Rules of evidence in international arbitration :
O'malley, Nathan D.
Rules of evidence in international arbitration : an annotated guide - London : Informa, 2012. - xxxviii, 381 pages ; 25 cm.
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
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
3.Document Production In International Arbitration
Contents note continued: General considerations regarding production of documentary evidence
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
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
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
Contents note continued: Investor-state arbitration
Produce or object: the duty to provide good faith answers to a request
Multi-parties and document production
Duty to provide good faith answers to a request
The production of documents under protest
Requests and objections (general) and the "Redfern schedule"
Consultations between parties
Relevance and materiality standard
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
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
Threshold issues regarding court involvement
Contents note continued: 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
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
Originals, copies, forgeries and translations: the authenticity of documentary evidence
Questions concerning the accuracy of a reproduction
Allegations of forgery
The tribunal's authority to order production of an original
Must a non-conforming copy be disallowed
Confidentiality of disclosed documents
Contents note continued: 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 pursuant 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
Document disclosure based on a substantive right
Application of substantive law standard
Award or procedural order
Document disclosure and interim measures
The purpose of provisional measures relating to documentary evidence
Contents note continued: The standard applicable to requests for interim measures aimed at obtaining or preserving evidence
4.Witnesses Of Fact
Identification of witnesses
Failure to give notice of witness within the specified time
Who may be a witness
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
Contacting adverse witnesses
The use of witness statements
A party's right to withdraw a witness statement
The time frame for submitting a witness statement
Contents of a witness statement
Disclosure of relationship to a party
Full description of the facts
Documents accompanying the witness statement
Witness affirmation
Contents note continued: Signature of the witness
Rebuttal witness statements
Disregarding witness statements
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
Court assistance in obtaining witness testimony
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 sua sponte
"Best efforts"
5.Party-Appointed Experts
Party-appointed expert's testimony in international arbitration generally
Identifying the expert
Contents note continued: The expert report
The contents of the expert report
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
Rebuttal expert reports
Ordering party-appointed experts to meet and confer
Summoning a party-appointed expert to an evidentiary hearing
Failure by an expert to attend a hearing
Determining not to call or cross-examine an expert witness
6.Tribunal-Appointed Experts And Inspections
Appointment and mandate of tribunal-appointed expert
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
Contents note continued: Formalities that accompany the expert's appointment and time for raising objections
Independence of an expert
The expert's professional qualifications
Raising objections after the expert has been appointed
Investigations by tribunal-appointed expert and inspections generally
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
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
Weighing the probative value of the expert report
Attributes of a report
Contents note continued: Adopting the full findings of the expert
Costs of tribunal-appointed expert
7.Assessing The Evidence, Burden Of Proof, Adverse Inferences And Procedural Good Faith
The general authority of the tribunal to admit and weigh evidence
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
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
Adverse inferences relate to the merits of the case
Accepted rules for drawing an adverse inference
Procedural good faith
The duty to act in "Good Faith" and the "Duty to Cooperate"
Contents note continued: The duty of good faith and the equality of arms
Document production generally and costs
8.Evidentiary Hearing
Notification of witnesses and the right to a hearing
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
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
Right to cross-examination
Examining witnesses using documents
Re-direct and re-cross-examinations
Examination of a tribunal-appointed expert
Contents note continued: Language of an evidentiary hearing
Questions by the tribunal
Witness conferencing
Hearing schedule
Affirmations and confirmations
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
"Any person"
No duty to order attendance
9.Disclosure And Admissibility Of Evidence
Relevance and materiality objections to the admissibility of evidence
Relevance to the case
Material to the outcome of the case
Evidentiary privileges
Guiding principles in determining the appropriate rule of privilege
Contents note continued: Article 9.3(a) any need to protect the confidentiality of a document created or statement or oral communication made in connection with and for the purpose of providing or obtaining legal advice
Article 9.3(b) any need to protect the confidentiality of a document created or statement or oral communication made in connection with and for the purpose of settlement negotiations
Article 9.3(c) the expectations of the parties and their advisers at the time the legal impediment or privilege is said to have arisen
Closest connection test
The "survey" method
Article 9.3(d) any possible waiver of any applicable legal impediment or privilege by virtue of consent, earlier disclosure, affirmative use of the document, statement, oral communication or advice contained therein, or otherwise
Consent
Earlier disclosure
Affirmative use
Contents note continued: Article 9.3(e) the need to maintain fairness and equality as between the parties, particularly if they are subject to different legal or ethical rules
Other approaches to determining an applicable rule of privilege
Objections to production based on burden
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
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 commerical and technical confidentiality
Documents subject to confidentiality agreements with third-parties
Resolving objections raised over commercial or technical confidentiality
Contents note continued: Objections based on the special political or institutional sensitivity of the information
Domestic laws on governmental privilege and article 9.2(f)
Compelling grounds
Sensitive documents
Example of the improper assertion of governmental privilege
Objections based on procedural economy, fairness and equal treatment
Procedural economy
Proportionality
Fairness
Equality
APPENDICES
1.IBA Rules on the Taking of Evidence in International Arbitration (2010)
2.UNCITRAL Arbitration Rules (2010)
3.Hwang Model Procedural Order on Confidentiality
4.The confidentiality undertaking for third-party experts
-Chemtura Corporation v Government of Canada.
This book offers extensive, precise description of each aspect of evidentiary procedure for international law, extending beyond the IBA rules of evidence to provide a wealth of applicable detail, making it an essential reference for the practitioner. Initial chapters describe the rules of evidence and their application, and the specifics of depositions, interrogatories and judicial notice.
9781843119562
347.09 / MAL..R
Rules of evidence in international arbitration : an annotated guide - London : Informa, 2012. - xxxviii, 381 pages ; 25 cm.
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
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
3.Document Production In International Arbitration
Contents note continued: General considerations regarding production of documentary evidence
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
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
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
Contents note continued: Investor-state arbitration
Produce or object: the duty to provide good faith answers to a request
Multi-parties and document production
Duty to provide good faith answers to a request
The production of documents under protest
Requests and objections (general) and the "Redfern schedule"
Consultations between parties
Relevance and materiality standard
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
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
Threshold issues regarding court involvement
Contents note continued: 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
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
Originals, copies, forgeries and translations: the authenticity of documentary evidence
Questions concerning the accuracy of a reproduction
Allegations of forgery
The tribunal's authority to order production of an original
Must a non-conforming copy be disallowed
Confidentiality of disclosed documents
Contents note continued: 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 pursuant 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
Document disclosure based on a substantive right
Application of substantive law standard
Award or procedural order
Document disclosure and interim measures
The purpose of provisional measures relating to documentary evidence
Contents note continued: The standard applicable to requests for interim measures aimed at obtaining or preserving evidence
4.Witnesses Of Fact
Identification of witnesses
Failure to give notice of witness within the specified time
Who may be a witness
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
Contacting adverse witnesses
The use of witness statements
A party's right to withdraw a witness statement
The time frame for submitting a witness statement
Contents of a witness statement
Disclosure of relationship to a party
Full description of the facts
Documents accompanying the witness statement
Witness affirmation
Contents note continued: Signature of the witness
Rebuttal witness statements
Disregarding witness statements
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
Court assistance in obtaining witness testimony
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 sua sponte
"Best efforts"
5.Party-Appointed Experts
Party-appointed expert's testimony in international arbitration generally
Identifying the expert
Contents note continued: The expert report
The contents of the expert report
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
Rebuttal expert reports
Ordering party-appointed experts to meet and confer
Summoning a party-appointed expert to an evidentiary hearing
Failure by an expert to attend a hearing
Determining not to call or cross-examine an expert witness
6.Tribunal-Appointed Experts And Inspections
Appointment and mandate of tribunal-appointed expert
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
Contents note continued: Formalities that accompany the expert's appointment and time for raising objections
Independence of an expert
The expert's professional qualifications
Raising objections after the expert has been appointed
Investigations by tribunal-appointed expert and inspections generally
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
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
Weighing the probative value of the expert report
Attributes of a report
Contents note continued: Adopting the full findings of the expert
Costs of tribunal-appointed expert
7.Assessing The Evidence, Burden Of Proof, Adverse Inferences And Procedural Good Faith
The general authority of the tribunal to admit and weigh evidence
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
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
Adverse inferences relate to the merits of the case
Accepted rules for drawing an adverse inference
Procedural good faith
The duty to act in "Good Faith" and the "Duty to Cooperate"
Contents note continued: The duty of good faith and the equality of arms
Document production generally and costs
8.Evidentiary Hearing
Notification of witnesses and the right to a hearing
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
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
Right to cross-examination
Examining witnesses using documents
Re-direct and re-cross-examinations
Examination of a tribunal-appointed expert
Contents note continued: Language of an evidentiary hearing
Questions by the tribunal
Witness conferencing
Hearing schedule
Affirmations and confirmations
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
"Any person"
No duty to order attendance
9.Disclosure And Admissibility Of Evidence
Relevance and materiality objections to the admissibility of evidence
Relevance to the case
Material to the outcome of the case
Evidentiary privileges
Guiding principles in determining the appropriate rule of privilege
Contents note continued: Article 9.3(a) any need to protect the confidentiality of a document created or statement or oral communication made in connection with and for the purpose of providing or obtaining legal advice
Article 9.3(b) any need to protect the confidentiality of a document created or statement or oral communication made in connection with and for the purpose of settlement negotiations
Article 9.3(c) the expectations of the parties and their advisers at the time the legal impediment or privilege is said to have arisen
Closest connection test
The "survey" method
Article 9.3(d) any possible waiver of any applicable legal impediment or privilege by virtue of consent, earlier disclosure, affirmative use of the document, statement, oral communication or advice contained therein, or otherwise
Consent
Earlier disclosure
Affirmative use
Contents note continued: Article 9.3(e) the need to maintain fairness and equality as between the parties, particularly if they are subject to different legal or ethical rules
Other approaches to determining an applicable rule of privilege
Objections to production based on burden
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
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 commerical and technical confidentiality
Documents subject to confidentiality agreements with third-parties
Resolving objections raised over commercial or technical confidentiality
Contents note continued: Objections based on the special political or institutional sensitivity of the information
Domestic laws on governmental privilege and article 9.2(f)
Compelling grounds
Sensitive documents
Example of the improper assertion of governmental privilege
Objections based on procedural economy, fairness and equal treatment
Procedural economy
Proportionality
Fairness
Equality
APPENDICES
1.IBA Rules on the Taking of Evidence in International Arbitration (2010)
2.UNCITRAL Arbitration Rules (2010)
3.Hwang Model Procedural Order on Confidentiality
4.The confidentiality undertaking for third-party experts
-Chemtura Corporation v Government of Canada.
This book offers extensive, precise description of each aspect of evidentiary procedure for international law, extending beyond the IBA rules of evidence to provide a wealth of applicable detail, making it an essential reference for the practitioner. Initial chapters describe the rules of evidence and their application, and the specifics of depositions, interrogatories and judicial notice.
9781843119562
347.09 / MAL..R
