国际仲裁中的证据处理. 杨良宜 2013 年 11 月于上海. 争议解决针对的两个问题. Issue of Law ( 法律问题 ) Issue of facts ( 事实问题 ). 法律问题. ISSUE OF LAW: (i) Types of dispute (predominantly construction/ interpretation of contracts/documents).
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US Federal Statue 28 WC # 1782 (injunction against discovery in USA: South Caroline Insurance v. Assurantie Maatschappij ‘de Zeven’ Provincien  2 Lloyd’s Rep.317; Bankers Trust Int’l v. PY Dharmala Sakti Sejahtera [unreported] 19/10/1995);
HK Arbitration Ord. s.61(1): “An order or direction made, whether in or outside HK, in relation to arbitral proceedings by an arbitral tribunal is enforceable in the same manner as an order or direction of the Court …” （只局限在针对对手与仲裁庭必须已经成立）
I. Pre-action discovery from Opponents
II. Early discovery from Opponents
Discretionary (unlike jurisdictional in the case of Pre-action discovery);
III . Normal disclosure/discovery
A.Timing - After close of pleadings
B. Extent - Compagnie Financiere v. Peruvian Guano (1882) 11 QBD 55 defining “relevant document”; (i) document to advance own case; (ii) document to damage adversary case; (iii) document which may fairly lead to a train of enquiry which may have either of these two consequences.
C.Meaning of “possession, custody or power” in RSC; CPR changed to “in a party’s control”; “physical possession” and “right to possession” (r.31.8 + )
Dubai Bank v. Galadari, The Times, Oct.14,1992, CA reversed the judge’s order that a party should “use all lawful means available to obtain the documents”
“Possession” meant the right to possess (B v. B  Fam.181); documents with agent;
F.Too many documents in the modern world
“(a)the documents on which he relies; and
(b)the documents which-
(i) adversely affect his own case;
(ii) adversely affect another party’s case; or
(iii) support another party’s case; and
(c) the documents which he is required to disclose by a relevant practice discretion.”
d.Practice in arbitration
IBA Rules of Evidence 2010; Redfern Schedule;
Claimant’s/Respondent’s REQUESTS FOR DISCLOSURE OF DOCUMENTS
(i)Sufficiently describe the documents.
(ii)If a category of documents is requested, a “narrow and specific” description must be provided.
(iii)A reasoned explanation as to why they are “relevant to the case” and “material to its outcome”.
(iv) Confirm that the documents are not in its control.
(v)Explain why the documents are assumed to be in the control of the other party.
a.purpose of the exercise;
b.skill in conducting;
c.skill in answering;
d.10 (or 15) questions not to ask.