Sullivan & Cromwell LLP, Jalal El Ahdab, . See also 2010 Rules, Art. Bird & Bird and Lucia Raimanova, 2014) (describing the representative international approach . [22] Ultimately, the Subcommittee produced the 2016 Report on the Reception of the IBA Arbitration Soft Law Products. Limit the length of documentary evidence put on the record: Although this goes beyond the scope of the brief itself, parties to a complex or document-heavy arbitration should seek to reach an agreement on the presentation of large or lengthy documents. destruction or shredding of potentially harmful documents or other evidence; and. Along the lines of some of the other canons, these impose a duty to refrain from any false submissions of fact and to correct them promptly should they occur. [30] Mark Schweizer, The civil standard of proof what is it, actually?, The International Journal of Evidence & Proof, 2016, Vol. Unlike other IBA instruments, this was always conceived of as a body of rules rather than guidelines. [84] One other change that the Task Force considered but ultimately rejected was a proposal that would provide that third parties might object to the request for documents or testimony, described in the section titled Objections to requests for evidence: Articles 3.10 and 4.10, above. [20] See French Civil Code, Article 1353, para. [7] See generally David W Shenton, Supplementary Rules Governing the Presentation and Reception of Evidence in International Arbitration in Contemporary Problems in International Arbitration, 188-94 (Julian D M Lew, ed., 1987). Allen & Overy, Get more from GARSign up to our daily email alert, Unlock unlimited access to all Global Arbitration Review content, Company Number: 03281866 VAT: GB 160 7529 10, Arbitral institutions and hearing centres, UCIA - Universal Citation in International Arbitration, The Guide to Evidence in International Arbitration - First Edition, https://cdn.arbitration-icca.org/s3fs-public/document/media_document/media113581569903770reed_tribunal_decision-making.pdf, Approaches to Evidence across Legal Cultures, The 2020 IBA Rules on the Taking of Evidence in International Arbitration: A History and Discussion of the 2020 Revisions, The Prague Rules: Fresh Prospects for Designing a Bespoke Process, Party and Counsel Ethics in the Taking of Evidence, Approaches to Managing Evidence as Criteria for Selecting Arbitrators, Planning and Organising Effective Procedures for Taking Evidence, Standards of Proof and Requirements for Evidence in Special Situations, Managing Data Privacy and Cybersecurity Issues, Best Practices for Presenting Quantum Evidence, Special Issues Arising when Taking Evidence from State Parties, Special Mechanisms for Obtaining Evidence. 5.3); duty of parties to avoid hearings if appropriate (Art. based generally on the [2010 Rules]). Submitting Evidence in an International Arbitration: The Common Lawyer's Guide George M. von Mehren * and Claudia T. Salomon ** Journal of International Arbitration, volume 20 issue 3 Journal of International ArbitrationDominique Bette E. ShifmanHascher I. Experienced arbitration counsel, however, know otherwise. [63] 2020 Rules, Art. In Spain, the taking of evidence in civil proceedings is subject to the dispositive principle, whereby the courts are to decide based on the evidence introduced by the parties. Finally, the Task Force also implemented three more or less purely technical changes, namely the addition of cross-references to Articles 9.2(b),[80] the revision of former cross-references to Article 9.2 to also refer to the new Article 9.3,[81] and the correction of typographical errors. The written brief is an invaluable opportunity to guide the tribunal through all the arguments and supporting evidence and convince it of the merits of the partys case. You have remained in right site to begin getting this info. Gavin Zuo These include written reprimands, written cautions as to future conduct or any other measure necessary to enable the tribunal to fulfil its duties. Joseph E Neuhaus 2; Civ. Articles 4.6 and 5.3 deal with new matters in reply witness statements and expert reports, respectively. [51] The 2010 Rules contemplated that [a] Party to whom such a request for documents or testimony was addressed could raise objections for any of the reasons set forth in Article 9.2. 1.2); tribunals have power to adopt (Preamble), Available for parties to agree or tribunals to adopt (Guideline 1), Art. 20.5: witnesses must appear if requested by party or tribunal; discretion of tribunal as to weight in event of non-appearance, Art. [67] BVerfGE 50, 36 = NJW 1979, 413; BGHZ 53, 259 = NJW 1970, 946 (based on the constitutionally guaranteed right to present evidence and, in addition, the requirement to safeguard justice as well as the principle of equality of arms). For these reasons, we recommend that participants in an international arbitration consider in each case whether additional ethical and procedural rules will aid in creating common expectations, closing potential gaps, levelling the playing field and generally protecting the truth-seeking function of the taking of evidence. The aim was to provide some greater teeth to the provision without constraining the arbitral tribunals discretion to consider all the circumstances in deciding how to respond. Br & Karrer Ltd, Michael Hwang SC and 945/2008 of 17 March 2009 (the defendant must, if applicable, prove the facts that, according to the applicable substantive legal rules, prevent, extinguish or weaken the legal effectiveness of the cause of action of the claim). [81] id., Arts. Peter Plach The next generation search tool for finding the right lawyer for you. [8] See IBA Working Party, Commentary on the New IBA Rues of Evidence in International Arbitration, 2000(2) Bus. Gavin Zuo [72] The tribunal is thus better able to assess the reliability of the testimony that is presented. The Guide to Evidence in International Arbitration, 1st Edition Editors: Amy C Klsener, Martin Magl and Joseph E Neuhaus Pages: 233 ISBN: 978-1-83862-577-1 Quantity + - 250.00 Add to Cart * For corporate sales or customer pricing, please fill the form here About the product Read reviews Nearly every arbitration involves the taking of evidence. However, a party is not necessarily required to state, for example, the presumed time frames or the authors or recipients. Lawjay Partners, Joseph E Neuhaus, A similar rule applies with respect to witness evidence. [21] The Rules Subcommittee, which included 120 members, prepared reports covering 57 jurisdictions worldwide and conducted a survey of arbitration stakeholders that garnered more than 800 meaningful responses. The written brief can be invaluable in bridging the gap between the expert report and the tribunal. 2020 Rules, Art. In Germany, this objective is set out clearly in Section 286, paragraph 1 of the German Code of Civil Procedure, which provides that the court shall, taking into account the entire content of the proceedings and the result of any taking of evidence, freely decide whether a factual allegation is to be considered true or not true. [95] See Interpretation of the Supreme Peoples Court on the application of the Civil Procedure Law of the Peoples Republic of China, Article 95. [109] Draft Prague Rules of 1 September 2018, https://praguerules.com/upload/medialibrary/b2e/b2e26123ac310b644b26d4cd11dc67d8.pdf. However, as the potential scope of the evidence may be unclear at the time of the first case management conference, and the participants may be more focused on issues affecting the overall organisation of the proceedings, it may make sense to readdress the necessary scope, procedures and ethical safeguards at later junctures in the proceeding. However, the IBA Guidelines go much further in relation to potentially false witness evidence. [45] See Phillips and another v. Symes and another [2003] EWCA Civ 1769, Sarayiah v. Williams and another [2018] EWHC 342 (QB) and former PD 81.9 (all allegations of contempt, both civil and criminal, must be proved to the criminal standard of beyond a reasonable doubt). [52] Toyota Tsusho (Malaysia) Sdn Bhd v. United Overseas Bank Ltd & another [2016] SGHC 74, at [12]. This underscores the importance of augmenting the presentation of evidence in written submissions, as it can be the main mode of proving ones case and the driving force for the tribunals fact-finding. (eds), 2008, 19th Suppl.). The Task Forces amendment clarified that the arbitral tribunal has flexibility to exclude documents in whole or in part, as is commonly the case when a document is, for example, partially privileged or can be redacted to exclude information of special commercial or technical confidentiality or political or institutional sensitivity. and Drawing on current case law, this book looks at the common issue [111] The power is also recognised in the case law and national legislations of other jurisdictions. [68] By contrast, the admissibility of evidence in the UAE is not affected by its potential relevance or materiality (or the lack thereof). Although these efforts have picked up in the past 15 years, ethical canons have had a mixed reception, and it is fair to say that there is no broad consensus as to which approach is the most suitable to regulating the taking of evidence in international arbitration. [90] Covid-19 (Temporary Measures) (Amendment) Bill, para. Rule 5.3 draws attention specifically to different understandings that may be attached to certain correspondence, including without prejudice. The Guide to Evidence in International Arbitration - First Edition Presenting Evidence in Briefs Presenting Evidence in Briefs Moritz Keller, Tim Schreiber, Paul Hauser and Sarah Lemoine Clifford Chance 03 September 2021 Print article Introduction [119] By comparison, the tribunal has a more significant role under the Prague Rules, as it decides which witnesses to call for examination,[120] with cross-examination permitted only if the tribunal so decides. Martin Magal and Dentons, Beata Gessel-Kalinowska vel Kalisz, Importantly, the 1999 Rules introduced the Article 9 grounds for exclusion of evidence, in particular where the evidence sought was irrelevant, immaterial, burdensome, duplicative, subject to legal impediment or privilege, commercial or technical confidentiality. Trevor Dick For example, in civil law countries, greater weight tends to be assigned to documentary evidence than oral testimony from fact and expert witnesses. [33] A comparison of the key approaches of these canons to key evidentiary issues is included in table form in the Annex to this chapter. The court decided that company A, even though it did not introduce the action, had to prove its allegations, namely the non-receipt of the plans). See also, e.g., UK Arbitration Act 1996, s 34(1). Each jurisdiction has its own procedure and practice when a party seeks to obtain evidence outside its possession or control. Courtney Lotfi For example, the IBA Rules on the Taking of Evidence are frequently used as a guide on the matter, especially when the arbitration is international and there are parties or lawyers from different jurisdictions. Consequently, the 2020 Task Force deleted the sentence stating that the tribunal-appointed expert has the same authority as the tribunal, and simply leaves it to the tribunal to resolve any disputes. Since the taking of evidence is party-driven in common law jurisdictions, attorneys and their clients are expected actively to search out potential witnesses and will meet with those individuals before they are called to give evidence. Julia Sherman, 3, Annex: potentially extends duty to legal positions (any false statement); Para. [14] UNCITRAL Notes on Organizing Arbitral Proceedings, para. The question of whether oral evidence or documentary evidence is of a higher probative value depends on the jurisdiction. If supporting evidence contains largely repetitive, near-duplicative or ancillary details or materials, the information could be presented in the form of a table or chart. 4. 1.4) and, in the event of any lacuna in the IBA Rules of Evidence or General Rules, to conduct the taking of evidence as it deems appropriate (Art. 1.3), the power to interpret the meaning of the IBA Rules of Evidence as applied to the particular arbitration (Art. [88] However, a court may exercise its discretion to exclude such evidence, usually on the grounds of the public interest in discouraging the conduct involved and in consideration of human rights, such as the right to privacy and the right to a fair trial. 3.6: consultation of counsel on document production, Addressed indirectly (see Art. Three Crowns LLP, Erik G W Schfer Lawjay Partners, Joseph E Neuhaus, For example, in preparing for a hearing and during the hearing itself, witnesses should be reminded to distinguish between post-event information, such as what they have read or learned from others, and the facts or events that they remember. [54] Article 1 of the IBA Rules of Evidence provides that the arbitral tribunal has the power to resolve any conflict in meaning between the provisions of the IBA Rules of Evidence and the General Rules (Art. The 2016 Report (which reviewed the acceptance of various IBA guidelines) noted that some survey respondents had suggested the IBA Rules required production of documents to the opposing party. [8], The main objective of evidence of any type is the pursuit of the truth. [69] This would imply that the tribunal-appointed expert does not, in fact, have the same authority to request access to information, since the experts decisions can effectively be appealed to the tribunal. 3.26, 3.28. Therefore, international arbitration practice influences the production of evidence in Brazil. This represents a potential challenge to traditional notions of how lawyers should represent clients in disputes. Global Pound Conference Series: Global Data Trends and Regional Differences, available at https://www.pwc.com/gx/en/forensics/gpc-2018-pwc.pdf (2018), p. 3. [5] Therefore, though some countries may not specifically define evidence, they do list the different types. The Task Force therefore proposed a revision to clarify this issue. 8.1). 21734, 2016 (the English law equivalent is known as the balance of probabilities). The Prague Rules extend confidentiality to the same scope of documentation as under the IBA Rules (all documents submitted or produced). [71] See footnote 56, above, and accompanying text. [80] See the National Internal Regulations, Article 2; General Principles of the Code of Conduct for European Lawyers, Article 2.3. GESSEL, Cinzia Catelli and [68] In particular, if the subject of the evidence is irrelevant, if the subject of the evidence does not require proof because it is undisputed, because the taking of evidence is inadmissible, if the fact has already been proven, if the evidence is late, or if the evidence is unavailable (i.e., if there are actual obstacles). 14 of 2020), s 82(2), Seventh Schedule. Alvarez & Marsal LLP, Stefan Riegler, [5] Evidence Act (Cap 97, 1997 Rev Ed), s 3. The United States is a common law jurisdiction with arguably the most extensive discovery. Sarah Lemoine [40] These provisions were intended to replace and modernise the last sentence of Article 8.1 in the 2010 Rules, which provided: Each witness shall appear in person unless the Arbitral Tribunal allows the use of videoconference or similar technology with respect to a particular witness.[41] Article 8.2 of the 2020 Rules makes clear what was, in the Task Forces view, already implicit in Articles 8.1 and 8.2 of the 2020 Rules: that the arbitral tribunals complete control over the Evidentiary Hearing extends to its authority to order the use of videoconferencing or other technology for the conduct of the hearing. [4] In a slightly different manner, under the Evidence Act of Singapore, evidence is defined as oral evidence (all statements that the court permits or requires to be made before it by witnesses in relation to matters of fact under enquiry) and documentary evidence (all documents produced for the inspection of the court). ; Grard Cornu, La vrit et le droit in Lart du droit en qute de la sagesse (1998) p. 211 et seq. Emina Husic That there were some provisions needing modernisation or refinement as a result of a decade of intervening developments is not surprising; but that there was relatively little that needed to be revisited is a testament to the care and foresight with which they had been drafted and previously revised. Alvarez & Marsal LLP, Stefan Riegler, A party may seek to obtain evidence outside its possession or control using various methods. MME Legal Tax Compliance, Moritz Keller, The broader the evidential rights and responsibilities granted to parties, the greater the responsibility of arbitrators and counsel to safeguard that process. The revised Rules also dropped the requirement that translations to be submitted must identify the original language; the Task Force concluded that the original language would almost always be self-evident, such that an express requirement was unnecessary. The Guide to Evidence in International Arbitration draws together a group of highly experienced practitioners who address the issues surrounding evidence in international arbitration, from the. The law in the United Arab Emirates (UAE) refers to evidence that is useful to reveal the truth. 4(4) (requiring requested documents to have been passed to or received from a third party). 3.5, 3.7, 3.9, 3.10, 4.10, 6.3, 7, 8.3, 8.6. [43] The Hague Principles on Ethical Standards for Counsel Appearing before International Courts and Tribunals 2010 [Hague Principles], Preamble, pp. [57] However the grounds for permitted disclosure are more limited under the Prague Rules (i.e., only if required of a party by the applicable law). Pablo Berenguer, Several of those who commented expressed concern that the IBA Rules should not purport to regulate the rights of third parties, as they necessarily could not be bound by those Rules. On a basic level, the notion that each party must prove its own allegations is universal. Presumed facts are those that are logically deduced from other certain facts. If the parties wish to exclude these from presentation, they should restrict this definition as appropriate. Michael Hwang Chambers LLC, Jonatan Baier, However, when there is little uncertainty that the other party will seize on the damaging information in its own submission, it may be prudent to use the brief as an opportunity to recontextualise or reframe the evidence to diffuse the risk that it presents to the partys case. Bernhard Meyer, [17] A similar principle is found in France, such that if the sum or value exceeds an amount fixed by decree, the juridical act must be signed and in writing in order to be proved. As discussed above, national ethical rules offer unreliable and sometimes ineffective protection in international arbitration. 264/2011. Each team offered commentary and revisions to the work of the others throughout the process. We submit, however, that the arbitral tribunal is not prevented from hearing and considering objections that third parties might wish to raise with the tribunal, because under Articles 1 and 8 of the IBA Rules, the tribunal has a broad inherent power to determine evidentiary issues.[54]. [5] The 1983 Rules, though different from the modern IBA Rules in material ways,[6] nevertheless represented an early attempt to bridge the gap in evidentiary traditions between common and civil law traditions. We submit that a tribunal may well wish to permit oral direct testimony in such cases so as to allow, for example, a witness to respond directly to the latest submission of the other side before being cross-examined, to address new factual developments that have arisen since submission of the witness statement, or to provide the witness a brief warm up to summarise or highlight his or her written testimony for the tribunal, in view of the greater impact that oral testimony can have.[67]. We also survey the landscape of national ethical rules and then review various international rules, standards and guidelines relevant to the taking of evidence in international arbitration. [4] 2021 ICC Arbitration Rules, Article 19, for example, expressly permits an arbitral tribunal to apply to the arbitration rules of a national law on any matter on which the ICC Arbitration Rules are silent and to the extent the parties have not agreed otherwise. Some jurisdictions prohibit attorneys from speaking with witnesses before their testimony,[28] whereas others have modified this traditional approach and now permit attorneys to meet with witnesses and discuss their testimony, refreshing their recollection based on documents. The updated Rules were adopted in 2010 and provide mechanisms for the presentation of documents, witnesses of fact, expert witnesses, inspections, and the conduct . [32] In Germany, the burden of proof may be reversed in specific cases identified by case law (e.g., producers liability)[33] or if a party in possession of the evidence destroys or withholds it. The word evidence, which is derived from the Latin evidentia, meaning that which is obvious, can either be a verb or a noun (i.e., to render evident or that which makes evident). This duty did not expand the substantive scope of obligations under the IBA Rules but instead placed ethical limits on the exercise of all rights under the IBA Rules. Romana Brueggemann By integrating witness, expert and documentary evidence into the submission, counsel have the means of shaping the case into a coherent and compelling story. Akin to the provisions in Article 2 calling for consultation at an early stage in the process for taking evidence generally, the central idea is to draw the attention of all participants to some of the important points that should be considered to make a remote hearing work efficiently, fairly and, to the extent possible, without unintended interruptions.[43]. These include an obligation to present evidence in a fair and reasonable manner, an obligation to refrain from presenting or otherwise relying upon evidence that he or she knows or has reason to believe to be false or misleading (Article 6.1). Three Crowns LLP, Erik G W Schfer 4: duty not to procure, prepare or rely on false evidence, No, but general good faith duty in Preamble 3, Guideline II.C: forbidding knowing false submissions of fact and requiring correction if possible, Duty to: advise client to preserve documents (12) and supplement production (17); to take, and assist client in searching for and producing documents (15), Para. [6] The 1983 Rules had only seven articles, and, for example, did not provide for disclosure of internal party documents. [103] For an example of how such principles are reflected in institutional rules, see, e.g., 2021 ICC Arbitration Rules, Article 22.4 ([i]n all cases, the arbitral tribunal shall act fairly and impartially and ensure that each party has a reasonable opportunity to present its case); 2007 DIAC Arbitration Rules, Article 17.2 ([i]n all cases, the Tribunal shall act fairly and impartially and ensure that each party is given a full opportunity to present its case). [58] Federal Rules, Rules 16, 26(a), 26(f) and Form 35. [42] Second, the new Article 2 introduced an evidential case management conference. [59] Although this scope is properly confined to new material, the Task Force considered that, in particular cases, there might be new developments outside the matters addressed in another partys submissions that might be relevant and material to the outcome. Article 31.1 contains duties of confidentiality with respect to non-public documents produced in the arbitration that are broadly equivalent to the scope of Article 13.3 of the IBA Rules. The 1999 Rules created the article structure that has been retained since and was animated by principles that have likewise been retained in the Rules to this day. In civil proceedings, the plaintiff must prove the issue on the balance of probabilities. Moreover, the 2020 Task Force concluded that a tribunal-appointed expert should not be considered to have the same authority as the tribunal on all questions that might relate to the experts access to information. VI ZR 392-97; Federal Supreme Court decision dated 24 November 1976, ref. The precursor to the IBA Rules the Supplementary Rules Governing the Presentation and Reception of Evidence in International Commercial Arbitration (the 1983 Rules) was adopted by the IBA on 28 May 1983. E-disclosure practices from other jurisdictions This chapter first addresses the general rules and requirements of evidence across various legal cultures, including France, Germany, Spain, England and Wales, the UAE, the People's Republic of China, Hong Kong, Singapore and the United States (notably New York), then provides an analysis of evidence in international arbitration. [15] In France, documentary evidence is also considered the most common, persuasive and practical type of evidence. Although these general behavioural requirements may facilitate the ethical taking of evidence, the ICCA Guidelines are notably light on specific rules regarding taking evidence. (L 119) 1. Michael Hwang Chambers LLC, Jonatan Baier, [18] The probative value of witness testimony may also depend on the nature of the proceedings. Dominik Vock and The Arbitral Tribunal shall then, in consultation with the Parties and in timely fashion, consider the Request to Produce and the objection.). [13], The 1999 Rules were well received and became commonly used in international commercial arbitrations. Pablo Berenguer, [37] The capitalised terms used in this section of this chapter and not otherwise defined have the meaning set forth in the 2020 Rules. [29] In Singapore, see Public Prosecutor v. GCK and another matter [2020] SGCA 2, at [133]. Guideline I.E requires counsel to ensure that the individuals under their supervision also follow the precepts of the Guidelines. 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