Search for Truth in Arbitration: Is Finding the Truth What Dispute Resolution Is About? - ASA Special Series No. 35
This volume of the ASA Special Series contains the written version of the presentations given at the ASA 2009 Annual Conference on "The Search for "Truth" in Arbitration: Is finding the Truth what Dispute Resolution is about?" This volume explores the role and the relevance of "truth" in dispute resolution and specifically in commercial arbitration; the different notions of truth in different legal cultures; the users' view in that respect; and the consequences of these different perspectives and approaches for the practice of international arbitration.
Part one provides the "philosophical" background to the subsequent discussions of some practical issues from the perspective of the users of arbitration services as well as of the providers of these services, arbitrators and counsel. Next, two practical issues that have for a long time been a hot topic in commercial arbitration practice, cross-examination and document production, are expolored from different perspectives.
Finally formalism in arbitral proceedings is discussed – is formalism good or evil? It has been concluded that formal requirements should never be handled in a way that would hinder a tribunal or a court from accomplishing the main task with which it was entrusted either by the parties or by the State: applying the substantive law to the issues before them and finding a just and fair solution to the parties' dispute.
The presentations published in this volume of the ASA Special Series will contribute to the discussion of the ever intriguing question "Is Finding the "Truth" what Dispute Resolution is about?"
PDF of Title Page and T.O.C.
Foreword
Markus Wirth
Program of the conference
Chapter 1
Truth-Seeking in International Arbitration
Prof. William W. Park
Chapter 2
The "Search for Truth" in Arbitration - The civil Law View - the German Perspective
Prof. Dr. Peter Schlosser
Chapter 3
The Concept and Relevance of "Truth" in Dispute Resolution - the Asian View
Teresa Cheng
Chapter 4
The Prospects of the Legal Truth within the Context of Arab Islamic Legal Systems
Prof. Dr. Ahmed Sadek El-Kosheri
Chapter 5
Twenty-four Theses about Witness Testimony in International Arbitration and Cross-Examination
Michael E. Schneider
Chapter 6
In Defence of Cross-Examination
Constantine Partasides
Chapter 7
Document Production in Arbitration: A Civil Law Viewpoint
Prof. Pierre Tercier / Tetiana Bersheda
Chapter 8
Document Production in International Arbitration - How Much is Too Much? Observations from a Common-Law Perspective
Tyler B. Robinson
Chapter 9
The Uncomfortable Truth: Once Discovered What to Do With it?
Elliott Geisinger / Pierre Ducret
Chapter 10
Formalism in Arbitration - Good or Evil
Bernhard F. Meyer
Chapter 11
Formalism in Arbitral Proceedings - Good or Evil?
Justice Christopher Clarke
List of participants
About the Editor:
Markus Wirth is a Senior Partner in Homburger's litigation and arbitration practice group. For many years Mr. Wirth has focused on international arbitration, where he has acted as counsel and arbitrator. As counsel, he has represented Swiss and foreign companies as well as foreign governments in numerous international arbitration proceedings in Switzerland and elsewhere. As arbitrator he has served in well over 100 international arbitrations, in the majority as chairman of the panel or as sole arbitrator, under a variety of institutional rules and in ad-hoc proceedings.
Mr. Wirth's arbitration experience includes disputes relating to M&A transactions, joint ventures, licensing, distribution, long-term supply contracts, international commodity sales, EPC contracts, project financing, air transportation, telecommunication, competition matters and investor-state disputes.
Mr. Wirth is an honorary president of the Swiss Arbitration Association, a member of the ICC International Court of Arbitration, a Fellow of the Chartered Institute of Arbitrators, London, and on the arbitrators' list of several arbitration institutions. He is also a lecturer on arbitration in the University of Zurich's post-graduate programme in international business law and he regularly publishes in the field of international commercial arbitration.
Christina Rouvinez is an Associate in the International Arbitration Group of Homburger in Zurich. Her practice focuses on international commercial arbitration and international litigation. She obtained a Masters of Law from the University of Paris II Panthéon-Assas in 2007 after having studied as an exchange student at Columbia Law School in 2005. She then earned a Masters from the Institute of Political Sciences of Paris (Sciences-Po Paris) in 2008. Christina Rouvinez gained practical experience in international arbitration in two Parisian law firms, before succeeding the French bar examination in 2009 and joining Homburger the same year. Since then, she has been involved as secretary to the arbitral tribunal and party counsel in a number of arbitral proceedings conducted under the ICC, Swiss Chambers and UNCITRAL Rules.
Joachim Knoll is a Partner with the firm of Brown&Page in Geneva, specializing in international dispute resolution. He has acted as counsel and/or sole arbitrator in ad hoc proceedings (including under the UNCITRAL Rules) and in cases under the rules of the ICC, ICSID, and the Swiss Rules. Trained in Germany and France, he holds LL.M. degrees from Boston University School of Law and King's College London School of Law. Mr. Knoll is admitted to the New York State Bar.
Contributing Authors:
Tetiana BERSHEDA is the Founding Partner of BERSHEDA Avocats in Geneva.
Teresa CHENG SC is a Senior Counsel, Chartered Engineer, Chartered Arbitrator and Accredited Mediator.
Christopher CLARKE is and has been since January 2005 a High Court Judge, sitting in the Commercial Court in London.
Pierre DUCRET is an Associate in the International Arbitration Group of Schellenberg Wittmer in Geneva.
Elliott GEISINGER is a Partner in Schellenberg Wittmer’s office in Geneva, where he heads the International Arbitration Group.
Ahmed Sadek EL-KOSHERI is Senior Partner of Kosheri, Rashed and Riad Law Firm Cairo, Egypt.
Bernhard F. MEYER is a Senior Arbitrator and Arbitration Counsel at MME | Partners, Zurich, Switzerland.
William W. (Rusty) PARK is Professor of Law at Boston University, teaching in the areas of tax, finance and dispute resolution.
Constantine PARTASIDES is a Partner and the Head of the Freshfields International Arbitration Group in London where he returned after ten years of practising international arbitration at Freshfields’ Paris office.
Tyler B. ROBINSON is a Partner of Simpson Thacher & Bartlett LLP and a member of the firm’s International Dispute Resolution Group, based in the London office.
Peter SCHLOSSER is Professor Emeritus at the Law School of the Ludwigs-Maximilians-Universität of Munich.
Michael E. SCHNEIDER is a Founding Partner of LALIVE in Geneva and the Chairman of the Swiss Arbitration Association (ASA).
Pierre TERCIER is Emeritus Professor of the University of Fribourg (Switzerland) and Honorary Chairman of the International Court of Arbitration of the International Chamber of Commerce (ICC) in Paris.
About the Editor:
Markus Wirth is a Senior Partner in Homburger's litigation and arbitration practice group. For many years Mr. Wirth has focused on international arbitration, where he has acted as counsel and arbitrator. As counsel, he has represented Swiss and foreign companies as well as foreign governments in numerous international arbitration proceedings in Switzerland and elsewhere. As arbitrator he has served in well over 100 international arbitrations, in the majority as chairman of the panel or as sole arbitrator, under a variety of institutional rules and in ad-hoc proceedings.
Mr. Wirth's arbitration experience includes disputes relating to M&A transactions, joint ventures, licensing, distribution, long-term supply contracts, international commodity sales, EPC contracts, project financing, air transportation, telecommunication, competition matters and investor-state disputes.
Mr. Wirth is an honorary president of the Swiss Arbitration Association, a member of the ICC International Court of Arbitration, a Fellow of the Chartered Institute of Arbitrators, London, and on the arbitrators' list of several arbitration institutions. He is also a lecturer on arbitration in the University of Zurich's post-graduate programme in international business law and he regularly publishes in the field of international commercial arbitration.
Christina Rouvinez is an Associate in the International Arbitration Group of Homburger in Zurich. Her practice focuses on international commercial arbitration and international litigation. She obtained a Masters of Law from the University of Paris II Panthéon-Assas in 2007 after having studied as an exchange student at Columbia Law School in 2005. She then earned a Masters from the Institute of Political Sciences of Paris (Sciences-Po Paris) in 2008. Christina Rouvinez gained practical experience in international arbitration in two Parisian law firms, before succeeding the French bar examination in 2009 and joining Homburger the same year. Since then, she has been involved as secretary to the arbitral tribunal and party counsel in a number of arbitral proceedings conducted under the ICC, Swiss Chambers and UNCITRAL Rules.
Joachim Knoll is a Partner with the firm of Brown&Page in Geneva, specializing in international dispute resolution. He has acted as counsel and/or sole arbitrator in ad hoc proceedings (including under the UNCITRAL Rules) and in cases under the rules of the ICC, ICSID, and the Swiss Rules. Trained in Germany and France, he holds LL.M. degrees from Boston University School of Law and King's College London School of Law. Mr. Knoll is admitted to the New York State Bar.
Contributing Authors:
Tetiana BERSHEDA is the Founding Partner of BERSHEDA Avocats in Geneva.
Teresa CHENG SC is a Senior Counsel, Chartered Engineer, Chartered Arbitrator and Accredited Mediator.
Christopher CLARKE is and has been since January 2005 a High Court Judge, sitting in the Commercial Court in London.
Pierre DUCRET is an Associate in the International Arbitration Group of Schellenberg Wittmer in Geneva.
Elliott GEISINGER is a Partner in Schellenberg Wittmer’s office in Geneva, where he heads the International Arbitration Group.
Ahmed Sadek EL-KOSHERI is Senior Partner of Kosheri, Rashed and Riad Law Firm Cairo, Egypt.
Bernhard F. MEYER is a Senior Arbitrator and Arbitration Counsel at MME | Partners, Zurich, Switzerland.
William W. (Rusty) PARK is Professor of Law at Boston University, teaching in the areas of tax, finance and dispute resolution.
Constantine PARTASIDES is a Partner and the Head of the Freshfields International Arbitration Group in London where he returned after ten years of practising international arbitration at Freshfields’ Paris office.
Tyler B. ROBINSON is a Partner of Simpson Thacher & Bartlett LLP and a member of the firm’s International Dispute Resolution Group, based in the London office.
Peter SCHLOSSER is Professor Emeritus at the Law School of the Ludwigs-Maximilians-Universität of Munich.
Michael E. SCHNEIDER is a Founding Partner of LALIVE in Geneva and the Chairman of the Swiss Arbitration Association (ASA).
Pierre TERCIER is Emeritus Professor of the University of Fribourg (Switzerland) and Honorary Chairman of the International Court of Arbitration of the International Chamber of Commerce (ICC) in Paris.
PDF of Title Page and T.O.C.
Foreword
Markus Wirth
Program of the conference
Chapter 1
Truth-Seeking in International Arbitration
Prof. William W. Park
Chapter 2
The "Search for Truth" in Arbitration - The civil Law View - the German Perspective
Prof. Dr. Peter Schlosser
Chapter 3
The Concept and Relevance of "Truth" in Dispute Resolution - the Asian View
Teresa Cheng
Chapter 4
The Prospects of the Legal Truth within the Context of Arab Islamic Legal Systems
Prof. Dr. Ahmed Sadek El-Kosheri
Chapter 5
Twenty-four Theses about Witness Testimony in International Arbitration and Cross-Examination
Michael E. Schneider
Chapter 6
In Defence of Cross-Examination
Constantine Partasides
Chapter 7
Document Production in Arbitration: A Civil Law Viewpoint
Prof. Pierre Tercier / Tetiana Bersheda
Chapter 8
Document Production in International Arbitration - How Much is Too Much? Observations from a Common-Law Perspective
Tyler B. Robinson
Chapter 9
The Uncomfortable Truth: Once Discovered What to Do With it?
Elliott Geisinger / Pierre Ducret
Chapter 10
Formalism in Arbitration - Good or Evil
Bernhard F. Meyer
Chapter 11
Formalism in Arbitral Proceedings - Good or Evil?
Justice Christopher Clarke
List of participants