Rules of Evidence in International Arbitration
Page 391
Index
Index
- Active on-line data
- Administration of justice
- Admissibility of evidence –
- adverse disclosure, and
- attorney–client privilege –
- commercial and technical confidentiality –
- equal treatment
- equality –
- equality of arms –
- fairness , –
- illegal means
- liberality
- lost or destroyed evidence –
- manipulation of access to relevant information ,
- material to outcome of case –
- objections to production based on burden –
- political or institutional sensitivity –
- privilege , –
- agreement by parties ,
- applicable mandatory law
- burden of proof
- categorisation
- closest connection test –
- complexity of subject
- equal treatment –
- fairness –
- guiding principles in determining appropriate rule –
- IBA Rules
- international practice
- least protection
- legal or ethical rule
- legitimate expectations of parties
- most favourable
- relevant sources of law –
- survey method –
- waiver –
- procedural economy , –
- proportionality
- relevance and materiality objections –
- relevance to case –
- settlement privilege –
- unlawful collection of evidence –
- unreasonable burden –
- objective factors –
- party’s jurisdictional background –
- subjectivity
-
usefulness of documentsPage 392
- vague or overly broad requests
- waiver of privilege –
- Adverse disclosure
- Admissibility, and 9.0
- Adverse inferences , –
- Affirmations –
- Arbitration agreements
- Assessment of the evidence –
- Attorney–client privilege –
- Chemtura Corporation v Government of Canada Appendix 4
- Commercial and technical confidentiality –
- Common sense
- Common statements
- Common usage
- Confidentiality of disclosed documents –
- confidential information disclosed to fulfil legal duty ,
- disclosure where needed to protect or pursue legal right –
- documentary evidence exchanged during proceedings ,
- fair procedure, and , ,
- framework
- general rule
- Hwang Model Confidentiality Order –
- issue estoppel, and –
- legitimate interest, and
- no general duty
- public proceedings, and
- sensitive information ,
- terms of confidentiality order –
- terms of procedural order –
- “to enforce or challenge an award”
- transparency, and –
- tribunal’s authority to enforce ,
- use of documentary evidence in connection with arbitration ,
- Confidentiality undertaking for third–party experts Appendix 4
- Confirmation of statement
- Confirmations –
- Contents of expert report –
- Control of examination of witness –
- Costs
- Court assistance in taking documentary evidence –
- Cross–examination
- Customary practice
- Deliberative privilege
- Depositions , –
- arbitration agreements permitting –
- common usage
- conduct of
- failure by counsel for adverse party to attend
- faithful record of testimony
- intent behind reference
- interviewing adverse witnesses prior to hearing ,
- meaning
- order by tribunal ,
- past tribunals, experience of
- sample clause
- US practice ,
- use to obtain testimony from witnesses unable to attend hearing –
- witnesses, availability of ,
-
Determination of foreign lawPage 393
- Direct testimony –
- Discovery and limited disclosure
- Document production –
- Documentary evidence –
- accuracy of reproduction –
- adverse document disclosure –
- allegations of forgery –
- application of substantive law standard –
- authenticity –
- award or procedural order
- broader approach
- burdensome for requesting party to produce ,
- categories of document –
- checklist of requirements for request for production
- civil law preference for
- civil law view of disclosure –
- common law jurisdictions
- completion of document production phase ,
- conducting disclosure without tribunal’s involvement
- confidentiality of disclosed documents – see also Confidentiality of disclosed documents
- consultations between parties ,
- control issue –
- control of procedure by tribunal
- copies –
- court assistance in taking –
- customary filing deadlines ,
- customary timing of disclosure phase
- demonstrating possession, custody or control –
- difference between discovery and limited disclosure
- different phases of production –
- disclosure based on substantive right –
- disclosure in arbitration versus US–style discovery –
- duty to provide good faith answers to request , –
- electronic documents – see also Electronic discovery
- equal treatment
- ethical considerations for counsel , ,3.63
- failure to meet requirements of article 3.3 ,
- filing deadlines –
- forgeries –
- form objection
- further evidence
- general considerations
- general powers of tribunal to order disclosure –
- good faith
- higher burden ,
- IBA Rules
- interim measures –
- investor–state arbitration
- irrelevant documents
- late submission , ,
- limited disclosure –
- multi–parties
- narrow and specific standard –
- no duty to voluntarily disclose adverse evidence ,
- not in possession, custody or control of requesting party ,
- objections –
- order to disclose
- originals –
- preference for
- procedural economy
- produce or object
- production of documents under protest
- provisional measures ,
- rebuttal –
- Redfern schedule –
- relevance and materiality standard –
- request for document disclosure
- standards applicable to request for disclosure
- statement of claim
- statement of defence
- supplemental –
- time frame –
- timing of request for disclosure –
- translations –
- tribunal’s authority to compel party to use best efforts to obtain evidence
- tribunal’s authority to order production of original –
- tribunal’s power to take any steps
- tribunal’s right to request document production –
- using experts to resolve disputes –
- wide–ranging discovery process ,
- Due process principles ,
- Duty to act in good faith –
- Duty to cooperate –
- Electronic discovery –
-
Equal treatmentPage 394
- Equality
- Equality of arms
- Ethical considerations for counsel , ,
- Evaluation of materiality
- Evidentiary hearing –
- affirmations –
- authority to limit witness testimony –
- avoiding duplicative testimony –
- confirmations –
- control of examination of witness –
- direct testimony –
- excluding witnesses from hearing and due process ,
- hearing of witness after submission of written witness statement –
- in camera –
- irrelevant or immaterial questioning –
- language of –
- leading questions on direct examination
- materiality of evidence –
- notification of witnesses –
- objections in relation to form of question –
- oral testimony –
- predominant purpose
- raising objections during –
- relevance of evidence –
- right to –
- rules of limitation
- sequestration of witnesses –
- summary of testimony
- testifying by video conference ,
- tribunal’s authority to call witness on own motion –
- tribunal’s control over –
- which part may call witnesses ,
- Excluding witnesses from hearing
- Exclusionary ruling ,
- Failure to call witness to hearing –
- Failure to give notice of witness within specified time –
- Failure to produce evidence
- Fair procedure
- Fairness , –
- Faithful record of testimony
- Filing deadlines
- Forgeries
- IBA Guidelines on Party Representation in International Arbitration text Appendix 5
- IBA Rules of Evidence , –
- IBA Rules on the Taking of Evidence in International Arbitration text Appendix 1
- Identification of witnesses of fact –
- Identifying experts
- In camera hearings –
- Independence of experts –, , , –
- Inspections –
- Interim measures –
- International arbitration
- International standards
- Interrogations , –
-
Interviewing adverse witnesses prior to hearing ,Page 395
- Investigations by tribunal–appointed experts –
- Investor–state arbitration
- Iran–US Claims Tribunal
- Irrelevant documents
- Irrelevant or immaterial questioning –
- Issue estoppel
- Lacunae in evidentiary record
- Late evidence
- Late submission
- Leading questions
- Legal obligations of confidentiality
- Legitimate interest
- Liability of witness
- Limited disclosure
- Lost or destroyed evidence –
- Mandate
- Mandatory law
- Manipulation of access to relevant information ,
- Materiality of evidence –
- Merits of case
- Multi–parties
- Oaths
- Objections to interrogations
- Objections to production of evidence –
- Onus probandi actori incumbit –
- Opportunity to examine experts ,
- Oral testimony –
- Order to disclose documentary evidence
- Original documentary evidence –
- Party–appointed experts –
- affirmation of genuine belief in opinions expressed ,
- battle of the experts
- commercial relationship with party ,
- contents of expert report –
- determining not to call or cross–examine ,
- disclosure of instructions ,
- documents relied upon ,
- ethical guidance for counsel regarding reports –
- expert report ,
- factual assumptions ,
- factual issues
- failure to attend hearing –
- fees
- identifying
- independence –
- ordering to meet and confer –
- rebuttable reports ,
- statement of independence
- summoning to evidentiary hearing –
- testimony –
- Political or institutional sensitivity –
- Predominant purpose of evidentiary hearing
- Prima facie evidence
- Privilege , –
- agreement by parties ,
-
applicable mandatory lawPage 396
- burden of proof
- categorisation
- closest connection test –
- complexity of subject
- equal treatment –
- fairness –
- guiding principles in determining appropriate rule –
- IBA Rules
- international practice
- least protection
- legal or ethical rule
- legitimate expectations of parties
- most favourable
- relevant sources of law –
- survey method –
- waiver –
- Procedural economy , –
- Production of documents under protest
- Proportionality
- Public notoriety
- Public proceedings
- Rebuttal expert reports ,
- Rebuttal witness statements –
- Re–cross examination
- Redfern schedule –
- Re–direct examination
- Relevance and materiality objections –
- Relevance and materiality standard –
- Request for document disclosure
- Requested evidence accessible to non–producing party
- Right to evidentiary hearing –
- Right to secrecy
- Rules of evidence
- Sensitive information
- Sequestration of witnesses –
- Settlement privilege –
- Shifting burden of proof –
- Signature of witness
- Standard of proof –
- Statement of claim
- Statement of defence
- Translations
- Transparency
- Tribunal–appointed experts –
- adopting full findings of expert ,
- applying tribunal’s own expertise to determine specific issues –
- appointment –
- attributes of report –
- consultation with parties
- costs
- determination of foreign law
- determining when specific issues have arisen –
- difference between roles of witness and arbitrator ,
- duty to weigh evidence
- examination of ,
- formalities accompanying appointment –
- IBA Rules
- independence , , –
- input from parties on content of terms of reference
- inquisitorial nature ,
- investigations by –
- equal treatment, and , –
- issues to be referred to
- lacunae in evidentiary record
- mandate –
- mandatory law, required by
- opportunity to examine ,
- party’s right to review and comment on report –
- qualifications , , –
-
raising objections alter expert appointed ,Page 397
- right to review information relied upon by expert ,
- role
- technical questions
- terms of reference –
- time for raising objections –
- weighing probative value of expert report –
- UNCITRAL Arbitration
- Rules text Appendix 2
- Uncontroverted and clear fact
- Unlawful collection of evidence –
- Unreasonable burden –
- Use of documentary evidence in connection with arbitration ,
- Using experts to resolve disputes –
- Weighing probative value of expert report –
- Witness conferencing ,
- Witness intimidation
- Witness statements –
- advantages –
- affirming legal pleadings of counsel
- contents –
- corroborating evidence –
- cross–examination, and
- customary practice
- direct testimony, as
- disclosure of relationship to party
- disregarding –
- documents accompanying –
- duty to present for cross–examination –
- ethical issues for counsel ,
- evaluation of materiality
- exceptional reasons for admitting testimony of non–attending witness ,
- first person narrative account
- full description of facts –
- non–appearance, and
- party’s right to withdraw
- rebuttal –
- signature of witness
- time frame for submitting ,
- time frame for submitting ,
- use of –
- valid reasons for non–attendance at hearing –
- witness affirmation ,
- Witnesses
- Witnesses of fact –
- basic assumptions
- broad definition
- considerations prior to authorising court involvement –
- contacting adverse witnesses and ethical concerns –
- court’s assistance in taking testimony ,
- failure to call witness to hearing –
- failure to give notice of witness within specified time –
- identification –
- late evidence
- legal obligations of confidentiality to a party ,
- non–cooperating –
- parties
- persons interested in outcome of proceedings –
- preparing –
- probative value of proffered testimony
- steps legally available to tribunal to obtain testimony ,
- tribunal not obliged to act –
- tribunal’s authority over taking of witness testimony –
- tribunal’s power to call –
- variations in practice
- who may be a witness –
- witness intimidation
- witness statements – see also Witness statements
- witness with connection to party
- written statement