Evidence

ACICA, Australia, Australian Arbitration Week, Burden of proof, Evidence, IBA Rules of Evidence

(LK Law)/ /Leave a comment
ACICA 45

Australian Arbitration Week continued in full force on the morning of 16 October 2024, with ACICA45’s panel discussion named, “Filling in the Gaps: Inferences, Presumptions, and Burdens of Proof,” hosted by Deloitte.  The panel was moderated by Brisbane-based ACICA45 Steering Committee members Oliver Cook (Barrister, Level 27 Chambers) and Zara Shafruddin (Associate, Jones Day).  Drawing…

Artificial Intelligence, Due process, Evidence, Reasoned Awards

(CMS Germany) and (King & Spalding LLP)/ /Leave a comment

This year’s 36th Annual ITA Workshop (held in Austin, Texas on June 19-21, 2024) did exactly what it said on the tin: It provided the audience with truly “Global Perspectives on Due Process in International Arbitration.” Co-chaired by Christian Leathley, Anne Véronique Schlaepfer, and Prof. Thomas J. Stipanowich, the ITA Annual Workshop looked at due…

Culture, Empirical Research, Evidence, FAI, International arbitration, Language, Legal Design, Psychology

(King’s College London and 3 Verulam Buildings)/ /Leave a comment

It was around 367 BCE when Plato wrote Νόμοι (The Laws), marking the first proper consideration of arbitration as a method for resolving private disputes. This work highlighted arbitration’s cost-effectiveness, the autonomy it provides through arbitrator selection, and the expertise and impartiality of arbitrators. Fast forward to today, arbitration is increasingly embraced by the international…

Arbitration, Evidence, Expert Appointment, KSA, RIDW, Saudi Arabia, SCCA

, (Holman Fenwick Willan LLP)/ /Leave a comment

Expert witness evidence plays a pivotal role in the outcome of arbitrations, particularly in construction disputes. Rarely do construction disputes turn on significant differences between the parties’ versions of the facts, which are flushed out under dramatic, Boston Legal-style cross-examination. More often, it is the skilful application of settled facts by the parties’ legal counsel…

California, Evidence, United States Courts

(Pepperdine Caruso School of Law)/ /Leave a comment
Young California Arbitration (Young CalArb)

In McConnell v. Advantest Am., Inc., the 4th District Court of Appeal in California (the “Court”) vacated an arbitral order compelling nonparties to appear at a discovery hearing for the sole purpose of receiving documents allegedly in their possession. 92 Cal. App. 5th 596. The subpoenas asked the nonparties to produce their communications with the…

ACICA, Australia, Evidence, Expert evidence, Surveys, Witness

(Australian Centre for International Commercial Arbitration (ACICA)) and (Herbert Smith Freehills LLP)/ /Leave a comment
ACICA 45

Evidence is the beating heart of almost every dispute, and there is no exception in international arbitration. Therefore, the ‘Evidence in International Arbitration Report’ (Report) recently released by the Australian Centre for International Commercial Arbitration (ACICA) and FTI Consulting on 6 September 2023 will be invaluable for arbitration users looking to test and improve their…

Evidence, New York Arbitration Week, Section 1782 Discovery

(White & Case LLP) and (Chaffetz Lindsey LLP)/ /Leave a comment

On November 15, 2023, during the 5th annual New York Arbitration Week, White & Case LLP hosted an event covering the possibility of obtaining evidence from non-parties to an international arbitration following the 2022 U.S. Supreme Court decision in ZF Automotives US Inc. v. Luxshare, Ltd., 596 U.S. ___ (2022) (“ZF Automotives”).  In that decision,…

Advocacy, Arbitration, Arbitrator Selection, Arbitrators, Australia, Culture, Evidence, Witness

, , (King & Wood Mallesons)/ /Leave a comment
ACICA 45

The rapid growth of international arbitration in the Asia-Pacific has sparked many discussions about how different cultural practices and legal traditions impact advocacy in cross-border disputes (see, for example, Global Arbitration Review’s The Guide to Advocacy). On 3 August 2023, ACICA45 and King & Wood Mallesons in Sydney hosted a session titled “Clash of Cultures…

Civil Law, Common Law, Evidence, Hearsay, Illegally obtained evidence, Interpretation, Privilege

, (Rivero Mestre LLP), and (Columbia Law School)/ /2 Comments

As set out in our last blog post on evidentiary issues in international arbitrations, the treatment of evidence within the field of international arbitration is oftentimes inconsistent and even unpredictable from one arbitral tribunal to another, a divide which becomes even more pronounced when considering the different approaches that may be adopted due to a…

Evidence, SCOTUS, Section 1782 Discovery

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In June of this year, the Supreme Court of the United States issued a unanimous opinion (ZF Automotive US, Inc. v. Luxshare, Ltd., available here) settling a circuit-split regarding the interpretation of 28 U.S.C. § 1782. The provision grants U.S. federal courts the authority to compel testimony or the production of documents to aid “foreign…

Bribery, Corruption, Evidence, Fraud

, (NautaDutilh N.V.)/ /Leave a comment

After two years of absence due to COVID-19, the Dutch Arbitration Association held its eighth conference on 2 June 2022 in Amsterdam. The main theme of this year’s conference was fraud and corruption in arbitration. This blog reflects the main issues of the keynote speech and the panel debates of the conference. We will not…

Evidence, SCOTUS, Section 1782 Discovery

(MacGrath Arbitration)/ /4 Comments
ArbitralWomen

On June 13, 2022, the U.S. Supreme Court issued its unanimous opinion resolving a U.S. Circuit Court split over a hotly debated issue, namely whether 28 U.S.C. § 1782 applies to private foreign or international arbitrations. In ZF Automotive US, Inc. v. Luxshare, Ltd., 596 U.S. ___ (2022), the Supreme Court was required to decide whether…

Evidence, SCOTUS, Section 1782 Discovery

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The Kluwer Arbitration Blog previously published an excellent summary by Jonathan Tompkins of the oral arguments held before the United States Supreme Court on March 23, 2022 on the future scope and application of 28 U.S.C. §1782, a federal statute that allows foreign or international tribunals and their litigants to ask the relevant district court…

Civil Law, Common Law, Evidence, Interpretation

(Columbia Law School), (Rivero Mestre LLP), and / /1 Comment

Generally, the choice of substantive law applicable to a particular contract will affect the outcome of a case.  It is common, however, for the evidentiary and interpretive rules to also have important implications for a case’s outcome.  Arbitral rules leave such matters to a tribunal’s discretion that can be exercised in different ways.  For instance,…

Evidence, SCOTUS, Section 1782 Discovery, United States Courts, USA

(Shearman & Sterling)/ /Leave a comment

Kluwer Arbitration Blog has given ample attention over the years to 28 U.S.C. § 1782—the US federal statute authorizing federal district courts to order individuals and entities within their districts to provide evidence to “interested person[s]” for use “in a proceeding in a foreign or international tribunal.” (see, for example, here, here, here, here, and here). …

Discovery, Document Production, Evidence, IBA Rules of Evidence, Prague Rules

, (Peter & Kim)/ /Leave a comment

Introduction Document production has become a standard phase in international arbitration, but the documents sought and produced often turn out to be voluminous. As such, document production is perceived as a time-consuming, costly, and burdensome process. This has prompted practitioners to come up with the Rules on the Efficient Conduct of Proceedings in International Arbitration (“Prague…

Cybersecurity, Document Production, Evidence, Institutional Rules, TIAC, Uzbekistan

(Bryan Cave Leighton Paisner LLP), , and (Tashkent International Arbitration Centre)/ /Leave a comment

Since its establishment in 2018 by the Chamber of Commerce and Industry of Uzbekistan, the Tashkent International Arbitration Centre (the “TIAC”) has kept abreast the evolution of the global social and economic climate and modern international arbitration practices, and sought to modernize its administration of international arbitrations to meet current and future challenges faced by…

Deceit, Evidence, Memory, Psychology, Witness

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Young ITA

On 27 October 2021, Young ITA organised an event on the topic of “The Psychology of Witness Evidence and its Role in Tribunal Decision-Making”, hosted by Allen & Overy in London. Katrina Limond (Young ITA UK Chair, Allen & Overy London) and Robert Bradshaw (Young ITA UK Vice-Chair, Lalive London) led a roundtable discussion panelled…

Canada, Domestic Courts, Evidence, UNCITRAL Model Law, Yukos

(Woods LLP)/ /1 Comment

Much ink has been spilled on the 2014 Yukos arbitral awards, and rightfully so. They are notorious for collectively breaking the previous record for the largest arbitral award in history. Their magnitude (these were, in the tribunal’s words, “mammoth arbitrations”) also commands our attention, as do the issues at stake and the multiple companion arbitrations…

Admissibility, Document Production, Evidence

(Herbert Smith Freehills LLP)/ /Leave a comment
Herbert Smith Freehills

An emerging consideration in international arbitration is the use of evidence acquired illegally. Illegally obtained evidence can take a variety of forms, including, for example, illicit recordings, information obtained by trespass, and ‘hacked evidence’. ‘Hacked evidence’ refers to materials obtained through unauthorised access to an electronic system (either directly or through a third party), and…

Adverse Inference, China, Document Production, Evidence, Legislation

, (Shanghai International Arbitration Center)/ /Leave a comment
Shanghai International Arbitration Center (SHIAC)

The practice of adverse document production or disclosure is largely foreign in civil law jurisdictions like mainland China. Despite resistance, the growth of judicial practice on document production prompted the Supreme People’s Court of China (“SPC”) to make the new Rules of Evidence on Civil Procedure (“Rules of Evidence”) on December 25, 2019, effective as…

Evidence, Expert evidence, Experts, Hearings, Technology

, , (StoneTurn)/ /Leave a comment

In today’s busy and increasingly digitized world, pictures are the new words. The average human attention span has grown shorter and become more selective. In every facet of society, from the consumer landscape to business meetings, visual storytelling has emerged as key to delivering captivating content that commands a person’s undivided attention. This trend can…

Common Law, English Arbitration Act, English courts, Evidence, International arbitration

(Advocate, Arbitrator and Mediator) and (Herbert Smith Freehills)/ /Leave a comment
Clyde & Co.

It is often said that flexibility is a cornerstone of international arbitration and that the tribunal (typically in consultation with the parties) is the master of how the proceedings are to be conducted. Yet, it remains unsettled whether certain specific rules of procedure or evidence must be complied with in arbitration – sometimes, at the…

Evidence, Expedited Proceedings, Investment Arbitration, Prague Rules

, (Luther Rechtsanwaltsgesellschaft)/ /Leave a comment

Introduction  The Prague Rules have been widely discussed over the past few months, among others, on this blog.1)Posts on the topic of the Prague Rules can be found here, here, here, here, here, here, here, here and here. Yet, to the knowledge of the authors, none of those discussions has specifically addressed the application of…