1. Third Party Evidence Gathering „European Style“– and a word of caution on data protection
combar - North American Meeting | Vienna
Balz Gross
May 31, 2018

2. Singapore Arbitral Tribunal
Local Court: Germany
Singapore Court
Singapore Arbitral Tribunal
Local Court: Switzerland
Party A Thailand
Party B France
May 31, 2018

3. Obtaining Evidence from Third Parties
At the Request of the "Juge d'Appui" | Court of Seat of Arbitration
At the Request of the Arbitral Tribunal
At the Request of a Party
May 31, 2018

4. Request from Court
Arbitral Tribunal requests local judge at the seat of the arbitration to request the foreign court to obtain evidence
Arbitration Law must provide for a right of the Arbitral Tribunal to make a request the local judge at the seat of the arbitration (e.g. Model Law, article 27; Singapore, International Arbitration Act, schedule 1, article 27; Switzerland: Private International Law Act, article 184 para. 2)
Right of the local judge at the seat of the arbitration to request the local judge at the place of the evidence to obtain it: Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (Hague Convention)
Timing issues
Limitations (reservations re fishing expeditions; form of witness questioning)
May 31, 2018

5. Direct request from the Arbitral Tribunal
Arbitral Tribunal directly requests the foreign court to obtain evidence
1. Through Hague Convention procedure
Does an Arbitral Tribunal qualify as a court within the meaning of the Hague Convention → unclear; local law at the place requested court
2. Through local procedure
Court assistance in obtaining evidence (Model Law, article 27)
Does local law at the place of the requested court allow direct assistance to foreign arbitral tribunals?
Switzerland: Private International Law Act, article 184 para. 2 No (?)
Germany: Civil Procedure Act, article 1050: Yes
Timing issues (only with Hague procedure)
Limitations (reservations re fishing expeditions; form of witness questioning)
May 31, 2018

6. Request from a Party
Party directly requests foreign court to obtain evidence.
Normally no independent right of the party to request the foreign court to obtain evidence, e.g. Italy
New continental European provisions on 'securing of evidence’
Swiss Civil Procedure Code, article 158): Court orders taking of evidence if the applicant shows that it has a legitimate interest.
French Code de Procedure Civil, article 145 (only pre-trial)
Provisions on preliminary measures → substantive or procedural right to evidence?
Beweissicherung: The court shall take evidence at any time if the law grants a right to do so or if the applicant shows credibly that the evidence is at risk or that it has a legitiate right to do so.
May 31, 2018

7. Data Protection: A word of Caution for EU-countries from a non EU-National
General Data Protection Regulation (GDPR) implemented as from May 25, 2018
Generally also applies to arbitration proceedings, seated in the EU
consent of individuals to use their data needed (witnesses, experts, persons mentioned in documents?)
Obligation to process data according to GDPR
Problem: Absolute right to access one‘s own data: Individuals, arbitrators, …
Problem: Consent can be withdrawn any time -> evidence has to be removed?
Requirement to protect data -> direct obligation of tribunals and counsel?
Exemption for Arbitration needed. Exists in Ireland, Switzerland
May 31, 2018

8. Dr. iur. Balz Gross, LL.M. T
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