Effective Fact Finding vs. Information Overload: 
Too Much Paper in Arbitration?

 

International arbitration is a mechanism of resolving disputes which is clearly on the rise. Given the trend in arbitrations involving jurisdictions worldwide, a number of issues on how to best conduct an arbitration have emerged. One issue that has drawn significant attention is how facts are established in international arbitration proceedings, particularly whether there is too much paper involved in international arbitration.

 

The outcome of arbitration disputes does not solely depend on legal arguments. Quite often, facts are what ultimately “makes the case”. The process for establishing facts in an international arbitration proceeding is a matter which is often debated given the different approaches taken by various jurisdictions as well as the rapid developments in technology. The concept of ensuring the due process rights of the parties (e.g. right to be heard and right to prove their case) is oftentimes limited by the prevention of burying the arbitral tribunal and the other side with huge amounts of papers.

 

The Mannheim International Arbitration Conference 2016 will provide a forum for discussion for internationally renowned practitioners from both common law and civil law jurisdictions in order to shed light on these issues. The topics discussed will focus on the different methods of establishing facts in international arbitrations from the perspectives of various jurisdictions and the impact each method has on international arbitration.

 

The methods discussed were:

 

       ·         Witness Statements;

       ·         Expert Reports;

       ·         Document Production; and

       ·         Burden of Proof.

 

More details of what was discussed in these panels can be found below.


 

Witness Statements: Are In Person Examinations Necessary?


There is no question that witnesses are vital in establishing facts in an international arbitration proceeding. A constant question emerging from international proceedings involving both common and civil law jurisdictions is whether there is a necessity for both written witness statements as well as having the witness appear in person for direct and cross-examination by counsel in front of the arbitral tribunal.

 

This panel focused on the different approaches taken by various jurisdictions and discuss the pros and cons of having the witness take part in the arbitration hearing in addition to submitting a written witness statement.

 

Expert Opinions: Role of Experts in International Arbitrations


A well-known benefit of international arbitration is the parties’ ability to appoint an expert in a particular field to act as arbitrator in order to ensure that the arbitral tribunal is well versed on the subject in dispute. Nevertheless, expert opinions have been on the rise in international arbitration.

 

This panel took a look at and discussed the purpose of having an expert opinion and the case management of an arbitration proceeding involving expert opinions/expert witnesses. For example, the panel looked at the benefits and/or downside of the appointment of an expert by a party, arbitrator or institution as well as case management techniques such as requiring separate or joint written opinions by party-appointed experts and “hot-tubbing” of expert witnesses.

 

Document Production in International Arbitration


Document production is likely the most controversial mechanism in establishing facts in international arbitration and is a very heavily debated issue. This issue has become so popular that it is one of the focuses of the Willem C. Vis International Commercial Arbitration Moot 2015-16.

 

Mr. Grant Hanessian started the afternoon session of the Mannheim International Arbitration Conference 2016 by giving his keynote speech entitled “Document Production: To Have or Not To Have” where he will discuss the concept of document production and its importance (or lack of) in establishing facts in international arbitration

 

The following panel expanded on the idea of document production in international arbitration and whether its existence is in fact beneficial or harmful to all parties involved in international arbitration. In this discussion, the panel weighed parties’ due process rights versus the burden of “too much paper” as a result of document production. It also discussed parties’ frequently expressed fear of disclosing confidential information and possible measures to address this concern.

 

Shifting the Burden of Proof – An Efficient Alternative to Document Production?

 

Contrary to common law jurisdictions and their use of document production, civil law jurisdictions implement measures such as shifting of the burden of proof for establishing certain facts from one party to the other.

 

The final panel for the day discussed the role of the allocation of the burden of proof in international arbitrations and its use as an alternative instrument to document production in establishing facts in an international arbitration proceeding. In this discussion, the panel inter alia addressed whether the burden of proof is governed by procedural or substantive laws, as well as the effects of such a qualification in arbitrations.

 

This is another topic which features in the Willem C. Vis International Commercial Arbitration Moot 2015-16, where the parties disagree whether the CISG’s rules on the burden of proof (if any) preempt the use of document production in an international arbitration proceeding.