Taking of Evidence - Article 25 -Chamber of Arbitration of Milan Rules: A Commentary

ALBERTO MAZZONI is a Graduate summa cum laude from the University of Pisa Law School in 1965 and received a Master of Comparative Law degree from the University of Chicago Law School in 1966.

His professional experiences included working with Cohen & Meyohas, Paris (1968-1970), White & Case, New York (1971-1973), Studio Legale Ardito, Rome and Milan (1974-1991), whereafter he founded the law firm Mazzoni e Associati, with offices in Milan and Rome, of which he continues to be the senior partner. After teaching business law, business law and comparative law in the Universities of Pisa, Genoa and Sassari, in 1991 he was called to the chair of Professor of Commercial Law at the Catholic University of Milan, a position that he still holds together with the teaching of International Trade Law. Among his numerous public service appointments, special mention may be made of his frequent mandates as head of the Italian Delegation at UNCITRAL sessions. Moreover, since March 2011, he serves as President of the Governing Council of UNIDROIT. He is the author of several legal essays and articles and co-director of law reviews and other legal series.

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Originally from Chamber of Arbitration of Milan Rules: A Commentary

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ARTICLE 25 – TAKING OF EVIDENCE

1. The Arbitral Tribunal leads the case by taking all the relevant and admissible evidence adduced in the manner it deems appropriate.

2. The Arbitral Tribunal shall freely evaluate all evidence, with the exception of that which constitutes legal proof under mandatory provisions applicable to the proceedings or to the merits of the dispute.

3. The Arbitral Tribunal may delegate the taking of evidence to one of its members.

1. Introductory remarks

The new text of Art. 25 of the Rules differs in one significant respect only from the old text of the provision (Art. 28 of the old Rules). The first paragraph is entirely reformulated, whilst the remainder of the Article is without changes.2 However, although at first sight limited in scope, the modification that has been introduced reflects an underlying policy choice which is important and whose analysis provides a valuable opportunity for revisiting the terms of a classic debate on the principles that should govern the taking of evidence in arbitration.

Table of Contents:

1. Introductory remarks.
2. Arbitral discretion and mandatory rules on the taking of evidence in arbitral proceedings: general considerations.
3. Background, goals and effects of Art. 25(1) and (2).
4. Art. 25(2) and the rationale for the reference to mandatory rules on “legal proofs”.
5. The opportunities offered by Art. 25(1): the taking of evidence in accordance with standards and rules of the international arbitral practice.
6.(sequitur): the practice of requiring a Summary of Evidence.
7.(sequitur): the taking of documentary evidence pursuant to standard disclosure rules and the use of the Redfern Schedule.
8.(sequitur): the taking of evidence from witnesses and, in particular, the examination and cross-examination of witnesses at the hearing.
9. Art. 25(3) and the taking of evidence by delegation of powers to one of the members of the arbitral tribunal.
10. The taking of evidence by delegation to and through the assistance of a foreign judicial authority.