1. www.private-dispute-resolution.net www.dis-arb.de 1 Practical Techniques for Handling International Commercial Arbitration Cases Dubai International Arbitration Centre September 7 - 9, 2015 Workshop Leaders: Professor Dr. Klaus Peter Berger, LL.M. Victor Leginsky, Chartered Arbitrator, B.Ed, J.D., FCIArb. Practical Techniques for Handling International Commercial Arbitration Cases Dubai International Arbitration Centre September 7 - 9, 2015 Workshop Leaders: Professor Dr. Klaus Peter Berger, LL.M. Victor Leginsky, Chartered Arbitrator, B.Ed, J.D., FCIArb.

2. www.private-dispute-resolution.net www.dis-arb.de Taking of Evidence - General Introduction -

3. www.private-dispute-resolution.net www.dis-arb.de Most difficult part of any judicial procedure is to establish the disputed facts of the case Any particular difficulties in international arbitration ?

4. www.private-dispute-resolution.net www.dis-arb.de Particular difficulties in international arbitration (1) No statutory law for arbitrators on the method of how to establish the facts of the case No detailed provisions in institutional arbitration rules, see § 27.1 DIS-Rules  no guidance regarding questions of - means and admissibility of evidence - how to take evidence - evaluation and assessment of evidence

5. www.private-dispute-resolution.net www.dis-arb.de Particular difficulties in international arbitration (2) Multi cultural atmosphere of international arbitration Different legal concepts and practices on taking of evidence  clash of legal cultures

6. www.private-dispute-resolution.net www.dis-arb.de A way to bridge this legal & cultural gap: IBA Rules on the Taking of Evidence in International Arbitration (‘IBA Rules of Evidence’) = “Best Practice Rules”

7. www.private-dispute-resolution.net www.dis-arb.de 7 „Best Practice“: 1. Personal Experiences & Preferences („Core Values“) 2. Arbitral Case Law, Articles/Papers by Experienced Practitioners etc. 3. „Best Practice“ Rules („Soft Law“), e.g.: a. IBA Rules of Ethics (1985) b. IBA Rules on Taking of Evidence (1999, rev. 2010) c. IBA Guidelines on Conflict of Interest (2004) d. Chart. Institute Practice Guidelines on Interviewing Prospective Arbitrators (2008) e. CEDR for Facilitation of Settlement in Int‘l. Arb (2009) f. IBA Guidelines on Party Representation (2014) = practice-made rules („self-regulation“ or „private governance“) see Nos. 4, 6 Introduction IBA-Guidelines!!!

8. www.private-dispute-resolution.net www.dis-arb.de 8 „Arbitral Best Practice“: The Pros & Cons of Best Practice Rules: Pro: Best Practice Rules eliminate the dark side of arbitral discretion „dark side of arbitral discretion“ (Rusty Park) Contra: Pre-formulated rules eliminate procedural flexibility; they are „substitute for independent legal thinking“ (Michael Schneider) Conclusion: Optimal Balance required between predictability & flexibility See No. 2 Preamble IBA-Rules

9. www.private-dispute-resolution.net www.dis-arb.de IBA Rules of Evidence - Overview Adopted in June 1999; revised in May 2010 Prepared by the International Bar Association in a common sense manner, i.e. making use of the best elements available in each legal culture Provide best practice for the taking of evidence in international arbitration - e.g. Art. 8 IBA Rules of Evidence (Evidentiary Hearing)

10. www.private-dispute-resolution.net www.dis-arb.de IBA Rules of Evidence - Scope of Application “may adopt … in whole or in part, to govern arbitration proceedings, or they may vary them or use them as guidelines in developing their own procedures” “not intended to limit … flexibility” and can be “adapt[ed] … to the particular circumstances of each arbitration”

11. www.private-dispute-resolution.net www.dis-arb.de IBA Rules of Evidence - Scope of Application By agreement of the parties: “The rules governing the proceedings shall be the ICC Rules of Arbitration in force as from January 1, 1998, the IBA Rules on the Taking of Evidence in International Arbitration of May 29, 2010 and where these rules are silent, such other rules as the Parties, or failing them, the Arbitral Tribunal, upon consultation with the parties, may from time to time settle, provided they do not conflict with the mandatory rules applicable to international arbitrations in effect at the seat of the arbitration.“ Through Arbitral Discretion (with increasing frequency!): “ Upon consultation with the Parties, the Tribunal may seek guidance from the IBA Rules on the Taking of Evidence in International Arbitration of May 29, 2010 after consultation with the Parties.”

12. www.private-dispute-resolution.net www.dis-arb.de IBA Rules of Evidence - General Principles (1) efficient, economical and fairTaking of evidence should be conducted in an efficient, economical and fair manner, Preamble Para. 1 IBA Rules) Parties must conduct in good faith (Preamble, Para. 3 IBA Rules complete controlArbitral Tribunal shall have complete control over the taking of evidence (Art. 8 (2) IBA Rules

13. www.private-dispute-resolution.net www.dis-arb.de IBA Rules of Evidence - General Principles (2) identify Arbitral Tribunal should identify as soon as issues appropriate the issues that it may regard as relevant and material to outcome of case + preliminary determination appropriateness of preliminary determination (Art. 2 (3)) entitled to know Each Party shall be entitled to know reasonably in the evidence advance of any Evidentiary Hearing, the evidence on which the other party intends to rely (Preamble on which the other party intends to rely (Preamble No. 3) No. 3) Early consultation between Parties & Tribunal (Art. 2 (1))

14. www.private-dispute-resolution.net www.dis-arb.de IBA Rules of Evidence - Means of Evidence Documents, Art. 3 IBA Rules of Evidence Witnesses, Art. 4 IBA Rules of Evidence Party-Appointed/ Tribunal Appointed Experts, Art. 5 / Art. 6 IBA Rules of Evidence “On Site” Inspection, Art. 7 IBA Rules of Evidence

15. www.private-dispute-resolution.net www.dis-arb.de IBA Rules of Evidence - Assessment & Admissibility of Evidence Art. 9 IBA Rules of Evidence: - Arbitral Tribunal shall determine admissibility, relevance, materiality and weight of evidence, Art. 9 (1) - Arbitral Tribunal has the power to exclude evidence (privileges!!!, see Art. 9 (2) (b) + Art. 9 (3) a) - e) - Arbitral Tribunal may infer that a document/ other evi- dence requested would be adverse to the interests of the party failing to produce it without satisfactory explanation (Art. 9 (5), Art. 9 (6) IBA Rules of Evidence)

16. www.private-dispute-resolution.net www.dis-arb.de Taking of Evidence - Further Reading Elsing/ Townsend, Bridging the Common Law - Civil Law Divide in Arbitration, in: Arbitration International, Vol. 18 (2002), p. 59 et seq. Raeschke-Kessler, Hilmar, The IBA Rules of Evidence: How does an Arbitral Tribunal Establish the Facts of the Case ?, in: CENTRAL (ed.), Understanding Transnational Commercial Arbitration (2000), p.75 et seq. Redfern/Hunter, Law and Practice of International Commercial Arbitration, 4th. ed. (2004), Nos. 6-61 et seq.; Reymond, Civil Law and Common Law Procedures: Which is the more Inquisitorial? Arbitration International, Vol. 5 (1989), p. 357 et seq. IBA Working Party in: Weigand (ed.), Practitioners Handbook on International Arbitration, p. 372 et seq.