️I. Origin and Development of Procedural Orders
Procedural orders in commercial arbitration is a series of orders issued by the arbitral tribunal in the form of a document relating to the arbitration proceedings for the purpose of administering the arbitration proceedings, which is binding on the parties involved in the arbitration and is designed to ensure that the proceedings are conducted in an efficient and orderly manner.
Early arbitrations relied mostly on the experience and practice of arbitrators, with a high degree of procedural flexibility but a lack of uniformity. With the increase in international trade and the rise in demand for international commercial arbitration, procedural orders have gradually become an important tool for managing complex transnational arbitrations. The provisions on procedural orders in international arbitration can be traced back to 1922, when the ICC International Court of Arbitration formulated the first version of arbitration rules, "ICC Conciliation and Arbitration Rules 1922", Article 34 (XXXIV) of the ICC Conciliation and Arbitration Rules 1922 provided that after the appointment of the arbitrators, the Secretary of the Court of Arbitration should prepare a form of referral to arbitration, which should include: the full names, domiciles, etc., of the parties; the subject matter of the arbitration (information on the contract, etc.); the names of the arbitrators; the place of arbitration; the parties' brief statement of claim and other particulars required by the law (if any). The form for submission to arbitration will be sent to the parties concerned for signature. If a party refuses to sign, the Court of Arbitration may direct that the arbitration be conducted in absentia. After a century-long development, the ICC's most recent provision on procedural orders is found in Article 23 of its ICC Arbitration Rules 2025, which requires that the arbitral tribunal shall draw up a Statement of the Scope of the Hearing on the basis of the written submissions or in conjunction with the parties and in the light of the most recent submissions of the parties.
With the continuous development of commercial arbitration, not only mainstream international arbitration institutions generally adopt the procedural order system, but also China's first-tier arbitration institutions have also explicitly provided for the procedural order system in their arbitration rules. For example, Article 39(5) of the Shanghai International Arbitration Centre (SHIAC) 2024 Arbitration Rules provides that the tribunal may, if it considers it necessary, issue procedural directions and lists of questions, hold pre hearing meetings and preliminary hearings, produce terms of reference, and make interim or partial awards, and may also make arrangements for the exchange or examination of evidence, witness testimony, hearing procedures, post-hearing procedures. The Hong Kong International Arbitration Centre (HKIAC) Institutional Arbitration Rules 2024, Articles 13.2, 13.6 also provide that after consulting with the parties, the arbitral tribunal shall prepare a provisional timetable for the arbitration, which shall be provided to the parties and HKIAC. The arbitral tribunal may also, in its discretion and after consulting with the parties, determine preliminary issues that the arbitral tribunal considers could dispose of all or part of the case, bifurcate the proceedings, conduct the arbitration in sequential stages, and decide the stage of the arbitration at which any issue or issues shall be determined, or otherwise adopt procedures to decide the case efficiently. Similar provisions are found in China's top tier arbitration institutions such as the China International Economic and Trade Arbitration Commission, the Beijing Arbitration Commission and the Shenzhen International Arbitration Centre.
Meanwhile, in order to further satisfy the parties' choice of applying the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules to arbitration, CIETAC will put into effect the Procedures for the Administration of Cases under the UNCITRAL Arbitration Rules on 1 March 2025 onwards. According to Article 5 of the document, as an arbitration administration institution, CIETAC provides arbitration administration services for cases, assists in the procedural management of cases, exercises relevant functions and provides necessary assistance for the promotion of arbitration procedures, including assisting in the dispatch and transmission of arbitration documents, assisting the arbitral tribunal in arranging timetables and deadlines, providing hearings to make corresponding decisions on arbitration language, extension of deadlines, and providing assistance in matters relating to interim measures, etc., which have served as a guide and model for the application of procedural orders by domestic arbitral institutions.
️II. Specific Elements of Procedural Orders
Depending on the arrangements of the arbitral tribunal and the different needs of the parties, the content of procedural orders is often flexible and varied. Firstly, the most important function of a procedural order is to assist the arbitral tribunal in managing the arbitral proceedings and controlling the overall pace of the arbitration. In international arbitration, the first procedural order usually determines how the arbitration proceedings are to be conducted, and makes arrangements and guidelines for the process of the arbitration proceedings. It is often issued after the first procedural meeting of the arbitral tribunal, and is also the first formal procedural document made by the arbitral tribunal, which plays a pivotal role in the smooth progress of the arbitration case. For example, Article 32.4 of the Singapore International Arbitration Centre's (SIAC) 2025 version of the Arbitration Rules provides that, as soon as practicable after the constitution of the Tribunal, the Tribunal shall convene a first case management conference with the parties to discuss the procedures that will be most appropriate and efficient for the case. The content of the first procedural order is usually to determine basic procedural matters, including the determination of the arbitration rules, the governing law, the place of arbitration, the language of the arbitration, the manner of exchange of documents, the rules of evidence, and the timetable for the exchange of pleading documents.
Secondly, the arbitral tribunal may also issue procedural orders dealing with the substance of the case, such as questioning the parties about the contracting process, details of the breach of contract, confirming the understanding of the disputed contractual terms, and so on. For example, the Arbitration Institute of the Stockholm Chamber of Commerce (SCC) issued a procedural order (Procedural Order No. 10) in an arbitration case between NV and CM concerning a dispute over a medical technology licence agreement. In the procedural order, the arbitral tribunal determined how to interpret Article 4 of the Licence Agreement in dispute between the parties and stated that the determination was final. The procedural order directly affected the substantive rights of the parties and the outcome of the arbitration, which led CM to challenge the arbitral tribunal's award and apply to the Swedish Court of Appeal for setting aside the part of the arbitral award.
In addition to making procedural arrangements and determining substantive issues, a procedural order may also determine issues in an arbitration case that involve the opinions of third parties, including, but not limited to, the determination of third-party expert witnesses and the selection of an expert body.
Taking an example of a construction project case published by SHIAC in which the UNCITRAL Arbitration Rules were agreed to be applied, SHIAC issued a total of nine procedural orders applying the UNCITRAL Arbitration Rules in the case: the first procedural order, as mentioned above, determined the basic procedural matters of the arbitration; the second and the third procedural orders were made in respect of the arrangement of the first hearing, determining The second and third Procedural Orders made arrangements for the first hearing, determining the time, place, scope of the hearing, persons appearing before the court, and the process and record of the hearing; the fourth procedural order made arrangements for the second hearing, and, in addition to the time, place, and scope of the hearing, established a schedule for the exchange of additional documents and materials in advance of the hearing; the fifth procedural order made a decision on the Applicant's request for a modification of the Request for Arbitration, and the Respondent's addition of a Counter-Request; The sixth procedural order, based on the fourth procedural order, confirmed the persons appearing in the second hearing, the process of the hearing and the record of the hearing; the seventh procedural order made a decision on the respondent's application for investigation and collection of evidence and application for a cost appraisal; the eighth procedural order made arrangements for the exchange of final representations, examinations and other submissions after the hearing; and the ninth and last procedural order determined the time limit for the award of the case and the arbitrator's fees. This case, as a representative case accepted by SHIAC, not only fully demonstrates the content of procedural orders in international arbitration, but also reflects the precise control over the application of procedural orders by first-tier arbitration institutions.
️III. How to Apply Procedural Orders Accurately
After understanding the basic content of a procedural order, how to apply it precisely in practice is an issue worth studying.
From the perspective of the arbitrators and the arbitral tribunal, the use of procedural orders is for the purpose of effectively organising the arbitration activities and efficiently advancing the arbitration proceedings, which requires the arbitral tribunal to issue procedural orders in a timely and flexible manner in accordance with the actual situation of the case and the actual needs of the parties, so as to ensure that the parties actively participate in the arbitration proceedings in line with the rhythm of the arbitral tribunal. Taking the defence period as an example, in domestic arbitration practice, the respondent shall submit written defence and rebuttal evidence within a certain period of time after receiving the Notice of Arbitration and the applicant's arbitration materials sent by the arbitration institution, however, this defence period is sometimes not complied with by the parties, for reasons including, but not limited to, deliberate evasion and delaying tactics of the respondent; the parties do not pay attention to the arbitration case or do not receive the materials served by the arbitration institution; the facts of the case are complicated and it takes longer time to prepare the defence; the parties are foreign subjects and the notary authentication and entrustment procedures are more complicated. Therefore, regardless of the reasons, the parties' failure to respond within the defence period is obviously not conducive to the exchange of views between the parties on the disputed matters, nor is it conducive to the efficient advancement of the subsequent arbitration proceedings. At the same time, the arbitration rules of most mainstream institutions in China have not clearly stipulated the consequences of submitting the statement of defence and evidentiary materials beyond the time limit. Therefore, from the perspective of efficiency, the mechanical application of the arbitration rules to manage the arbitration proceedings cannot take into account the particularities of each individual case. The arbitral tribunal not only needs to regulate and guide the parties' arbitration behaviours, but also needs to take into account the actual situation of the case when facing complex and difficult cases or when the parties are offshore subjects, in order to be flexible and adaptable. Under such circumstances, the existence and use of procedural orders become quite necessary, the arbitral tribunal can not only issue procedural orders according to the actual situation of the case and provide for a flexible period of time for defence, but also specify the specific period of time for closing the door of the evidence to compel the parties to submit their statements of defence and evidentiary materials on time, or else they will be subject to the unfavourable consequences of late submission. In addition, through the issuance of procedural orders, the arbitral tribunal can record in writing the procedural issues of the case, such as determining the application of law, the language of arbitration, the mode of communication, etc., so as to make a good "protective wall" for the recognition and enforcement of subsequent awards in advance, and to reduce the grounds for revocation of awards arising from procedural issues.
From the perspective of the agent, in the arbitration process, timely detection of the development trend of the case, to maintain the interests of the client-oriented, active and timely application to the arbitral tribunal for the issuance of procedural orders, sometimes can achieve twice the result with half the effort. Take an arbitration case of a contract dispute between the parties from mainland China and Chinese Taiwan that I represented as an example, the applicant is a resident of Chinese Taiwan and the respondent is a resident of mainland China, both parties trust each other and signed a "Shareholding Agency Agreement" in 2015, in which the respondent subscribed for and held a company's non-publicly issued shares in the amount of CNY 5 million on behalf of the applicant. 2018, the applicant and the respondent signed the "Supplemental Agreement to the Shareholding Agency Agreement", which stipulated that the respondent would sell the shares of a certain company held by the respondent on behalf of the applicant and the proceeds from the sale of the shares would exceed CNY8 million, and the parties agreed that the respondent would pay the amount to the applicant in instalments. However, after the signing of the agreement, the respondent failed to fulfil the payment obligation as agreed, and the applicant repeatedly demanded for payment, but the respondent delayed the payment with various reasons, and the applicant was forced to submit the case to the Shanghai Arbitration Commission for arbitration. In the arbitration proceedings, the respondent abused the rights of arbitration parties, maliciously filed jurisdictional objections to the Arbitration Commission, and maliciously delayed submitting defence materials and evidence during the defence period, which seriously harmed the interests of the applicant. The author, as an agent of the applicant, took the initiative to apply to the arbitral tribunal for the issuance of a procedural order after the successful dismissal of the jurisdictional objections, fixing the deadline for submission of defence materials and evidence at 7 days before the hearing, otherwise the respondent would bear the unfavourable consequences. After the issuance of the procedural order, the respondent contacted the applicant to request for settlement under pressure, and the case was finally concluded with the signing of a settlement agreement by both parties and the issuance of a settlement award by the Arbitral Tribunal. Therefore, the agent should give full play to the subjective initiative in the arbitration proceedings, and the procedural order is designed to ensure the flexibility and efficiency of the arbitration proceedings. As a participant in the arbitration process, the agent should take into account the situation and apply for a procedural order at a reasonable point in time, so as to achieve the purpose of the arbitration.
️IV. Reflections on the Use of Procedural Orders in Domestic Commercial Arbitration
Although procedural orders are more popular in international arbitration, the use of procedural orders in domestic commercial arbitration is not common in practice, and some experts, scholars and legal practitioners have questioned whether procedural orders are adapted to the domestic "water and soil", as follows:
(i) The arbitration rules of domestic mainstream arbitration institutions have actually tended to be perfect, the scope of regulation of the arbitration rules covers from the filing of the case until the arbitral tribunal makes the award, the arbitration institution is fully involved in the arbitration proceedings from the filing of the case, and the scenario in which the procedural order is able to play a role is actually not common. Although in recent years, some first-tier arbitration institutions in China have clarified the procedural order system in their arbitration rules, cases of procedural orders in practice are still rare. In addition, the convening of a procedural management meeting is often a prepositive procedure to the issuance of the first procedural order, However, domestic arbitration institutions rarely hold procedural management meetings. Instead, after accepting a case, the arbitration secretary directly sends the arbitration notice to the parties and communicates unilaterally with both parties. Therefore, procedural orders are not yet‘proficiently used’in mainstream arbitration institutions, let alone by the parties and their representatives in most arbitration cases.
(ii) The penalties for breach of a procedural order are not clear. A procedural order is a search for and formation of the consent of the parties, under the authority of the arbitral tribunal, beyond what is provided for in the arbitration agreement and the arbitration rules. It is for this reason that a procedural order can only be effective if the parties actively cooperate with it. There are different results in practice as to whether a party who violates a procedural order of the arbitral tribunal will be subjected to harsh adverse procedural and substantive consequences as a result.
According to a typical case involving arbitration issued by the Beijing Fourth Intermediate People's Court, the dispute in the case of an application for the recognition and enforcement of an arbitral award of the Hong Kong Special Administrative Region by a technology company and a German electronics company, centring on whether the documents submitted by the technology company in the arbitration were submitted at a later date than the time stipulated in the arbitral tribunal's procedural order, which was in breach of the rules of arbitration and procedural consents of the parties. Upon review, the Beijing Fourth Intermediate People's Court held that an arbitral award made in Hong Kong by the International Court of Arbitration of the International Chamber of Commerce (ICC) should be recognised as a Hong Kong arbitral award. Article 22(2) of the arbitration rules of the arbitration institution provided that, in order to ensure the effective administration of the case, the arbitral tribunal may, after consultation with the parties, take such procedural measures as it deems appropriate, provided that such measures shall not be contrary to any agreement of the parties. Based on the above provision, the arbitral tribunal may decide whether to accept the documents submitted by the parties if they fail to submit them in accordance with the procedural plan set by the arbitral tribunal. The acceptance by the arbitral tribunal of the late submission of the procedural schedule by the technology company did not violate the arbitration rules and the agreement between the parties. Once the parties have chosen to apply the arbitration rules, they become the procedural norms to be observed by the arbitral institution, the arbitral tribunal and the parties in the arbitration process, and are also the main basis for the people's court to judge the composition of the arbitral tribunal as well as the legality of the arbitration procedure during the recognition and enforcement stage. When the parties violated the arbitration procedural order, the arbitral tribunal had the right to make judgement within the framework of the arbitration rules and decide how to deal with it. In summary, the argument of the technology company that the arbitration procedure was unlawful and the arbitral award should not be recognised and enforced was not valid, and the court ruled that the arbitral award made by the International Court of Arbitration of the International Chamber of Commerce should be recognised and enforced. Therefore, even if a party violates a procedural order, it does not necessarily suffer harsh and unfavourable consequences.
On the contrary, an arbitral tribunal has a higher risk of setting aside an award if it violates a procedural order that it has issued, especially when the substance of the case is at stake. In the aforementioned arbitration case between NV and CM concerning a dispute over a medical technology licence agreement, the case culminated in a partial award in which the arbitral tribunal reversed the understanding of Article 4 of the Licence Agreement that it had found in Procedural Order No. 10. The Swedish Court of Appeal held that the arbitral tribunal had indeed failed to comply with the procedural rule on "prior notice" in Procedural Order No. 10, and that CM had therefore not been given a reasonable opportunity to present its case and that the content of the procedural findings could have influenced the outcome of the final award. The Swedish Court of Appeal therefore upheld CM application for setting aside and part of the award was set aside.
️V. Conclusion
From a practical point of view, although the procedural order system does not perfectly fit the special ecology of domestic commercial arbitration, the flexibility, efficiency and convenience embodied in procedural orders cannot be replaced by traditional arbitration rules. In recent years, mainstream arbitration institutions, arbitration associations and lawyers' groups have also been vigorously pursuing exchanges and discussions on procedural orders. For example, the Shanghai Arbitration Association issued the Shanghai Arbitration Association (SHAA) Ad Hoc Arbitration Rules and the Arbitration Committee of the Shanghai Bar Association compiled the (Trial) Guidelines for Lawyer Representation in Ad Hoc Arbitration Cases (2024), both of which contain relevant content on the practical application of arbitration orders. In Article 10 of (Trial) Guidelines for Lawyer Representation in Ad Hoc Arbitration Cases (2024), it is mentioned that in ad hoc arbitration, due to the lack of management functions of the arbitration institution, in addition to the procedural flexibility, the lawyers acting for the parties should also take into account the procedural due process and stability, so as to efficiently promote the arbitration process while ensuring the effectiveness and enforceability of the arbitral award. Therefore, in ad hoc arbitration, where there is no conflict with the agreement of the parties, the applicable arbitration rules and the provisions of the Arbitration Procedure Act, it is recommended that the arbitration attorney may decide whether or not to propose the convening of a Case Management Conference, the issuance of a procedural order by the arbitral tribunal, and, after consulting the opposing party, the arbitral tribunal's decision to convene a Case Management Conference, the issuance of a procedural order by the arbitral tribunal. The arbitral tribunal shall specify in writing after consulting the other party.
The issuance of the above guidelines reflects the foresight of the Shanghai lawyers' community in the use of procedural orders, and also serves as a model for the application of procedural orders by their colleagues in the legal profession. It is believed that with the improvement of procedural orders and the deeper participation of the parties, the application of procedural orders will make China's commercial arbitration system more perfect and mature.
●参考文献：
[1] ICC Conciliation and Arbitration Rules 1922. https://jusmundi.com/en/document/rule/en-rules-of-conciliation-and-arbitration-1922-icc- rules-1922-sunday-1st-january-1922
[2] CIETAC officially issued the Procedures for the Administration of Cases under the UNCITRAL Arbitration Rules.17 February 2025. https://www.cietac.org/articles/32305
[3] SIAC Rules 2025. https://siac.org.sg/siac-rules-2025
[4] See Shanghai International Arbitration Centre, Public Article: "How to Use "Procedural Orders" Correctly: From a Judicial Review Case in a Swedish Court". 5 September 2025
[5] Xu, Zhihe. Integration and Innovation: Interpreting the Shanghai International Arbitration Centre Arbitration Rules, 31 August 2024. Page 36.
[6] Shanghai International Economic and Trade Arbitration Commission (SHIAC) Commercial Arbitration Research Centre. Advancing the practice of arbitration proceedings by way of "procedural orders". 2025, No. 11. https://www.lawyers.org.cn/info/96bc8c1e16a74f11a120fcfdb386cc44
[7] Beijing Fourth Intermediate People's Court. Case 2: When a party violates an arbitration procedural order, the arbitral tribunal has the right to make a judgement within the framework of the arbitration rules to decide how to deal with it ... 13 January 2025. https://bj4zy.bjcourt.gov.cn/article/detail/2025/01/id/8661937.shtml
️特别声明：
大成律师事务所严格遵守对客户的信息保护义务，本篇所涉客户项目内容均取自公开信息或取得客户同意。全文内容、观点仅供参考，不代表大成律师事务所任何立场，亦不应当被视为出具任何形式的法律意见或建议。如需转载或引用该文章的任何内容，请私信沟通授权事宜，并于转载时在文章开头处注明来源。未经授权，不得转载或使用该等文章中的任何内容。
1. 罗里达等：商事仲裁中程序令的实践运用
️本文作者
