By Azeez Nazar Sabri
In the international Arbitration under the ICC Arbitration
Rules, the parties to the dispute(s) may adopt the IBA Rules on taking of
evidence. IBA framed Rules on taking of evidence in 1999. These rules were
revised by the IBA by a resolution of the IBA council on 29th May
2010. IBA issued these Rules as a resource to parties and to the arbitrators to
provide an efficient, economical and fair process for taking of evidence in
international arbitration. The rules provide the mechanism for the presentation
of documents, witnesses of fact and expert witness, inspection as well as the
conduct of the evidentiary hearings.
The IBA Rules can be used in conjunction with and adopted
together with the other rules or procedures governing international
arbitration. Parties and Arbitral
Tribunal may adopt the IBA Rules in whole or in part, to govern arbitration
proceedings, or they may vary them or use them as a guidelines in developing
their own procedures. Parties and Arbitral Tribunal are also free to adopt them
to the particular circumstances of each arbitration.
Scope of Application:
As per Article 1 of the IBA Rules, where the parties have
agreed to adopt IBA Rules or the Arbitral Tribunal has decided to apply the IBA
Rules, the Rules shall govern the taking of evidence, except to the extent any
specific provision of IBA rules is in conflict with any provision of governing law.
In case of conflict between the provision of the IBA Rules of
evidence and General Rules, the IBA rules shall be applied by the Arbitral
tribunal in such a manner that it determines best in order to accomplish the
purpose of both the General Rules and IBA Rules of evidence.
In such cases where the IBA Rules of evidence and General
Rules are silent on any matter concerning taking of evidence and the parties
have also not agreed on the same then in such cases the Arbitral Tribunal shall
conduct the taking of evidence as it deems appropriate in accordance with the
general principles of the IBA Rules of evidence.
Documents
As per Article 3 of the IBA Rules within the time line given
by the Arbitral Tribunal, each party shall submit to the Arbitral Tribunal all
documents available to it on which it relies, including public documents,
except for any documents that have already been submitted by the other party.
If the party required documents from the other party then he
shall submit a request to the Arbitral tribunal and other party for such
document. A Redfern schedule is used for this purpose. Redfern schedule contains
the description of the document, statement as to how the documents requested
are relevant to the case and the statement that the document requested are not
in the possession, custody or control of the requesting party.
Within the timeline given the Arbitral Tribunal the other
party will provide the documents to the requesting party, if the said document
is available with him and he has no objection to provide the same.
If the party to whom the request has been made has an
objection, it shall state the objection in writing to the Arbitral Tribunal.
After consulting both the parties the Arbitral Tribunal shall pass an appropriate
order on the objection of the party.
Witness of Fact
As per Article 4 of the IBA rules within the time line
granted by the Arbitral Tribunal each party shall identify the witness on whose
testimony it intends to rely and the subject matter of that testimony.
Any person may present evidence as a witness, including a Party
or Party’s officer, employee or other representative.
Under IBA rules of evidence it is not improper for a party or
its officers/ representatives to interview its witness and to discuss their
prospective testimony with them.
Within stipulated time each party shall submit to the
Arbitral Tribunal witness statement(s) on whose testimony it intends to rely.
Each witness statement shall contain the full name and address of the witness,
his designation, past and present, relationship with the party, description of
his qualification and experience, a full details description of the facts and
source of the witness information, an affirmation of truth and witness
signature.
On the dates fixed by the Arbitral Tribunal such witness
shall appear before the Arbitral Tribunal to give his testimony.
If a party wishes to present evidence from a person who will
not appear voluntarily at its request, then Party may ask Arbitral tribunal to
take appropriate steps to obtain the testimony of that party.
Any time before the arbitration is concluded, the Arbitral
Tribunal may order any party to provide for the appearance for testimony at an evidentiary
hearing of any person including one whose testimony has not yet been offered.
However, a party to whom such request is addressed may object for any of the
reasons set under Article 9.2 of IBA Rules.
Expert Witness
Article 5 of the IBA rules stipulates the procedure for
expert witness. Party may rely on expert witness.
Evidentiary Hearings
Procedure for evidentiary hearings is given in Article 8 of
the IBA Arbitration Rules for taking evidence. Each witness shall appear in
person for his testimony. However, in special case the Arbitral Tribunal may
allow the video conferencing.
Arbitral Tribunal shall at all-time have control over the evidentiary
hearing. Arbitral Tribunal may limit or exclude any question to, answer by, or
appearance of a witness. Ordinarily Claimant first present the testimony of its
witness followed by the respondent present testify the witness. Following
direct testimony the other party may question the witness, which is called
cross- examination. Arbitral Tribunal may also question the witness.
Upon conclusion of the evidentiary hearing the Arbitral
Tribunal shall determine the admissibility and relevance of the evidence
offered by the parties in accordance with Article 9 of the IBA Rules for taking
evidence.
No comments:
Post a Comment