Introduction

Nearly every arbitration involves the taking of evidence. The applicable procedures affect what evidence is introduced and how. This can, and often is, outcome determinative. Thus, procedural questions around the process for taking evidence are some of the most common and the most important in arbitration.

This book draws together a group of highly experienced practitioners who address the topic from both theoretical and practical perspectives. Although timed to reflect the 2020 amendments to the International Bar Association’s Rules on the Taking of Evidence in International Arbitration (the IBA Rules), the book is not intended to be another commentary to the IBA Rules. [2] Rather, following in the tradition of some older publications, [3] this book addresses the topic from a number of perspectives. The Rules on the Conduct of Efficient Proceedings in International Arbitration (the Prague Rules, published in 2018) have become an important counterpoint to the IBA Rules, and we have sought to include a wide variety of civil and common law viewpoints.

The book starts with a series of chapters providing high-level perspectives on the taking of evidence in international arbitration. Chapter 1, ‘Approaches to Evidence across Legal Cultures’, takes a bird’s-eye perspective, tracing key evidentiary issues through the national legislation and cultures of China, France, Germany, Hong Kong, Singapore, Spain, the United Arab Emirates and the United Kingdom. Authors Jalal El Ahdab, Pablo Berenguer, Michael Chik, Jonathan Choo, Jiri Jaeger, Nicholas Peacock, Lucas Pitts and Gavin Zuo examine different views on the probative value of documentary and oral evidence, approaches to the burden and standard of proof, the scope of discovery available, rules on the admissibility and assessment of evidence, rules on the exclusion of evidence and the role of state judges in the taking of evidence. In the final section, the authors turn to the taking of evidence in international arbitration as it is shaped by both national laws and soft law instruments.

In Chapter 2, ‘20 Years of the IBA Rules on the Taking of Evidence: From the 1998 to the 2010 and 2020 Versions’, Joseph Neuhaus, Andrew Finn and David Blackman introduce the 2020 IBA Rules, both the paths taken and certain proposals that were deliberated by the International Bar Association (IBA) Rules Subcommittee but ultimately rejected. Joseph Neuhaus co-chaired the Guidelines and Rules Subcommittee tasked with the 2020 revisions, and David Blackman was one of the secretaries on the task force that proposed the revisions. Key changes included the addition of provisions on the taking of evidence in remote hearings, the inclusion of cybersecurity and data protection issues in the remit of the Article 2 consultation and the introduction of new grounds for objections, namely to the production of evidence from third parties or to evidence procured by corrupt means.

In Chapter 3, ‘The Prague Rules: Fresh Prospects for Designing a Bespoke Process’, Janet Walker takes stock three years after the release of the Rules on the Efficient Conduct of Proceedings in International Arbitration in 2018. She applies a dual perspective, assessing both the intention behind a provision and how it may be perceived or misperceived by common law counsel. She concludes that the Prague Rules provide a number of fresh prospects for designing a bespoke arbitral process. She encourages practitioners to look beyond what may be initial misgivings and apply procedures that are suggested by those Rules, such as early assessment by the tribunal, greater restraint in document disclosure, assessing the need for witness statements by first evaluating summaries of the proposed testimony, joint commissioning of experts and tribunal-led settlement discussions.

In Chapter 4, ‘Party and Counsel Ethics in the Taking of Evidence’, Amy Kläsener and Courtney Lotfi address ethical issues in connection with taking evidence. They review approaches to counsel ethics in taking evidence under national laws and various ethical canons that can be applied in arbitration, including the International Council of Commercial Arbitration’s 2021 Guidelines on Standards of Practice in International Arbitration, the 2018 Prague Rules, the 2010 and 2020 IBA Rules, the London Court of International Arbitration’s 2014 and 2021 Rules, the IBA’s 2013 Guidelines on Counsel Representation and the International Law Association’s Hague Principles on Ethical Standards for Counsel Appearing before International Courts and Tribunals of 2013. The authors conclude that ethical problems and disputes can be best prevented by means of active discussion of ethical issues in case management conferences and inclusion of specific rules and requirements in procedural orders.

In Chapter 5, ‘Approaches to Managing Evidence as Criteria for Selecting Arbitrators’, Michael McIlwrath considers the all-important question of whether and how to consider styles for the taking of evidence in the selection of arbitrators. He helpfully provides a list of specific issues to consider, including in particular whether it is strategic to ‘domesticate’ the procedure for taking evidence. Finally, he provides guidance on how to discern different styles in arbitrator candidates, including through appropriate interviews, arbitrators’ self-disclosures and databases on the subject.

The next two chapters address practice tips for the taking of evidence. In Chapter 6, ‘Planning and Organising Effective Procedures for the Taking of Evidence’, Beata Gessel-Kalinowska vel Kalisz, Joanna Kisielińska-Garncarek, Barbara Tomczyk and Łukasz Ostas explore options for tailoring the procedure to the needs of the case. The authors discuss from a high-level perspective the various categories of evidence and common procedures for introducing and managing them in arbitral proceedings. In Chapter 7, ‘Evidentiary Objections’, Cinzia Catelli and Romana Brueggermann provide detailed guidance on the various grounds for objecting to requests for production of documentary evidence, witness questions or the admissibility of evidence more generally.

In Chapter 8, ‘Standards of Proof and Requirements for Evidence in Special Situations’, Michael Hwang and Clarissa Chern take on the more abstract, but very important, topic of standards and burden of proof. The special situations they consider include prima facie evidence and the switching of the burden of proof, allegations of fraud and corruption, and the use of estimations to prove damages.

In Chapter 9, ‘Perspectives on Document Disclosure’, Jonatan Baier, Bernhard Meyer, Dominik Vock and Emina Husic offer their views on what is probably the most controversial topic in evidence: document requests. They caution arbitrators to think twice about including a phase for document disclosure in procedural calendars without first consulting the parties as to the need, opining that this could constitute a breach of the right to be heard.

In Chapter 10, ‘Presenting Evidence in Briefs’, Moritz Keller, Tim Schreiber, Paul Hauser and Sara Lemoine address what evidence should be introduced when and how. Among many other practical tips, they consider how to manage large volumes of evidence effectively and when to address adverse evidence proactively.

The next two chapters address the rapidly developing topics associated with electronic evidence. In Chapter 11, ‘Using Technology and e-Disclosure’, Kimberly Larkin, Julia Sherman, Kelly Renehan and Anish Patel explain how electronic evidence is handled in the United States and the United Kingdom, drawing on these regimes and on their experience in recommending best practices for managing electronic evidence in arbitration. In Chapter 12, ‘Managing Data Privacy and Cybersecurity Issues’, Erik Schäfer explains specifically what participants in the arbitral process need to know about these increasingly important issues. He provides practical suggestions, including a list of issues to address and proposed wording for procedural orders.

The next two chapters provide practical advice for compiling and presenting expert evidence. In Chapter 13, ‘Methods for Presenting Expert Evidence’, Doug Jones explores typical challenges associated with the evidence of both party-appointed and tribunal-appointed experts. After exploring existing solutions, the author endorses proactive case management as an effective technique, but also advocates for a novel protocol for post-hearing access to experts by the tribunal.

In Chapter 14, ‘Best Practices for Presenting Quantum Evidence’, Alexander Demuth, Laura Hardin and Trevor Dick provide insights and best practice tips from quantum experts to counsel. These range from careful drafting of the expert’s instructions to preserving the independence of the expert, and ensuring that experts stay within their expertise, in particular when multiple experts may address related issues. The authors also address the preparation of persuasive reports and of useful joint statements, and effective presentation at hearings, including online hearings.

In Chapter 15, Stefan Riegler, Dalibor Valinčić and Oleg Temnikov address ‘Special Issues Arising when Taking Evidence from State Parties’. The involvement of state parties can create asymmetries in terms of access to information. The authors explore how objections raised by state parties, including those based on special political or institutional sensitivity, play out in practice. They also address the introduction of evidence that has been obtained illegally, for example through leaks, and how both state and commercial parties use such evidence.

Finally, in Chapter 16, ‘Special Mechanisms for Obtaining Evidence’, Anna Masser, Lucia Raimanová, Kendall Pauley and Peter Plachý provide a clear overview of the current state of the law on Section 1782 of Title 28 of the US Code for harnessing US discovery in relation to foreign arbitrations. They also address the less well-known tool of freedom of information act requests under national legislation and international law. This mechanism can be a powerful tool for gathering evidence on state parties or in relation to regulated parties. They also address data subject access requests pursuant to EU rules on data protection and reliance on documents obtained in criminal proceedings.

We are very grateful to all the authors for their valuable contributions and hope that this book proves to be an accessible and useful resource for a broad group of international practitioners and parties.


Notes

[1] Amy C Kläsener is a partner at Jones Day, Martin Magál is a partner at Allen & Overy Bratislava, s.r.o., and Joseph E Neuhaus is a partner at Sullivan & Cromwell LLP.

[2] See, e.g., Nathan D O’Malley, Rules of Evidence in International Arbitration: An Annotated Guide (2nd ed., Routledge, 2019); Roman Khodzkin, Carol Mulcahy, Nicholas Fletcher (eds), A Guide to the IBA Rules on the Taking of Evidence in International Arbitration (Oxford University Press, 2019); Peter Ashford, The IBA Rules on the Taking of Evidence in International Arbitration: A Guide (Cambridge University Press, 2013); Tobias Zuberbühler, Dieter Hofmann, Christian Oetker, Thomas Rohner (eds), IBA Rules of Evidence: Commentary on the IBA Rules on the Taking of Evidence in International Arbitration (Schulthess, 2012).

[3] Frédéric G Sourgens, Kabir Duggal and Ian A Laird, Evidence in International Investment Arbitration (Oxford University Press, 2018); Jeffrey Waincymer, Procedure and Evidence in International Arbitration (Kluwer, 2012); Magnum Y W Ng, Evidence in Arbitration: The Law and Practice on Taking of Evidence in International Arbitration Proceedings: An Eclectic Approach of Common Law and Civil Law Systems (VDM, 2009); Teresa Giovannini, Alexis Mourre, Written Evidence and Discovery in International Arbitration: New Issues and Tendencies (ICC Institute, Dossier VI, 2009); Laurent Lévy, V V Veeder, Arbitration and Oral Evidence (ICC Institute, Dossier II, 2004); Peter V Eijsvogel, Evidence in International Arbitration Proceedings (Kluwer, 2001).

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