Rules of Evidence in International Arbitration: An Annotated Guide

Description

Now in a fully updated second edition, Rules of Evidence in International Arbitration: An Annotated Guide remains an invaluable reference for lawyers, arbitrators and in-house counsel involved in cross-border dispute resolution. Drawing on current case law, this book looks at the common issues brought up by the evidentiary procedure in international arbitration. Features of this book include: An international scope, which will inform readers from around the world A focus on evidentiary procedure, with extensive case-based commentary and examples Extensive annotations, which allow the reader to locate key precedents for use in practice This book gives essential insight into best practice for practitioners of international arbitration. Readers of this publication will gain a fuller understanding of accepted solutions to difficult procedural issues, as well as the fundamental due process considerations of the use of evidence in international arbitration. Cover Half Title Title Copyright Brief Contents Contents About the Author Foreword Preface Table of cases and arbitrations Table of legislation, conventions and rules Abbreviations and acronymns Chapter 1 The rules of evidence and their application Are there rules of evidence in international arbitration? What are the rules of evidence in international arbitration? Application of the rules of one jurisdiction to evidentiary procedure The application of the IBA rules of evidence Chapter 2 Depositions, interrogatories and judicial notice Introduction Depositions Arbitration agreements permitting depositions in international arbitration generally The use of depositions to obtain testimony from witnesses unable to attend a hearing Interviewing adverse witnesses prior to the hearing Interrogatories General discussion General guidelines for the use of interrogatories in international arbitration Tribunal involvement in drafting and approving interrogatories Judicial notice Facts of which judicial notice may be taken Chapter 3 Document production in international arbitration Introduction General considerations regarding production of documentary evidence General discussion Customary filing deadlines Completion of the document production phase Good faith and voluntary document production No duty to voluntarily disclose adverse evidence A request for document disclosure General discussion Timing of a request for disclosure Conducting document disclosure without the tribunal’s involvement Do parties have a right to limited document disclosure? Standards applicable to a request for document disclosure General discussion Ethical considerations for counsel Disclosure in arbitration versus US-style discovery The civil law view of disclosure in international arbitration Categories of documents: the “narrow and specific” standard Narrow and specific: electronic documents Not in possession, custody or control of the requesting party Burdensome for requesting party to produce Demonstrating possession, custody or control Investor-state arbitration Produce or object: the duty to provide good faith answers to a request General discussion Ethical considerations for counsel Multi-parties and document production Duty to provide good faith answers to a request The production of documents under protest Ethical considerations for counsel Requests and objections (general) and the “redfern schedule” General discussion Consultations between parties General discussion Relevance and materiality standard General discussion The “relevance and materiality” standard “Relevant to the case” “Material to its outcome” Other standards Failure to meet the requirements of article 3.3 Using experts to resolve document disputes General discussion Appointing an expert The independence and impartiality of an expert The role of an expert Failure by a party to cooperate with expert Court assistance in taking documentary evidence General discussion Threshold issues regarding court involvement The scope of article 3.9 A tribunal’s authority over ancillary evidence gathering Treatment of evidence obtained by unauthorised ancillary legal process General powers of a tribunal to order disclosure General discussion A tribunal’s right to request document production from a party A tribunal’s authority to compel a party to use “best efforts” to obtain evidence held by “any person or organisation” A tribunal’s power to take “any steps” Offering supplemental or rebuttal evidence General discussion Originals, copies, forgeries and translations: the authenticity of documentary evidence General discussion Questions concerning the accuracy of a reproduction Allegations of forgery The tribunal’s authority to order production of an original Confidentiality of disclosed documents General discussion Transparency in international investment arbitration and confidentiality Limitation on confidentiality: use of documentary evidence in connection with the arbitration Exceptions to confidentiality: where confidential information is disclosed to “fulfil a legal duty” Exceptions to confidentiality: disclosure where needed to “protect or pursue a legal right” Exceptions to confidentiality: “to enforce or challenge an award” A tribunal’s authority to enforce confidentiality Terms of a procedural order on confidentiality Different phases of document production General discussion Document disclosure based on a substantive right General discussion Application of substantive law standard Award or procedural order Document disclosure and interim measures General discussion The purpose of provisional measures relating to documentary evidence The standard applicable to requests for interim measures aimed at obtaining or preserving evidence Chapter 4 Witnesses of fact Introduction Identification of witnesses General discussion Failure to give notice of witness within the specified time Who may be a witness General discussion Testimony by witness with a connection to a party Persons interested in the outcome of proceedings to be treated as a witness Witnesses who have legal obligations of confidentiality to a party Preparing witnesses General discussion Ethical considerations for counsel Contacting adverse witnesses and ethical concerns The use of witness statements General discussion Ethical issues for counsel and witness statements A party’s right to withdraw a witness statement The time frame for submitting a witness statement Contents of a witness statement General discussion Disclosure of relationship to a party Full description of the facts Documents accompanying the witness statement Witness affirmation Signature of the witness Rebuttal witness statements General discussion Disregarding witness statements General discussion Valid reasons for non-attendance at a hearing Exceptional reasons for admitting the testimony of a non-attending witness Failure to call a witness to a hearing General discussion Calling non-cooperating witnesses General discussion The tribunal’s authority over the taking of witness testimony Court assistance in the taking of witness testimony Considerations prior to authorising court involvement/a tribunal is not obliged to act Other steps which are legally available to a tribunal to obtain witness testimony Tribunal’s power to call witnesses General discussion “Best efforts” Chapter 5 Party-appointed experts Introduction Party-appointed expert’s testimony in international arbitration generally General discussion Identifying the expert The expert report The contents of the expert report General discussion The independence of a party-appointed expert Factual assumptions and documents relied upon Disclosure of an expert’s instructions Affirmation of an expert’s genuine belief in the opinions expressed Ethical guidance for counsel regarding expert witness reports Rebuttal expert reports General discussion Ordering party-appointed experts to meet and confer General discussion Summoning a party-appointed expert to an evidentiary hearing General discussion Failure by an expert to attend a hearing Determining not to call or cross-examine an expert witness Chapter 6 Tribunal-appointed experts and inspections Introduction Appointment and mandate of tribunal-appointed expert General discussion Determining when “specific issues” have arisen Applying the tribunal’s own expertise to determine “specific issues” When a tribunal-appointed expert is required by mandatory law Expert’s terms of reference Formalities that accompany the expert’s appointment and time for raising objections General discussion Independence of the expert The expert’s professional qualifications Raising objections after the expert has been appointed Investigations by tribunal-appointed expert and inspections generally General discussion The production of evidence at the request of the expert Right to be heard and impartiality in the conduct of an investigation Equal treatment and the right to be heard in the conduct of an inspection A party’s right to review and comment on the expert report and related matters General discussion Failure to allow the parties to respond to an expert’s report The right to review the information relied upon by the expert Opportunity to examine the tribunal-appointed expert General discussion Weighing the probative value of the expert report General discussion Attributes of a report Adopting the full findings of the expert Costs of tribunal-appointed expert General discussion Chapter 7 Assessing the evidence, burden of proof, adverse inferences and procedural good faith The general authority of the tribunal to admit and weigh evidence General discussion A tribunal’s general authority to determine admissibility and the limits of discretion Weighing the evidence Burden of proof, standards of proof and shifting the burden General discussion The burden of proof: Onus Probandi Actori Incumbit Substantive law and the burden of proof Standard of proof Prima facie evidence and shifting of the burden of proof Adverse inferences in international arbitration General discussion Adverse inferences relate to the merits of the case Accepted rules for drawing an adverse inference Procedural good faith General discussion The duty to act in “good faith” and the “duty to cooperate” The duty of good faith and the equality of arms Document production generally and costs Chapter 8 Evidentiary hearing Introduction Notification of witnesses and the right to a hearing General discussion Right to a hearing Hearing of witnesses after submission of a written witness statement Which party may call witnesses? Testifying by video conference A tribunal’s control over the hearing General discussion Excluding witnesses from a hearing and due process Raising objections during an evidentiary hearing Irrelevant or immaterial questioning Avoiding duplicative testimony (direct testimony) Leading questions on direct examination Sequestration of witnesses In camera hearings The presentation of oral testimony General discussion Right to cross-examination Examining witnesses using documents Re-direct and re-cross-examinations Examination of a tribunal-appointed expert Language of an evidentiary hearing Questions by the tribunal Witness conferencing Hearing schedule Affirmations and confirmations General discussion The administration of affirmations or oaths to witnesses Confirmation of statement Witness statements to serve as direct testimony A tribunal’s authority to call a witness on its own motion General discussion “Any person” No duty to order attendance Chapter 9 Disclosure and admissibility of evidence Introduction Relevance and materiality objections to the admissibility of evidence General discussion Relevance to the case Material to the outcome of the case Evidentiary privileges General discussion Guiding principles in determining the appropriate rule of privilege Closest connection test The “survey” method Consent Earlier disclosure Affirmative use Other approaches to determining an applicable rule of privilege Objections to production based on burden General discussion Objective factors to consider when assessing the reasonableness of the burden Vague or overly broad requests for the production of documents A party’s jurisdictional background Lost or destroyed evidence General discussion Evidence which has been lost due to passing of time Loss or destruction of evidence resulting from civil disturbance or other disaster Objections based upon commercial and technical confidentiality General discussion Documents subject to confidentiality agreements with third-parties Resolving objections raised over commercial or technical confidentiality Objections based on the special political or institutional sensitivity of the information General discussion Domestic laws on governmental privilege and article 9.2(f) Which governmental privileges are considered “compelling” and when Sensitive documents Example of the improper assertion of governmental privilege Objections based on procedural economy, fairness and equal treatment General discussion Procedural economy Proportionality Fairness Equality Appendix 1 IBA Rules on the Taking of Evidence in International Arbitration Appendix 2 Uncitral Arbitration Rules (2010): Resolution Adopted by the General Assembly [on the report of the Sixth Committee (A/65/465)] 65/22. Uncitral Arbitration rules as Revised In 2010 The general assembly Uncitral Arbitration Rules (As revised in 2010) Section I. Introductory Rules Section II. Composition of the arbitral tribunal Section III. Arbitral proceedings Section IV. The award Annex Model arbitration clause for contracts Appendix 3 Hwang Model Procedural order on Confidentiality Appendix 4 The confidentiality undertaking for third-party experts – Chemtura Corporation v Government of Canada Appendix 5 IBA Guidelines on Party Representation in International Arbitration The guidelines Preamble Definitions Application of Guidelines Comments to Guidelines 1–3 Party Representation Comments to Guidelines 4–6 Communications with Arbitrators Comments to Guidelines 7–8 Submissions to the Arbitral Tribunal Comments to Guidelines 9–11 Information Exchange and Disclosure Comments to Guidelines 12–17 Witnesses and Experts Comments to Guidelines 18–25 Remedies for Misconduct Comments to Guidelines 26–27 Index