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AAA/ICDR Handbook on International Arbitration and ADR 2nd Edition - Hardcover
AAA/ICDR Handbook on International Arbitration and ADR - 2nd Edition - PDF
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CHAPTER 7
PRESENTING, TAKING AND EVALUATING EVIDENCE IN INTERNATIONAL ARBITRATION Karl-Heinz Böckstiegel∗ I. Introduction At the outset, though it does not need long explanation, one has to realize the high relevance of evidence procedures. We are all aware that there are also considerable differences in the methods of pleading legal positions and that, of course, finally, the decisions on the relief sought by the Parties is in application of the law. But before one reaches the procedural stage of such decisions, it is the facts of the case which have to be established by the Tribunal and which determine which legal provisions are applicable and lead to the legal conclusions. And these facts of the case are found in application of the evidence procedures used by the Parties and the Tribunal. While this is self-understood in the abstract, in practice this has the effect that, in most commercial arbitral procedures, the parties spend far more time and work on the evidence procedure, which also means that it is more expensive for the parties. This is a necessary investment for the parties, because, if they cannot fulfil their burden of proof regarding the facts, they cannot prevail in the outcome of the case. National law and practice in court proceedings differ widely throughout the world regarding the presentation, taking and evaluation of evidence. While they may be applicable or at least serve as guidance for domestic arbitration, in international arbitration one has to find common denominators or new rules and practices to have a level playing field for parties and lawyers who come from different evidence traditions. ThisFull Table of Contents from "AAA/ICDR Handbook on International Arbitration and ADR - 2nd Edition"
PART I: International Arbitrators and Institutions
Chapter 1
International Commercial Arbitration: Harmonizing Cultural Differences
Julian D.M. Lew and Laurence Shore
Chapter 2
Managing International Arbitration:
A Shared Responsibility of the Parties, the Tribunal, and the Arbitral Institution
David E. Wagoner
Chapter 3
Selecting an Arbitral Institution to Administer International Arbitration:
Are National or Regional Centers a Viable Option?
John B. Tieder Jr.
Chapter 4
Corruption, International Public Policy and the Duties of Arbitrators
Bernardo M. Cremades and David J. A. Cairns
Chapter 5
The Civil Law and Common Law Divide:
An International Arbitrator Tells It Like He Sees It
Pierre A. Karrer
PART II: International Arbitration Proceedings
Chapter 6
The Role of Party Autonomy in
International Arbitration
Karl-Heinz Böckstiegel
Chapter 7
Presenting, Taking and Evaluating
Evidence in International Arbitration
Karl-Heinz Böckstiegel
Chapter 8
Arbitral Interim Measures: Fact or Fiction?
Raymond J. Werbicki
Chapter 9
Special Considerations When a State Is a Party to International Arbitration: Why Arbitrating Against a State is Different:
12 Key Reasons
Barry Leon and John Terry
Chapter 10
Conducting Satellite Industry Arbitrations Under the Watchful Eye of the International Traffic in Arms Regulations
Raymond G. Bender, Jr.
Chapter 11
In International Arbitration, Disclosure Rules at the Place of Enforcement Matter Too
Peter L. Michaelson
PART III: The Enforcement of Arbitral Awards
Chapter 12
Interim Relief in International Arbitration-Enforcement Is a Substantial Problem
David E. Wagoner
Chapter 13
Interpreting the New York Convention:
When Should an Interlocutory Arbitral "Order" Be Treated As an "Award"?
Marc J. Goldstein
Chapter 14
The Perils of Parallel Proceedings: Is an Arbitration Award Enforceable if the Same Case Is Pending Elsewhere?
Nadine Balkanyi-Nordmann
Chapter 15
Respecting Awards Annulled at the Seat of Arbitration:
The Road From Chromalloy to TermoRio
Jonathan I. Blackman and Ellen London
Chapter 16
The ICDR"s Emergency Arbitrator Procedure in Action:
Part I: A Look at the Empirical Data
Part II: Enforcing Emergency Arbitrator Decisions
Guillaume Lemenez and Paul Quigley
PART IV: Negotiation and Mediation
Chapter 17
Confidentiality in Mediation
Klaus Reichert
Chapter 18
Negotiating in Good Faith
David I. Bristow, Q.C. and R. Brendan Bissell
Chapter 19
International Intellectual Property Dispute Resolution:
Is Mediation a Sleeping Giant?
Carmen Collar Fernandez and Jerry Spolter
Chapter 20
Mediation and the North American Free Trade Agreement
Steven K. Andersen
PART V: International Mediation
Chapter 21
Selecting a Mediator in International Disputes:
Dare We Speak of Mediation as "Winnable"?
Claudia T. Salomon and Peter D. Sharp
Chapter 22
The Power of Mediation to Resolve International Commercial Disputes and Repair Business Relationships
Alexandra Alvarado Bowen
Chapter 23
Mediating International Commercial Disputes: Differences in U.S. and European Approaches
David J.A. Cairns
Chapter 24
ICDR Offers Concurrent Mediation/Arbitration Clause
Steven K. Andersen
Chapter 25
Mediating International Environmental Tort Claims in the Shadow of the Alien Tort Claims Act
William G. Bassler and Yitzchok Segal
PART VI: Investment and Trade Arbitration and Mediation
Chapter 26
10 Golden Rules for U.S. Investors to Follow in Dispute Resolution Negotiations a Foreign State or State Entity
Arif H. Ali and Baiju S. Vasani
Chapter 27
Bilateral Investment Treaties and Arbitration
Dana H. Freyer and Barry H. Garfinkel
Chapter 28
Saving Time and Money in Cross-Border
Commercial Disputes
Walter G. Gans
Chapter 29
An Examination of GATT/WTO Arbitration Procedures
Georgios I. Zekos
Chapter 30
The ABCs of WTO Dispute Settlement
Karim Sarhan
Chapter 31
WTO & ADR
Frank W. Swacker, Kenneth R. Redden & Larry B. Wenger
Chapter 32
Investment Treaty Arbitration's Contribution to International Commercial Arbitration
Barton Legum
Chapter 33
Investor Protection and Legal Security in International Arbitration
Bernardo M.Cremades
Chapter 34
Amicus Intervention in Investor-State Arbitration
Jorge E. Viñuales and Florian Grisel
Chapter 35
Developments in NAFTA Arbitration - From Jury Verdicts to Amicus Briefs
John M. Townsend
Index