Freshfields Lecture.doc

7 icc arbitration rules art 20 this applies as long

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7 ICC Arbitration Rules, art. 20. This applies as long as the arbitrators ‘act fairly and impartially’ so as to ensure that each party has a ‘reasonable opportunity to present its case’. See ICC Arbitration Rules, art. 15. 8 UNCITRAL Rules, art. 18; AAA International Rules, art. 16. In art. 16(3) the Rules go further and state that the tribunal ‘may in its discretion direct the order of proof, bifurcate proceedings, exclude cumulative or irrelevant testimony or other evidence and direct the parties to focus their presentations on issues the decision of which could dispose of all or part of the case’. By contrast, the AAA Commercial Arbitration Rules (used in domestic cases) provide that the parties shall produce evidence ‘as the arbitrator may deem necessary’. See Rule 33, which continues that arbitrators may dispense with ‘conformity to the legal rules of evidence’. Rule 34 adds that evidence by affidavit is to be given ‘only such weight as the arbitrator deems it entitled’. 9 For example, the LCIA Arbitration Rules explicitly address witness preparation (art. 20.6), cross- examination (art. 20.5) and orders for the production of documents (art. 22.1(e)). 10 LCIA Arbitration Rules, art. 14.2. 11 For a magisterial survey of modern arbitration law, see Jean-François Poudret and Sébastien Besson, Droit comparé de l’arbitrage international (2002). 12 See William W. Park,‘Why Courts Review Arbitral Awards’ in R. Briner, L. Y. Fortier, K.-P. Berger and J. Bredow (eds), Recht der Internationalen Wirtschaft und Streiterledigung im 21. Jahrhundert: Liber Amicorum Karl-Heinz Böckstiegel (2001), p. 595; reprinted in (2001) 16 Int’l Arb. Rep . (November) 27. 13 Section 33 of England’s Arbitration Act 1996 admonishes the arbitrator to ‘adopt procedures suitable to the circumstances of the particular case’ and requires the tribunal to ‘act fairly and impartially as between the parties, giving each party a reasonable opportunity of putting his case and dealing with that of his 4
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II. THE DOWN SIDE OF DISCRETION A. The Need for Default Procedural Protocols The time has come to present this article’s tentative thesis, which with some simplification might be presented as follows: the benefits of arbitrator discretion are overrated; flexibility is not an unalloyed good; and arbitration’s malleability often comes at an unjustifiable cost. 14 Therefore arbitral institutions should give serious consideration to adopting provisions with more precise procedural protocols to serve as default settings for the way arbitrations should actually be conducted. These directives would explicitly address questions such as documentary discovery, privilege, witness statements, order of memorials, allocation of hearing time, burden of proof and the extent of oral testimony.
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