A guide to the IBA rules on the taking of evidence in international arbitration / Roman Khodykin, Carol Mulcahy, Nicholas Fletcher.

Format:

Book

Author/Creator:

Khodykin, Roman, author.

Mulcahy, Carol, author.

Contributor:

Fletcher, Nicholas, editor.

Series:

Oxford legal research library.

Oxford legal research library

Language:

English

Subjects (All):

International commercial arbitration.

Evidence (Law).

International Bar Association. IBA Rules on the Taking of Evidence in International Arbitration.

International Bar Association.

Physical Description:

1 online resource (624 pages).

Place of Publication:

Oxford : Oxford University Press, 2019.

Summary:

This work provides a comprehensive, article-by-article commentary on the IBA Rules on the Taking of Evidence in International Arbitration, 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.

Contents:

Cover

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

Copyright page

Preface

Acknowledgements

Contents

Table of Cases

Table of Legislation and otherLegal Instruments

1 Provenance and Development of the IBA Rules on Evidence

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

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 Obligationof Good Faith Conduct

4. The Second Principle: Reasonable Notice of Evidence Relied on by the Other Parties

3 Definitions Used in the IBA Ruleson Evidence

B. Definitions

1. 'Arbitral Tribunal' Means a Sole Arbitrator or a Panel of Arbitrators

2. 'Claimant' means the Party or Parties who Commenced the Arbitration and Any Party Who, through Joinder or Otherwise, Becomes Aligned with Such Party or Parties

3. 'Document' Means a Writing, Communication, Picture, Drawing, Program, or Data of any Kind, Whether Recorded or Maintained on Paper or by Electronic, Audio, Visual, or any Other Means

4. 'Evidentiary Hearing' Means any 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.

5. 'Expert Report' Means a Written Statement by a Tribunal- Appointed Expert or a Party- Appointed Expert

6. 'General Rules' Means the Institutional, ad hoc, or Other Rules that Apply to the Conduct of the Arbitration

7. 'IBA Rules on Evidence' or 'Rules' Means these IBA Rules on the Taking of Evidence in International Arbitration, as They May Be Revised or Amended from Time to Time

8. 'Party' Means a Party to the Arbitration

9. 'Party- Appointed Expert' Means a Person or Organization Appointed by a Party in Order to Report on Specific IssuesDetermined by the Party

10 'Request to Produce' Means a Written Request by a Party that Another Party Produce Documents

11. 'Respondent' Means the Party or Parties against whom the Claimant Made Its Claim, and any Party who, through Joinder or Otherwise, Becomes Aligned with such Party or Parties, and Includes a Respondent Making a Counter- Claim

12. 'Tribunal- Appointed Expert' Means a Person or Organization Appointed by the Arbitral Tribunal in Order to Report to It on Specific Issues Determined by the Arbitral Tribunal

13. 'Witness Statement' Means a Written Statement of Testimony by a Witness of Fact

4 Article 1: Scope of Application

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

2. Party Autonomy.

3. Where the Parties Cannot Agree

E. Interpretation of the IBA Rules

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

2. Pre- Conditions to the Application of Article 1.5

3. Application of Article 1.5 Guidance

5 Article 2: Consultation on Evidentiary Issues

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

2. Issues to Be Identified by the Tribunal

3. Timing of Identification of Issues by the Tribunal

6 Article 3: Documents

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

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

2. The Need to Review the Documents

3. Review of Documents by an 'Independent and Impartial Expert'

H. Documents Held by Third Parties

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

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

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

B. Witness Identification

C. Witness Relationship with a Party to the Arbitration

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

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

2. Formal Details

3. Evidence

G. Additional Witness Statements

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

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

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

A Introduction 8.1

2 Development of Article 5 8.14

3 Other Guidelines on the Use of Party- Appointed Experts 8.18

B Is Expert Evidence Required, and If So, on Which Issues? 8.19

1 Assessing the Need for Expert Evidence 8.19

2 The Right of a Party to Present Party- Appointed Expert Evidence 8.29

3 Notification that a Party Intends to Rely on Party- Appointed Expert Evidence 8.40

4 Timing of Delivery of the Article 5.1 Notification 8.47

5 Timing of Delivery of Expert Evidence 8.49

C The Content of the Expert Report 8.52

1 Introduction 8.52

2 Matters to Be Included in the Expert Report 8.58.

D Reply Expert Reports 8.124.

Notes:

Also issued in print: 2019.

Includes bibliographical references and index.

Description based on online resource; title from home page (viewed on November 4, 2020).

ISBN:

0-19-255048-9

0-19-255047-0

0-19-185951-6

OCLC:

1141777296