Freshfields Lecture.doc

3 may a party be ordered to turn over documents to

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3. May a party be ordered to turn over documents to its adversary that might hurt the producing party’s case? If so, what showing is necessary to justify such an order? 4. May counsel prepare a witness for testimony before the hearings? 5. Are the communications of an in-house lawyer privileged? 6. Should a party invoking privilege as the basis for refusing to turn over documents be required to supply a log providing a description of the document and an explanation of the claimed privilege? 7. Should direct testimony be provided in the form of pre-filed written witness statements? 8. If witness statements are used, do they replace or simply supplement oral testimony? In this connection, may a party require that one of its witnesses be heard orally even if the other side does not request cross-examination? 9. If one side alleges fraud, may it be required to provide, at an early stage in the proceedings, a statement of particulars, indicating who said what to whom, when and where? 10. How are burdens of proof to be determined? 11. Which side has the ‘last word’, claimant or respondent? 12. When should arbitrators order documents to be kept confidential if both parties are unwilling to so stipulate? 13. When should a tribunal appoint experts? 14. On what questions should interim decisions take the form of awards rather than procedural orders? 15. At what stage should exhibits and witness statements be exchanged? 16. When is it appropriate to order security for costs? 17. When should pre-hearing and post-hearing memorials be simultaneous, and when should they be sequential? 18. When can issues be decided on a documents only basis? What types of questions lend themselves to such dispositive treatment without evidentiary hearings? 19. How far should the parties’ counsel (rather than arbitrators) shoulder the principal responsibility for interrogating witnesses? 20. What rules of evidence apply when one side objects to a question, answer or document? 21. Should time be allocated on a ‘chess clock’ basis (each side is allotted the same number of hours) or an open-ended approach? 22. What grounds justify postponement of hearings? 23. What degree of familiarity between an arbitrator and a witness might require arbitrator disqualification? 24. Should witnesses testifying on the same subject present their evidence together? In this connection, should a distinction be made between fact witnesses and experts? 21
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25. May witnesses testify by video conferencing to save the cost of long-distance travel even though one party requests their physical presence? 22
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