• Journal of Arbitration Studies
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• v.21 no.3
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• pp.21-54
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• 2011

International commercial arbitration has established itself as the primary dispute resolution mechanism for international business transactions. Certainly, there are commonly-accepted standards that have evolved to reflect an internationally-harmonized approach to issues relating to the taking of evidence. This is reflected in International Bar Association("IBA") Rules for Taking of Evidence in International Evidence("IBA Rules"). This IBA Rules were revised in 2010. Designed to assist parties in determining what procedures to use in their particular case, IBA Rules present some of the methods for conducting international arbitration proceedings. Parties and arbitral tribunals may adopt IBA Rules in whole or in part - at the time of drafting the arbitration clause in a contract or once an arbitration commences - or they may use them as guidelines. They supplement applicable national laws and institutional or ad hoc rules. The IBA Rules were an ambitious undertaking, designed to overcome fundamental cultural differences relating to the taking of evidence under different national court systems. While it is difficult to assess how frequently the IBA Rules are actually adopted by parties, it is fair to say that they have had a considerable influence on the practice of taking evidence in international arbitration. This article mainly describes the essential provisions of IBA Rules, as revised in 2010, including but not limited to production of document, witnesses of fact, party-appointed experts, and tribunal-appointed experts. It also provides a comparison of relevant procedural rules of civil law and common law systems to each of the above mentioned provisions. It is important for arbitration practitioners to understand the differences in the taking of evidence under civil law and common law systems, respectively. This article will be helpful for practitioners and academics not only to understand the revised IBA Rules themselves but also to prepare for, and adequately deal with, the frictions that may arise as a result of the differences in approach for taking evidences. Indeed, so prepared, the arbitration practitioner will be able to anticipate the expectations, perceptions and the conduct of the parties, their counsel and the tribunal members.

• Journal of Arbitration Studies
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• v.29 no.3
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• pp.53-74
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• 2019

Due to the increasingly popular dissatisfaction regarding the inefficiency of arbitral proceedings, the Rules on the Efficient Conduct of Proceedings in International Arbitration, also known as the Prague Rules, was launched in December 2018, with the purpose of increasing the efficiency of arbitral proceedings by encouraging arbitral tribunals to take a more proactive role in conducting their procedures. In this article, the provisions of the Prague Rules are examined, in light of those of the IBA Rules on the Taking of Evidence in International Arbitration, in order to determine the efficacy of the Prague Rules on enhancing the efficiency in arbitral proceedings. The author concludes that more specific and detailed provisions, with respect to what the Rules means by such a "proactive arbitral tribunal," should have been explicitly included in light of the Rules' repeated emphasis on such. Also, the prospective outlook on the Prague Rules is not entirely clear as the text does not appear to fill in the gaps in other widely utilized arbitration rules or to supplement them in a satisfying way. However, given that only a short amount of time has passed since the launch late last year, only time will reveal how effective the Prague Rules will be in increasing the efficiency of arbitral proceedings, in accordance with its intended effect.

• Journal of Arbitration Studies
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• v.20 no.2
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• pp.67-90
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• 2010

Electronic discovery refers to the discovery of electronically stored information. The differences between producing paper documents and electronic information can be categorized into seven groups: massive volume, persistence, dynamic and changeable contents, metadata, environment-dependence, dispersion and searchability. Since these differences make the discovery more expensive and less expeditious, it is necessary to limit the scope of discovery. Accordingly, a number of arbitration institutions have already introduced rules, guidelines or protocols on electronic discovery. ICDR guidelines take a minimal approach and address only the proper form of electronic document. CIArb Protocol is intended to act as a checklist for discovery of electronic data. CPR Protocol offers four modes of discovery of electronic documents ranging from minimal to extensive among which the parties may choose the way of electronic discovery. IBA Rules on Evidence and ICC Rules are silent on the issue of electronic discovery, however, working parties of the ICC are considering updates to the rules to deal with electronic discovery. It is disputed whether rules, guidelines or protocols on electronic discovery is necessary or appropriate. Although some have suggested that existing rules can make adequate provision for electronic discovery, it is more desirable to prepare new rules, guidelines or protocols to make arbitrators and counsels be familiar with electronic discovery process, to provide an adequate standard for electronic discovery and to limit the time and cost of electronic discovery. Such rules on electronic discovery should include provisions regarding the form of electronic document production, conference between parties regarding electronic discovery, keyword search, bearing the expenses to reduce disputes over electronic discovery.

• Journal of Arbitration Studies
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• v.25 no.3
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• pp.59-90
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• 2015

Since 1855, the federal courts of the United States have been empowered to assist in the gathering of evidence for use before foreign tribunals. Today, the source of that authority is 28 U.S.C. ${\S}1782$ which permits the courts to order a person "to give [ ] testimony... or to produce a document ... for use in a proceeding in a foreign or international tribunal${\cdots}$ ." It was generally assumed, until the United States Supreme Court's decision of Intel Corp. v. Advanced Micro Devices, Inc. in 2004, that arbitration tribunals were not "foreign tribunals" for purposes of 28 U.S.C. ${\S}1782$. While the issue in Intel did not involve an arbitration tribunal, a statement by the Supreme Court in dicta has called into question the exact parameters of the words "foreign tribunal," resulting in a split of opinion among the federal courts of the United States. This article explores the legislative history of 28 U.S.C. ${\S}1782$, examines the United States Supreme Court decision in Intel, and discusses the split among the courts of the United States regarding the interpretation of "foreign tribunal." The article further surveys emerging issues: is an arbitration tribunal in a case involving foreign parties and seated in the United States a "foreign tribunal"; does agreeing to the use of the IBA Rules on the Taking of Evidence in International Arbitration circumscribe the use of 28 U.S.C. ${\S}1782$; can a party be ordered to produce documents located outside the United States; and is there a role for judicial estoppel in determining whether an application pursuant to 28 U.S.C. ${\S}1782$ should be granted?