This article was created to explain what a procedural order is, and what substantive issues are. These sorts of topics often come up during a tribunal or arbitration.
We have created fake litigation between ABC Franchising and Friendly Coffee below. We have shown examples of procedural orders and substantive issues that could come up during the arbitration.
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Procedural Order And Substantive Issues
This Order records the agreements reached and directions were given during the First Procedural Conference conducted by telephone in October 2005, in which Mr. Lu participated as a representative of the Claimant, ABC Franchising (“ABC FRANCHISING”). Mr. Smith participated as counsel for the Respondent, Friendly Coffee Nutrition Ltd. (“Friendly Coffee”).
In accordance with the attached Appointment and Remuneration Agreement, the Parties have agreed that I have been duly and validly appointed as the sole arbitrator of the disputes. This arbitration arose under, out of, in connection with or relating to a Letter of Agreement dated September 2003 (the “Agreement”).
Place of Arbitration and Procedural Rules
In accordance with the Appointment and Remuneration Agreement, the Parties have agreed that the proceedings will be conducted entirely in writing. This is except where the arbitrator orders an oral hearing pursuant. That would according to Article E-8 of the ICDR Canadian Arbitration Rules. That might be required to ensure the fair resolution of the dispute.
The Parties have agreed in the Appointment and Remuneration Agreement that the applicable substantive laws are the laws of Ontario. Also, the laws of Canada that are applicable in Ontario.
Written Submissions and Procedural Schedule
The Statements of Case of the Parties shall include all evidence relied on by the Parties including documents. For example: agreements, letters, e-mails, etc. and sworn witness statements together with a legal argument. This shall identify all relief sought by the Parties in the arbitration. These Statements of Case will take the place of the Notice of Arbitration. The Answers are referred to in Article E-2 of the ICDR Canadian Arbitration Rules and Canadian Expedited Procedures.
ABC FRANCHISING will deliver its Statement of Case on or before October 20, 2006.
Substantive Law And Issues
Friendly Coffee will deliver its Statement of Case on or before November 20, 2006. Friendly Coffee’s Statement of Case may include a counterclaim if any.
On or before November 16, 2006, ABC FRANCHISING will deliver its Reply Statement of Case. ABC FRANCHISING has the liberty to apply for an extension of time. This could happen in the event that Friendly Coffee raises a counterclaim.
In the event any Party requires an extension of these, a request may be made to the arbitrator. This should be done by e-mail and shall be copied to the other Party. All Statements of Case shall be submitted directly to the arbitrator. This must be done by e-mail and shall be copied to the other Party.
Absent a further Procedural Order, or an application for an oral hearing, the hearings will be closed on November 25, 2006. A reasoned award will be provided within 45 days from the hearings being closed. Dated at Toronto this 31st day of August 2006.
PROCEDURAL ORDER #2 | Procedural Order And Substantive Issues
This Order records my response to the application for an extension of time. This is for the delivery of the Respondent’s Statement of Case set out in the October 31, 2006 e-mail. The email came from Mr. Smith, counsel for the Respondent, Friendly Coffee Nutrition Center Ltd. (“Friendly Coffee”). A response to the application for an extension of time was received from Mr. Lu, representative of the Claimant, ABC Franchising(“ABC FRANCHISING”) on October 31, 2006. Friendly Coffee and ABC FRANCHISING provided further submissions by e-mail on October 31, 2006.
Friendly Coffee’s Application for an Extension of Time
My primary goal is to ensure that each party receives a fair hearing. Mr. Smith has identified a number of important considerations in that regard. The focus of the process should be on the substance of the issues between the parties and not technical requirements. Article 20 of the 1CDR Canada Rules grants wide discretion to the arbitral tribunal’s management of the process provided the parties are treated with equality. Each party is given the right to be heard and is given a fair opportunity to present its case. My goal is also to resolve the matter as expeditiously as possible.
The Respondent’s application for an extension beyond the agreed-to dates in Procedural Order #1 will create some delay. The Respondent’s apparent position is that the Claimant’s case is technically deficient as it is unsworn. Therefore, this too will need to be addressed and will likely cause further delay.
Procedural Order And Substantive Issues
I have considered the parties’ submissions, the applicable rules, and procedures. Also, the importance of addressing the substantive dispute between the parties, the application for an extension is granted on the following terms.
The Claimant shall provide a sworn affidavit confirming that those facts referred to in its Statement of Case are true. The Claimant is not to provide any additional facts than those referred to expressly in its Statement of Case. This sworn affidavit must be provided to both the arbitrator and Mr. Smith by no later than November 10, 2006.
The time for the Respondent’s Statement of Case is extended to November 23, 2006.
The Claimant’s Reply Statement of Case shall be delivered by December 13, 2006.
Absent a further Procedural Order, or an application for an oral hearing, the hearings will be closed on December 16, 2006.
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