Disclosure of Documents and Presentation of Evidence in International Arbitration - Chapter 5 - Soft Law in International Arbitration - Second Edition

Lawrence W. Newman is Of Counsel in the Litigation Department of Baker & McKenzie LLP in New York, where his practice is focused on international litigation and arbitration. He was the Chairman of the National Committee of Claimants (USICC) in arbitrations against Iran in the Iran-U.S. Claims Tribunal and has represented clients in numerous commercial and investment arbitrations before various tribunals around the world. He was, from 2003 to 2007, the Chairman of the International Disputes Committee of the New York City Bar and was, from 2008 to 2012, the Chairman of the Arbitration Committee of the International Centre for the Prevention of Resolution and Conflicts (CPR). He is currently Chairman of the Arbitration Subcommittee of the Chartered Institute of Arbitrators. Mr. Newman has been, since 2010, the Chairman and convening member of the International Arbitration Club of New York. He has been responsible since 1982 for the "International Litigation" column of the New York Law Journal and is the editor and author of numerous books and articles on litigation and arbitration. He is a Fellow of the College of Commercial Arbitrators, a Fellow of the Chartered Institute of Arbitrators, an elected member of the American Law Institute and a member of various other bar and international arbitration organizations.

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Originally from Soft Law in International Arbitration, Second Edition

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Introduction

An aspect of international arbitration that is least dealt with in the institutional ad hoc rules is that which concerns what is or should be done in the gathering and presentation of evidence, whether in the form of documentary or oral presentations. The rules generally leave the conduct of the proceedings with respect to evidence to the parties and the arbitrators. Yet disputes and misunderstandings can arise between parties, particularly those from different legal cultures, concerning such matters as the required production of documents from another party, interviewing of witnesses in advance of a hearing, the use of experts, the presentation of oral testimony and the cross-examination of witnesses. The soft law discussed in this section endeavors to provide guidance in these and other areas.

I. The IBA Rules

The most important body of soft law concerned with evidence in international arbitration is the IBA Rules on the Taking of Evidence in International Arbitration, which were first issued in 1999 by the International Bar Association, revised in a second edition in May of 2010 and further revised and promulgated in December 2020. The IBA Rules have been used as guidance by being adopted – or, probably more usually, referred to – in countless arbitration proceedings.

The IBA Rules use the word “taking” with respect to evidence and make clear that this term refers both to the obtaining of evidence by the parties and the receipt of it by the arbitral tribunal. The Rules have as their basis the principles that “each party shall act in good faith and be entitled to know, reasonably in advance of any Evidentiary Hearing or any fact or merits determination, the evidence on which the other Parties rely.” Thus, a cardinal tenet of the IBA Rules is that the parties not take one another by surprise in the way they present evidence to the tribunal. One of the ways of avoiding surprise is, of course, an orderly presentation by each party of evidence that affords the opposing party the opportunity to respond to it