Introduction to International Commercial Arbitration Prof. Giorgio F. COLOMBO

Current Issues in International Arbitration: The “Prague Rules” Lesson n.13

Legal Cultures and Arbitration International Commercial Arbitration is carried out across countries It is, in its own nature, intercultural and multicultural Of course is dominated by the Common Law and Civil Law legal traditions

Domestic approaches Most lawyers study, graduate, and qualify in one single jurisdiction It is somehow inevitable that they are attached to their legal tradition Many lawyers consider «natural» something that is in fact a specific choice of a legal system

Bridging gaps The international legal community has tried to establish a common frame of reference for arbitration through Soft Law experiments ICC IBA Arbitral Institutions

The IBA Activities The Guidelines on Conflicts of Interest (2014) The Guidelines on Party Representation in International Arbitration (2013) Rules on the Taking of Evidence in International Arbitration (2010) Guidelines for Drafting International Arbitration Clauses (2010)

Clash of Cultures Dominance of the Common Law tradition over the IBA Rules “Creeping Americanisation of international arbitration”, Moscow, 2017 “The Prague Rules” (Inquisitorial Rules on the Taking of Evidence in International Arbitration, 2018)

The Prague Rules

The Prague Rules Article 1. Application of the Prague Rules 1.1. The parties may agree on the application of the Prague Rules before arbitration is initiated or at any stage of the arbitration. 1.2. The arbitral tribunal may apply the Prague Rules or any part thereof upon the parties’ agreement or at its own initiative after having heard the parties.

The Prague Rules Article 2. Proactive Role of the Arbitral Tribunal 2.4. The arbitral tribunal may at the case management conference or at any later stage of the arbitration, if it deems it appropriate, indicate to the parties: a. the facts which it considers to be undisputed between b. with regard to the disputed facts – the type(s) of evidence the arbitral tribunal would consider to be appropriate c. its understanding of the legal grounds on which the parties base their positions; d. the actions which could be taken by the parties and the arbitral tribunal to ascertain the factual and legal basis of the claim and the defence; e. its preliminary views on: i. the allocation of the burden of proof between the parties; ii. the relief sought; iii. the disputed issues; and iv. the weight and relevance of evidence submitted by the parties.

The Prague Rules Expressing such preliminary views shall not by itself be considered as evidence of the arbitral tribunal’s lack of independence or impartiality, and cannot constitute grounds for disqualification.

The Prague Rules Article 3. Fact Finding 3.1 The arbitral tribunal is entitled and encouraged to take a proactive role in establishing the facts of the case which it considers relevant for the resolution of the dispute. This, however, shall not release the parties from their burden of proof.

The Prague Rules Article 5. Fact Witnesses 5.8. Any decision not to call a witness who has submitted a witness statement does not limit the arbitral tribunal’s authority to give as much evidential value to the written witness statement as it deems appropriate.

The Prague Rules Article 7. Iura Novit Curia 7.2. […] the arbitral tribunal may apply legal provisions not pleaded by the parties if it finds it necessary, including, but not limited to, public policy rules. In such cases, the arbitral tribunal shall seek the parties’ views on the legal provisions it intends to apply. The arbitral tribunal may also rely on legal authorities even if not submitted by the parties if they relate to legal provisions pleaded by the parties and provided that the parties have been given an opportunity to express their views in relation to such legal authorities.

The Prague Rules Article 9. Assistance in Amicable Settlement 9.1. Unless one of the parties objects, the arbitral tribunal may assist the parties in reaching an amicable settlement of the dispute at any stage of the arbitration.

Will the Prague Rules be successful? “I would define as an underlying mandate for arbitrators to act with more powers or, put it this way, less afraid of due-process paranoia”. Most likely not Why? Enough flexibility already Some influential countries excluded