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Evidence in International Investment Arbitration by Sourgens, Frédéric Gilles; Duggal, Kabir; Laird, Ian A (1st March 2018)

Appendix I Evidentiary Principles in Investor-State Arbitration

From: Evidence in International Investment Arbitration

Frédéric Gilles Sourgens, Kabir Duggal, Ian A. Laird

(p. 291) Appendix I  Evidentiary Principles in Investor-State Arbitration

Part I— The Burden of Proof

§1 Actori Inucumbit Onus Probandi1

  1. (1)  Either party asserting a fact in order to establish an element of a claim, counter-claim, affirmative defence or propriety of a remedy must:

    1. a.  present admissible, relevant and material direct evidence to support such assertion;

    2. b.  present admissible, relevant and material circumstantial evidence sufficient to support such assertion

    3. c.  sustain that sufficient evidence has been submitted to support an inference of the truth of the assertion, or

    4. d.  sustain that a presumption renders proof of the fact in question by admissible, relevant and material evidence unnecessary.

  2. (2)  A finding by the arbitral tribunal that a party failed to present such evidence or sustain the applicability of a presumption entails that the event or occurrence submitted as a fact did not take place.

§2 Burden of Proof and Jurisdiction2

  1. (1)  The party invoking the jurisdiction of the tribunal must submit evidence that, if unrebutted, would meet the standard of proof to establish jurisdiction.

  2. (2)  At the jurisdictional stage, the party invoking the jurisdiction of the tribunal further must plead, but not prove, sufficient facts to assert a claim for which relief may be granted (the pro tem rule).

  3. (3)  The party objecting to jurisdiction may introduce evidence to rebut the jurisdictional submission.

  4. (4)  The party objecting to jurisdiction may not introduce evidence at the jurisdictional stage that would rebut only merits submissions advanced by the claimant.

  5. (5)  The party objecting to jurisdiction bears the burden of proof as set out in §1 with regard to its jurisdictional submissions made pursuant to point (3) above.

§3 Burden of Proof Merits and Remedies3

  1. (1)  The party seeking a remedy must submit evidence that, if unrebutted, would meet the relevant standard of proof that the remedy requested is appropriate.

  2. (2)  The party seeking damages must submit evidence that, if unrebutted, would meet the relevant standard of proof that the remedy requested is not speculative.

  3. (3)  The respondent may submit evidence to rebut submissions made by its opponent pursuant to sub-sections (1) and (2).

  4. (4)  The respondent bears the burden of proving its submission pursuant to sub-section (3).

Part II— The Standard of Proof

§4 Free Evaluation of Evidence4

  1. (1)  Subject to this Part, the arbitral tribunal has discretion in determining the standard of proof to be applied to any specific type of allegation.

  2. (2)  The arbitral tribunal must exercise its discretion in good faith such that its decisions are

    1. a.  consistent and appropriate;

    2. b.  respect the equality of the parties; and

    3. c.  otherwise conform with natural justice.

  3. (p. 292) (3)  The following factors guide the arbitral tribunal in its evaluation of evidence:

    1. a.  the gravity of the charge advanced by the party with the burden of proof;

    2. b.  the quantity of evidence submitted by the party with the burden of proof;

    3. c.  the materiality of evidence submitted by the party with the burden of proof;

    4. d.  the quantity of evidence submitted in rebuttal;

    5. e.  the materiality of evidence submitted in rebuttal;

    6. f.  the availability of direct evidence.

§5 The Balance of Probabilities5

The arbitral tribunal must determine in its inner conviction that the party with the burden of proof has submitted evidence sufficient to establish that its contention is more probable than not unless a heightened standard of proof applies.

§6 Heightened Standard of Proof6

  1. (1)  The arbitral tribunal may apply a higher standard of proof than balance of the probabilities to make determinations of particular gravity.

  2. (2)  The arbitral tribunal must not apply a standard of proof that allegations have been proved beyond a reasonable doubt.

Part III— Direct and Circumstantial Evidence7

§7 Preference for Direct Evidence8

  1. (1)  The arbitral tribunal when possible shall make findings of fact by means of direct evidence.

  2. (2)  Direct evidence is testimony or documentary proof immediately and directly relevant to the establishment of a fact without aid or any intervening fact or process.

§8 Credibility as Criterion for Direct Evidence9

  1. (1)  To support the finding of a fact on the basis of direct evidence, the arbitral tribunal must determine the evidence to be credible.

  2. (2)  The arbitral tribunal has discretion to make credibility findings.

§9 Circumstantial Evidence (Hearsay)10

  1. (1)  A tribunal may make findings of fact premised upon hearsay evidence.

  2. (2)  In the investor-state arbitration context, hearsay evidence is a statement made by a declarant not subject to cross-examination submitted for the truth of the matter asserted.

  3. (3)  To the extent an arbitral tribunal relies upon hearsay evidence, it must corroborate the hearsay evidence in question with other direct or indirect evidence or by way of an inference.

  4. (4)  To the extent credible direct evidence is available, an arbitral tribunal must not rely upon hearsay evidence to contradict the direct evidence in question.

Part IV— Shifting Burden of Evidence

§10 Shifting the Burden of Evidence11

A submission by a party of sufficient evidence to meet its burden and standard of proof with regard to a specific fact, claim, or contention shifts the burden of evidence to its opponent.

(p. 293) §11 Rebuttal of Shifted Burdens of Evidence12

In order to contest the point in issue, the party to whom the burden of evidence has been shifted must submit further evidence in rebuttal.

§12 Burden of Evidence and Burden of Proof13

Shifting of the burden of evidence does not disturb the burden of proof.

Part V—Presumptions

§13 Presumptions in General14

  1. (1)  The arbitral tribunal may make findings of fact premised upon presumptions consistent with applicable standards of proof.

  2. (2)  Use of a presumption means that a fact is supported by general practices and circumstances beyond the specific project at issue in the dispute due to the applicability of a

    1. a.  Legal presumption; or

    2. b.  Judicial presumption.

§14 Types and Hierarchy of Presumptions15

Presumptions may be either legal presumptions or judicial presumptions.

§15 Legal Presumptions (Praesumptiones iuris)16

  1. (1)  A legal presumption is a norm that assumes that certain facts are established in a given situation as a matter of applicable law.

  2. (2)  Unless expressly displaced by a rule of applicable law, a legal presumption is rebuttable.

§16 Proof of Legal Presumptions17

  1. (1)  An arbitral tribunal’s determination of the existence of a legal presumption constitutes a legal ruling that a rule of relevant applicable law exists in contradistinction to a finding of fact.

  2. (2)  Proof of a legal presumption is reviewable as a manifest excess of power in the arbitral tribunal’s application of the law.

§17 Rebuttable Legal Presumptions Reflected in Investor-State Jurisprudence on Jurisdiction18

Investor-state arbitral tribunals have in the past recognized the following legal presumptions in the jurisdictional context:

  1. (a)  official home state certification of the nationality of a natural person entails the rebuttable presumption that the natural person has the nationality in question;

  2. (b)  registration in the shareholder registry of a juridical person entails the rebuttable presumption that the person so registered is the owner of the shares;

  3. (c)  proof of majority ownership of a juridical person entails the rebuttable presumption of control by the majority owner over the juridical person;

  4. (d)  proof of effective control over a juridical person at a certain point in time entails the rebuttable presumption that effective control was continuous; and

  5. (e)  proof that an investment was made entails the rebuttable presumption that the investment contributed to the host state’s economy.

(p. 294) §18 Rebuttal Legal Presumptions Reflected in Investor-State Jurisprudence on the Merits19

Investor-state arbitral tribunals have in the past recognized the following legal presumptions:

  1. (a)  proof of an official government act entails the rebuttable presumption that the act was valid as a matter of host state law;

  2. (b)  proof that the investment was made in a specific regulatory environment without more entails the rebuttable presumption that the regulatory environment was subject to reasonable change;

  3. (c)  proof that otherwise comparable investors received disparate treatment entails the rebuttable presumption that the host state discriminated between them;

  4. (d)  proof that a legal instrument was made on a certain date entails the rebuttable presumption that it was not intended to have retroactive effect; and

  5. (e)  submission without more of the text of an exceptions clause entails the rebuttable presumption that the clause is not self-judging.

§19 Rebuttable Legal Presumptions Reflected in Investor-State Jurisprudence on Remedies20

Investor-state arbitral tribunals have in the past recognized in the remedies context that the submission of audited financial statements gives to the rebuttable presumption that the financial information included in the statements is accurate and reliable.

§20 Judicial Presumptions (Praesumptiones hominis)21

  1. (1)  A judicial presumption is an assumption that as a matter of fact, the facts of the given case follow habitual, routine, or general practices applicable to the transactions, circumstances, or relationships in question.

  2. (2)  Unless expressly displaced by a rule of applicable law, a judicial presumption is rebuttable.

§21 Proof of Judicial Presumptions22

  1. (1)  An arbitral tribunal’s determination of the existence of a judicial presumption constitutes a finding of fact.

  2. (2)  An arbitral tribunal has discretion to make such a finding consistent with the principles of evidence governing proof of facts.

§22 Factors Relevant in Establishing Judicial Presumptions23

In determining whether a judicial presumption should be established, the following circumstances are significant:

  1. (a)  Evidence of a general usage, custom, or practice in the relevant industry;

  2. (b)  Relationship between the transaction and the general usage, custom or practice;

  3. (c)  Statements made by the parties during negotiations or prior to the making of the investment;

  4. (d)  Evidence of past conduct by one or both of the parties consistent with the proposed presumption; and

  5. (e)  The course of performance between the parties.

Part VI—Judicial Notice and Iura Novit Curia

§23 Judicial Notice as Permissible Means to Supplement the Record24

Subject to the rules of natural justice, the arbitral tribunal may on its own motion or upon application of one the parties supplement the record by means of judicial notice.

(p. 295) §24 Instances in Which Judicial Notice May Be Taken25

Judicial notice is appropriate when facts are so well known or can be so accurately and easily established by reference to authoritative sources as not to be subject to reasonable doubt.

§25 Iura Novit Curia26

Arbitral tribunals know the law without need of additional proof or submission by the parties if

  1. (a)  the rule of law in question is a general rule of international law and central to the arbitral tribunal’s ability to administer its arbitral function; or

  2. (b)  the tribunal can take judicial notice of the rule in question.

Part VII—Inferences

§26 Inferences in General27

  1. (1)  The arbitral tribunal may make findings of fact by means of inferences.

  2. (2)  An inference is a conclusion made in the absence of sufficient direct or indirect and probative evidence that as a matter of plausibility, a fact nevertheless must have occurred or circumstance must be the case in light of other relevant record evidence and party conduct in the arbitral proceedings.

  3. (3)  The plausibility of an inference is governed by the same standard of proof as the proof of the relevant fact or circumstance by direct or indirect evidence.

  4. (4)  An arbitral tribunal must give all parties a reasonable opportunity to comment upon a proposed inference.

§27 Inferences Outside of the Merits Context28

Consistent with applicable standards of proof, the arbitral tribunal has the power to draw inferences in every context.

§28 Factors Relevant in Drawing Inferences29

In determining whether an inference is made plausible by other record evidence, the following circumstances are significant:

  1. (a)  the difficulty of proving the fact by direct evidence;

  2. (b)  the relationship between the inference to be drawn and the fact proved by direct evidence;

  3. (c)  the strength of direct evidence supporting the inference;

  4. (d)  the number of different pieces of proof supporting the same inference; and

  5. (e)  the significance of the inference for the satisfaction of the requisite standard of proof.

§29 Inferences Arising from the Misconduct of the Parties in Arbitral Proceedings30

  1. (1)  The arbitral tribunal is empowered to draw adverse inferences from party misconduct in the arbitration.

  2. (2)  In determining whether an inference is made plausible by the conduct of one of the parties to the arbitral proceedings, the following circumstances are significant:

    1. a.  the severity of the party’s misconduct in the arbitral proceedings;

    2. b.  the relationship between the misconduct and the fact to be proved by means of an inference;

    3. c.  the procedural good faith of the party seeking the inference;

    4. d.  the plausibility of the same inference from the record absent considerations of party misconduct; and

    5. e.  the overall significance of the requested inference.

(p. 296) Part VIII—Exclusionary Rules of Evidence

§30 Exclusionary Rules in General31

  1. (1)  The arbitral tribunal as master of the taking of evidence in the arbitral proceedings may take guidance in the exclusion of evidence from the IBA Rules on the Taking of Evidence in International Arbitration.

  2. (2)  Typically, the exclusion of evidence is warranted in investor-state arbitration in three limited categories of circumstances

    1. a.  when its inclusion would violate another party’s right to be heard;

    2. b.  when its inclusion would violate the equality of the parties; or

    3. c.  when its inclusion would violate fundamental principles of international public policy.

§31 Burden of Proof regarding Exclusion of Evidence32

The party requesting that evidence be excluded from the record carries the burden of proof to establish a basis for the exclusion of the evidence in question.

§32 Privilege in General33

  1. (1)  An arbitral tribunal may exclude evidence from the record to the extent the evidence in question is covered by privilege.

  2. (2)  An arbitral tribunal in its discretion may take action other than the exclusion of evidence to protect the privilege interests of the parties. Other actions may include:

    1. a.  Redactions;

    2. b.  In camera review;

    3. c.  Review by an independent expert; or

    4. d.  Other similar mechanisms intended to protect the privacy interest of the party invoking the privilege as well as the evidentiary interest of the party seeking disclosure or admission.

§33 Applicable Law and Privilege34

To determine whether to exclude evidence on the basis of privilege, the municipal law governing the party, the municipal law governing the asserted privilege, and international law and practice recognizing a privilege are relevant.

§34 Types of Privileges35

  1. (1)  Privileges that have been asserted in investor-state arbitration are

    1. a.  Attorney-client privilege;

    2. b.  Work product privilege;

    3. c.  Privilege of communications with in house counsel;

    4. d.  Cabinet privilege; and

    5. e.  Secrecy of ongoing investigations.

  2. (2)  Tribunals may recognize other privileges consistent with applicable law and investor-state tribunal practice.

§35 Factors Relevant to Privileges in General36

Factors relevant in the context of excluding evidence on the ground of privilege are the need of excluding the evidence in question

  1. (a)  to permit a party to be meaningfully represented in legal proceedings or in structuring transactions,

  2. (b)  to permit a party to solicit and receive unbiased advice in internal decisionmaking,

  3. (p. 297) (c)  legitimate expectations of privacy by the party claiming the privilege recognized by municipal law or international law,

  4. (d)  prior conduct by a party inconsistent with the claim of privilege, and

  5. (e)  the recognition of a privilege with regard to similar communications of the other party by the tribunal at an earlier stage of the proceedings.

§36 Attorney Client Privilege37

  1. (1)  The arbitral tribunal may exclude evidence falling under the attorney-client relationship or information or evidence derived therefrom.

  2. (2)  Communications between natural persons or juridical persons and their attorney are privileged under attorney-client privilege when the communications in question arise

    1. a.  to seek legal advice without interference, or

    2. b.  to advance a legal claim without interference.

  3. (3)  The privilege extends to communications with third parties acting as agents for attorney if

    1. a.  the agents act to facilitate the provision of legal advice by the attorney; and

    2. b.  the communications were made pursuant to the broader agency relationship.

§37 Work Product Privilege38

  1. (1)  The arbitral tribunal may exclude evidence falling under the work product privilege or evidence derived therefrom.

  2. (2)  Documents are work product when they are created in anticipation of and for the purpose of preparing for litigation or arbitration.

§38 Privilege of Communications with In House Counsel39

A tribunal may exclude evidence generated by in house counsel or other evidence derived therefrom if it determines that the recognition of an in-house privilege is appropriate as a matter of applicable law.

§39 Cabinet Privilege40

  1. (1)  Documents the release of which would compromise the national security of the host state constitute state secrets and are privileged as such.

  2. (2)  Evidence arising from deliberative and policy making processes at high levels of government are privileged to the extent the government’s interest in confidentiality outweighs the public interest of disclosure.

  3. (3)  Claims for cabinet privilege must be pled with specificity.

§40 Secrecy of Ongoing Investigations41

In addition to the privileges in §§38–39, jurisprudence has recognized a privilege of secrecy of ongoing investigations to the extent the government’s interest in confidentiality outweighs the materiality of the evidence in light of the claims raised in the arbitration proceedings.

§41 Waiver of Privilege42

  1. (1)  Privilege is waived by the purposeful disclosure of privileged documents or information.

  2. (2)  A party may limit waiver upon showing of good cause that the disclosure was inadvertent.

§42 Confidentiality43

  1. (1)  A tribunal may choose to exclude evidence from the record even if the evidence in question is not covered by privilege to the extent that the legitimate confidentiality interests of the party opposing the introduction of evidence into the record significantly outweigh the probative value of the evidence.

  2. (p. 298) (3)  An arbitral tribunal in its discretion may take action other than the exclusion of evidence to protect the confidentiality interests of the parties. Other actions may include:

    1. a.  Redactions;

    2. b.  In camera review;

    3. c.  Review by an independent expert; or

  3. (2)  Other similar mechanisms intended to protect the privacy interest of the party invoking confidentiality as well as the evidentiary interest of the party seeking disclosure or admission.

§43 Factors Relevant to Confidentiality in General44

Factors relevant in the context of excluding evidence on the ground of confidentiality are

  1. (a)  the potential probative value of the evidence;

  2. (b)  the materiality of the evidence to core factual issues in dispute between the parties;

  3. (c)  legitimate expectations of privacy by the party asserting confidentiality;

  4. (d)  the potential harm suffered by the party opposing introduction of evidence into the record should the evidence be made public; and

  5. (e)  the efficacy of alternative means to protecting the respective interests of the parties.

§44 Commercial & Technical Confidentiality45

  1. (1)  A tribunal may exclude documents or passages from documents on the basis of commercial, as well as technical confidentiality.

  2. (2)  Commercial and technical confidentiality interests may be established on the basis of

    1. a.  municipal law; or

    2. b.  industry practice, usage, or custom.

§45 Instances of Commercial Confidentiality Recognized in Jurisprudence46

Subject to the factors outlined in §43, investor-state arbitral tribunals have in the past recognized the following types of evidence to give rise to commercial confidentiality interests:

  1. (a)  Bid documents;

  2. (b)  Pricing and costing information;

  3. (c)  Marketing planning data;

  4. (d)  Strategic planning data;

  5. (e)  Market share data; and

  6. (f)  Internal accounting or financial records.

§46 Instances of Technical Confidentiality Recognized in Jurisprudence47

Subject to the factors outlined in §43, investor-state arbitral tribunals have in the past recognized the following types of evidence to give rise to commercial confidentiality interests:

  1. (a)  Testing data and other information underlying patent applications;

  2. (b)  Location, depths and angles of drill holes;

  3. (c)  Metal assays and other analysis from drill cores;

  4. (d)  ‘Coordinates, elevation, azimuth, inclination and total depth of different samples taken from drill core’;

  5. (e)  Three dimensional modelling in the extractive industries; and

  6. (f)  Maps generated as a result of explorative activities.

§47 Other Confidentiality Interests48

  1. (1)  Arbitral tribunals may protect confidentiality interests other than commercial or technical information.

  2. (p. 299) (2)  Subject to the factors outlined in §43, jurisprudence has recognized the following instances of additional confidentiality interests:

    1. a.  Confidential governmental communications; and

    2. b.  Medical records.

§48 Exclusion of Evidence Threatening a Party’s Right to Be Heard49

Arbitral tribunals may exclude evidence from a party, the submission into the record of which would threaten its opponent’s right to be heard.

§49 Exclusion of Evidence Submitted Outside the Ordinary Course50

  1. (1)  Arbitral tribunals may exclude, or refuse to admit, evidence if it is proffered outside of the ordinary course of proceedings as set out in the arbitral tribunal’s procedural orders.

  2. (2)  Factors relevant to the exclusion of evidence as untimely are

    1. a.  Availability of the evidence at an earlier stage;

    2. b.  Materiality of the evidence;

    3. c.  The conduct of the parties in making discovery of the evidence onerous or time consuming;

    4. d.  Ability to cross-examine witnesses relevant to the new evidence;

    5. e.  Ability to comment during the ordinary course of the proceedings; and

    6. f.  Feasibility of permitting comment or cross-examination in an expeditious manner with a view to rendering an award or decision in a reasonable time after the close of the hearing.

§50 Exclusion of Evidence Threatening the Equality of Arms Between the Parties51

Arbitral tribunals may exclude evidence the submission into the record of which would threaten the equality of the arms between the parties.

§51 Exclusion of Evidence to Protect Fundamental Principles of International Public Policy52

Arbitral tribunals may exclude evidence the submission into the record if the evidence was obtained in a manner that is inconsistent with fundamental principles of international public policy.

Part IX— Documents & Document Production

§52 Taking of Evidence by the Tribunal in General53

The arbitral tribunal is the master of the procedural organization of the taking of written evidence and evidence at the hearing subject to the principles below.

§52 Document Defined54

  1. (1)  Investor-state tribunals have followed the definition of ‘document’ as provided by the IBA Rules on the Taking of Evidence (2010).

  2. (2)  Consequently, ‘document’ means ‘means a writing, communication, picture, drawing, program or data of any kind, whether recorded or maintained on paper or by electronic, audio, visual or any other means’.55

§53 Contemporaneous Documents56

  1. (1)  Documents generated contemporaneously with the events to which they pertain are prima facie more reliable in their description of those events than statements generated at a later point in time by persons affiliated with the party benefited by the evidence in the proceedings.

  2. (p. 300) (2)  Other evidence, such as non-contemporaneous documents or witness or expert testimony, serves to

    1. a.  Complete the record for facts as to which no such contemporaneous documents exist;

    2. b.  Provide further context for the contemporaneous documents; or

    3. c.  Contest the probative value of the contemporaneous documents submitted by the opposing party.

§54 Translation of Documents57

  1. (1)  The arbitral tribunal is tasked to determine the official language of the proceedings at the outset of the arbitration consistent with the consent instrument and applicable arbitral and institutional rules.

  2. (2)  Documents in a language other than the official language of the proceedings must be translated, in whole or in part, by the party submitting the document.

  3. (3)  In determining whether a document requires translation in full or in part, the arbitral tribunal may take into account

    1. a.  The length of the document;

    2. b.  The cost of translation; and

    3. c.  The relevance of the document as a whole to the portion of the document relied upon by the party submitting it.

§54 Authenticity of Documents58

  1. (1)  Unless challenged by a party, the authenticity of documents is presumed by the arbitral tribunal.

  2. (2)  A party challenging the authenticity of a document may for good cause or against placement of security request inspection of an original of the document in question.

  3. (3)  In determining contested authenticity, arbitral tribunals may consider factors including

    1. a.  Signatures;

    2. b.  Ink and printing processes;

    3. c.  Paper stock; and

    4. d.  Seals and stamps.

  4. (4)  In non-paper media, other factors relevant to the medium in question apply by analogy.

§55 Requests for Production of Documents in General59

  1. (1)  Arbitral tribunals limit the production of documents to requests that do not seek evidence in the hope of uncovering material to serve as a foundation for an argument not yet formally advanced in the arbitration.

  2. (2)  A party requesting production of documents bears the burden to prove that production of the document(s) requested should be ordered.

§56 Request to Produce60

  1. (1)  Document production begins with a request to produce documents. The request to produce must state

    1. a.  The relevance of the document(s) requested to be produced;

    2. b.  The materiality of the document(s) requested to be produced;

    3. c.  Identify relevance of the document(s) requested to be produced narrowly and with specificity;

    4. d.  State why production would not impose an unreasonable burden on the producing party; and

    5. e.  State the basis upon which the requesting party has determined that the document(s) are likely to be in the possession, custody, or control of the party of whom the request is made.

  2. (2)  The party of whom production is requested may accede to the request without objection, object to production, or produce responsive documents while lodging an objection. An objection to production may

    1. a.  Argue that the party requesting production has failed to meet its burden with regard to formulating the reasons set out in (1)(a)–(e); or

    2. b.  Assert that the documents requested fall within one of the exclusionary rules in §§30–51.

  3. (p. 301) (3)  The party requesting production may be allowed to respond to objections by reformulating its requests or otherwise address any arguments newly raised under §56(2)(b).

  4. (4)  The arbitral tribunal in its discretion will resolve any remaining disputes between the parties by ordering production of documents as requested, denying the request, or ordering production of a narrower set of documents than requested.

  5. (5)  An order to produce documents by the arbitral tribunal imposes a duty upon the party so ordered diligently to search for the document(s) at issue in the order, produce the documents within the time limit set by the tribunal, or report that the documents requested do not exist or could not be located following a diligent search.

  6. (6)  Parties remain under continuing obligation to supplement their production of documents if they become aware of documents responsive to requests as to which they have been ordered to make production or as to which they have not raised an objection following their original production of documents consistent with the arbitral tribunal’s procedural orders.

§57 The Request must be Relevant to the Case61

  1. (1)  A document is relevant if a reasonable arbitrator could conclude that the document renders a fact contested between the parties more or less probable to have occurred.

  2. (2)  An arbitral tribunal’s assessment of relevance during the document production phase is without prejudice to its ultimate conclusion on the relevance of evidence to its ultimate decision on disputed facts in the arbitral proceedings.

§58 The Request must be Material to the Outcome62

  1. (1)  A document is material to the outcome of the dispute if it is particularly probative of a disputed issue of fact.

  2. (2)  In determining materiality, an arbitral tribunal may consider

    1. a.  The quantity of other available evidence to support or weaken the factual assertion to which the document is relevant;

    2. b.  The prima facie quality of the evidence in supporting or weakening the factual assertion to which the document is relevant; and

    3. c.  The importance of the factual assertion, if proved or disproved, to the dispute as a whole.

  3. (3)  An arbitral tribunal’s assessment of materiality during the document production phase is without prejudice to its ultimate conclusion on the relevance of evidence to its ultimate decision on disputed facts in the arbitral proceedings

§59 The Request must be Narrow and Specific63

  1. (1)  The request of a single document stating a date, author, and subject matter is narrow and specific.

  2. (2)  Arbitral tribunals assess the narrowness and specificity of requests for the production of classes of document by reference

    1. a.  to the detail with which the subject-matter is identified;

    2. b.  the date range with regard to which the request would require a diligent search of responsive documents;

    3. c.  the identification of authors and recipients of the documents; and

    4. d.  the custodians of the documents believed currently to have possession, custody, or control of the documents.

§60 The Request Must Not Impose an Unreasonable Burden on the Producing Party64

In determining the reasonable burden, a party may be asked to bear in responding to requests for document production, the following factors may be relevant

  1. (a)  the general availability of the class of documents requested to the party making the request;

  2. (p. 302) (b)  the expense of conducting a diligent search for responsive documents;

  3. (c)  the materiality of responsive documents;

  4. (d)  the placement in issue of a fact to which responsive documents would be material by the party of which production is requested; and

  5. (e)  a comparison of the respective burdens of production of the parties to the arbitration.

§61 Belief that the Documents are in Possession, Custody, or Control of Documents Requested65

  1. (1)  A requesting party must assert a basis for its reasonable belief that the documents requested are in the possession, custody, or control of the party of which it requests production.

  2. (2)  A party may discharge its burden to state such a reasonable belief by reference to other record evidence permitting the inference that the documents requested existed and were under the power of the party of which production is requested.

  3. (3)  A party may further discharge its burden by reference to judicial presumptions with regard to classes of documents kept in the ordinary course by entities like the one of which production is requested.

§62 Privilege Logs and Appointment of Experts66

  1. (1)  A party withholding otherwise responsive documents from its production may, at the tribunal’s discretion, identify the documents so withheld and the basis in law for its exclusion from production in a log.

  2. (2)  The log must be transmitted consistent with the arbitral tribunal’s procedural orders to the party requesting production of documents.

  3. (3)  The requesting party may object to the exclusion of documents from production by challenging the legal basis stated in the log.

  4. (4)  The arbitral tribunal may resolve the dispute by

    1. a.  Reviewing the log and the objection to the log by the requesting party;

    2. b.  Reviewing the log, the objection to the log, as well as the document at issue in camera; or

    3. c.  Delegating its authority to resolve the party’s dispute regarding the exclusion of certain documents from production to a tribunal-appointed expert.

§63 Failure to Comply with Document Production Obligations67

The arbitral tribunal may take the failure of a party to comply with its document production obligations into account when drawing adverse inferences pursuant to §29.

Part X—Witnesses

§64 Purpose of Witness Testimony68

Parties may rely upon witnesses in order to

  1. (a)  testify to facts that cannot be established upon the basis of documentary evidence;

  2. (b)  impeach the authenticity, credibility, or significance of record evidence proffered by the other; side; and

  3. (c)  provide further context for record.

§65 Evidence-in-Chief, Defined

The direct testimony of a witness constitutes that witness’ evidence in chief upon which the arbitral tribunal and the parties may rely in advancing and resolving factual submissions.

§66 Written Testimony as Evidence-in-Chief

  1. (1)  Party witnesses give their evidence-in-chief in written witness statements.

  2. (2)  Counsel may assist the witness in memorializing the witness’ testimony in writing for submission in the proceedings.

(p. 303) §67 Timing of Evidence-in-Chief

  1. (1)  Written witness statements must be submitted with the earliest pleading to which they pertain or at the earliest time at which their introduction was reasonably feasible.

  2. (2)  Witnesses may amend their witness statements in writing with successive pleadings to report on new events or circumstances, which occurred after submission of the respective earlier witness statement or to respond to new allegations raised in later pleadings by the party opponent, an amicus curiae, or a tribunal witness.

§68 Substance of Evidence-in-Chief

  1. (1)  Written witness statements must be sufficiently detailed to permit an understanding, on the face of the document, of the facts to which the witness testifies.

  2. (2)  A witness should, when possible, refer to contemporaneous documents of which the witness had personal knowledge at the time the events to which the witness is testifying took place.

  3. (3)  Witnesses must in any event identify the source from which they draw their testimony, including

    1. a.  Personal action or observation;

    2. b.  Conversations with third persons; or

    3. c.  Review of the relevant documentation.

§69 Additional Formal Requirements for Evidence-in-Chief

  1. (1)  Written witness statements must provide

    1. a.  The name and address of the witness;

    2. b.  A description of the relationship of the witness to the parties; and

    3. c.  Personal background information.

  2. (2)  The witness must affirm the truth of the witness statement.

  3. (3)  The witness statement must be signed, dated, and state its place of execution.

§70 Language of the Testimony

  1. (1)  A witness may choose to provide evidence in chief in the language of the proceedings or in another language.

  2. (2)  If a witness provides his or her evidence-in-chief in a language other than the original language of the proceedings,

    1. a.  the witness statement must identify the original language of the statement;

    2. b.  the witness must identify the language in which he or she would testify if called for cross-examination; and

    3. c.  the party proffering the witness must submit a translation of the statement together with the original.

  3. (3)  The parties must make reasonable efforts to agree with the arbitral tribunals upon a manner of interpretation and transcription of witness testimony given at the hearing in a language other than an official language of the proceedings. Absent a ruling by the arbitral tribunal to the contrary,

    1. a.  Interpretation should, if reasonably feasible, proceed simultaneously;

    2. b.  Unless provided by the arbitral institution, the party proffering the witness must make efforts to obtain an interpreter satisfactory to the tribunal; and

    3. c.  Transcription of testimony will occur in an official language of the proceedings but the tribunal may also permit transcription in the language of the testimony.

  4. (4)  A party wishing to object to the translation of testimony must do so at the earliest possible time or in accordance with a procedure set forth by a tribunal.

§71 Calling Witnesses for Cross-Examination

  1. (1)  A party wishing to call a witness for cross-examination must provide reasonable notice to the party proffering the witness to be cross-examined.

  2. (2)  Absent extraordinary circumstances, parties can only call witnesses for cross-examination who have already submitted their evidence-in-chief.

  3. (3)  The arbitral tribunal is tasked with setting the date at which and the manner in which the parties must notify each other of the witnesses they seek to examine.

  4. (p. 304) (4)  The arbitral tribunal may within a reasonable time after the exchange by the parties of lists of witnesses whom they wish to cross-examine call additional witnesses for cross-examination.

§72 Objection to Call of a Witness for Cross-Examination

  1. (1)  Parties may object in exceptional circumstances to the request for cross-examination of a witness within a reasonable time of the notice calling the witness.

  2. (2)  The arbitral tribunal will determine in its discretion whether the party objecting to the cross-examination of a witness has provided a good cause why the witness should be excused.

§73 In-Person and Remote Cross-Examination

  1. (1)  Absent an order of the arbitral tribunal to the contrary, witnesses as a default rule will be cross-examined in person before the arbitral tribunal.

  2. (2)  Arbitral tribunals may order the party wishing to proffer a witness remotely via audio or video-link to pay for reasonable fees incurred by the examining party to be represented in the room in which the witness will provide testimony.

  3. (3)  Arbitral tribunals have accepted as good cause for the remote cross-examination of witnesses

    1. a.  The arrest or detention of the witness;

    2. b.  The existence of an Interpol Red Notice for the witness;

    3. c.  Natural disasters;

    4. d.  Threat to the personal safety of the witness;

    5. e.  Unreasonable costs of bringing the witness to the place of the hearing;

    6. f.  Technical facilities to permit reliable remote examination; and

    7. g.  The consent of the parties.

§74 Order of Cross-Examination

Absent good cause shown, arbitral tribunals ordinarily proceed with the examination of the fact witnesses proffered by the moving party, followed by the fact witnesses proffered by the responding party, followed by an examination of the experts.

§75 Time Allocation for Cross-Examination

  1. (1)  The arbitral tribunal may allocate time for cross-examination to the parties in its discretion subject to securing the equality of the parties and each party’s right to be heard.

  2. (2)  Absent good cause shown, arbitral tribunals proceed on the basis of an equal allocation of time to both parties.

§76 Exclusion of Witnesses from Cross-Examination of Other Witnesses (Sequestration of witnesses)

On its own motion or upon request by a party, the arbitral tribunal may exclude witnesses from the hearing room during the cross-examination of other witness to avoid the contamination of later cross-examination testimony.

§77 Direct Examination of Witnesses at the Hearing

  1. (1)  Absent extraordinary circumstances, the direct examination of witnesses at the hearing is limited.

  2. (2)  Subject to the supervision by the arbitral tribunal, the direct hearing examination may

    1. (a)  Introduce the witness to the tribunal;

    2. (b)  Affirm the correctness of the evidence in chief;

    3. (c)  Make necessary corrections to the evidence in chief to address statements the witness considers to be false or misleading at the time of his or her live testimony; and

    4. (d)  Update the arbitral tribunal with regard to relevant and material developments regarding the subject matter of the witness’ testimony occurring since the last written statement submitted by the witness.

§78 Scope of Cross-Examination

  1. (1)  Counsel may always cross-examine a witness with regard to facts, events, or circumstances within the scope of the witness’ evidence-in-chief.

  2. (p. 305) (2)  With the express leave of the arbitral tribunal, counsel may cross-examine a witness with regard to facts, events, or circumstances as to which the witness has personal knowledge.

  3. (3)  Counsel may establish personal knowledge on the basis of

    1. a.  Record documentary evidence;

    2. b.  General responsibilities; and

    3. c.  Other witness testimony.

§79 Permissible Types of Cross-Examination

  1. (1)  Cross-examination serves to elicit testimony regarding relevant and material facts not already submitted in the witness’ evidence-in-chief or to impeach the witness’ testimony or character of the witness for truthfulness.

  2. (2)  To impeach a witness, counsel may

    1. a.  Elicit a statement from the witness inconsistent with other record documentary or witness evidence;

    2. b.  Confront the witness with prior inconsistent statements made by the witness;

    3. c.  Test the basis for statements made by the witness;

    4. d.  Test the memory of the witness; and

    5. e.  Establish bias.

  3. (3)  Impeachment by prior inconsistent statement requires that the witness be given an opportunity to address the asserted inconsistency upon review of the allegedly inconsistent statement.

§80 Permissibility of Leading Questions

  1. (1)  To the extent reasonable, Counsel may ask witnesses questions that the witness can answer only by affirming or denying a fact.

  2. (2)  After answering the question, the witness may provide further testimony explaining his or her statement.

§81 Conduct of Hearing Examination

  1. (1)  The arbitral tribunal may ask the witness questions at any time.

  2. (2)  Parties may object to the arbitral tribunal with regard to a line of questioning by opposing counsel or the arbitral tribunal as needed including on the basis that

    1. a.  The witness is providing untimely evidence-in-chief as part of hearing direct testimony;

    2. b.  Counsel’s questions are unduly leading and do not permit the witness to testify in their own voice to relevant and materials facts;

    3. c.  Questions are beyond the scope of the written testimony;

    4. d.  The witness lacks personal knowledge to answer the question;

    5. e.  A question of statement mischaracterizes the testimony of the witness;

    6. f.  A question is hypothetical calling for irrelevant speculation;

    7. g.  A question calls for uncorroborated hearsay testimony;

    8. h.  A question or line of questioning is confusing or badgering the witness;

    9. i.  Counsel is testifying;

    10. j.  A question is calling for evidence subject to exclusion on grounds set out in §§30−51; or

    11. k.  A question is calling for testimony, which is potentially prejudicial to the witness in pending criminal proceedings.

  3. (3)  Parties may further request the arbitral tribunal instruct an unresponsive or evasive witness to answer the question posed during cross-examination.

  4. (4)  A party will be given an opportunity to re-direct examine a witness with regard to questions posed during the witness’ hearing examination within the scope of the hearing examination.

§82 Consequence of Non-Appearance of a Party Witness

  1. (1)  The arbitral tribunal will disregard the evidence in chief of a witness who failed to appear for cross-examination as ordered by the tribunal.

  2. (2)  In exceptional circumstances, the arbitral tribunal may excuse the non-appearance of a witness.

  3. (3)  Arbitral tribunals have excused the non-appearance of a witness when the witness expressed a reasonable fear of criminal prosecution, civil contempt, loss of employment or unreasonable deterioration of his or her health should the witness testify as ordered.

(p. 306) §83 Tribunal Fact Witnesses

Arbitral tribunals may on their own motion or upon the application of a party call a witness who has not given evidence in chief as part of the arbitral proceedings.

§84 Party Application to Call a Tribunal Fact Witness

  1. (1)  A party applying to call a tribunal witness will need to satisfy the arbitral tribunal of the need to call the witness in question.

  2. (2)  Arbitral tribunals take the following factors into consideration when making such a determination

    1. a.  Timeliness of the application;

    2. b.  Relevance and materiality of the potential testimony; and

    3. c.  Unavailability of alternative evidence.

§85 Scope of Testimony of a Tribunal Fact Witness

The arbitral tribunal in consultation with the parties will set the scope of testimony for a tribunal witness prior to calling the witness to testify.

§86 Evidence in Chief of a Tribunal Fact Witness

  1. (1)  At the witness’ election, the witness may provide his or her evidence in chief by means of live hearing testimony.

  2. (2)  The arbitral tribunal gives due regard to requests by the witness to testify remotely.

  3. (3)  The parties in collaboration with the arbitral tribunal are tasked to determine the most appropriate manner to conduct a direct examination.

  4. (4)  All parties have a right to examine the tribunal witness either by means of direct or cross-examination.

§87 Consequence of Non-Appearance of a Tribunal Witness

  1. (1)  The arbitral tribunal may disregard record documentary evidence authored by the tribunal witness who failed to appear for live examination or any other hearsay statements attributed to him by other witness or documentary evidence.

  2. (2)  The arbitral tribunal may further make such inferences as are appropriate on the basis of the witness’ absence from the proceedings.

§88 Expert Opinion, Defined

The direct testimony of an expert constitutes that expert’s opinion upon which the arbitral tribunal and the parties may rely in advancing and resolving factual and technical submissions.

§89 Purpose of Expert Testimony69

Parties may rely upon experts in order to

  1. (a)  testify to facts that cannot easily be established upon the basis of documentary evidence including technical standards and commercial practices;

  2. (b)  testify to legal issues relevant and material to the resolution of the dispute; and

  3. (c)  provide an opinion regarding the consequence of the dispute for a party including the valuation of its losses.

§90 Written Report as Opinion Testimony

  1. (1)  Party experts give their evidence in chief in written expert reports.

  2. (2)  Counsel may assist the expert in memorializing the witness’ testimony in writing for submission in the proceedings.

§91 Timing of Expert Opinions

  1. (1)  Written expert reports must be submitted with the earliest pleading to which they pertain or at the earliest time at which their introduction was reasonably feasible.

  2. (p. 307) (2)  Experts may amend their witness statements in writing with successive pleadings to opine on new events or circumstances, which occurred after submission of the respective earlier expert report or to respond to new allegations raised in later pleadings by the party opponent, an amicus curiae, or a tribunal witness or expert.

§92 Substance of Expert Opinions

  1. (1)  Written expert reports must be sufficiently detailed to permit an understanding, on the face of the document, of the expert’s conclusions and reasons for those conclusions.

  2. (2)  Experts must in any event identify the source from which they draw their testimony, including

    1. a.  Assumptions and instructions provided by counsel;

    2. b.  Personal action or observation;

    3. c.  Conversations with third persons; or

    4. d.  Review of documentation.

  3. (4)  Absent extraordinary circumstances, experts must submit the documents upon which they rely to form their expert opinion.

§93 Additional Formal Requirements for Expert Opinions

  1. (1)  Written witness statements must provide

    1. a.  The name and address of the expert(s) involved in submitting the report;

    2. b.  The qualifications of the expert(s); and

    3. c.  A description of the relationship of the expert(s) to the arbitral tribunal, the parties, as well as to their instructing counsel.

  2. (2)  The expert(s) must affirm their independence and affirmation that the conclusions in the report are the genuine belief of the expert(s).

  3. (3)  The expert report must be signed, dated, state its place of execution, and identify the portions for which each expert is responsible as appropriate.

§94 Tribunal Expert

  1. (1)  The arbitral tribunal may on its own motion or upon the application of a party appoint a tribunal expert.

  2. (2)  The arbitral tribunal must consult the parties prior to the appointment of an expert to receive comments as to the need, appropriate scope, and identity of a tribunal expert.

  3. (3)  The arbitral tribunal upon consideration of party comment may take such action it deems appropriate.

  4. (4)  Tribunal experts must make available their expert opinion in the same manner as a party appointed expert.

§95 Calling an Expert for Cross-Examination

  1. (1)  A party wishing to call an expert for cross-examination must provide reasonable notice to the party proffering the witness to be cross-examined.

  2. (2)  The arbitral tribunal is tasked with setting the date at which and the manner in which the parties must notify each other of the experts they seek to examine.

  3. (3)  The arbitral tribunal may within a reasonable time after the exchange by the parties of lists of experts whom they wish to cross-examine call additional experts for cross-examination.

§96 Method of Live Examination

  1. (1)  The arbitral tribunal may call an expert for cross-examination similar to the examination of fact witnesses.

  2. (2)  Cross-examination serves to elicit relevant and material opinion evidence not already submitted in the expert report or to impeach the expert’s opinion.

  3. (3)  To impeach a witness, counsel may

    1. a.  Probe the qualifications of the expert;

    2. b.  Confront the assumptions made by the expert;

    3. c.  Confront the expert with prior inconsistent statements made by the expert in other settings;

    4. d.  Test the evidentiary basis for expert’s opinion;

    5. (p. 308) e.  Test the method employed by the witness, including the scope of its adoption in the relevant field; and

    6. f.  Establish bias or lack of independence of the expert.

  4. (4)  Impeachment by prior inconsistent statement requires that the witness be given an opportunity to address the asserted inconsistency upon review of the allegedly inconsistent statement.

  5. (5)  Alternatively, the arbitral tribunal may examine the experts jointly, including by permitting the experts to exchange with each other on the witness stand.

§97 Consequence of Non-Appearance of an Expert

  1. (1)  The arbitral tribunal will disregard the opinion of an expert who failed to appear for cross-examination as ordered by the tribunal.

  2. (2)  In exceptional circumstances, the arbitral tribunal may excuse the non-appearance of an expert.

  3. (3)  When reports are authored by a team of experts, only the team member relevant to the proposed cross-examination need appear.

  4. (4)  Arbitral tribunals otherwise have excused the non-appearance of an expert in a manner analogous to §82.

Footnotes:

1  For a discussion see ch 2.

2  ibid.

3  ibid.

4  For a discussion see ch 4.

5  For a discussion see ch 5.

6  ibid.

7  For a discussion see ch 8.

8  For a discussion see ch 9.

9  ibid.

10  For a discussion see ch 10.

11  For a discussion see ch 3.

12  ibid.

13  ibid.

14  For a discussion see ch 6.

15  ibid.

16  ibid.

17  ibid.

18  ibid.

19  ibid.

20  ibid.

21  ibid.

22  ibid.

23  ibid.

24  For a discussion see ch 7.

25  ibid.

26  ibid.

27  For a discussion see ch 8.

28  ibid.

29  ibid.

30  ibid.

31  For a discussion see ch 11.

32  ibid.

33  ibid.

34  ibid.

35  ibid.

36  ibid.

37  ibid.

38  ibid.

39  ibid.

40  ibid.

41  ibid.

42  ibid.

43  ibid.

44  ibid.

45  ibid.

46  ibid.

47  ibid.

48  ibid.

49  ibid.

50  ibid.

51  ibid.

52  ibid.

53  For a discussion see ch 9.

54  ibid.

55  IBA Rules on Evidence, Definition.

56  For a discussion see ch 9.

57  ibid.

58  ibid.

59  ibid.

60  ibid.

61  ibid.

62  ibid.

63  ibid.

64  ibid.

65  ibid.

66  ibid.

67  For a discussion see ch 8.

68  For a discussion see ch 10.

69  For a discussion see ch 10.