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Enhancing International Arbitration: Tools and Practices

Explore UNCITRAL and IBA guidelines and rules for evidence, witnesses, and document production in international arbitration. Learn about managing time, costs, and disclosure in commercial arbitration. Consider perspectives of arbitral tribunal and parties, legal system differences, and fair trial principles.

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Enhancing International Arbitration: Tools and Practices

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  1. 100% Standards in International Arbitration: Practice and Tools YIAG Briefing & Roundtable Warsaw, 16 June 2011

  2. Prominent Tools • UNCITRAL Notes on Organizing Arbitral Proceedingshttp://www.uncitral.org/pdf/english/texts/arbitration/arb-notes/arb-notes-e.pdf • IBA Guidelines on Conflicts of Interest in International Arbitration (2004) • IBA Guidelines on Drafting International Arbitration Clauses (2010) • IBA Rules on the Taking of Evidence in International Arbitration (2010) • http://www.ibanet.org/Publications/publications_IBA_guides_and_free_materials.aspx • ICC Techniques for Controlling Time and Costs in Arbitration http://www.iccwbo.org/policy/arbitration/id2882/index.html • The CPR Protocolhttp://www.cpradr.org/Resources/ALLCPRArticles/tabid/265/ID/614/CPR-Protocol-on-Disclosure-of-Documents-and-Presentation-of-Witnesses-in-Commercial-Arbitration.aspx

  3. The IBA Rules on the Taking of Evidence • Consultation on Evidentiary Issues (Art. 2) • Document Production (Art. 3) • Witnesses and ExpertsArt. 4 - Witnesses of factArt. 5 - Party appointed experts Art. 6 - Tribunal appointed experts • Inspections (Art. 7) • Evidentiary Hearings (Art. 8) • Admissibility and Assessment of Evidence (Art. 9)

  4. What's new? • Principles of fair trial and bona fides - Preamble • "Meet and Consult" - Art. 2 • E-Disclosure Art. 3(3)(a)(ii) • Request to produce shall contain a statement as to how documents are relevant to the caseandmaterial to its outcome - Art. 3(3)(b) • Enhanced confidentiality - Art 3(13) • Expert witnesses: Statement of independence also of party appointed experts – Art.5(2)(c) • Witness appearance in hearings required only upon request of one of the Parties or the Arbitral Tribunal - Art. 8(1)

  5. Disclosure of Documents - Chances and Risks • From the Arbitral Tribunal's perspective • Burden of proof approach • Lengthy interim procedure • Issues of privileged confidentiality • Fair trial • From the Parties' perspective • Chance to handle evidentiary problems • Risk to lose control about own evidence • Issues of privileged confidentiality

  6. Disclosure Request - How to Deal with Parties From Different Legal Systems? • The civillawapproach • The common law approach • IBA Rules • Discretion of the Arbitral Tribunal • Fair trial

  7. Thank you for your kind attention! • Gunnar PicklAttorney at Law • DORDA BRUGGER JORDIS Dr. Karl Lueger-Ring 101010 Vienna, Austria T: +43 1 533 47 95-102F: +43 1 533 47 95-50102 E: gunnar.pickl@dbj.atW: www.dbj.at Austrian Law Firm of the Year 2010,Chambers Europe Awards for Excellence

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