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Conduct of the Hearings - Chapter 11 - Asian Leading Arbitrators' Guide to International Arbitration

Author(s): 
Toshio Sawada
Page Count: 
24 pages
Media Description: 
PDF from "The Asian Leading Arbitrators' Guide to International Arbitration"
Published: 
October, 2007
Jurisdictions: 
Asia,
International
Practice Areas: 
Dispute Resolution & Litigation,
Practice & Procedure,
Basic Standards of Due Process,
Evidence,
Experts,
Hearing,
Written Proceedings
Tags: 
Audi Alteram Partem,
Culture,
Witness Statement
Author Detail: 

Toshio Sawada is a Vice-Chairman of the ICC International Court of Arbitration, Professor Emeritus of Sophia University, Tokyo, Senior Counsel (Founding President) of Japan Association of Arbitrations and Director (Founding President) of the Japanese Council on International Transactions. He holds advanced degrees from Columbia University and the University of Michigan and has been a lecturer for 14 years at The Legal Training and Research Institute of The Supreme Court of Japan. Dr. Sawada has lectured at universities in America, Europe, Asia and has served as arbitrator, mediator, counsel or advisor in arbitrations involving commercial, financial and public international law issues. He is a Fellow of the Chartered Institute of Arbitrators and listed on many arbitration panels.

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Description: 

Originally from Asian Leading Arbitrators' Guide to International Arbitration

This article does not take a side with common law or with civil law. Nor is it based on the law or on the practice of any specific country. The author intends to narrate what he believes is acceptable in cross-border commercial arbitration in Asia and elsewhere.

I. DEFINITION OF HEARING

Hearing is a phase of arbitration where the sole arbitrator or a panel of two or more arbitrators who, having studied written submissions of the parties and related documents, heard witnesses, experts and other persons, moves towards a clear understanding of the facts and the applicable norms (law or equitable principles as the case may be).

A. Audi Alteram Partem (Principle of “Hear the other side”)

Under the UNCITRAL (United Nations Commission on International Trade Law) Model Law, a basic responsibility of the arbitral tribunal is to decide whether it will hold oral hearings or proceed on the basis of documents only.1

Modern law or institutional rules mostly provide for evidentiary hearings. Under the ICC (International Chamber of Commerce) Arbitration Rules “The Arbitral Tribunal may decide the case solely on the documents submitted by the parties unless any of the parties might request a hearing”.2