6 gordon tregaskis - the hearing, written proceedings and evidence

LECTURE 6

The Hearing, Presentation of Evidence, Dispensing with Hearings

Gordon Tregaskis BA(Hons) DipICArb C.Arb FCIArb Barrister Chartered Arbitrator CEDR Solve Mediator

CIPAA Accredited Adjudicator

www.tregaskismediation.com

THE HEARING, WRITTEN PROCEEDINGS AND EVIDENCE

What are we going to look at this afternoon

• The requirement for a Hearing, its purpose, organisation and conduct

• Alternatives to a Hearing• Law of Evidence• Witnesses• Documents



Source Material

UNCITRAL Model Law Articles 18, 19,20, 24, 25 and 26 UNCITRAL Arbitration Rules (2010) Articles 27, 28 and 29 UNCITRAL Notes on Organizing Arbitral Proceedings (1996) IBA Rules on the Taking of Evidence in International

Arbitration (2010) IBA Guidelines on Party Representation 2013 UAE Law 10 of 1992 Law of Evidence UAE Law 11 of 1992 Civil Procedure Law (Arbitration Law)



The Hearing is a process in which the Tribunal hear arguments and review evidence to decide on the merits of a case prior to issuing its decision in an Arbitral Award.

Parties have the opportunity to present their arguments and submit evidence to support their case. The parties and the Arbitrators have an opportunity to ask questions and may examine witnesses or documents to test and question the validity of the parties’ respective positions.



The UNCITRAL Notes on Organising Arbitral proceedings say:

If it is up to the arbitral tribunal to decide whether to hold hearings, the decision is likely to be influenced by factors such as, on the one hand, that it is usually quicker and easier to clarify points at issue pursuant to a direct confrontation of arguments than on the basis of correspondence and, on the other hand, the travel and other cost of holding hearings, and that the need of finding acceptable dates for the hearings might delay the proceedings. The arbitral tribunal may wish to consult the parties on this matter.

[Note 75]



A Hearing will also be indicated where:

The governing law of the Seat of Arbitration requires it (Article 208 (1) Law 11 1992)

There are competing witnesses of factThe Expert Witnesses are not agreed as to issuesEither or both Parties so require



Issues Affecting Cost and EfficiencySoft Issues Venue – Institutional or Ad Hoc Arrangement See Art 20 UML Seating and set up Facilities Site Office or AtlantisTranslationHard IssuesLength of HearingNumber of SessionsQuantum Vs LiabilityTranscripts and recording of Evidence



The Proceedings - Common Law V Civil Law Tradition

Common Law has an oral adversarial tradition

Civil Law has a written case inquisitorial tradition

The process will often be affected by the complexion of the Tribunal, the requirements of Counsel and to some extent local procedural law.



The sequence of events at many arbitration hearings derives in large part from the practice of the courts. In common law "adversarial" proceedings each party is primarily responsible firstly for presenting his own case and secondly attempting to demonstrate any flaws in the evidence or arguments of his opponent. In "inquisitorial" procedures, judges or arbitrators are expected to examine the witnesses themselves and little, if any, cross-examination by the other party's advocate is permitted.



The UNCITRAL Model Law is extremely brief as regards the requirements for a hearing. See Articles 24 and 25. The IBA Rules of Evidence envisage a sequence of events not dissimilar to that adopted in many common law systems. A possible sequence is described below and contrasted with the IBA Rules approach:Commencing the hearingThe arbitrator may summarise briefly the events leading to the hearing; to identify the parties; confirm that their contract contains an agreement to refer their disputes to arbitration; outline the substance of the dispute and the manner of his appointment and then declare the hearing open by inviting the claimant to begin the proceedings.



Opening the Claimant’s caseIn common law systems it is usual that the claimant (or his counsel if represented) opens by introducing himself and his opponent and then the other members of his team. The claimant then proceeds by outlining the facts of his case and any legal submissions in support of it. If the respondent has made a counterclaim, the claimant will open his defence to the counterclaim at the same time. There is no reference to any such procedure in the IBA Rules of evidence, which (as evidential rules) address the hearing as if proceeding almost directly to the evidence. Cf written openings



Claimant's EvidenceThe Claimant then leads his evidence, both written and oral, by calling his witnesses. The sequence may be as follows: (i) examination-in-chief by the party leading the

evidence; (ii) cross-examination by the opposing party; (iii) re-examination by the party leading the evidence. After leading all his evidence, the claimant may bring the opening stage of his case to an end with a further summary. Once again there is no express reference to any such statement in the IBA Rules.



Opening of the Respondent’s caseThe respondent (or counsel if represented) opens by introducing himself and other members of his team and outlining the facts of his case and any legal submissions in support of it. He then leads his evidence by calling his witnesses (the sequence of taking evidence being as described above). Once again, this is not addressed by the IBA Rules.



Rebuttal WitnessesThe procedures described above require the Claimant to advance all of the evidence on which it relies before the Respondent calls any oral evidence. This is not a procedure which is followed in all common law jurisdictions even, and is not the procedure described in the IBA Rules, which make provision for the Claimant to call "rebuttal" witnesses following the evidence of the Respondent.



Closing the Respondent’s caseAfter leading his evidence, the respondent makes his final submission to the arbitrator in which he summarises and closes his case. Once again, the IBA Rules address solely the adducing of evidence at the hearing, not the making of submissions. Closing the Claimant’s caseFollowing the respondent’s closing address, the claimant makes his final submission to the arbitrator in which he summarises and closes his case.



Interventions by the arbitratorWhilst the Tribunal may ask questions of a witness at any time it is usual in a common law jurisdiction for the tribunal to wait until the end of re-examination in order to avoid disrupting the flow of evidence. Both parties should be given the opportunity to examine and cross-examine a witness if the Tribunal’s line of questioning raises new or potentially misleading points which require clarification. The Tribunal may intervene with questions of counsel and requests for clarification much more freely during the final submissions.



Civil Law ProceduresNote that the above procedure would be quite different in a civil law jurisdiction where the examination of the witnesses – by the tribunal primarily – may take place at a series of meetings rather than in one "set piece" hearing, and without all witnesses necessarily present together at the same time.

Note UAE Law has a written tradition. Oral examination of witnesses is rare.



Documents Only ProceedingsAn oral hearing is by no means automatically required in international (and other) arbitrations. Where the parties agree the tribunal may proceed on the basis of documents alone together with an exchange of written submissions addressing the facts and any questions of law that arise. This type of procedure is obviously well suited to relatively simple cases, or cases where there is a limited factual dispute, or the dispute turns entirely on a construction of the relevant contract provisions.



Written submissions - Arbitration on DocumentsThe objectives of written submissions are to identify the issues in dispute and to ensure that each party understands the case against it and allegations being made against it. The function of written submissions are therefore as follows:1. to aid each party to development of its own and to understanding its opponent's case by:(a) identifying material facts;(b) identifying and crystallising, with clarity and precision, areas of difference and dispute;(c) isolating issues of fact and law;(d) narrowing the issues;(e) identifying issues of liability and quantum (i.e. the amount of damages claimed), and (f) highlighting evidentiary burdens and requirements;

2. to allow the tribunal to understand what is being alleged, what relief is being claimed and the nature of the defence; and

3. to provide a permanent record of the issues and questions to be adjudicated upon;



EvidenceThere are three principle species of evidence adduced in arbitration proceedings. a) The first is "documentary evidence", that is documents

produced for inspection b) the second is "oral evidence", that is statements made by the

parties themselves and their witnesses including expert witnesses.

c) there may be also a type of evidence referred to as "real evidence". This refers to material objects which are produced for inspection again in support of the case or an aspect of the case.



Evidence Rules

In international arbitrations, subject to any agreement between the parties as to Rules which are to be adopted or restrictions imposed by the procedural law, there are no set procedures which determine what evidence may or may not be brought before the tribunal and may or may not be considered by the tribunal. If no Rules have been adopted then it is necessary for the arbitral tribunal to give consideration to the types of evidence that may be required and to arrange a timetable for the exchange of such evidence, its preparation, and, as appropriate, presentation at any hearing.



Documents generallyThe UNCITRAL notes on organising arbitral proceedings observe that “the arbitral tribunal may wish to establish time limits for the production of documents. The parties might be reminded that, if the requested party duly invited to produce documentary evidence fails to do so within the established period of time, without showing sufficient cause for such failure, the arbitral tribunal is free to drawn its conclusion from the failure and may make the Award on the evidence before it.”

[Note 51]



IBA Rules

The IBA Rules on the Taking of Evidence in International Commercial Arbitration (“IBA Rules of Evidence”) make provision for the parties to submit to the opposing party and the tribunal the documents on which reliance is placed, with the tribunal then charged with deciding, as necessary, whether documents requested by the other side under a "request to produce" are to be made available to the requesting party. See Article 3 IBAR.



IBA Arbitration Committee

Established as the Committee in the International Bar Association’s Legal Practice Division which focuses on the laws, practice and procedures relating to the arbitration of transnational disputes, the Arbitration Committee currently has over 2,300 members from over 90 countries, and membership is increasing steadily. Through its publications and conferences, the Committee seeks to share information about international arbitration, promote its use and improve its effectiveness.



IBA RULES

The Rules provide mechanisms for the presentation on documents, witnesses of fact, expert witnesses and inspections as well as for the conduct of evidentiary hearing.

The Rules are designed to be used in conjunction with and adopted together with institutional or ad-hoc rules for procedures governing international commercial arbitrations.



Authenticity of DocumentsConsideration must be given whether documents can be taken at face value without signatory authentication. A common approach is to proceed on the basis that documents and copies of the documents are genuine unless an objection is raised within a specified period of time. This is the procedure advocated by the UNCITRAL Notes at Note 52. See also Article 3.11 of the IBA Rules of evidence. The parties may consider submitting to the Tribunal a single set of documentary evidence agreed between themselves.



The IBA Rules of evidence provide guidance as to the circumstances in which matters may be excluded from the evidence under consideration as follows: A. lack of sufficient relevance or materiality;B. legal impediment or privilege under the legal or ethical rules determined by the

Arbitral Tribunal to be applicable;C. unreasonable burden to produce the requested evidence;D. loss or destruction of the document that has been reasonably shown to have

occurred;E. grounds of commercial or technical confidentiality that the Arbitral Tribunal

determines to be compelling;F. grounds of special political or institutional sensitivity (including evidence that has

been classified as secret by a government or a public international institution) that the Arbitral Tribunal determines to be compelling; or

G. considerations of fairness or equality of the Parties that the Arbitral Tribunal determines to be compelling.



Witness evidenceThere is some degree of discretion in the arbitration tribunal as to the extent to which witness evidence will be adduced and the manner in which it will be adduced. The arbitral tribunal can require each party to give advance notice of any witness it intends to present. Notification is done is by the preparation of witness statements but case be as simple as the provision of a list of intended witnesses. The tribunal may feel it appropriate for witness statements to be exchanged simultaneously and may make provision for there to be reply statements.



Article (211) Law 11/1992The arbitrators shall cause the witnesses to take oath. Whoever makes a false statement before the arbitrators shall be deemed to have committed the crime of perjury.

In the 2004 case of International Bechtel Co. Ltd. v. Department of Civil Aviation of the Government of Dubai a USD$25 million dollar arbitration award rendered in favour of Bechtel was set aside by the Dubai Court of Cassation on the grounds that the arbitrator had failed to swear witnesses in the manner prescribed by UAE law for court hearings Bechtel simultaneously appealed to the Courts of France and the US District Court.



Expert Evidence - See generally UNCITRAL Model Law, Article 26.

The tribunal may be assisted by evidence of an expert, giving evidence described as "opinion evidence". This means any inference from observed facts and law on the subject derives from the proposition that witnesses must speak only to that which was directly observed by them. It is for the tribunal to draw inferences from the facts stated by the witness. As a general rule therefore opinion evidence is not admissible. Systems of law recognise that where matters calling for specialist knowledge or skill are concerned, the tribunal may not be equipped to draw the correct inferences from the facts stated by a witness. A witness is, therefore, allowed to state his opinion with regard to such matters, provided that he is an "expert" in them.



Real EvidenceThis comprises material which is brought before the arbitral tribunal by way of samples or similar physical objects as evidence in the proceedings. It may require the arbitral tribunal to make a site visit and examine a building, a ship, or a quantity of a particular commodity either prior to or during the hearing of any matter. It is for the arbitral tribunal to direct the manner in which any such inspection is to be made and indeed the extent to which the tribunal will pro-active during any such inspection.


Representation

• IBA Guidelines on Party Representation in International Arbitration 25 May 2013

• 27 Guidelines setting common standard for representation of parties

• http://www.ibanet.org/Publications/publications_IBA_guides_and_free_materials.aspx#partyrep


LECTURE 6

The Hearing, Presentation of Evidence, Dispensing with Hearings

Gordon Tregaskis BA(Hons) DipICArb C.Arb FCIArb Barrister Chartered Arbitrator CEDR Solve Mediator

CIPAA Accredited Adjudicator


6 gordon tregaskis - the hearing, written proceedings and evidence

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