WORKING WITH THE ARTIFACTS: IS THERE A BEST APPROACH TO THE TAKING OF EVIDENCE IN INTERNATIONAL ARBITRATION?
The growth of international arbitration in the past half-century has sparked various entreaties to harmonise practice and procedure as lawyers gathered as counsel and arbitrator amidst vying legal mores – the common law, adversarial system where party autonomy is key and the arbitrator is referee, and the civil law, inquisitorial system where the arbitrator is an active investigator. A key concern especially as it pertains to the evidentiary matters in international arbitration has been establishing rules of procedure to safeguard due process protocols. An entry point to this discussion is the United Nations Commission on International Trade Law’s (UNCITRAL’s) Model Law on International Commercial Arbitration introduced in 1985 with amendments adopted in 2006. Article 19 entitled ‘Determination of rules of procedure’ provides general parameters, with the parties free to agree on procedure, and failing that, the tribunal conducting proceedings as it deems appropriate and including the “power to determine the admissibility, relevance, materiality and weight of any evidence”. In turn, arbitral institutions have been equally deferential to flexibility of the process, party autonomy, and, as necessary, the arbitrator’s freedom to address evidence within administered (and even ad hoc) rules. Such flexibility of procedure permits gaps and questions as to best practices when matters are truly international and commercial and juxtaposed amidst the civil and common law traditions.
Oct-Dec 2018 issue
Arnold & Porter Kaye Scholer LLP
New York International Arbitration Center