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
