Written Submissions and Evidence Flashcards
Whats included in the notice of arbitratiin
Names/addresses/telephone numbers of both parties
Isseu to be resolved
Prospective resolution
Arbitration specifications
Whats included in the statements of case
Whether submissions will be sequential/simultaneous
Memorials or pleadings
When evidence will be oresented
When documents will be exchanged
How many rounds of pleadings
Should evidence be produced in the statement of claim
no
evidence at this stage is too fictitious cuz the tribunal has no idea whats going on, and giving evidence on a matter thats unknown doesn tmake sense
When should evidence be bought in
After the first round of pleadings,ie after response to counter claim
When should experts be bought in
It depends, some experts will be needed from the onset if their testimony is needed for the foundations of the claim
Example: Material from bridge is faulty
Some experts are only needed at the very end in regards to the quantu of damages
Article 3 of IBA rules
PArties must submit to the tribunal all documents in which they should rely on
A party may ask other party for production of documents
Requirements for requesting other party for the production of documents under IBA article 3
Documents must be material and relevant to the outcome
Documents must be in the possession of the other party
Documents must not be in possession of the party requesting
Production of documents must not be unduly burdensome
Party must produce precide statement of documents it needs
Must believe that they reasonably eist
Procedure of written pleadings
Usually sequentially and not simultaneous cuz may reuslt in a situation where its like 2 ships passing in the night
Move for te production of electronic documents
Time and length limits
No time limiit, normlaly takes like 3 months between submissions
Some institutions are now considering putting word counts/page limits on submissions cuz the lengthier they are, the longer it takes.
Collecting evidence
Not really feasibe to look at statistics due to confidential nature of arbitration
Fact finding rahter than law applying is central to arbitration.
Civil law v Common law
CV- judges take a more proactive approach
CL- Not really
Admissibility of written pleadings
Normally will be accepted as admissible, arbitrators told not to use rules on evidence from their own jurisdiciton
Pragmatic approach applied
Burden of proof
State rule
Burden of proof rests on the person making the allegation
UNCITRAL 27(1)- Burden lies on person making claim/defence, some will require evidence or testimony but some are so obvious that they dont need to be bake dup by proof
What is the standard of proof
Usually the balance of probabilities, ie more likely than not.
The more outrageous the claim, the higher the burden of proof
What are the categories of evidence
Documents- most important
`witness testimony
Expert ebidence
Inspection of subject matter
Documentary evidence
Parties produce documents that they will relu on and usually provide them with their written submissions
Article 3 IBA
Provide tribunal with documents that they will rely on
Redfern schedule
In regards to documentary production
Helps crysralise the issues between the parties as to what documents needed and so the tribunal know each parties position
What will tribunal do if not satisfied with the redfrn shcedule
Request additional info
Order a case management conference
What are the prague rules?
Give a civil law tatse to arb
Provide that parties cant request fo document production unless theyve made it clear from the onset that it would be needed.
The production of electronic documens
Newer documents rather than old documents are given more weight
Common LAw- all relevant documents have to be produced
Civil law- only the documents that the parties will rely on
How does IBA define a document
A wrtining, communication, pricure whether recorded, or paper, or electronic
Doesnt differentiate between a hard copy or a soft copy
Documents in possession of thrid parties
The tribunal has no authority to issue subpeonas to theird parties, may request assistance from the court.
Adverse inferences
Tribunal will drw adverse inferences from a party that fails to produce evidence with an order from tribunal
IBA 9.6 and 9.7
2 limitations where IBA rules aply
When tribunal has made an order for the production of the document
When the party has failed to give a satisfactory explanation for not submitting
Presentation of documents
Usually in chronological order
Hyperlinked
If authenticity is at dispute, tribunal will request the original
If in anothe rlanguage, tribunal will reuest that it be translated
Fact witness evidence
Role
To explain and supplement the evidentiary documents to help the tribunal conduct their fact finding
Less weight given than documsnts due to memor and sometimes cuz they have direct/indirect interest in outcome
Article 4 of IBA rules
- disclose of witness
- Can be anyone, even the party
- Can be prepared by lawyer
- Tribunal can request that this be done within a certain period of time
- Testimony include name facs etc
- CAn be excluded if fail to apppear
Presentation of witness evidence
Name rule
Parties can say which witness needs oral testimony, but tibunal can decide even if parties agree to not have oral that the witness be oally examined
Article 5.2 of the prague rules provides for this too
Prparation of witnesses
IBA and LCIA allow for this
however, it would be misconduct if lawyer were to make witness give testimony of something that they both knwo to be incorrect
PArties as witnesses
Yes unless the parties agree to not
Tribunal will hold less weight because of their direct interest in the outcome
Admisisbility and weight of witness evidence
State provision
Generally, it won’t be inadmissible, just less weight will be given to it.
Article 27(4) UNCITRAL
Tribunal has discretion to determine evidentiary weight of testimony
Evidence outside of seat
Tribunal doesnt have the power to subpeoona thrd parties
However hague convention, although not bidning for tribunls, sinatories gernall assist
But the fact that negative inferences are drawn also helps
Expert evidence
When tribunal lacks the necessary expertise they can:
1. Issue their own expert
2. request that parties bring their own
Issue their own expert
Parties are asked to agree on candidate
If cant list is made
If cant, tribunal decides
request that parties bring their own
More difficult for the tribunal because 2 onflicting experts
Hearings
In the majority of arbitraton, hearings occur
However, some have no hearing and tribunal still administer award, very rare
Organisation of hearings
By tribunal but can also be done by the insitution
Most timely and cost intensive part of the arbitral process
Location
Wherever the party deems best
MAin evidentiary hearing usually at the place of arbitraton
Remote hearings
Prior to covid, only for urgent matters
Now more often recognisd
Recognised inequality of arms, if one online, other should go online too
Pre hearing conference
Rationale: Saves time and money spent on actula hearing itself
Too late: Doesnt shape hearing
Too early: Tribunal uninformed and wont know what to discuss
Things covered at pre hearing conference
Running order
Allocation of time
Lenght of opening statements
Scope and lenght of witnwss cross examination
Things covered at pre hearing conference remote
Dress code
cyber security
Platform
Service providers
Aim of hearings
to cover everything in the shortest amount of time possile for wxpense an dschedule o arbitrators
Opening statemet
Short cuz tibunal already well informed on issues
Examination of witnesses
Shouldnt be told to be disingenious, misconduct under IBA
Wtiness conferencing
Usually for experts to facilitate discussion and allow for the tribunal to ask neessary questions
Closin submisisons
Usually written
Who has the last word
usually repsondent cux claimant started
Deafault hearings
If party fails to participate, eharings can rpoceed ex parte and award sitll issued, award has to mention failute to participate so that it doesnt get challenged
How to not participate
Boycott
Cause undue delay
Amke it impossible for things to proceed
Procedure
Must keep party full informed
doesnt have to advocate for party
Can produce award
