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A Guide to the IBA Rules on the Taking of Evidence in International Arbitration »

Roman Khodykin, Carol Mulcahy
Edited By: Nicholas Fletcher

Acknowledgements »

Roman Khodykin, Carol Mulcahy, Nicholas Fletcher
From: A Guide to the IBA Rules on the Taking of Evidence in International Arbitration
Roman Khodykin, Carol Mulcahy
Edited By: Nicholas Fletcher

Appendix 2 Article 1 Roadmap: Scope of Application (and How to Deal with Conflicting Provisions) »

Roman Khodykin, Carol Mulcahy, Nicholas Fletcher
From: A Guide to the IBA Rules on the Taking of Evidence in International Arbitration
Roman Khodykin, Carol Mulcahy
Edited By: Nicholas Fletcher

4 Article 1: Scope of Application »

Roman Khodykin, Carol Mulcahy, Nicholas Fletcher
From: A Guide to the IBA Rules on the Taking of Evidence in International Arbitration
Roman Khodykin, Carol Mulcahy
Edited By: Nicholas Fletcher
This chapter discusses Article 1, which addresses the interaction between the IBA Rules and the various other rules that may apply in an individual arbitration. Article 1 sets out a number of principles that are to be applied in addressing a conflict between the IBA Rules and (a) any applicable mandatory provisions of law or (b) the institutional, ad hoc, or other rules that have been chosen to apply to the arbitration—defined in the IBA Rules as the General Rules. It also lays down the principles to be applied in the event of a dispute regarding interpretation of the IBA Rules, or where the parties are unable to agree what to do when those rules are silent on a particular matter concerning the taking of evidence. Moreover, Article 1 stipulates which version of the IBA Rules is to apply to a particular arbitration.

5 Article 2: Consultation on Evidentiary Issues »

Roman Khodykin, Carol Mulcahy, Nicholas Fletcher
From: A Guide to the IBA Rules on the Taking of Evidence in International Arbitration
Roman Khodykin, Carol Mulcahy
Edited By: Nicholas Fletcher
This chapter focuses on Article 2 of the IBA Rules. Article 2 is a new provision introduced by the current IBA Rules, and it consists of three parts. First, it provides for a mandatory consultation between the tribunal and the parties at the earliest appropriate time in the proceedings with the objective of agreeing on an ‘efficient, economical and fair process for the taking of evidence’. Second, it provides a framework for discussing evidentiary issues; it sets out a non-exhaustive list of evidentiary matters that the tribunal and parties may wish to consider during the mandatory consultation. Third, it encourages, but does not require, the tribunal to identify to the parties, as soon as it considers it to be appropriate, any issues (i) that the tribunal may regard as relevant to the case and material to its outcome; and/or (ii) for which a preliminary determination may be appropriate.

6 Article 3: Documents »

Roman Khodykin, Carol Mulcahy, Nicholas Fletcher
From: A Guide to the IBA Rules on the Taking of Evidence in International Arbitration
Roman Khodykin, Carol Mulcahy
Edited By: Nicholas Fletcher
This chapter looks at Article 3 of the IBA Rules. Article 3 deals with documents. The approach to document production in civil law and common law jurisdictions is very different. Article 3 represents a compromise between the two legal traditions and, as such, it is invaluable for use by parties to international arbitration. Article 3 addresses requests to produce documents made by one party to another, objections to such requests, and the process by which disputes around requests for production are to be determined. It also deals with the introduction of documents relied on by a party and requests for documents by the tribunal, as well as a number of other issues connected with access to documents and the form in which documents are to be produced.

7 Article 4: Witnesses of Fact »

Roman Khodykin, Carol Mulcahy, Nicholas Fletcher
From: A Guide to the IBA Rules on the Taking of Evidence in International Arbitration
Roman Khodykin, Carol Mulcahy
Edited By: Nicholas Fletcher
This chapter considers Article 4 of the IBA Rules, which (supplemented by Article 8 in relation to oral testimony at the evidentiary hearing) provides a comprehensive framework for use and management of witness evidence. The use of witness evidence may require direction and management by the tribunal in a number of areas. These include decisions about the identity and number of witnesses; the scope and content of the statements; a timetable for delivery of evidence; requests for oral examination and directions for attendance; and the management of questions put during oral evidence. The IBA Rules provide a useful set of provisions that can be adopted or can guide the parties’ discussions as they search for common ground on the procedure to be followed, both on matters of detail and questions of principle. Other provisions relevant to the use of witness evidence include the duty to consult set out in Article 2 and the obligation of good faith contained in Preamble 3.

8 Article 5: Party-Appointed Experts »

Roman Khodykin, Carol Mulcahy, Nicholas Fletcher
From: A Guide to the IBA Rules on the Taking of Evidence in International Arbitration
Roman Khodykin, Carol Mulcahy
Edited By: Nicholas Fletcher
The IBA Rules provide for the use of both party- and tribunal-appointed experts. This chapter describes Article 5 of the IBA Rules. Article 5, supplemented by Article 8, dealing with oral testimony at the evidentiary hearing, provides a comprehensive framework for use and management of evidence from party-appointed experts. Although Article 5 is self-contained, it should be considered in conjunction with Article 6, which deals with tribunal-appointed experts. This chapter considers the required content of a report prepared by a party-appointed expert. It also deals with the question of whether a party may file expert evidence without permission of the tribunal as well as other issues that may arise in connection with party-appointed experts.

9 Article 6: Tribunal-Appointed Experts »

Roman Khodykin, Carol Mulcahy, Nicholas Fletcher
From: A Guide to the IBA Rules on the Taking of Evidence in International Arbitration
Roman Khodykin, Carol Mulcahy
Edited By: Nicholas Fletcher
This chapter explores Article 6 of the IBA Rules, which addresses the use of tribunal-appointed experts and covers the appointment and terms of reference of a tribunal-appointed expert, a party’s right to object to the appointment, the content of the expert’s report, the parties’ right of response to the expert evidence, and the right to examine the expert at the evidentiary hearing. Article 6 also contains checks and balances designed to ensure that the tribunal does not delegate its decision-making function to the expert and that the parties have a proper opportunity to make representations on the choice of tribunal-appointed expert, and to examine and comment on the evidence presented by that expert.

10 Article 7: Inspection »

Roman Khodykin, Carol Mulcahy, Nicholas Fletcher
From: A Guide to the IBA Rules on the Taking of Evidence in International Arbitration
Roman Khodykin, Carol Mulcahy
Edited By: Nicholas Fletcher
This chapter studies Article 7 of the IBA Rules. Article 7 enables the tribunal, a tribunal-appointed expert, or a party-appointed expert to make an inspection of a relevant site or thing. The inspection should be one that ‘may help the decision-making process’. The making of an inspection may have value in a number of different situations. For members of the tribunal, as well as for counsel, an inspection of the piece of equipment, manufacturing process, layout of a half-built holiday complex, or scene of an incident can offer clarity to submissions and evidence that appear impenetrable on paper. For an expert witness, an inspection may be critical. Moreover, inspection of proprietary material related to the matter in dispute may provide additional insight.

11 Article 8: Evidentiary Hearing »

Roman Khodykin, Carol Mulcahy, Nicholas Fletcher
From: A Guide to the IBA Rules on the Taking of Evidence in International Arbitration
Roman Khodykin, Carol Mulcahy
Edited By: Nicholas Fletcher
11.1 Article 8 is concerned with arrangements for the taking of oral and other evidence at an evidentiary hearing. ‘Evidentiary Hearing’ is broadly defined in the IBA Rules to mean: [A]ny hearing, whether or not held on consecutive days, at which the Arbitral Tribunal, whether in person, by teleconference, videoconference, or other method receives oral or other evidence. 11.2 Thus, regardless of the length of hearing, and whether the participants are all physically present in the same place or communicating by telephone or video link,1 the provisions of Article 8...

12 Article 9: Admissibility and Assessment of Evidence »

Roman Khodykin, Carol Mulcahy, Nicholas Fletcher
From: A Guide to the IBA Rules on the Taking of Evidence in International Arbitration
Roman Khodykin, Carol Mulcahy
Edited By: Nicholas Fletcher
12.1 Article 9 is a key provision of the IBA Rules. It deals with assessment and admissibility of evidence, contains the benchmarks by reference to which evidence may be excluded, and provides certain mechanisms by which the tribunal may address bad-faith conduct by a party to the arbitration. 12.2 The results of an IBA survey show that Article 9 is the second most referenced provision of the IBA Rules (approximately 13 per cent of all references), second only to Article 3.1 12.3 The equivalent provision in the 1999 IBA Rules2 was similar in scope to the present...

Appendix 11 Checklist and Guidance on Use of Tribunal-Appointed Experts »

Roman Khodykin, Carol Mulcahy, Nicholas Fletcher
From: A Guide to the IBA Rules on the Taking of Evidence in International Arbitration
Roman Khodykin, Carol Mulcahy
Edited By: Nicholas Fletcher

Appendix 12 Checklist for Inspection »

Roman Khodykin, Carol Mulcahy, Nicholas Fletcher
From: A Guide to the IBA Rules on the Taking of Evidence in International Arbitration
Roman Khodykin, Carol Mulcahy
Edited By: Nicholas Fletcher

Appendix 9 Checklist for Party-Appointed Experts »

Roman Khodykin, Carol Mulcahy, Nicholas Fletcher
From: A Guide to the IBA Rules on the Taking of Evidence in International Arbitration
Roman Khodykin, Carol Mulcahy
Edited By: Nicholas Fletcher

Appendix 7 Checklist for Production of Documents »

Roman Khodykin, Carol Mulcahy, Nicholas Fletcher
From: A Guide to the IBA Rules on the Taking of Evidence in International Arbitration
Roman Khodykin, Carol Mulcahy
Edited By: Nicholas Fletcher

Appendix 8 Checklist for Witnesses of Fact »

Roman Khodykin, Carol Mulcahy, Nicholas Fletcher
From: A Guide to the IBA Rules on the Taking of Evidence in International Arbitration
Roman Khodykin, Carol Mulcahy
Edited By: Nicholas Fletcher

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 »

Roman Khodykin, Carol Mulcahy, Nicholas Fletcher
From: A Guide to the IBA Rules on the Taking of Evidence in International Arbitration
Roman Khodykin, Carol Mulcahy
Edited By: Nicholas Fletcher

Appendix 1 Commentary on the Revised Text of the 2010 IBA Rules on the Taking of Evidence in International Arbitration »

Roman Khodykin, Carol Mulcahy, Nicholas Fletcher
From: A Guide to the IBA Rules on the Taking of Evidence in International Arbitration
Roman Khodykin, Carol Mulcahy
Edited By: Nicholas Fletcher

Contents »

Roman Khodykin, Carol Mulcahy, Nicholas Fletcher
From: A Guide to the IBA Rules on the Taking of Evidence in International Arbitration
Roman Khodykin, Carol Mulcahy
Edited By: Nicholas Fletcher