Pleading Points In International Arbitration: Substance Over Form?

• Published date: 04 July 2023
• Law Firm: Herbert Smith Freehills
• Author: Mr James Allsop, Chad Catterwell, Guillermo Garcia-Perrote and Mariia Artemenko

In general, arbitration laws do not make express provision for rules of evidence and institutional rules largely leave it to the arbitral tribunal to determine matters of evidence. It might, therefore, be thought uncontroversial to state that strict rules of evidence do not apply in arbitration proceedings.

But while most practitioners would concede that arbitration (specifically, international arbitration) does not import domestic rules of civil procedure, in practice the issue of whether parties should be confined to strict rules of pleadings is often contested. In particular, some parties and practitioners continue to urge arbitral tribunals to disregard aspects of the counterparty's case because of certain formalities about the way in which the relevant allegation was expressed in the opposing party's 'pleadings'.

These attempts to import the 'strict rules of pleadings' into arbitration proceedings raise the question of whether arbitral tribunals must or should apply (or at least be guided by) litigation-like rules of pleadings when determining issues such as whether a particular matter is within the scope of the parties' submissions by reference to a strict linguistic analysis in the way that a court pleading might be.

The view from the courts

The Courts in major arbitral hubs across Asia-Pacific have adopted a broadly uniform position in approaching this issue. The 'pleading points' considerations are generally addressed by the courts when determining award challenges on grounds such as lack of the tribunal's jurisdiction to decide on the 'non-pleaded' points, or procedural fairness due to the party's inability to argue a disputed issue and adduce evidence to such effect.

The Singaporean courts have a long line of authority supporting the proposition that irrespective of the submissions style (memorial or pleading), there is no distinction in the methodology of assessing 'pleading points'. Recently, in CFJ and CFK v CFL and CFM [2023] SGHC 1 CTC the Singapore International Commercial Court observed that in memorial style arbitrations "any reference to 'pleadings' is no more than a convenient analogy, when lawyers from common law traditions are involved". The narrative nature of memorial style submissions triggers the holistic interpretation of the 'pleadings' which, subsequently, makes memorials less susceptible to a strict linguistic analysis in the way that a court pleading may be where issues in dispute are 'confined' by the court pleadings and subjected to the domestic laws' procedural scrutiny.

This decision confirms the well-established position of Singaporean...