ICDPASO Commercial Arbitration Rules Interpretation Series27“Hearing In Person”

In international commercial arbitration, a hearing is not merely a critical stage and temporal milestone for fact-finding and oral argument; it is also the core procedural mechanism through which the arbitral tribunal calibrates due process against procedural efficiency. Article 27 of the International Commercial Dispute Prevention and Settlement Organization (ICDPASO) Commercial Arbitration Rules (the “Rules”) (the“Article 27”) establishes, through three paragraphs, a clear and operational institutional framework addressing notice periods, the principle of confidentiality, and the making of hearing records. Together with Article 26 (“Hearing Method”), it forms a complementary regulatory scheme. Article 26 determines whether a hearing shall be held and in what form; Article 27 further institutionalizes post-decision procedural milestones, confidentiality boundaries, and recording mechanisms into an executable procedural pathway, thereby enhancing certainty and party control in the application of the Rules.

Article 27 is also highly aligned with the newly revised Arbitration Law of the People's Republic of China (the "New Arbitration Law"), particularly with respect to the principle of holding hearings, the non-public nature of arbitration, exceptions to confidentiality, and the protection of trade secrets. This structural coherence exemplifies the Rules’ distinctive feature: translating institutional advantages into enforceable operational details through precise procedural design.

I. Text of Article 27 of the Rules

Article 27. Hearing In Person

1. If a case is to be heard in person, the Arbitral Tribunal shall notify the parties of the time and place of the hearing thirty (30) days before the hearing. If a party has justified reasons to request a postponement of the hearing, it shall submit the request in writing at least seven (7) days before the hearing to the Arbitral Tribunal for approval. The notice of the date and place of the second hearing and the postponed hearing shall not be subject to the foregoing period. 

2. Unless otherwise agreed by the parties, the hearing in person shall not be held publicly.

If the parties agree to make it public, the hearing in person may be held publicly, unless trade secrets are involved or the Arbitral Tribunal deems it inappropriate. 

3. Upon the joint application by the parties, or upon the application by one party and the consent of the Arbitral Tribunal, the Court of Arbitration may hire a stenographer

to make hearing records for the Arbitral Tribunal.

II. Clause-by-Clause Commentary on Article 27

Paragraph (1): Notice of Hearing and Postponement Mechanism — Safeguarding the Right to Be Heard While Preventing Procedural Delay

1. Textual Interpretation — Procedural Functions of Three Timeframes

(1) “At least 30 days’ prior notice” constitutes a minimum procedural safeguard rather than a rigid scheduling cycle. By quantifying “adequate prior notice,” the provision enables parties to complete preparations such as arranging witness attendance, travel, interpretation, evidence presentation, remote technical testing, and internal authorizations. The abstract concept of a “reasonable opportunity” is thus operationalized into a concrete timeframe.

(2) The “7-day deadline for postponement requests” functions as an anti-delay procedural valve. Requiring written submission no later than 7 days before the hearing prevents last-minute tactical adjournment requests. The tribunal may require supporting documentary evidence (e.g., scheduling conflicts, force majeure, visa restrictions, medical certificates) and weigh urgency and cost considerations in determining whether to grant the request.

(3) The clause that subsequent hearings are not subject to rigid notice periods anticipates practical contingencies. Where additional hearings are required due to witness absence, technical disruptions, or supplemental examination, imposing a renewed 30-day notice requirement would risk procedural rigidity and unnecessary delay. This paragraph introduces an efficiency-corrective mechanism, preserving flexibility after the initial fully safeguarded notice.

2. Comparative Law Perspective

Article 24 of the UNCITRAL Model Law on International Commercial Arbitration (the “Model Law”) requires “sufficient advance notice,”① while the 2021 ICC Arbitration Rules employ the flexible standard of “reasonable notice.”②

Article 27, by contrast, specifies 30-day and 7-day periods, thereby enhancing procedural predictability. For parties, this facilitates the preparation of compliance checklists and procedural timetables; for tribunals, it assists in demonstrating—particularly in procedural orders—that the parties were afforded a full opportunity to present their case; and for courts reviewing awards, it strengthens formal compliance against challenges based on alleged “lack of proper notice” in setting-aside or enforcement proceedings.

3. Jurisprudential Analysis — Harmonizing Formal and Substantive Protection of the Right to Be Heard

In annulment or enforcement proceedings, “lack of proper notice” is a common ground for challenge. In China Machine New Energy Corp v Jaguar Energy Guatemala LLC, the Singapore Court of Appeal emphasized that natural justice review does not protect a party’s subjective procedural expectations, but instead examines whether the party was truly deprived of an opportunity to address key issues.③

Article 27 bridges formal verifiability and substantive preparedness. Where the tribunal complies with the 30-day notice requirement and addresses postponement requests in writing, the scope for later allegations of insufficient time or opportunity is significantly narrowed. Importantly, the tribunal retains discretion over postponements: a “reasonable opportunity” does not equate to an unlimited right to adjournment, echoing the efficiency baseline established in Article 26(5) of the Rules.

4. Practical Guidance

•A postponement application should include procedural evidence: a written request, proof of justified reasons, and alternative proposals (e.g., proposed date ranges, remote or hybrid options).

•Parties opposing postponement should articulate quantifiable prejudice, such as asset preservation deadlines, project losses, witness importance, or cost implications.

•Notice and service mechanisms should be expressly incorporated into procedural orders, including designated service addresses, authorized representatives, email contacts, and change-of-address obligations.

Paragraph (2): Principle of Confidential Hearings and Exceptions — Transforming Privacy into a Controlled Procedural Boundary

1. Textual Interpretation — A Three-Layer Normative Structure

(1) Hearings are private by default, reflecting arbitration’s core institutional advantage of confidentiality.

(2) Public hearings require party agreement, accommodating branding or compliance disclosure needs.

(3) Even where parties agree, the tribunal retains discretion to restrict publicity where trade secrets are involved or public proceedings are otherwise inappropriate, thereby safeguarding against data leakage, competitive harm, or witness security risks.

2. Comparative Law Perspective

The Singapore International Arbitration Centre (SIAC) Rules (2025) explicitly state that hearings are in principle closed to the public, with recordings and stenographic transcripts falling under confidentiality provisions.④ The Hong Kong International Arbitration Centre (HKIAC) Rules (2024) and the London Court of International Arbitration (LCIA) Rules (2020) adopt the same position. ⑤This provision aligns with the direction of the aforementioned rules and, through the “trade secrets/inappropriate for disclosure”safeguard mechanism, grants the arbitral tribunal discretionary authority for tiered disclosure. This includes limiting the scope of observers, requiring the signing of confidentiality undertakings, and conducting closed-door hearings for specific proceedings.

The New Arbitration Law similarly provides that arbitration shall not be conducted publicly, subject to party agreement and exceptions for state secrets, trade secrets, or personal privacy.⑥ Article 27 mirrors this framework and adds a broader “inappropriate to make public” clause, enabling refined procedural control in cross-border contexts (e.g., export controls, data compliance, witness protection).

3. Practical Guidance

Where public hearings are contemplated, parties should address:

•Scope of publicity (full hearing or specific phases only);

•Eligibility of observers (registration and screening requirements);

•Information management (redaction, recording restrictions, confidentiality undertakings);

•Remote access safeguards (controlled access links, anti-recording measures, contingency planning).

Paragraph (3): Hearing Record Mechanism — Enhancing Procedural Integrity and Award Defensibility Through Traceability

1. Textual Interpretation — Initiation and Institutional Support

(1) Upon joint application, the Arbitration Court may appoint professional stenographers, typically involving cost allocation arrangements.

(2) Upon unilateral application with tribunal consent, stenographic services may also be appointed—recognizing that transcripts serve not only parties but also the tribunal’s case management and reasoning process.

(3) By empowering the Arbitration Court to arrange such services, the Rules institutionalize administrative support, reducing logistical disputes and execution costs.

2. Comparative Law Perspective

HKIAC requires early notification if transcript services are needed, including format specifications (on-site or remote).⑦ICC practice similarly involves tribunal consultation for virtual hearing transcription arrangements.⑧

Article 27 does not mandate transcripts but provides an optional high-quality procedural tool. This aligns with arbitration’s cost-efficiency principle: transcripts may be unnecessary in straightforward or low-value cases but invaluable in evidence-intensive disputes.

3. Jurisprudential and Governance Functions

(1) Fact Governance: Accurate transcripts reduce mischaracterization of testimony and procedural exchanges.

(2) Procedural Governance: Oral procedural directions (e.g., evidentiary sequencing, deadlines) become traceable and enforceable.

(3) Judicial Review Governance: In annulment or enforcement proceedings alleging denial of due process, a comprehensive transcript strengthens the award’s defensibility.

4. Practical Guidance

Applications should specify:

•Scope of transcription (full or partial);

•Language and interpretation requirements;

•Review and correction procedures;

•Confidentiality and access protocols.

III. Institutional Integration with the New Arbitration Law and Practical Advantages

1.Alignment with the Principle of “Hearing as the Norm”

The new Arbitration Law establishes hearings as the principle, with written proceedings as the exception.⑨ Article 27 transforms this statutory principle into an operational procedural pathway through a complete chain of procedures beginning with “after deciding to hold hearings.”

2. Structural Alignment with the “Non-Public + Exceptions” Framework

The new Arbitration Law clarifies the protective boundaries of non-public arbitration proceedings and exceptions to non-publicity. ⑩Article 27 adds a discretionary clause for the arbitral tribunal based on trade secret protection, enhancing the enforceability of the closed-door principle in specific cases.

3. Reducing Risks of Judicial Review for Procedural Defects

In domestic judicial review practice, defects in notification and service are common grounds for setting aside or refusing enforcement. Article 27 establishes clear compliance guidelines for the arbitral tribunal regarding “notice of hearing” through the setting of a 30-day notice period and a 7-day extension application deadline, while also providing parties with a predictable procedural timeline.

IV. Conclusion — Coordinated Realization of the Right to Be Heard and Procedural Efficiency

Article 27 avoids verbosity and instead concentrates on three procedural flashpoints—notice, confidentiality, and record-making. Through defined timelines and institutional support mechanisms, it elevates hearings from practice-driven management to a predictable, manageable, and review-resistant procedural architecture. It is consistent with the Model Law’s “sufficient advance notice” standard and aligned with the institutional practices of ICC, LCIA, SIAC, and HKIAC. Domestically, it structurally corresponds to the New Arbitration Law’s statutory framework.

Ultimately, Article 27 offers parties a determinate and controllable procedural experience. From receipt of the notice of hearing onward, parties can foresee the procedural trajectory, manage procedural risks effectively, and achieve a balanced integration of due process and procedural efficiency.