Preliminary Meetings Don Calder OBE,

Party autonomy is a recurring theme of the Arbitration Act 1996. Wherever possible, the Act gives the parties the authority to decide for themselves – if they want to, and if they can agree – how an arbitration should be conducted.

Right and sensible though this is, it does present the arbitrator with a problem. It is his job to steer the proceedings forward to a fair, speedy and unchallengeable outcome. But how to do this while allowing the parties to select from the multiple procedural options that the Act offers them, and to do so in a way that is timely and systematic and avoids future argument and uncertainty?

In Croydon on 16 May, Don Calder shared with us his solution to the problem. Indeed, he generously distributed to us and talked us through the impressively comprehensive set of documentary tools that he has developed.

The first document was a one-page checklist recording the introductory briefing Don Calder gives, normally by telephone, to the parties before his appointment is confirmed. It covers such basic facts as the names of the parties, the date of commencement of the arbitration, the mode of appointment of the arbitrator, the arbitrator’s fees, the approximate quantum at issue, and the agreed arrangements for the preliminary meeting with a brief agenda. Once completed, this checklist is circulated to the parties for record.

The second document, running to about five closely-typed pages, was a pro-forma ‘acceptance letter’ addressed to each of the parties. This letter records the arbitrator’s acceptance of the appointment (subject to parties’ acceptance of the arbi-trator’s terms and conditions), gives a general briefing on the Arbitration Act 1996 for those unfamiliar with it, provides initial directions for the Preliminary Meeting, emphasises the need for dispatch in complying with the directions, and explains the principles the arbitrator will follow in awarding costs.

The third document to reach the parties when Don Calder is arbitrator will be a five-page draft Memorandum of Agreement between the parties for them to consider in advance of the Preliminary Meeting. This will be accompanied by the fourth document, a full agenda for the Preliminary meeting (‘full’ means ‘full’ – the sample we were given covered seven pages!).

The draft Memorandum of Agreement itemises the non-mandatory provisions of the 1996 Act under which the parties acting together can control various features of the arbitration. The purpose of the Memorandum is to provide a complete record of the parties decisions on the matters over which they have a choice. The intention is that the Memorandum, having been considered by the parties beforehand, should be discussed, completed and signed by both sides at the meeting in the presence of the arbitrator.

The agenda, as well as referring to for-malisation of the Memorandum, provides for the parties’ confirmation of acceptance of the arbitrator’s conditions of appointment. It also covers general procedure for the arbitration, whether on the basis of documents only or an oral hearing, including a draft set of directions laying down the detailed timetable and format for the submission of statements of case, defence, counterclaim and reply, and, if appropriate, arrangements for a pre-hearing review and for the hearing itself. Don Calder insisted that, with proper preparation as described, he reckoned to get through a preliminary meeting within one hour, and without acrimony.

Afterwards, in dealing with our questions on his continuingly genial and engaging manner, Don Calder re-emphasised a point he had made at the beginning: The conduct of an arbitration was a personal matter for each arbitrator – there were many valid ways to implement the Act; his was just one. But, I believe we went away feeling that it would be hard to better his approach for thoroughness, clarity and efficiency.