The New Unorthodox Conception of Common Law Transparency in International Arbitration Through Evidence Gathering and Orality

2020 ◽  
pp. 178-260
Keyword(s):  
Common Law ◽  
International Arbitration ◽  
Evidence Gathering

scholarly journals Proper characterisation of the parol evidence rule and its applicability in international arbitration

2021 ◽  
Author(s):  
Darius Chan ◽  
Louis Lau Yi Hang
Keyword(s):  
Dispute Resolution ◽  
Common Law ◽  
International Arbitration ◽  
Institutional Rules ◽  
Procedural Rule ◽  
Rules Of Evidence

Abstract Most arbitral statutes and institutional rules give great latitude to tribunals on the admissibility of evidence, and do not mandate application of domestic rules of evidence. In common law jurisdictions where the parol evidence rule applies, the issue that arises is whether the parol evidence rule is necessarily a procedural rule of evidence which tribunals are not bound to apply, especially in jurisdictions which have codified the rule under domestic evidence legislation. Notwithstanding any codification, this article argues that the parol evidence rule at common law is a substantive rule of contractual interpretation that should be applied as part of the lex contractus in international arbitration proceedings. Faithful application of the parol evidence rule as a substantive rule of contractual interpretation ensures that adjudicators arrive at the same interpretation on the same set of facts, thereby promoting uniformity, predictability, and consistency, regardless of the mode of dispute resolution.

Disclosure, Security, Technology

2021 ◽  
pp. 100-116
Author(s):  
Darryl K. Brown
Keyword(s):  
Law Enforcement ◽  
Information Disclosure ◽  
Common Law ◽  
Law Reform ◽  
Digital Evidence ◽  
Security Technology ◽  
Evidence Gathering ◽  
Disclosure Rules ◽  
Types Of Information ◽  
Trial Evidence

Criminal disclosure rules in all common law jurisdictions are organized around the same sets of conflicting aims. Pre-trial evidence disclosure is essential to fair and accurate adjudication. Yet certain types of information, such as identities of undercover operatives and ongoing law enforcement surveillance, must be kept confidential. Beyond these tensions, disclosure practices face new challenges arising primarily from evolving technology and investigative tactics. This chapter describes divergent approaches across common law jurisdictions—especially among U.S. states—to these challenges and offers explanations for their differences. It also sketches the technology-based challenges that discovery schemes face and offers options, or tentative predictions about their resolution. Differences often turn on who decides whether to withhold information from the defense—judges or prosecutors—and when certain information must be disclosed. Broader disclosure regimes tend to put greater trust in judicial capacity to dictate or at least review hard questions about the costs, benefits, and timing of disclosure; narrower systems leave more power in prosecutors’ hands. Technology has multiplied challenges for disclosure policy by vastly increasing evidence-gathering tactics and thus the nature and volume of information. Disclosure rules adapted fairly easily to the rise much forensic lab analysis. But fast-growing forms of digital evidence is more problematic. Defendants may lack the time to examine volumes of video and technical resources to analyze other data; sometimes prosecutors do as well. The chapter identifies some possible solutions emerging through technology and law reform, as well as trend toward greater judicial management of pre-trial disclosure.

Binding non-signatories to arbitration agreements—who are persons ‘claiming through or under’ a party?

2019 ◽  
Vol 35 (3) ◽  
pp. 375-386
Author(s):  
Vicky Priskich
Keyword(s):  
Hong Kong ◽  
Common Law ◽  
International Arbitration ◽  
Appellate Courts ◽  
High Court ◽  
Appeal Court ◽  
The Status ◽  
Court Proceedings ◽  
The Uk ◽  
High Court Of Australia

Abstract The International Arbitration Acts of the UK, Australia, Singapore, and Hong Kong recognize that third persons who are non-signatories to an arbitration agreement but who are ‘claiming through or under’ a party to the arbitration agreement have the status of a party.1 In the UK and Singapore that status means not only that court proceedings involving such non-signatories may be stayed in favour of arbitration but it also binds them to an award. In Hong Kong that status binds non-signatories to an award. In Australia, that status affects whether court proceedings involving non-signatories are stayed in favour of arbitration. A recent judgment by a majority of Australia’s highest appeal court, the High Court of Australia, in Rinehart v Hancock Prospecting Pty Ltd2 has taken a different approach to that prevailing in England as to the range of persons who are capable of ‘claiming through or under’ a party to the arbitration agreement, thereby significantly expanding the range of disputes involving non-signatories that must be referred to arbitration.3 The issue has not arisen for determination before appellate courts in Singapore or Hong Kong. Rinehart therefore represents an important development in common law jurisdictions, compelling arbitration between a signatory and non-signatory to an arbitration agreement.

Part VI Providing and Obtaining Assistance, B Obtaining Assistance, 21 Judicial Cooperation Including Obtaining Evidence

2017 ◽  
Author(s):  
Peddie Jonathan
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Large Degree ◽  
Civil Procedure ◽  
Criminal Proceedings ◽  
Judicial Cooperation ◽  
Evidence Gathering ◽  
Criminal Matters ◽  
Over Time

This chapter argues that there is potential for conflict between common and civil law jurisdictions where the approach to preparation for trial, and through that the taking of evidence, differ to a large degree. In common law jurisdictions, where it is usual for private parties to be proactively involved in the evidence gathering process, it will not seem irregular for evidence to be taken by an agent of a foreign court for the purpose of proceedings on foot in that court. Such an approach may, however, offend the rules of civil law jurisdictions, where the obtaining of evidence, at least in criminal matters, is primarily the role of the judiciary. To address this potential for conflict, a number of pieces of legislation and bilateral and multilateral civil procedure conventions have evolved over time to facilitate official intervention in order to obtain cross-jurisdictional assistance in the gathering of evidence for the purpose of both civil and criminal proceedings. The various ways in which assistance may be sought by or obtained from the English courts are explored in this chapter.

1 Arbitration in Singapore

2014 ◽  
Author(s):  
Mangan Mark ◽  
Reed Lucy ◽  
Choong John
Keyword(s):  
State Of The Art ◽  
Common Law ◽  
Civil Law ◽  
Legal Tradition ◽  
International Arbitration ◽  
Number Of Factors

This chapter examines the Singapore International Arbitration Centre (SIAC) in an examination of the significant features of arbitration in Singapore. The SIAC has received over 1,800 cases in 20 years. The rise of Singapore as a global centre for international arbitration can be traced to a number of factors. The SIAC has modern arbitration laws, state-of-the-art arbitration facilities, and a supportive government and judiciary. It also has a common-law legal tradition coupled with civil-law arbitration practices, and a geographically-well position. Each SIAC rule is analysed against the background of access to the travaux préparatoires of the 2010 SIAC Rules Drafting Committee, as well as involvement in the drafting of the 2013 SIAC Rules.

scholarly journals Anti-arbitration injunctions: walking the tightrope

2020 ◽  
Vol 36 (3) ◽  
pp. 347-372
Author(s):  
Richard Garnett
Keyword(s):  
Case Management ◽  
Common Law ◽  
Controversial Issue ◽  
International Arbitration ◽  
English Court ◽  
Law Courts ◽  
Court Of Appeal

Abstract Anti-arbitration injunctions are a controversial issue in the field of international arbitration. While some commentators decry them as an interference with the autonomy and independence of arbitrators, English and other common law courts steadfastly refuse to renounce them entirely. By reference to the framework established in recent decisions of the English Court of Appeal, the article seeks to forge a middle path between making anti-arbitration injunctions available on a discretionary, case management basis and prohibiting them in all cases. An approach that respects both the rights of arbitrators to determine their own jurisdiction and the rights of courts to protect parties from abuse of the arbitral process is advocated.

scholarly journals Considerations of Fairness in the Context of International Commercial Arbitrations

1996 ◽  
Vol 34 (3) ◽  
pp. 509
Author(s):  
E. D. D. Tavender
Keyword(s):  
Common Law ◽  
Procedural Fairness ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Judicial Practice ◽  
Systemic Problems ◽  
Procedural Rights ◽  
General Operation ◽  
Grafting Onto

This article addresses the contrast between the procedural fairness protections that are built into common law judicial practice and the lack of such safeguards in international commercial arbitration. Canvassing a variety of jurisdictions and international arbitration rules, the author concludes that procedural rights in international arbitration are never guaranteed and are at best extremely variable. The solution to such systemic problems is to write procedural requirements into any international commercial agreement so that in the event of a dispute there is some consensus about how the arbitration will be conducted. Schedule I is a table that explains the general operation of the various statutory instruments that regulate international commercial arbitration. Schedule II is an example of the type of drafted provisions that two private parties might consider grafting onto an international commercial agreement.

scholarly journals Evidentiary Rules in International Arbitration – A Comparative Analysis of Approaches and the Need for Regulation

2015 ◽  
Vol 3 (1) ◽  
pp. 85
Author(s):  
Anna Magdalena Kubalczyk
Keyword(s):  
Common Law ◽  
Competing Values ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
Actual Outcome ◽  
Rules Of Procedure ◽  
Bar Association ◽  
Assessment Of Evidence ◽  
The Impact

The article discusses the procedure of taking evidence in international commercial arbitration from the perspective of balancing different legal cultures and values. It analyses the results of the existing evidentiary rules and attempts to harmonise the procedure, and their sufficiency in terms of securing the interests, expectations and rights of the parties involved in the international arbitration. The actual outcome must be estimated taking into consideration the balancing of the relationships and the differences between legal cultures, fairness and flexibility. In the first instance the author analyses each of the legal systems, civil law and common law, in order to compare the differences and similarities in terms of the procedure, especially in relation to evidentiary issues. A further step involves the analysis of the need for harmonised rules of procedure and in particular evidentiary rules in international arbitration and the factors in the determination and application of the rules, with a focus on the role of the tribunal’s discretion, the parties’ autonomy, as well as the impact of cultural background. Furthermore, the International Bar Association (IBA) Rules on Taking of Evidence in International Arbitration are analysed in terms of their completeness in such areas as admissibility and assessment of evidence, which permits the comprehension of the strengths and weaknesses of the IBA Rules and the need for the introduction of further rules. Finally, conclusions follow as to the proper way of balancing the competing values and approaches and the need for the application of new solutions in terms of taking of evidence in order to achieve the desired outcome in arbitral proceedings.

Producing evidence in international arbitration

2005 ◽  
Vol 6 (1) ◽  
Author(s):  
Vera van Houtte ◽  
Michael Young
Keyword(s):  
Ad Hoc ◽  
Common Law ◽  
Civil Law ◽  
Large Degree ◽  
Degree Of Freedom ◽  
International Arbitration

AbstractAbsence of mandatory procedural rules in international arbitration gives the parties and arbitrators a large degree of freedom but also creates uncertainty. Coming fromdifferent legal backgrounds the participants’ different expectations as regards procedure can only be met by laying down ad hoc procedural rules which often compromise between common law and civil law evidentiary rules. The IBA Rules on the Taking of Evidence can be used as guidelines for that purpose.

Admission of Extrinsic Evidence for Contract Interpretation: The International Arbitration Culture in Light of the Traditional Divisions

2018 ◽  
Vol 18 (2) ◽  
pp. 100-117
Author(s):  
Maxime Panhard
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Legal Tradition ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Cultural Roots ◽  
The Common ◽  
Mergers And Acquisition

Abstract Mergers and acquisition (M&A) operations generally follow wide due-dil­igence and investigation works. This suggests that a lot of elements outside of the final contract could help the judge or arbitrator interpret the intent of the parties. Yet, the common law tradition usually includes a so-called ‘parol evidence rule’ (PER) that pro­hibits the use of such evidence to this end, among numerous exceptions. Other legal tradition such as the civil law don’t include such rule. As transnational M&A operations now generally use international commercial arbitration (ICA) as a way to solve potential disputes, parties can wonder if these extrinsic evidence can be used in an ICA context, given its multicultural legal habits. To answer this question, this article analyses the cultural roots that explain the existence or absence of the PER, and matches them with the specificities of ICA. There are two main explanations for the distinction between common law and civil law regarding the PER. One is substantial and regards the con­tractual interpretation approach. The second depends on the culture regarding evidence and the existence of exclusionary rules. These two explanations don’t survive in ICA. Moreover, the specificities of ICA tend to encourage the admission of extrinsic evidence in contractual interpretation.

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