Originally from Between East and West: Essays in Honour of Ulf Franke

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I. INTRODUCTION

Most practitioners and academics specialising in the field of international arbitration acknowledge that the genesis of modern international commercial arbitration lies in the 1958 New York Convention. In creating a juridical regime for the enforceability of both arbitration agreements and arbitral awards in national courts, thus superseding and rationalising the operation of the Geneva treaties of three decades earlier, the groundwork was laid for a genuinely effective system for achieving internationally binding decisions in disputes arising out of cross-border transactions.

Approximately half a century later, most of the "teething problems" have been solved, sometimes by the use of international instruments (such as the Model Law), sometimes by either or both practice rules (such as the IBA Rules of Evidence) or guidelines. Occasionally the international arbitration community (supported by national courts) has resorted to convenient "legal fictions" in order to achieve pragmatic solutions. Perhaps the most prominent of these is the doctrine of separability of the arbitration agreement. Depending on the precise structure of the wording of the transaction agreement, in many instances it requires a "stretched" reading of the dispute resolution provisions to construe them as autonomous and separate agreements.1

One of the remaining unresolved topics is the question of taking evidence abroad. In this context, the term "abroad" is usually taken to mean in a country other than the juridical seat of the arbitration. Given that the seat of the arbitration is generally in a "neutral" country, this means that the factual evidence will usually be located abroad. The parties themselves will mostly bring their own witnesses and documents to the seat of the arbitration because if they do not do so they risk not being able to prove the facts on which they rely.