In regular commercial arbitration or international commercial arbitration there is a certain amount of flexibility when it comes to evidence rules. Generally, parties are free to craft their own rules, so long as they are within the broad regulations governing the dispute, arbitration, and procedure. It is also important to consider the applicable applicable jurisdictions that the parties have agreed to abide by, as both common law and civil law systems can influence the process. Depending on the nature of the dispute, one system may take precedence over the other, and this will ultimately affect the way evidence is collected, presented, and evaluated. Therefore, parties should consider the implications of different systems when selecting the most appropriate process for their arbitration.
Parties are flexible to craft their own limited by broad regulations that govern the dispute, the arbitration, and the procedure. These limitations depend on the that the parties have agreed to adhere to. However, both common and civil law systems influence and guide the process selected and will ultimately affect the way evidence is collected, presented, and evaluated. To what extent one system takes precedent over another will depend on many factors, although given the flexible nature of arbitration, rigid evidentiary rules under common law are disfavored.
The parties involved in an international dispute must be mindful of the cultural differences and legal systems that may be present in the case. In many cases, the parties must grapple with the challenge of reconciling different legal systems and cultures. It is important to remember that the various legal systems, cultures, and values all have an influence on how evidence is collected, presented, and assessed. Therefore, parties must be aware of how their decisions in regard to this evidence could be impacted by the diversity of the dispute. The two prevalent approaches in international arbitral disputes are based either in civil or common law.
The primary difference between common law and civil law is the approach taken to decide a case. Common law is an adversarial system in which the parties present their arguments and evidence to the judge without the court being active in the collection of evidence. [1] This contrasts with civil law which is inquisitorial in nature and relies on the court to be actively involved in the collection of evidence. This difference can be seen in the way the parties present their cases. In common law, parties are responsible for presenting the facts and arguments of the case while in civil law the court is responsible for actively collecting evidence and probing the facts at hand.[1] Of course there are jurisdictions where they mix these approaches.
In the common law tradition, pleadings have less value, since preference is given to oral presentation of the case[2] Also, courts do not actively participate in the discovery of evidence. Parties are left to make their own findings and produce all evidence even if it is contrary to their interests.[3] It must be relevant and admissible to prove their case and be accompanied with technical arguments.[4] Given the burden to produce, courts allow for broad discovery proceedings and even mandatory disclosures regardless of whether the evidence is contrary to the interest of the disclosing party. [5] Evidence is ultimately funneled through the scrutiny of the judge who acting as an umpire[6] and following complex rules, decides whether it will be admitted in court for assessment. Witnesses also play an important role. They are prepared beforehand by the presenting attorney to be ready for extensive scrutiny through interrogatories and cross examinations.[7]
Parties in civil law do not engage in discovery disputes and technicalities nor bring as many documents and rehearsed witnesses to prove their claim. Civil law is more flexible with documents and easily authenticated by the court as it evaluates and interrogate witnesses and experts as needed. Courts evaluate facts following proper legal grounds, despite what it is offered by the parties[8] and hearings are kept at a minimum.[9]
These differences make civil ad common law incompatible together in arbitration proceedings. Integration requires concessions and difficult measures by parties, attorneys, and arbitrators coming from diverse backgrounds. If they come to an agreement, they have a choice to set their own procedural and evidentiary rules. If they do not, then existing rules come into play. Laws and institutional rules have developed certain provisions to address the matter, but they are not necessarily specific on the collection of evidence. Organizations, such as the International Bar Association[10] and the Chartered Institute of Arbitrators[11] have issued guidelines in this matter. They provide the framework for tribunals to adopt and conduct the collection and taking of evidence while attempting to harmonize both civil and common law views.
[1] Blackaby, Nigel, et al. Redfern and Hunter on International Arbitration, Oxford University Press, Incorporated, 2015. Parr. 6.77.
[2] This is the consequence of the adversarial approach and the historical fact that the jury was composed of lay persons, as mentioned above, often illiterate, when oral persuasion was more efficient and paper documents
were less persuasive than emotional witness statements and live testimony. For the samereasons the weight given to the advocacy of a common law lawyer to secure tactical and strategic advantage is greater than that given to written pleadings. The common law lawyer is accustomed to extensive oral arguments.
[3] Blackaby, Nigel, et al. Redfern and Hunter on International Arbitration, Oxford University Press, Incorporated, 2015, parr. 6.77
[4] Blackaby, Nigel, et al. Redfern and Hunter on International Arbitration, Oxford University Press, Incorporated, 2015, parrs. 6.81-6.82.
[5] Blackaby, Nigel, et al. Redfern and Hunter on International Arbitration, Oxford University Press, Incorporated, 2015 Parr 6.104-106.
[6] Loizou S., Establishing the Content of the Applicable Law in International Arbitration in Conflict of Laws in International Commercial Arbitration (Ferrari Fr. & Kröll eds, 2nd ed. 2019), pg. 469.
[7] Blackaby, Nigel, et al. Redfern and Hunter on International Arbitration, Oxford University Press, Incorporated, 2015, parr. 6.82.
[8] Loizou S., Establishing the Content of the Applicable Law in International Arbitration in Conflict of Laws in International Commercial Arbitration (Ferrari Fr. & Kröll eds, 2nd ed. 2019), pg. 465.
[9] Blackaby, Nigel, et al. Redfern and Hunter on International Arbitration, Oxford University Press, Incorporated, 2015, parr. 6.168.
[10] IBA Rules on the Taking of Evidence in International Arbitration, last revised in December 2020.
[11] Guideline 13 Witness Conferencing, April 2019; Guideline 7 Party Appointed and Tribunal Appointed Expert Witnesses – 2016.
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