Civil Law Influences on International Arbitration: Procedures and Jurisdictions, Slides of Civil Law

Download Civil Law Influences on International Arbitration: Procedures and Jurisdictions and more Slides Civil Law in PDF only on Docsity! Civil Law Practice and Procedure in International Arbitration Docsity.com Overview • How can Civil Law influence IA procedure? • Civil Law: Overview • Harmonised / Globalised procedures Docsity.com Civil Law Jurisdictions • By far most widely practiced system of law • Civil law jurisdictions: – Continental Europe (eg. France, Germany, Italy, Austria, Hungary) – Japan – Latin America – Former colonies of continental Europe – Canada: Quebec – U.S.: Louisiana – Scotland (mix of civil and common) Docsity.com Distinctions (in a nutshell) Common Law adversarial v discovery of evidence v revelation by testimony v Civil Law inquisitorial presentation of evidence confirmation by testimony Docsity.com Civil Law: Overview • There is no ONE Civil Law • Many distinction between different Civil Law Systems • Some features adopted in some Common Law jurisdictions Docsity.com Civil Law Procedure Evidence (general) – Means of evidence more restricted (eg. testimony, expert witness, documents, inspection - no depositions, discovery, interrogatories) – Documentary evidence is preferred – Documents self-evident rather than introduced through witness – Exclusionary rules • court does not rule on admissibility of evidence • rules what Court may or may not consider (eg. hearsay) – "iura novit curia" - no evidence in relation to the law, establishment of law ex officio Docsity.com Civil Law Procedure (Pre-Trial) Discovery – Not at all or very limited (no statutory entitlement) – Only in relation to specified documents (no fishing request) – Submissions / claims must be based upon evidence readily available – Parties only needs to disclose documents it relies upon – No duty to disclose documents detrimental to ones case Docsity.com Civil Law Procedure Witnesses (General) – Witness examined by court – Witness examined by counsel (with permission) – In some jurisdiction: no contact between witness and counsel allowed (no witness preparation!!!) – Judge summarises witness statement (no transcript) – Less weight on witness testimony (documentary evidence the better evidence) Docsity.com Civil Law Procedure Settlement Facilitation / Mediation • In some Civil Jurisdiction: duty to facilitate settlements – compulsory pre-hearing settlements process – ongoing duty throughout proceedings Docsity.com Civil Law Procedure Sources of Law • Case law not the primary source • Competing sources of law: – code (primary source) – scholarly commentaries – case law Docsity.com Civil Law Procedure Advocacy • Solicitor advocate • No counsel for hearings before court or tribunal Docsity.com Model Law Jurisdictions Common Law Jurisdictions • Australia • Bangladesh • Canada • Hong Kong • India • Ireland • New Zealand • Scotland** • Singapore • Sri Lanka Civil Law Jurisdiction • Austria • Brazil • Chile • China * • Croatia • Cyprus • Denmark • Finland * • France * • Germany • Greece • Guatemala • Hungary • Japan • Lithuania • Mexico • the Netherlands • Nicaragua • Norway • Paraguay • Peru • Poland • Republic of Korea • Russian Federation • Spain • Thailand • Turkey • Ukraine • Venezuela * Docsity.com UNCITRAL Model Law Article 19: Determination of rules of procedure (1) Subject to the provisions of this Law, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings. (2) Failing such agreement, the arbitral tribunal may, subject to the provisions of this Law, conduct the arbitration in such manner as it considers appropriate. The power conferred upon the arbitral tribunal includes the power to determine the admissibility, relevance, materiality and weight of any evidence. Docsity.com UNCITRAL Model Law Article 24: Hearings and written proceedings (1) Subject to any contrary agreement by the parties, the arbitral tribunal shall decide whether to hold oral hearings for the presentation of evidence or for oral argument, or whether the proceedings shall be conducted on the basis of documents and other materials. However, unless the parties have agreed that no hearings shall be held, the arbitral tribunal shall hold such hearings at an appropriate stage of the proceedings, if so requested by a party. Docsity.com IBA Rules on Evidence Article 3: Documents • Parties will submit to the tribunal and to the other parties all available documents that it relies on. • Parties may request production of documents through the tribunal, provided the request contains: – sufficient description to identify the document (narrow categories allowed); – information how the requested document is relevant and material to the outcome of the arbitration. • Parties requested to produce documents shall produce the documents in its possession, custody or control to the tribunal and other parties where no objection is made. Docsity.com IBA Rules on Evidence Article 4: Witnesses of Fact • It is not improper for a party, its legal advisors or representatives to interview witnesses or potential witnesses. • Witness statement to be provided by each witness that party relies on. • Unless otherwise agreed by the parties, each witness providing a witness statement shall appear for testimony at an evidentiary hearing. Docsity.com IBA Rules on Evidence Article 5: Party-Appointed Experts • Party can rely on party-appointed experts • Party-appointed experts will submit an expert report to the tribunal • Expert conclave • Party-appointed expert to give testimony at evidentiary hearing Docsity.com IBA Rules on Evidence Article 9: Admissibility and Assessment of Evidence • Tribunal determines admissibility, relevance, materiality and weight of the evidence submitted. • Grounds for exclusion (examples): – Lack of relevance or materiality. – Privilege, ethical rules, legal impediments (to be determined by the tribunal) – Commercial or technical confidentiality that the tribunal finds compelling. – Considerations of fairness or equality that the tribunal finds compelling. Docsity.com UNCITRAL Notes on Organising Arbitral Proceedings • Purpose: – to assist arbitration practitioners by listing and briefly describing questions in re to organising proceedings • Non-binding character • Intended to raises awareness about certain issues Docsity.com UNCITRAL Notes on Organising Arbitral Proceedings • Practical details concerning written submissions and evidence (r10) • Possible settlement negotiations (r12) • Documentary evidence (r13) – time limits, requiring production of documents, are parties willing to jointly submit a set of evidence • Witnesses (r15 b) • Experts and expert witnesses (r16) • Hearings (r17) – whether a hearing be held, time limits on oral arguments and questioning of witnesses, length of hearings. Docsity.com Harmonised Procedures • Privilege: tribunals often apply law of party relying on it • Interrogatories and depositions are rarely used Docsity.com Harmonised Procedures Remaining Differences • Settlement facilitation (but see: IBA Guidelines on Conflict of interest - GS 4d) • Role of Arbitrator inquisitorial or adversarial • Status of Substantive Law: – do parties have to prove the law in the same way as facts? – or, "iuro novit curia" Docsity.com CLP in International Arbitration Avoid Surprises!!! • Agree on details of procedure beforehand (arbitration agreement) • Mixed Tribunals • Pre-hearing meeting • Discuss expectations with tribunal and other party • Harmonised rules / guidelines • Cultural awareness Docsity.com