Foreword

v

Preface

ix

Table of Cases and Arbitrations

xix

Table of Legislation, Conventions and Rules

xxxv

Abbreviations and Acronymns

xxxvii

1.

The Rules Of Evidence And Their Application

Are there rules of evidence in international arbitration?

6

What are the rules of evidence in international arbitration?

11

Application of the rules of one jurisdiction to evidentiary procedure

17

The application of the IBA rules of evidence

22

2.

Depositions, Interrogatories And Judicial Notice

Introduction

1

Depositions

4

Arbitration agreements permitting depositions in international arbitration generally

6

The use of depositions to obtain testimony from witnesses unable to attend a hearing

15

Interviewing adverse witnesses prior to the hearing

19

Interrogatories

21

General discussion

21

General guidelines for the use of interrogatories in international arbitration

23

Tribunal involvement in drafting and approving interrogatories

26

Judicial notice

28

Facts of which judicial notice may be taken

31

3.

Document Production In International Arbitration

General considerations regarding production of documentary evidence

5

General discussion

5

Customary filing deadlines

9

Completion of the document production phase

11

Good faith and voluntary document production

13

No duty to voluntarily disclose adverse evidence

14

A request for document disclosure

16

General discussion

16

Timing of a request for disclosure

17

Conducting document disclosure without the tribunal's involvement

20

Do parties have a right to limited document disclosure?

21

Standards applicable to a request for document disclosure

26

General discussion

26

Disclosure in arbitration versus US-style discovery

28

The civil law view of disclosure in international arbitration

31

Categories of documents: the "narrow and specific" standard

34

Narrow and specific: electronic documents

39

Not in possession, custody or control of the requesting party

44

Burdensome for requesting party to produce

46

Demonstrating possession, custody or control

48

Investor-state arbitration

52

Produce or object: the duty to provide good faith answers to a request

54

General discussion

54

Multi-parties and document production

56

Duty to provide good faith answers to a request

57

The production of documents under protest

60

Requests and objections (general) and the "Redfern schedule"

61

General discussion

61

Consultations between parties

65

General discussion

65

Relevance and materiality standard

67

General discussion

67

The "relevance and materiality" standard

68

"Relevant to the case"

69

"Material to its outcome"

73

Other standards

77

Failure to meet the requirements of article 3.3

79

Using experts to resolve document disputes

81

General discussion

81

Appointing an expert

82

The independence and impartiality of an expert

84

The role of an expert

85

Failure by a party to cooperate with expert

87

Court assistance in taking documentary evidence

89

General discussion

89

Threshold issues regarding court involvement

91

The scope of article 3.9

96

A tribunal's authority over ancillary evidence gathering

102

Treatment of evidence obtained by unauthorised ancillary legal process

110

General powers of a tribunal to order disclosure

111

General discussion

111

A tribunal's right to request document production from a party

114

A tribunal's authority to compel a party to use "best efforts" to obtain evidence held by "any person or organisation"

118

A tribunal's power to take "any steps"

119

Offering supplemental or rebuttal evidence

122

General discussion

122

Originals, copies, forgeries and translations: the authenticity of documentary evidence

127

General discussion

127

Questions concerning the accuracy of a reproduction

131

Allegations of forgery

135

The tribunal's authority to order production of an original

138

Must a non-conforming copy be disallowed

141

Confidentiality of disclosed documents

142

General discussion

142

Transparency in international investment arbitration and confidentiality

151

Limitation on confidentiality: use of documentary evidence in connection with the arbitration

154

Exceptions to confidentiality: where confidential information is disclosed pursuant to "fulfil a legal duty"

156

Exceptions to confidentiality: disclosure where needed to "protect or pursue a legal right"

158

Exceptions to confidentiality: "to enforce or challenge an award"

164

A tribunal's authority to enforce confidentiality

165

Terms of a procedural order on confidentiality

167

Different phases of document production

174

General discussion

174

Document disclosure based on a substantive right

177

General discussion

177

Application of substantive law standard

178

Award or procedural order

181

Document disclosure and interim measures

182

General discussion

182

The purpose of provisional measures relating to documentary evidence

183

The standard applicable to requests for interim measures aimed at obtaining or preserving evidence

185

4.

Witnesses Of Fact

Identification of witnesses

4

General discussion

4

Failure to give notice of witness within the specified time

5

Who may be a witness

8

General discussion

8

Testimony by witness with a connection to a party

9

Persons interested in the outcome of proceedings to be treated as a witness

10

Witnesses who have legal obligations of confidentiality to a party

13

Preparing witnesses

15

General discussion

15

Contacting adverse witnesses

21

The use of witness statements

25

General discussion

25

A party's right to withdraw a witness statement

28

The time frame for submitting a witness statement

29

Contents of a witness statement

31

General discussion

31

Disclosure of relationship to a party

32

Full description of the facts

33

Documents accompanying the witness statement

38

Witness affirmation

42

Signature of the witness

44

Rebuttal witness statements

45

General discussion

45

Disregarding witness statements

48

General discussion

48

Valid reasons for non-attendance at a hearing

53

Exceptional reasons for admitting the testimony of a non-attending witness

58

Failure to call a witness to a hearing

60

General discussion

60

Court assistance in obtaining witness testimony

63

General discussion

63

The tribunal's authority over the taking of witness testimony

64

Court assistance in the taking of witness testimony

68

Considerations prior to authorising court involvement/a tribunal is not obliged to act

70

Other steps which are legally available to a tribunal to obtain witness testimony

72

Tribunal's power to call witnesses sua sponte

74

General discussion

74

"Best efforts"

77

5.

Party-Appointed Experts

Party-appointed expert's testimony in international arbitration generally

5

Identifying the expert

7

The expert report

8

The contents of the expert report

10

General discussion

10

The independence of a party-appointed expert

12

Factual assumptions and documents relied upon

17

Disclosure of an expert's instructions

19

Affirmation of an expert's genuine belief in the opinions expressed

21

Rebuttal expert reports

23

General discussion

23

Ordering party-appointed experts to meet and confer

25

Summoning a party-appointed expert to an evidentiary hearing

30

General discussion

30

Failure by an expert to attend a hearing

31

Determining not to call or cross-examine an expert witness

35

6.

Tribunal-Appointed Experts And Inspections

Appointment and mandate of tribunal-appointed expert

4

Determining when "specific issues" have arisen

7

Applying the tribunal's own expertise to determine "specific issues"

15

When a tribunal-appointed expert is required by mandatory law

18

Expert's terms of reference

19

Formalities that accompany the expert's appointment and time for raising objections

23

Independence of an expert

25

The expert's professional qualifications

27

Raising objections after the expert has been appointed

30

Investigations by tribunal-appointed expert and inspections generally

32

General discussion

32

The production of evidence at the request of the expert

35

Right to be heard and impartiality in the conduct of an investigation

37

Equal treatment and the right to be heard in the conduct of an inspection

39

A Party's right to review and comment on the expert report and related matters

44

General discussion

44

Failure to allow the parties to respond to an expert's report

45

The right to review the information relied upon by the expert

51

Opportunity to examine the tribunal-appointed expert

53

General discussion

53

Weighing the probative value of the expert report

55

General discussion

55

Attributes of a report

57

Adopting the full findings of the expert

60

Costs of tribunal-appointed expert

62

General discussion

62

7.

Assessing The Evidence, Burden Of Proof, Adverse Inferences And Procedural Good Faith

The general authority of the tribunal to admit and weigh evidence

5

A tribunal's general authority to determine admissibility and the limits of discretion

6

Weighing the evidence

11

Burden of proof, standards of proof and shifting the burden

15

The burden of proof: Onus Probandi Actori Incumbit

17

Substantive law and the burden of proof

24

Standard of proof

27

Prima facie evidence and shifting of the burden of proof

32

Adverse inferences in international arbitration

38

General discussion

38

Adverse inferences relate to the merits of the case

40

Accepted rules for drawing an adverse inference

42

Procedural good faith

44

The duty to act in "Good Faith" and the "Duty to Cooperate"

46

The duty of good faith and the equality of arms

52

Document production generally and costs

54

8.

Evidentiary Hearing

Notification of witnesses and the right to a hearing

5

Right to a hearing

6

Hearing of witnesses after submission of a written witness statement

11

Which party may call witnesses?

15

Testifying by video conference

17

A tribunal's control over the hearing

19

General discussion

19

Excluding witnesses from a hearing and due process

23

Raising objections during an evidentiary hearing

25

Irrelevant or immaterial questioning

33

Avoiding duplicative testimony (direct testimony)

39

Leading questions on direct examination

42

Sequestration of witnesses

43

In camera hearings

47

The presentation of oral testimony

50

General discussion

50

Right to cross-examination

52

Examining witnesses using documents

55

Re-direct and re-cross-examinations

58

Examination of a tribunal-appointed expert

60

Language of an evidentiary hearing

62

Questions by the tribunal

65

Witness conferencing

68

Hearing schedule

70

Affirmations and confirmations

75

General discussion

75

The administration of affirmations or oaths to witnesses

76

Confirmation of statement

82

Witness statements to serve as direct testimony

83

A tribunal's authority to call a witness on its own motion

84

General discussion

84

"Any person"

85

No duty to order attendance

88

9.

Disclosure And Admissibility Of Evidence

Relevance and materiality objections to the admissibility of evidence

6

General discussion

6

Relevance to the case

9

Material to the outcome of the case

13

Evidentiary privileges

18

General discussion

18

Guiding principles in determining the appropriate rule of privilege

20

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

25

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

32

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

40

Closest connection test

42

The "survey" method

48

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

54

Consent

56

Earlier disclosure

57

Affirmative use

59

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

61

Other approaches to determining an applicable rule of privilege

64

Objections to production based on burden

66

General discussion

66

Objective factors to consider when assessing the reasonableness of the burden

70

Vague or overly broad requests for the production of documents

74

A party's jurisdictional background

75

Lost or destroyed evidence

78

General discussion

78

Evidence which has been lost due to passing of time

79

Loss or destruction of evidence resulting from civil disturbance or other disaster

82

Objections based upon commerical and technical confidentiality

83

General discussion

83

Documents subject to confidentiality agreements with third-parties

86

Resolving objections raised over commercial or technical confidentiality

88

Objections based on the special political or institutional sensitivity of the information

92

General discussion

92

Domestic laws on governmental privilege and article 9.2(f)

94

Compelling grounds

98

Sensitive documents

103

Example of the improper assertion of governmental privilege

108

Objections based on procedural economy, fairness and equal treatment

109

General discussion

109

Procedural economy

110

Proportionality

114

Fairness

115

Equality

125

APPENDICES

1.

IBA Rules on the Taking of Evidence in International Arbitration (2010)

327

2.

UNCITRAL Arbitration Rules (2010)

339

3.

Hwang Model Procedural Order on Confidentiality

361

4.

The confidentiality undertaking for third-party experts---Chemtura Corporation v Government of Canada

363

Index

365