunal dismisses the objections to its jurisdiction. In the present writers' view, a challenge to arbitral jurisdiction is not always, however, a reason per se not to provide a timetable covering the whole of the arbitration. Moreover, when the stage relating to jurisdiction can be completed within a few months, it may be worthwhile setting a date for a hearing on the merits, in case the arbitral tribunal decides in the end to assume jurisdiction, since the difficulty of finding a date suitable for all participants at short notice later on may cause the timetable to slip by several months. The fact that a timetable covers proceedings on the merits which may or may not take place depending on the decision on jurisdiction cannot be taken as an indication that the existence of arbitral jurisdiction was a foregone conclusion: adequate language in the timetable should be sufficient to avoid any ambiguities in this respect.

2. All arbitration rules that call for a provisional timetable make it a requirement for the arbitral tribunal to consult the parties. 49 At the minimum, this[Page589:]

would seem to mean that the parties should have an opportunity to express their views on the provisional timetable proposed by the arbitral tribunal and that the tribunal should take such views into consideration. 50

Arbitration rules that require a provisional timetable to be drawn up entrust the arbitral tribunal with that task. Not only does this highlight the tribunal's duty to manage the proceedings, but a draft proposed by the tribunal is likely to be more readily accepted by both sides.

If one or all of the parties nevertheless decide to take the first step by sending the arbitral tribunal a provisional timetable, 51 then the requirement of consultation will be met, provided that the timetable eventually drawn up by the arbitral tribunal takes that draft into account and that the party that has not participated in the drafting is invited to express its views. This method can often produce good results when the parties are from the same cultural background or are represented by experienced counsel. 52

Consultation within the meaning of Article 18(4) of the ICC Rules of Arbitration and Article 15(3) of the Swiss Rules of International Arbitration does not necessarily require the parties and the arbitrators to be present in a face-to-face meeting. It can nonetheless be helpful to convene such a meeting, or at least a conference call, to discuss a draft. 53 The timetable is only one of the items which may be discussed at such a meeting; draft Terms of Reference and procedural rules are two further items often discussed at an initial preparatory meeting. A meeting is often the best way to ascertain whether the parties have the same expectations as to the manner in which the arbitration is to be conducted. 54[Page590:]

Just as under Article 18(4) of the ICC Rules of Arbitration and Article 15(3) of the Swiss Rules of International Arbitration an arbitral tribunal has no power to set a timetable without consulting the parties, one might wonder whether the parties likewise have no power to agree on time limits without consulting the arbitral tribunal, at least in respect of those aspects of procedure which require the participation of the arbitrators. The answer is in the negative, at least in principle: as things currently stand, the potential or conceptual tension between party autonomy and the arbitrators' duty to act as diligent case managers is resolved in favour of party autonomy. 55 Whether and, if so, how the arbitrators' power to act as diligent case managers will strengthen in the future is anyone's guess, but it would seem that this principle can thrive only with the agreement and the satisfaction of the parties involved in international arbitration. Good management should impose itself imperio rationis, not ratione imperii.

The discussions preceding the making of a provisional timetable may, and in fact often do, give rise to a procedural agreement between the parties and the arbitral tribunal. Timetables based on agreement have a better chance of being adhered to by all participants. A consensual approach to the timetable also has the advantage of reducing the risk that a party could later complain that it was not given a fair opportunity to present its case. In the present writers' view, the provisional timetable should state in so many words that the time limits it contains are based on agreement between the parties and the tribunal when such is the case. The fact that each time limit was in fact agreed upon between the parties and the tribunal may call for a restrictive provision on-and, in any event, a restrictive approach to-the extension of time limits, for it is only fair and reasonable to assume that the parties will make best efforts to adhere to a timetable based on agreement.

It is in the nature of a timetable that individual time limits may be amended by the arbitrators56 without the agreement of both parties; this is so even when the timetable was agreed upon, although the tribunal may be more reluctant to do so in such a case. The arbitrator's power to amend a timetable is based on the[Page591:]

second sentence of Article 18(4) of the ICC Rules of Arbitration and on Article 15(3) of the Swiss Rules of International Arbitration. Timetables or provisional orders made in parallel with a timetable often contain provisions dealing with the extension of time limits. Typically they would provide that the time limits set may be postponed at the request of either party, or by the arbitral tribunal of its own motion. They may further require that such request should be made in a timely manner, viz. prior to the expiry of the time limit for which the extension is sought. Some orders require the reasons for the request to be set out in reasonable detail.

3. A provisional timetable is generally set out in an order made by the arbitral tribunal, possibly in the form of a table or spreadsheet.

The most important legal requirement is that the time limits should be set out clearly and unambiguously, as should the procedural points or tasks to which those time limits relate.

Time limits specifying actual dates are preferable to those indicating periods of time that start running from a date determined by general criteria-e.g. 'sixty days as from receipt of the brief by the other side'. Time limits of the second kind may be set provided that the parties cooperate with each other in good faith, which an arbitral tribunal cannot assume to be the case in advance. Such time limits often give rise to procedural disputes and should therefore be avoided in principle.

A clear and unambiguous timetable is also one that allows for the effects of public holidays in the country of each party. Arbitration rules often deal with the situation in which a time limit expires on an official holiday. 57 Whether and how official holidays of some importance must be taken into account in setting a time limit, given that the party concerned is likely to be unable to use all the time it was granted due to the public holiday, is a matter for the arbitrators. The difficulty may be compounded by the fact that some public holidays (such as Easter or Ramadan) do not take place at fixed dates. Arbitrators may wish to invite the parties to make any advance checks as may be required in relation to public holidays and then set time limits which will not be postponed in principle due to public holidays. Clarity will again be paramount, especially in relation to those time limits which are peremptory (cut-off dates). [Page592:]

In principle a timetable should not be signed by the parties, even if it is the result of agreement, as signing is a formality which might stand in the way of any adaptations that may be required later. This is particularly so under the ICC Rules, which provide that the timetable should be in a document separate from the Terms of Reference, so as to avoid that the timetable could be regarded as a part of the arbitration agreement, any further agreement made between the parties or the Terms of Reference.58

4. When provided with a timetable issued by the arbitral tribunal, 59 the institution will be in a position to monitor the progress of the arbitration on that basis. 60 Whenever the relevant arbitration rules require a timetable to be filed with the institution, the institution should carefully monitor compliance by arbitrators and the parties with the timetable. The fact that arbitrations should be more carefully planned by arbitrators and monitored by institutions need not render the process more bureaucratic. 61 Moreover, institutions would seem to have an important role to play in ensuring that the provisional timetable is not regarded by the parties or the arbitrators as a mere formality. The message to be put across by institutions is that awareness of time should not stop with the initial filing of the provisional timetable.

A provisional timetable should be amended to reflect important changes, and a new timetable drawn up. The extension of a few time limits by a few weeks do not necessarily call for a fresh timetable to be made, and institutions have shown a suitable degree of flexibility in this respect.

When the initial provisional timetable does not cover the whole arbitration, the institution may wish to discuss with the arbitrators whether this is due to compelling reasons, when no such reasons are apparent. In any event, the institution should request an additional timetable as soon as the stages of the arbitration covered by the initial timetable have been completed. In this respect, the present writers have no case to report in which an institution queried the reasons behind the tribunal's failure to present a timetable covering the whole[Page593:]

arbitration. This may be explained by the fact that there can be several legitimate reasons for a tribunal to provide a timetable covering only the initial stages of an arbitration. Another explanation may be that all arbitration rules presently in force leave the matter to the arbitrators' discretion.

When institutional rules require an arbitration to be completed within a given number of months, 62 one of the questions arising for the institution is whether arbitrators called upon to draw up a timetable may set time limits beyond the date for the making of the award without consulting the institution or asking it to extend that deadline. The ICC Court appears to have dealt with the question with pragmatism and to have assumed that an extension of the time limit in Article 24(1) of the ICC Rules of Arbitration would subsequently be granted. In the present writers' experience, no timetable has ever been queried on the ground that it had set dates beyond the six-month time limit of Article 24(1) of the ICC Rules of Arbitration.

Institutions could help create greater transparency by asking arbitrators to include in their CVs an indication of the length of the arbitrations in which they have been involved in the past and the number of pending arbitrations in which they are currently involved. Such information may be important to the parties and may be difficult to obtain unless arbitrators are prompted to provide it. Institutions may wish to record such information for internal use.

IV

Let us now turn to the content of a timetable: what are the procedural points in relation to which time limits should in principle be set?

1. The core of a timetable is represented by time limits relating to pre-hearing activities, such as the filing of briefs or submissions, documentary evidence, (expert) witness lists, (expert) witness statements and any telephone conference calls that may be required to enable the hearing to be organised smoothly.

In institutional arbitration the timetable may further include time limits for finalising the initial timetable itself and the Terms of Reference. In both institutional and ad hoc arbitration, the tribunal may wish to define a set of procedural rules and a time limit may be included in the timetable for that purpose. A date for a preparatory conference may be worth considering, too. [Page594:]

Finally, a timetable may cover all the questions on which a decision is required at an early stage of the arbitration, specifying time limits for the filing of submissions and indicating the time by which a decision may be expected from the arbitral tribunal. Such questions include, for example, applications for interim relief, the stay of proceedings, security for costs and the language of the arbitration.

Consultation with the parties enables the arbitrators to explain requirements regarding the format of briefs, the presentation of documentary evidence (exhibit numbering, common bundle, core bundle; submission in electronic form, etc.) and witness statements (in particular, how detailed witness statements should be).

It is important that peremptory time limits (cut-off dates) should be indicated as such in the timetable, whether they apply to the filing of briefs, documentary evidence or (expert) witness evidence. The parties must be left in no doubt that such time limits are final and that their expiry will preclude a party from filing a further brief, further documentary evidence or from calling further (expert) witness evidence, as the case may be.

The sequence of the briefs to be filed should also be discussed in some detail as well as the object to be dealt with, especially when a given stage of the arbitration will deal only with one main issue, such as jurisdiction and admissibility of the action or the principle of liability and the various causes of action. When there are counterclaims, it may be worth discussing and specifying whether certain briefs are to deal only with the counterclaims and not the main claims.

Procedural requests that are likely to be made may also be covered, such as requests for the production of documents. Arbitrators may wish to consider how best to avoid the potentially disruptive effects of belated requests and set a time limit in this respect too. The same applies to requests for the appointment of experts and the requirements to be complied with by such a request.

2. Setting a date for a hearing would also seem to be part and parcel of the proper planning of any arbitration, and the earlier, the better. It is often possible to make a guess at how many days (or weeks, depending on the predominant legal culture) 63 will be required for a hearing. Adding a few extra days to be on the safe side has never harmed any party. The cancellation of a few hearing days is bound to cause fewer problems, if any, than the need to find a date[Page595:]

suitable to all participants at short notice. When no bifurcation is ordered (or agreed), it may be reasonable to state that there will in principle be only one hearing, particularly if the issues arising for determination can be identified with a reasonable degree of precision and they are not unduly complex.

Lawyers practising more often before courts than arbitral tribunals often find it difficult to understand that an international arbitration, unlike court proceedings, cannot in principle consist of a sequence of shorter hearings. This difficulty is encountered especially in Continental Europe. Reluctance to accept the principle of a sole hearing is often rooted in procedural cultures that allow-or, in any event, tolerate-short and rather summary pre-hearing briefs, which may contain little discussion of the facts in dispute, and in which the first systematic presentation of the facts in dispute may, surprisingly, first emerge in post-hearing briefs. This is, of course, bound to create difficulties at the hearing, where new primary facts may well surface for the first time, without warning. The difficulty may be compounded by the fact that some counsel are unfamiliar with written witness statements, or in any event disinclined to meet witnesses to discuss the subject matter of their evidence and assume an active role in the preparation of witness statements. In such circumstances, it is the duty of arbitrators to spell out the basic requirements to be met by briefs and witness statements. Where appropriate, the arbitral tribunal may exceptionally decide that a hearing will not take place until after more detailed briefs have been filed.

Setting a hearing date should not be regarded as a mere decision on a point of procedure. Once set, the date will be a fact of life, the psychological effects of which should not be underestimated. There is therefore much to be said for fixing the date of the hearing in the initial procedural timetable, whenever it is practical and reasonable to do so. If arbitrators are to act as diligent case managers, they may have to be firm in the face of opposition.

3. Once a hearing date has been set, there are no major difficulties in setting time limits for the post-hearing stage, especially for the filing of post-hearing briefs. By then the arbitration has almost come to an end-at least in those cases where no bifurcation has been decided.

Regardless of whether the post-hearing stage is the final stage or a further intermediate stage of the arbitration, arbitrators may indicate the date by which the parties can expect an award to be made. In some institutional rules, they are under a duty to do so64 and it is incumbent upon the institution to monitor compliance with that duty. [Page596:]

Whilst it is true that time limits in civil procedure are set only in respect of the parties, there is no reason why a timetable made in an arbitration should not also include time limits relating to activities to be performed by arbitrators. After all, the smooth and efficient conduct of an arbitration is dependent on a degree of cooperation between the parties and the arbitrators.

Arbitrators should be ready and willing to perform their own tasks within certain time limits too. This concerns not only the making of awards, but also procedural orders. Whenever the timetable makes provision for submissions or applications on a procedural matter, arbitrators should generally be in a position to let the parties know by when-albeit approximately-a decision can be expected from them. In doing so, arbitrators will be seen to be leading by example.

4. The suggestion that a timetable may include all the procedural tasks to be performed up to the post-hearing stage implies that a timetable should in principle be comprehensive and cover the arbitration as a whole. However, that will not always be possible, or indeed sensible. However, even where the amounts in dispute are considerable, the case may turn on one simple question, such as whether the claimant was entitled to exercise a pre-emptive right arising out of a shareholders' agreement, or whether the respondent was entitled to terminate the contract in dispute. In such cases a comprehensive timetable would seem to be worth considering from the outset.

It may be doubtful that setting a few dates for the filing of pre-hearing briefs truly amounts to a provisional timetable 'for the conduct of the arbitration'. 65

In special situations the arbitral tribunal may order the proceedings to be bifurcated, so as to deal separately with a procedural issue, such as jurisdiction or the locus standi of either party, or a substantive issue, such as the existence of a party, the principle of liability or the validity or enforceability of a condition in a contract. In such cases it may be unnecessary to draw up a detailed timetable relating to the subsequent stages. Alternatively, the timetable may mention the different procedural stages and set out the various procedural activities to be carried out, but without dates.

V

Some comments may finally be made on two particular aspects: (i) fast track proceedings and (ii) default proceedings. [Page597:]

1. Fast track proceedings may be defined for present purposes as arbitrations in which (i) the parties have agreed on a date by which the award is to be made and served and (ii) the time available is relatively short. Whether such agreements are reasonable at all, and in what circumstances it is sensible to enter into such agreements, is a matter entirely outside the scope of the present paper. Let us simply take it as a fact of life that (i) the parties have agreed that the award is to be made within three or six months as from the date on which the last arbitrator has accepted his nomination, or from the date on which such nomination was confirmed by the competent arbitral institution, (ii) the parties are unwilling to extend the agreed time limit and (iii) the arbitrators are disinclined to apply to the courts (whenever that is possible at all) or the competent arbitral institution for an extension of that time limit.

In such circumstances, the timetable will obviously not be open-ended because the parties have agreed otherwise. Drawing up a timetable in such circumstances is obviously a more difficult exercise, and one which is plainly a countdown to the making of the award.

One of the difficulties is the determination of the time required for the making of the award, particularly if the arbitrators do not know each other well. The more time the arbitrators require for that purpose, the more time they take from the parties, and vice versa. The presiding arbitrator may wish to draft all the formal parts of the award before the hearing, so that the final drafting stage can be limited to the decision on the points of procedure and substance arising for determination.

A comprehensive timetable will more likely than not be a necessity. The parties must in such circumstances understand and accept that the direct consequence of their own agreement is that the timetable will be less flexible than it might otherwise be. The procedural activities not contemplated by the timetable may then be deemed to have been excluded.

Time limits will be shorter than usual because that is what the parties have agreed upon.

It would seem advisable to have a detailed discussion on a draft timetable, whether in a face-to-face meeting or by telephone or videoconference.

2. The rules applicable to default in judicial proceedings do not generally apply to international arbitration, where special rules apply. 66 Although a party[Page598:]

that defaults from the outset may not be entitled to have those stages of the arbitration in which it did not participate repeated, 67 such party is nevertheless in principle entitled to participate in any further stages of the arbitration. A procedural timetable must therefore contain time limits for the benefit of a defaulting party throughout the arbitration. If it does not, this could amount to a breach of due process and equal treatment of the parties.

VI

An experienced arbitrator recently made a few penetrating comments on the awkward position in which parties have for a long time found themselves when there is a need to discuss the timeline of an arbitration with the arbitrators. 68 Settlements are known to have been entered into because a party preferred certainty within a reasonable time to the prospect of a likely, but distant victory. Hopefully, the requirement of a timetable will lead to arbitrations being conducted in a more transparent, efficient and yet consensual manner.

Arbitrators will have to learn to be better managers, not only in relation to individual arbitrations, but to their own caseload as a whole. Overbooking is not, after all, a practice limited to the airline industry.

Parties and arbitrators alike will have to learn to be more interactive with each other. 69 More tailor-made procedures will emerge.

Parties bear a great responsibility in the process, not least in respect of the arbitrators they nominate70 and the number of arbitrators set out in the arbitration agreement. 71

Institutions have a delicate task. Their main responsibility in this regard would seem to lie in monitoring compliance with the requirement that a proper timetable be filed in each arbitration and that the timetable be adhered to or amended in a reasonable manner. It may be unfair to blame institutions for the failings of individual arbitrators. [Page5:]

1
Comparisons should attempt to compare like with like. Court proceedings usually consist of a three-tier system (first-instance court, appellate level and the highest court in the land), whereas proceedings relating to arbitration generally consist of the arbitration itself and possible setting-aside proceedings; there is seldom an arbitral appellate body. Any comparisons likening an arbitration with the judgment of a 'lower court' (see recently B.H. Jackson & M.J. Jarrett, 'Dispute Resolution Clauses I: Whether To Choose Arbitration' in L.W. Newman & G. Hanessian, eds., International Arbitration Checklists (New York: Juris, 2004) 198) are therefore inevitably flawed, irrespective of the country to which they refer.

2
Reasonable expedition and undue delay are two faces of the same coin. Interestingly enough, most statutory provisions say little about the former and concentrate on the latter; see infra notes 9 and 10.

3
Article 1456 of the French Code of Civil Procedure, according to which the arbitrators shall in principle hold office for a period of six months from the date on which the last arbitrator accepted his appointment, unless the arbitration agreement provides otherwise. The French courts have jurisdiction to extend the time limit, whether the time limit is based on the Code or on the parties' agreement. Unlike a time limit agreed upon by the parties, the statutory time limit is inapplicable in international arbitration.

4
Article 820 of the Italian Code of Civil Procedure, according to which the award is to be made within 180 days from the acceptance of the last arbitrator's appointment; a further period of 180 days is available, by operation of law, provided that the arbitral tribunal has taken evidence or that it has made a partial award. The taking of evidence within the meaning of this provision relates not to documentary evidence already on the record, but to evidence given at the hearing (a concept which is expressed in Italian by a term of art, viz. 'le prove costituende', as opposed to 'le prove precostituite'), i.e. the examination of a party representative, the examination of a witness and the examination of a tribunal-appointed expert. Commentators on the law of arbitration appear not to have dealt with this point, perhaps because it is self-evident.

5
Article 37 of the Spanish Arbitration Act 2003, according to which the award is to be made within six months from the filing of the answer to the request for arbitration or the expiry of the time limit allowed for it to be filed; this time limit may be extended for two further months by the arbitrators through a reasoned decision. For an English translation of the new provisions, see (2004) 22 ASA Bulletin 696.

6
The six-month time limit for making an award (Article 24(1) of the ICC Rules of Arbitration) is often extended by the ICC International Court of Arbitration. See S. Bruna, 'Control of Time-Limits by the International Court of Arbitration' (1996) 7:2 ICC ICArb. Bull. 72. The fact of the matter is that only some arbitrations can be sensibly brought to an end within a period of six months, hence the need for extensions. The same is true of the six-month time limit under Article 820 of the Italian Code of Civil Procedure and Article 37(2) of the Spanish Arbitration Act 2003.

7
In this respect, Swiss law and Swedish law appear to be exceptions in that the formula resorted to is not the negative expression 'avoiding delay', but the positive expression 'proceeding with due dispatch'. The Swiss Federal Supreme Court has referred to reasonable dispatch in dispute resolution ('une solution rapide des litiges') in a succession of decisions. In Edok SA and Others v. Hydromechaniki Sàrl and Eupalinos SA, 10 May 1982, ATF/BGE 108 Ia 197 at 201, the Court stated (English working translation by the present writers): 'One of the objectives of arbitration is to enable parties to obtain a quick solution of the differences referred to arbitration. Parties that agree to go to arbitration are therefore bound by the rules of good faith to avoid all that could delay the normal progress of arbitration proceedings without necessity. It therefore follows that the interests of the party opposing an application for a stay of proceedings would normally take precedence over those of the party applying for such a stay, unless such party proves that it has taken all the measures in its power to ensure that the delay inherent in such application can be avoided or limited.' In El Nasr Export Import & Co v. Anglo French Steel Corporation SA, 18 February 1983, ATF/BGE 109 Ia 81 at 83, the question to be determined was whether the Court should stay the enforceability of an award on the ground that an application had been made for it to be set aside. The Court stated the following in relation to Article 38 of the Concordat (English working translation by the present writers): 'The Federal Supreme Court has not had an opportunity yet to determine the effects of this provision, but it has considered that the court below had not acted arbitrarily by refusing to stay the proceedings pending before it; one of the objectives of arbitration is to ensure that disputes are determined with expedition, so that the parties are bound by the rules of good faith to avoid all that could, without absolute necessity, delay the normal course of the arbitration.' In Z. v. L., 14 March 1985, ATF/BGE 111 Ia 72 at 74-75, a party sought to have an award set aside and to challenge one of the arbitrators at the same time. The Federal Supreme Court stated the following: 'According to Article 20 of the Concordat, a challenge must be made from the outset or as soon as the party intending to challenge an arbitrator has had knowledge of the grounds for challenge. The decisions of the Federal Supreme Court have laid down the principle that a party should have a reasonable time at the beginning of an arbitration to file a challenge . . . The same principle does not apply in the course of the arbitration, notably when the final award is close. One would then be entitled to expect that the parties be especially diligent if they wish to challenge an arbitrator; for the conclusion of an arbitration agreement binds the parties to cooperate with each other in relation to the proceedings in accordance with the rules of good faith, so as to ensure that an award can be made within a reasonable time.' In S. v. G. SA, 8 November 1985, ATF/BGE 111 Ia 259 at 261-262, another case on a challenge, the Federal Supreme Court applied the principles set out in Z. v. L., 14 March 1985, ATF/BGE 111 Ia 72 at 74-75, quoted above. The wording of the first sentence of Article 21 of the Swedish Arbitration Act 1999 is also affirmative: 'The arbitrators shall handle the dispute in an impartial, practical and speedy manner.' The Swedish term used is snabbt. The arbitrator's duty to proceed with reasonable dispatch is also set out in several sets of arbitration rules. Article 16(2) of the AAA International Arbitration Rules reads as follows: 'The tribunal, exercising its discretion, shall conduct the proceedings with a view to expediting the resolution of the dispute. It may conduct a preparatory conference with the parties for the purpose of organizing, scheduling and agreeing to procedures to expedite the subsequent proceedings.' Article 38(c) of the WIPO Arbitration Rules provides the following: 'The Tribunal shall ensure that the arbitral procedure takes place with due expedition. It may, at the request of a party or on its own motion, extend in exceptional cases a period of time fixed by these Rules, by itself or agreed to by the parties.' Similarly, the Arbitration Rules of the Netherlands Arbitration Institute (Article 23(3)) provide as follows: 'The arbitral tribunal shall ensure that the arbitral procedure shall take place with due dispatch . . .'

8
Under English law arbitrators have a statutory duty to 'adopt procedures suitable to the circumstances of the particular case, avoiding unnecessary delay or expense' (s. 33(1)(b) of the English Arbitration Act 1996). A negative formulation is not always used; see e.g. s. 24(1)(d)(ii): 'to use all reasonable despatch in conducting the proceedings or making an award'.

9
Article 1031(2) of the Dutch Arbitration Act 1986, incorporated into the Dutch Code of Civil Procedure (with specific reference to delay); Article 17 of the Swedish Arbitration Act 1999; section 24(1)(d)(ii) of the English Arbitration Act 1996. See also Article 14(1) of the UNCITRAL Model Law (without specific reference to delay).

10
ICC took the lead in 1998. Article 18(4) of the ICC Rules of Arbitration reads as follows: 'When drawing up the Terms of Reference, or as soon as possible thereafter, the Arbitral Tribunal, after having consulted the parties, shall establish in a separate document a provisional timetable that it intends to follow for the conduct of the arbitration and shall communicate it to the Court and the parties. Any subsequent modifications of the provisional timetable shall be communicated to the Court and the parties.' This provision was quickly followed by other institutions. Article 15(3) of the Swiss Rules of International Arbitration reads as follows: 'At an early stage of the arbitral proceedings and in consultation with the parties, the arbitral tribunal shall prepare a provisional time-table for the arbitral proceedings, which shall be provided to the parties, and, for information, to the Chambers.' Article 24(3) of the Arbitration Rules of the Chamber of National and International Arbitration of Milan reads as follows: 'The constitution of the Arbitral Tribunal shall be formalized in minutes dated and signed by the arbitrators, indicating the seat and language of the arbitration and establishing the modalities and time limits for further proceedings.' Article 23(2) and 23(3) of the Arbitration Rules of the Netherlands Arbitration Institute read as follows: 'The arbitral tribunal shall determine the manner in which, and the periods of time within which, the procedure shall be conducted, taking into account the provisions of these Rules, arrangements, if any, between the parties, and the circumstances of the arbitration.' 'The arbitral tribunal shall ensure that the arbitral procedure takes place with due dispatch . . .'

11
The Swiss Rules of International Arbitration (2004), in Article 42, have introduced an Expedited Procedure applicable in two cases: when the parties have so agreed (Article 42(1)) and when the amount in dispute is below CHF 1 million (Article 42(2)). See E. Geisinger, 'The Expedited Procedure under the Swiss Rules of International Arbitration' in G. Kaufmann-Kohler & B. Stucki, eds., The Swiss Rules of International Arbitration, Swiss Arbitration Association Conference, Zurich, 23 January 2004, ASA Special Series No. 22 [hereinafter ASA Special Series No. 12] 67.

12
For a penetrating analysis, see B.M. Cremades, 'Le devoir de diligence des protagonistes de l'arbitrage commercial international face aux tactiques dilatoires' in B. Davis, ed., Improving International Arbitration. The Need for Speed and Trust. Liber Amicorum Michel Gaudet (Paris: ICC Publishing, 1998) [hereinafter Improving International Arbitration] 36 at 39. Such an idea, it is submitted, is not only wrong when one is in charge of representing a claimant; it is equally deceptive when one is representing a respondent.

13
See in particular Improving International Arbitration, supra note 12.

14
Article 18(4) of the ICC Rules of Arbitration.

15
The most significant example in Europe is the English Arbitration Act 1996, s. 33ff. The principle is implied in other systems. Arbitration rules have mostly confined themselves to stating that arbitrators may conduct the proceedings as they deem appropriate. Article 16 of the AAA International Arbitration Rules, and Article 23 of the International Arbitration Rules of the Netherlands Arbitration Institute go further by referring to the concrete steps an arbitral tribunal may take to expedite the arbitration.

16
As stated e.g. in the first sentence of Article 21(3) of the ICC Rules of Arbitration.

17
Thus, according to Article 15(1) of the UNCITRAL Arbitration Rules, 'the arbitral tribunal may conduct the arbitration in such manner as it considers appropriate'.

18
R. Briner, 'The Role of the Chairman' in L.W. Newman & R.D. Hill, eds., The Leading Arbitrators' Guide to International Arbitration (New York: Juris, 2004) 49 at 57.

19
In reality, many arbitrators prefer not to draw up their own summary of the parties' case, but ask counsel to provide one. That does not mean, of course, that such arbitrators fail in any way to act as diligent case managers, but that there are degrees and ways in which to exercise managerial functions. Leading from behind is not a breach of an arbitrator's duty insofar as the arbitrator, and especially the chairman of the arbitral tribunal, is somehow seen to be leading. Be that as it may, the execution of Terms of Reference may well have become less of an exercise in proactive case management than the ICC Court and the parties might expect.

20
Terms of Reference are to be drawn up by the arbitral tribunal as soon as the file has been received from the Secretariat (Article 18(1) of the ICC Rules of Arbitration) and to be signed by the parties and the arbitrators and transmitted to the ICC Court within two months of the date on which the file was received (Article 18(2) of the ICC Rules of Arbitration).

21
R. Briner, supra note 18 at 57.

22
Whether it is reasonable to agree on a timetable without consulting the arbitral tribunal, if only as a matter of courtesy, is quite another matter. Some institutional rules expressly provide that the arbitral tribunal's power to draw up a timetable is subject to the arrangements made by the parties-e.g. Article 23(3) of the Arbitration Rules of the Netherlands Arbitration Institute. In all systems of law in which the parties are entitled to agree on procedural matters, this will go without saying.

23
This is so under Article 18(4) of the ICC Rules of Arbitration and Article 15(3) of the Swiss Rules of International Arbitration. These provisions require the arbitrators to do more than comply with procedural agreements made by the parties. The need to 'consult' the parties would appear to mean that consideration should be given to their wishes, insofar as these are reasonable. Article 20(1) of the Rules of Arbitration of the Stockholm Chamber of Commerce expressly provides that the 'wishes of the parties' are to be 'taken into account'.

24
Arbitrators are, however, entitled to tell the parties that the arrangements made are not practical or complete; they have the power to complete such arrangements under the system of law governing the arbitration, especially if this is necessary for compliance with due process. The present writers were involved in an arbitration relating to a State contract in which the arbitration clause covered several pages and mentioned a number of time limits to be complied with by the parties and the arbitrators. One of the time limits related to the filing of documentary evidence. However, no opportunity appeared to exist for either party to file documentary evidence in rebuttal. The arbitral tribunal found that an additional time limit for this purpose had to be read into the arbitration agreement, because any failure to do so would amount to a breach of due process.

25
This is not to suggest, of course, that the party that appears to have no interest in speeding up the arbitration would not do so without legitimate reason; see in this respect Y. Derains, 'Les responsabilités des conseils' in Improving International Arbitration, supra note 12, 119 at 119.

26
This may be the case when the arbitration agreement makes provision for a separate conciliation or mediation procedure, or for cooling-off periods; see E. Gaillard, 'Fast-track arbitration and beyond: is there emerging a new need for speed in international commercial arbitration?' in Improving International Arbitration, supra note 12, 28 at 29. Some systems of law enable arbitrators to stay proceedings for serious reasons, one of which may be that a party's very existence is in doubt (see e.g. the practice of the Swiss Federal Supreme Court, Fincantieri Navali Italiani S.p.A. and Oto Melara S.p.A. v. M. And Arbitral Tribunal, 7 September 1993, ATF/BGE 119 II 386 at 389-90. Such a stay is regarded as an exception to the general principle of reasonable expedition and is to be narrowly construed.

27
If dates are set for filing a brief, the time limit may be shorter than it would be if the parties were to file a brief together with all witness statements. A longer time limit may be required if the date set is a true cut-off date precluding the filing of any further documents in the arbitration.

28
K.P. Berger, Internationale Wirtschaftsschiedsgerichtsbarkeit: verfahrens- und materiellrechtliche Grundprobleme im Spiegel moderner Schiedsgesetze und Schiedspraxis (Berlin/New York: de Gruyter, 1992) at 282.

29
J.D.M. Lew, L.A. Mistelis & S.M. Kröll, Comparative International Commercial Arbitration (The Hague: Kluwer Law International, 2003) at 527.

30
K.P. Berger, supra note 28 at 282.

31
If each party is entitled to file one or two pre-hearing briefs, that will mean that the filing of a third pre-hearing brief requires leave from the arbitral tribunal and may well be found to be inadmissible without such leave. Conversely, if the timetable is silent as to the time when a party is entitled to file objections against the documentary evidence filed by the other, then it would not in principle be reasonable to interpret the timetable as meaning that such objections cannot be filed.

32
On Article 15 of the UNCITRALArbitration Rules, see P.M. Patocchi, 'Die UNCITRAL Schiedsgerichts ordnung' in R.A. Schütze, ed., Institutionelle Schiedsgerichtsbarkeit (Berlin) [forthcoming].

33
A notable exception is section 34(3) of the English Arbitration Act 1996. The arbitrator's power to enforce time limits is generally derived from the provisions on default; see Article 25 of the UNCITRAL Model Law.

34
Article 23(2) of the Arbitration Rules of the Netherlands Arbitration Institute deals expressly with the arbitrator's power to set time limits. See also Article 28 of the UNCITRAL Arbitration Rules (and of the Swiss Rules of International Arbitration); Article 6(3) of the ICC Rules of Arbitration; Article 23 of the AAA International Arbitration Rules; Article 56 of the WIPO Arbitration Rules; Article 36 of the Arbitration Rules of the Netherlands Arbitration Institute.

35
K.H.-M., BJM 1973, 193.

36
Article 2 of the Swiss Federal Civil Code; Article 15(6) of the Swiss Rules of International Arbitration.

37
Article 182 of the Swiss Federal Private International Law Act, 1987; Article 15(1) of the Swiss Rules of International Arbitration.

38
The Federal Supreme Court decided so despite the fact that the procedure was informal and oral (L. v. Dame B., 17 October 1991, ATF/BGE 117 Ib 347 at 351-352). On a two-day time limit in an international arbitration, see the interesting example from Singapore mentioned by E. Schwartz, 'Reconciling speed with justice in international arbitration' in Improving International Arbitration, supra note 12, 44 at 45-46; and S.R. Bond, 'Counsel's responsibilities in regard to the speed of an international arbitration', ibid., 113. However, as a cautionary note, a two-day time limit in order for a party to raise procedural objections against the documentary evidence filed by the other side, which has been on the record for a number of weeks, may well be entirely unobjectionable in fast-track proceedings.

39
This is in particular the opinion expressed by M. Schneider, 'Article 182' in S.V. Berti, ed., International Arbitration in Switzerland: An Introduction to and a Commentary on Articles 176-194 of the Swiss Private International Law Statute (The Hague: Kluwer Law International, 2000), 423, no. 87 (clearer in the German version in H. Honsell, N.P. Vogt & A.K. Schnyder, Kommentar zum Schweizerischen Privatrecht: Internationales Privatrecht (Basle, 1996) 1531, no. 87); contra: T. Rüede & R. Hadenfeldt, Schweizerisches Schiedsgerichtsrecht, 2d ed. (Zurich: Schulthess 1993) 211 at 242-43, who take the view that an arbitrator is bound to give notice before treating a party as in default. A carefully designed timetable or a procedural order issued in parallel with the timetable would normally contain detailed provisions giving advance notice, making it possible to dispense with notice by the tribunal.

40
Article 1468 of the Code of Civil Procedure expressly sanctions the arbitrator's right to set a peremptory time limit in one particular case (closure of the proceedings).

41
Article 25 of the UNCITRAL Model Law.

42
Zivilprozeßordnung (ZPO), § 1048. Arbitrators have the power to set peremptory time limits (Ausschlussfristen) (P. Schlosser, Das Recht der internationalen privaten Schiedsgerichtsbarkeit, 2d ed. (Tübingen: Mohr, 1989) at 491, no. 661 c). The arbitrator even has the power to determine of his own motion whether a party has complied with a time limit (ibid. at 492, no. 662). Peremptory time limits ('Ausschlussfristen', 'Präklusivfristen') must be clear and unambiguous ('unmissverständlich') (P. Schlosser in F. Stein & M. Jonas, eds., Kommentar zur Zivilprozeßordnung, vol. 9 (Tübingen: Mohr Siebeck, 2002), Annotation to § 1046, no. 4), and they must be reasonable (ibid., Appendix § 1061, no. 102). Arbitrators have discretion to impose sanctions when a party has failed to comply with a time limit (ibid., Annotation to § 1046, no. 4). The parties are nevertheless free to determine the consequences of non-compliance with a time limit set by an arbitrator (ZPO, § 1048(4), second sentence). Moreover, a sanction would normally require that the failure by one party to comply with a time limit had not been excused (ZPO, § 1048(4), first sentence), which is a rule of German public policy (P. Schlosser in F. Stein & M. Jonas, eds., Kommentar zur Zivilprozeßordnung, vol. 9 (Tübingen: Mohr Siebeck, 2002) Appendix § 1061, no. 100). On these aspects see also J.P. Lachmann, Handbuch für die Schiedsgerichtspraxis, 2d ed. (Cologne: Schmidt, 2002) at 307, no. 889ff.

43
Section 41, subsections (3), (4), (5) and (6) of the English Arbitration Act 1996.

44
The discussion arises from an analysis of Article 152 and Article 153 of the Code of Civil Procedure, applicable to judicial proceedings in general. Article 152 provides in its first subsection that time limits for the performance of acts of procedure are set by law and may also be set by a court, provided that the court is empowered to do so under a legal provision. It goes on to provide in its second subsection that time limits set by law are not peremptory, unless the law so provides in an express manner. This provision is the basis for the distinction between two categories of time limits: peremptory ('termini perentori') and non-peremptory ('termini ordinatori'). Article 153 provides that peremptory time limits may not be shortened or extended, irrespective of any agreement between the parties. These provisions give rise inter alia to the question of whether they at all are applicable to international arbitration.

45
G.F. Ricci on Art. 816 of the Code of Civil Procedure in F. Carpi, ed., Arbitrato (Bologna: Zanichelli 2001), 264.

46
S. La China, L'arbitrato. Il sistema e l'esperienza 2d ed. (Milan: Giuffrè, 2004) at 88-89; C. Punzi, Disegno sistematico dell'arbitrato, vol. 1 (Padua: Cedam, 2000) at 482-84; E. Fazzalari, L'arbitrato (Turin: UTET, 1997) at 55 (requiring, however, the parties' agreement).

47
Article 7(1) of the Arbitration Rules of the Chamber of National and International Arbitration of Milan. The English translation fails to make it clear that express language ('espressamente') is required in order for a time limit to be 'peremptory': 'I termini previsti dal Regolamento o fissati dal Consiglio Arbitrale, dalla Segreteria Generale o dal Tribunale Arbitrale non sono a pena di decadenza, se la decadenza non è espressamente prevista dal Regolamento o stabilita dal provvedimento che li fissa.'

48
Article 18(4) of the ICC Rules of Arbitration requires the arbitral tribunal to draw up a timetable '[w]hen drawing up the Terms of Reference, or as soon as possible thereafter'. Article 15(3) of the Swiss Rules of International Arbitration requires the arbitral tribunal to do so '[a]t an early stage of the arbitral proceedings'. Under Article 24(3) of the Arbitration Rules of the Chamber of National and International Arbitration of Milan, the timetable is issued by the tribunal upon its constitution, which shall take place within thirty days of receipt of the file from the Secretariat under Article 24(2). This time limit may be extended by the Chamber.

49
Article 18(4) of the ICC Rules of Arbitration reads 'after having consulted the parties'. The wording used in Article 15(3) of the Swiss Rules of International Arbitration is 'in consultation with the parties'.

50
Taking the parties' views into consideration means that an arbitral tribunal will consider whether such views are reasonable, and, if so, will not reject them without good reason. An arbitral tribunal is under no duty to follow the parties' wishes and views when they are unreasonable or impracticable, and the tribunal is entitled to prefer its own suggestions regarding the timetable. Arbitrators need not give reasons for any changes made to the proposals received from the parties.

51
In such case, courtesy and common sense would seem to require that the timetable be sent to the tribunal as a draft for any comments the arbitrators may have, and not in the form of an agreement between the parties purporting to be binding on the tribunal.

52
R. Briner, supra note 18 at 57, n. 8.

53
M. Schneider, supra note 39 at 408, no. 39; M. Blessing,'Comparison of the Swiss Rules with the UNCITRAL Arbitration Rules and Others' in ASA Special Series No. 22, supra note 11, 17 at 21.

54
K.-H. Böckstiegel, 'Major Criteria for International Arbitrators in Shaping an Efficient Procedure' ICC ICArb. Bull. Special Supplement 1999, 49. M. Wirth, 'Ihr Zeuge, Herr Rechtsanwalt! Weshalb Civil-Law-Schiedsrichter Common-Law-Verfahrensrecht anwenden' SchiedsVZ 2003, 9, notes that arbitrators from a civil law background often tend to structure international arbitrations by resorting to Anglo-American procedural features especially concerning the method of examining witnesses. This may surprise parties from other civil law jurisdictions in which the practice of international arbitration is still predominantly based on domestic procedural patterns.

55
The position appears to be clear in the English Arbitration Act 1996, in which the arbitratror's powers are always subject to agreement to the contrary by the parties (s. 41(1)). See also S.R. Bond, supra note 38 at 117. See also the comments by S. Lazareff in Improving International Arbitration, supra note 12, 137.

56
This is the position under the ICC Rules of Arbitration and the Swiss Rules of International Arbitration, as reflected in the use of the adjective 'provisional' in Article 18(4) of the former and Article 15(3) of the latter, and the expressions 'that it intends to follow' and 'subsequent modifications of the provisional timetable' in Article 18(4) of the ICC Rules.

57
See e.g. Article 3(4) of the ICC Rules of Arbitration.

58
W.L. Craig, W.W. Park & J. Paulsson, Annotated Guide to the 1998 ICC Arbitration Rules with Commentary (Oceana/ICC Publishing, 1998) at 120.

59
Artice 18(4) of the ICC Rules of Arbitration; Article 15(3) of the Swiss Rules of International Arbitration; Article 24(3) of the Rules of Arbitration of the Chamber of National and International Arbitration of Milan.

60
W. Peter, 'Some Observations on the New Swiss Rules of International Arbitration' in ASA Bulletin Special Series No. 22, supra note 11, 1 at 8.

61
B.M. Cremades, supra note 12 at 38.

62
Institutions have a special responsibility in fast-track proceedings, which are dealt with in the penultimate section of this paper.

63
Hearings lasting for more than a week may be regarded as a consequence of insufficient organisation and management from a Continental point of view. See also S.R. Bond, supra note 38 at 117.

64
Artice 22(2) of the ICC Rules of Arbitration; the Swiss Rules of International Arbitration regrettably contain no such provision.

65
Article 18(4) of the ICC Rules of Arbitration; Article 15(3) of the Swiss Rules of International Arbitration reads 'for the arbitral proceedings'; Article 24(3) of the Arbitration Rules of the Chamber of National and International Arbitration of Milan refers to the time limits 'relativi alla prosecuzione del procedimento', which means 'relating to the further conduct of the arbitration' (the translation by the Chamber reads 'for further proceedings').

66
D.E. Tunik, 'Default Proceedings in International Commercial Arbitration' [1998] Int.A.L.R. 86. Thus, Article 25(b) of the UNCITRAL Model Law provides that the respondent's failure to answer the request for arbitration shall not be treated by the arbitral tribunal 'as an admission of the claimant's allegations'.

67
Article 25(b) and (c) of the UNCITRAL Model Law.

68
J. Werner, 'Who controls speed? A few reflections on the relationship between parties and arbitrators in ICC arbitration' in Improving International Arbitration. supra note 12, 99 at 102: 'I have been struck by parties' shyness to discuss the time-frame within which arbitrators were expected to perform their duties, and more particularly to issue their award after the proceedings were closed, as if it were something not well-mannered to do. . . . This reluctance of parties to make arbitrators accountable for the way in which they manage the time-element of their function is, of course, caused by their desire to avoid anything which might cause displeasure and possibly ill-dispose the arbitrators towards them.'

69
S.R. Bond, supra note 38 at 118.

70
E. Gaillard, supra note 26 at 29.

71
S.R. Bond, supra note 38 at 116.