Guide to the IBA Rules on the Taking of Evidence in International Arbitration [Hardback]

(Bryan Cave Leighton Paisner LLP), Edited by (4 New Square), (Bryan Cave Leighton Paisner LLP)
  • Formāts: Hardback, 624 pages, height x width x depth: 253x175x40 mm, weight: 1206 g
  • Izdošanas datums: 12-Sep-2019
  • Izdevniecība: Oxford University Press
  • ISBN-10: 0198818343
  • ISBN-13: 9780198818342
  • Hardback
  • Cena: 203,79 €
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  • Formāts: Hardback, 624 pages, height x width x depth: 253x175x40 mm, weight: 1206 g
  • Izdošanas datums: 12-Sep-2019
  • Izdevniecība: Oxford University Press
  • ISBN-10: 0198818343
  • ISBN-13: 9780198818342
The IBA Rules on the Taking of Evidence in International Arbitration (the 'Rules') are used in the majority of all international arbitration cases, regardless of the administering institution or the legal background of the parties. The updated Rules were adopted in 2010 and provide mechanisms for the presentation of documents, witnesses of fact, expert witnesses, inspections, and the conduct of evidentiary hearings. They are widely accepted by the arbitration community and have become an international applicable standard. That said, the Rules are at times unclear and open to interpretation, leading to potential disputes as to how they should be applied in practice.

This book provides a comprehensive, article-by-article commentary on the Rules, pulling together in one volume an in-depth analysis of the relevant case law, reports of the IBA working groups, academic authorities, and the authors' own practical experience. The authors offer practical guidance on issues that frequently arise in practice and advise practitioners on how the Rules can be applied to advance or defend particular propositions. They also analyze how the Rules work in tandem with other applicable provisions, such as the UNCITRAL Model Law, and include practical templates and checklists that practitioners can use to support their daily practice.

Recenzijas

A Guide to the IBA Rules on the Taking of Evidence in International Arbitration (the Guide) is a comprehensive, clear and well-structured reference book for any international arbitration practitioner dealing with evidential matters. The authors and consultant editor have drawn upon their deep and diverse experience of civil and common law matters, and their extensive networks of global contacts, to bring together international perspectives on the IBA Rules and their practical application. ... The IBA Rules are referred to in so many international arbitrations that this thorough reference book is likely to be a useful companion for many arbitration practitioners on a regular basis. I therefore have no hesitation in recommending the Guide as a valuable resource for any arbitration library. * Philip Clifford QC, Arbitration *

Table of Cases xxi
Table of Legislation and other Legal Instruments xxvii
1 Provenance and Development of the IBA Rules on Evidence 1(9)
A Provenance of the IBA Rules
B Publication of the IBA Rules on Evidence
1 The 1983 IBA Rules
2 The 1999 IBA Rules
3 The 2010 IBA Rules
2 Preamble 10(33)
A Introduction
B Preamble 1: Efficient, Economical, and Fair
1 Nature of the Process: Efficient, Economical, and Fair
2 The IBA Rules as Supplementary Provisions
3 The IBA Rules Applicable to All Forms of International Arbitration
C Preamble 2: Flexibility
D Preamble 3: Good Faith and Reasonable Notice of Evidence
1 The IBA General Principles
2 The First Principle: Good Faith
3 Available Sanctions for a Breach of the IBA Obligation of Good Faith Conduct
4 The Second Principle: Reasonable Notice of Evidence Relied on by the Other Parties
3 Definitions Used in the IBA Rules on Evidence 43(6)
A Introduction
B Definitions
1 'Arbitral Tribunal'
2 'Claimant'
3 'Document'
4 'Evidentiary Hearing'
5 'Expert Report'
6 'General Rules'
7 'IBA Rules on Evidence' or 'Rules'
8 'Party'
9 'Party-Appointed Expert'
10 'Request to Produce'
11 'Respondent'
12 'Tribunal-Appointed Expert'
13 'Witness Statement'
4 Article 1: Scope of Application 49(28)
A Purpose
B Conflict with a Mandatory Provision of Law
1 Introduction
2 Application of the IBA Rules Pursuant to Article 1.1
3 Resolution of Conflict between an IBA Rule and a Mandatory Provision of Law
4 Sources of Potential Conflict between the IBA Rules and Mandatory Provisions of Law
5 Who Determines Whether the Mandatory Provision of Law Is Applicable to the Case?
C Version of the IBA Rules to Be Applied
1 Default Position: Version in Force on the Date of Agreement
2 Party Agreement to the Contrary
D Conflict with a Provision of the General Rules
1 Introduction
2 Party Autonomy
3 Where the Parties Cannot Agree
E Interpretation of the IBA Rules
1 Introduction
2 The First Limb: According to Their Purpose
3 The Second Limb: Appropriate for the Particular Arbitration
F Matters upon which the IBA Rules Are Silent
1 Introduction
2 Pre-Conditions to the Application of Article 1.5
3 Application of Article 1.5 Guidance
5 Article 2: Consultation on Evidentiary Issues 77(29)
A Introduction
B Consultation: Party/Party and Tribunal/Party
1 Overview of the Consultation Process
2 Timing of the Consultation
3 Achieving a Process that Is Efficient, Economical, and Fair
C The Matters to Be Considered during Consultation
1 Overview
2 Particular Matters to Be Considered
D Tribunal Identification of Material Issues and/or Discrete Issues Suitable for Preliminary Determination
1 Overview
2 Issues to Be Identified by the Tribunal
3 Timing of Identification of Issues by the Tribunal
6 Article 3: Documents 106(108)
A Introduction
1 The Scope of Article 3
2 The Need for Provisions Relating to Document Production
3 Development of the IBA Regime for Production of Documents
4 Changes Introduced by the 2010 IBA Rules
B Documents Relied on by the Parties
1 Obligation to Disclose Documents Relied upon
2 What Is to Be Disclosed?
3 Timing of Production
C Request to Produce Documents
1 Party Right to Deliver a Request to Produce
2 Timing of a Request to Produce
3 The Content of a Request to Produce
4 Documents Maintained in Electronic Form
5 Statement of Relevance and Materiality
6 Statement that Documents Are Not in Possession, Custody, or Control of the Requesting Party
7 Statement of Reasons Why the Requesting Party Assumes that the Documents Are in the Possession, Custody, or Control of Another Party
8 The Use of Redfern Schedules for Requests to Produce
D Voluntary Production
E Objections to Production
1 Objections
2 Obligation to Meet and Confer under Article 3.6
F Order for Production
1 Introduction
2 The Process for Determination by the Tribunal
3 The Making of an Order for Production
4 Production of Documents Ordered to Be Produced
G Review of Documents
1 Introduction
2 The Need to Review the Documents
3 Review of Documents by an 'Independent and Impartial Expert'
H Documents Held by Third Parties
1 Introduction
2 Requirements for an Application and Order under Article 3.9
3 The Exercise of the Tribunal"s Discretion: Decision on Steps to Be Taken
4 Possible Steps to Obtain Production of Documents
5 Does Article 3.9 Restrict a Party"s Ability to Seek Assistance from National Courts?
I Documents Sought by the Tribunal
1 Introduction
2 The Rationale for Permitting a Tribunal Request
3 The Available Routes
4 The Right to Object
5 The Taking of Appropriate Steps
J Additional Production by the Parties
1 Introduction
2 Requirements for Introduction of Documents under Article 3.11
3 Timing of the Production of Documents under Article 3.11
K General Issues Regarding Documents
1 Conformity of Copy with the Original and Obligation to Present Original for Inspection
2 Format for Submission of e-Documents
3 Multiple Identical Copies
4 Translations
L Confidentiality
M Separate Issues or Phases
7 Article 4: Witnesses of Fact 214(65)
A Introduction
B Witness Identification
C Witness Relationship with a Party to the Arbitration
1 Introduction
2 Party Witnesses in International Arbitration: The IBA Rules
3 Assessment of the Evidence
4 Enforcement
D Contact with Witnesses
1 Background
2 Maintaining a Level Playing Field and Application of Article 4.3
E Witness Statements
1 Introduction
2 Advantages and Disadvantages of Witness Statements
3 Timing
4 Organizing Witness Statements by Reference to Issue or Phase
5 Other Considerations
F Content of Witness Statements
1 Introduction
2 Formal Details
3 Evidence
G Additional Witness Statements
1 Introduction
2 Timing of Responsive Statements
3 Substance of Responsive Statements
4 New Witnesses
5 'Revised or Additional' Statements
H Non-Attendance at an Evidentiary Hearing
1 Introduction
2 A Party"s Right to Cross-Examine
3 Requirements to Be Satisfied before a Witness Statement Is Disregarded
4 Disregarding the Witness Evidence
I No Acceptance of Content of the Witness Statement
1 Not Calling a Witness for Cross-Examination
2 A Party"s Right to Call Its Own Witness
J The Unwilling Witness
1 Introduction
2 Requirements for an Application and Order under Article 4.9
K Request for Witness Testimony by the Tribunal
1 Power of the Tribunal to Call Witnesses
2 Party Objection
8 Article 5: Party-Appointed Experts 279(44)
A Introduction
1 Expertise and the Role of the Expert in International Arbitration
2 Development of Article 5
3 Other Guidelines on the Use of Party-Appointed Experts
B Is Expert Evidence Required, and If So, on Which Issues?
1 Assessing the Need for Expert Evidence
2 The Right of a Party to Present Party-Appointed Expert Evidence
3 Notification that a Party Intends to Rely on Party-Appointed Expert Evidence
4 Timing of Delivery of the Article 5.1 Notification
5 Timing of Delivery of Expert Evidence
C The Content of the Expert Report
1 Introduction
2 Matters to Be Included in the Expert Report
D Reply Expert Reports
1 Introduction
2 Timing of Responsive Statements
3 Substance of Responsive Statements
4 New Experts
5 'Revised or Additional' Statements
E Consultation between Opposing Experts
F Failure to Attend the Evidentiary Hearing
1 Introduction
2 A Party"s Right to Cross-Examine
3 Requirements to Be Satisfied before an Expert Report Is Disregarded
4 Disregarding the Expert Report
G Content of Expert Report Not Accepted Where Expert Not Called to Evidentiary Hearing
1 Introduction
2 Not Calling an Expert for Cross-Examination
3 A Party"s Right to Call Its Own Expert
9 Article 6: Tribunal-Appointed Experts 323(38)
A Introduction
B Party Involvement in the Tribunal"s Expert Appointment
1 Can a Tribunal Appoint an Expert without the Consent of the Parties?
2 Consultation with the Parties
3 Content of the Terms of Reference
C Party Objection to a Proposed Choice of Tribunal-Appointed Expert
1 Introduction
2 Grounds on which Party Objection May Be Made
3 The Procedure for Raising an Objection
D Provision of Information, Documents, and Other Materials to the Expert
1 Introduction
2 Requests for Information Made by the Tribunal-Appointed Expert
3 Party Objection to a Request for Information/Access by the Tribunal-Appointed Expert
4 Right to Receive the Information Provided to the Tribunal-Appointed Expert
5 Party Non-Compliance with a Request
E Content of the Report Prepared by the Tribunal-Appointed Expert
1 Introduction
2 Matters to Be Included in the Expert Report
F The Parties" Right to Respond to Evidence Produced by the Tribunal-Appointed Expert
1 Introduction
2 Provision of the Expert Report and Related Materials
3 Ex Parte Communications
4 Party Right to Respond
G The Attendance of the Tribunal-Appointed Expert at the Evidentiary Hearing
1 Introduction
2 Examination of the Tribunal-Appointed Expert
3 Consequences of Non-Attendance at the Evidentiary Hearing
4 Additional Role at the Evidentiary Hearing
5 Attendance during Tribunal Deliberations and Ex Parte Meetings with the Tribunal
H Assessment of the Evidence by the Tribunal
I Fees and Expenses of the Expert
10 Article 7: Inspection 361(14)
A Introduction
B What May Be Inspected?
C The Arbitral Tribunal"s Power to Order an Inspection
D Restrictions Imposed by Article 9.2
E Arrangements for the Inspection
1 Timing and Date
2 The Nature and Purpose of the Inspection
3 Attendance at the Inspection
4 The Rights of Those Attending the Inspection
5 Record of Inspection and Use of Evidence
6 Practical Example of an Inspection
11 Article 8: Evidentiary Hearing 375(32)
A Introduction
B Attendance of Witnesses for Cross-Examination
C Attendance in Person
D Tribunal Control of Examination of Witnesses
1 Control Rests with the Tribunal
2 Grounds for Limitation or Exclusion of Evidence
3 Exercise of the Tribunal"s Power to Limit or Exclude Evidence
4 The Use of Leading Questions
E Order and Organization of Questions to a Witness
1 Introduction
2 The Order of Witnesses and Questions by Counsel
3 Direct Oral Testimony
4 Cross-Examination and the Scope of Questions to the Witness
5 Re-Examination
6 Tribunal-Appointed Experts
7 Tailoring of the Proceedings to Meet the Circumstances of the Case
8 Tribunal Questions
F Affirmation and Confirmation by the Witness
G Tribunal Request for Evidence
H Issues Not Addressed in Article 8
1 Sequestration of Witnesses
2 Allocation of Time Allowed for Direct Examination, Cross-Examination, and Re-Examination
3 Oral Testimony, Language, and the Use of Translators/Interpreters
4 Use of Transcripts and Electronic Bundles
5 Provision for Closing Statements or Post-Hearing Briefs
12 Article 9: Admissibility and Assessment of Evidence 407(104)
A Introduction
B Assessment of Evidence
1 Introduction
2 Article 9.1: An Accepted Principle in International Arbitration
3 Relevance and Materiality
4 Admissibility
5 The Weight of Evidence
6 Other Considerations
C Exclusion of Evidence
1 Introduction
2 Grounds for Exclusion
D Relevance and Materiality
1 Introduction
2 Exclusion of Documentary Evidence
3 Exclusion of Witness Evidence
E Legal Impediment and Privilege
1 Introduction
2 Different Types of Legal Impediment or Privilege
3 Applicable Law-Legal or Ethical Rules Determined by the Tribunal to Be Applicable
4 Identification of Applicable Rules under Article 9.2 and the Relationship between Article 9.2 and Article 9.3
5 Factors to Be Considered by the Tribunal under Article 9.3
F Unreasonable Burden to Produce
1 Introduction
2 Practical Examples
G Loss or Destruction of the Documents
1 Introduction
2 Reasonable Likelihood of Loss/Destruction
3 Loss or Destruction of Documents during the Arbitration
4 Destruction of Electronic Records
H Commercial or Technical Confidentiality
1 Introduction
2 Third-Party Confidentiality
3 General Considerations
4 Practical Examples
I Political or Institutional Sensitivity
1 Introduction
2 Political Sensitivity
3 Institutional Sensitivity
4 Tribunal"s Approach to Claims of Political or Institutional Sensitivity
J Economy, Proportionality, and Fairness
1 Economy and Proportionality
2 Fairness and Due Process
K Confidentiality Protection
1 Introduction
2 When Will an Arbitral Tribunal Make a Confidentiality Order under Article 9.4 of the IBA Rules?
3 The Nature of the Measures
4 Confidentiality 'Expert'
5 Ancillary Matters
L Adverse Inferences
1 Introduction
2 Conditions for Adverse Inferences
3 The Nature of the Inference to Be Drawn
4 The Weight to Be Attached to Adverse Inferences
5 Due Process
6 Examples of Adverse Inferences
M Costs Sanctions for Lack of Good Faith
1 Introduction
2 Assignment of Costs
3 The Scope of the Power to Assign Costs
4 Practical Examples
Appendix 1 Commentary on the Revised Text of the 2010 IBA Rules on the Taking of Evidence in International Arbitration 511(23)
Appendix 2 Article 1 Roadmap: Scope of Application (and How to Deal with Conflicting Provisions) 534(1)
Appendix 3 Checklist of Points to Consider at the First Procedural Conference (and/or Subsequently) in Relation to the Process for the Taking of Evidence 534(5)
IBA Rules
534(1)
Issues for which the Tribunal Considers Preliminary Determination May Be Appropriate
534(1)
Issues the Tribunal Regards as Relevant to the Case and Material to Its Outcome
534(1)
Submissions
534(1)
Documents and the Production of Documents (Article 3 of the IBA Rules)
534(1)
Fact Witness Evidence (Article 4 of the IBA Rules)
535(1)
Expert Evidence (Articles 5 and 6 of the IBA Rules)
536(1)
Foreign Law Issues
536(1)
Good Faith Conduct
537(1)
Adverse Inferences
537(1)
Inspections (Article 7 of the IBA Rules)
537(1)
Evidentiary Hearing (Article 8 of the IBA Rules)
537(1)
Confidentiality (Articles 3.13 and 9.4 of the IBA Rules)
537(1)
Points to Consider to Promote Efficiency, Economy, and Conservation of Resources in Connection with the Taking of Evidence
538(1)
Appendix 4 Sample Redfern Schedule Delivered by Claimant 539(6)
Appendix 5 Template Redfern Schedule 545(2)
Appendix 6 Veeder Codes for Objections to Requests for Production under the IBA Rules 547(1)
Appendix 7 Checklist for Production of Documents 548(3)
A Voluntary Production of Documents
548(1)
B Requests to Produce Documents: From Another Party
548(2)
1 Requesting Party: Content of the Request to Produce
548(1)
2 Objecting Party: Response to Request to Produce
549(1)
3 Tribunal
549(1)
C Requests to Produce Documents: From a Third Party [ Article 3.9 of the IBA Rules]
550(1)
Appendix 8 Checklist for Witnesses of Fact 551(3)
A Matters to Consider during Consultation on Procedure and Timetabling/Submissions for the First Procedural Order
551(1)
B Matters to Consider When Drawing Up a List of Potential Witnesses and in the Preparation of Witness Statements
551(1)
C The Reluctant Witness
552(1)
D Tribunal Witnesses
552(1)
E Matters to Consider in Connection with the Evidentiary Hearing
552(2)
Appendix 9 Checklist for Party-Appointed Experts 554(3)
A Matters to Consider during Negotiations on Procedure and Timetabling/Submissions on the First Procedural Order
554(1)
B Matters to Consider When Drawing Up a List of Potential Experts and Drafting Instructions to the Expert
555(1)
C Expert Not Required/Unable to Attend the Evidentiary Hearing
556(1)
Appendix 10 Table for Joint Statement from Party-Appointed Experts on Areas of Agreement and Disagreement 557(1)
Appendix 11 Checklist and Guidance on Use of Tribunal-Appointed Experts 558(3)
A Matters to Consider during Negotiations on Procedure and Timetabling/Submissions on the First Procedural Order (PO1)
558(1)
B Procedure for Appointment of Tribunal-Appointed Expert and Subsequent Steps
558(1)
C Matters to Consider When Drawing Up Terms of Reference for the Tribunal-Appointed Expert
559(1)
D Matters to Consider in Connection with the Evidentiary Hearing
560(1)
Appendix 12 Checklist for Inspection 561(2)
A Is an Inspection Necessary or Desirable?
561(1)
B Objections to Inspection
561(1)
C Arrangements for the Inspection
561(2)
Index 563
Roman Khodykin is an arbitration specialist with extensive experience in national and cross-border matters, with particular emphasis on corporate and shareholder disputes. He holds a Ph. D in Conflict of Laws. Roman is a Visiting Professor in the Centre for Commercial Law at Queen Mary University of London. Additionally, in 2015-2018 Roman was an alternative member of the ICC Court of International Arbitration in Paris. He is a dual qualified solicitor of the Senior Courts of England and Wales and a Russian advocate. Carol Mulcahy has more than 25 years' experience working in the field of international commercial arbitration. She has extensive experience of commercial contract disputes in a wide variety of industry sectors, and involving parties from all over the world. Carol qualified as an English solicitor in 1983. She has postgraduate degrees in commercial law, oil law and European studies. She is a Chartered Arbitrator and Fellow of the Chartered Institute of arbitrators.