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Reflections on Admissibility of Evidence: Interrelation Between Domestic Law and International Arbitration
Abstract
THE MOST appropriate way to deal with the subject of admissibility of evidence and its relationship with international arbitration is first to examine the notion of admissibility under domestic law. Since the concept essentially has its roots in the English law of evidence, the common law concept will be examined first and compared with the corresponding notion in French law. I will also make some references, albeit restricted, to Middle Eastern law. In this respect, it must be recognized that the corpus of Middle Eastern laws are copies of Western models. For example, Syrian law is an offshoot of the old French Code of Civil Procedure and the Lebanese law of 1983 is in practice a translation of the new French Code of Civil Procedure. However, an ‘exotic’ law of evidence, the Yemeni Republican Decree No. 22 of 1992, which, like Saudi Arabian regulations, still immersed in Islamic law and contains medieval remnants, will be considered briefly.
Once I have dealt with the issue of admissibility of evidence in the English and French systems, I shall examine its treatment under international arbitration rules and practice. I shall then attempt to answer the main question: to what extent may international arbitration proceedings be conducted without strictly applying the legal rules of admissibility?
### (a) Context
A few words are necessary to place the subject matter in the context of English law of evidence. An objection of inadmissibility is most likely to arise on the day of the ‘trial’, or the ‘day in court’, which seems to a civil law practitioner like a ritual in a missa solemnis with no Gregorian chants. Some continental lawyers liken it to a theatrical process, a dramatic moment of judicial process. An objection of inadmissibility is generally raised during this single, concentrated event. This is in contrast to civil …
... 19 of the ICC Arbitration Rules, 19 and Art 36(1) of the ICSID Arbitration Rules. 20 In addition, Art. 9(1) of the IBA Rules contains identical provisions: 'The Arbitral Tribunal shall determine the admissibility, relevance, materiality and weight of evidence. ...
Background: The present article was prompted by the growing influence of artificial intelligence in international arbitration. Artificial intelligence poses a challenge to the arbitration market since its advantages make it inevitable that in the future, it will take over some of the arbitrator’s fact-finding functions. Accordingly, the question arises as to how arbitrators can improve fact-finding and, consequently, maintain their demand in the arbitration market. This article analyses in detail one of the alternatives for such an improvement – a stricter application of the rule on the admissibility of written witness testimony. Objects: The article sets out the following objectives: (1) to uncover why artificial intelligence could be considered a better fact-finder than the arbitrator; (2) to identify how arbitrators apply the rule on the admissibility of written witness testimony in international arbitration proceedings; (3) to justify a different application of the latter admissibility rule that both improves the quality of fact-finding and, accordingly, allows arbitrators to keep pace with artificial intelligence. Methods: The article is grounded in the doctrinal legal research method since it will examine three legal sources: 1) the widely applicable IBA Rules on the Taking of Evidence in International Arbitration; 2) the arbitral tribunal’s awards; (3) legal scholarship. The research additionally uses an economic analysis of law as well as an interdisciplinary approach, which reveals certain psychological phenomena related to decision-making in arbitration. Results and Conclusions: The application of the rule of admissibility of written testimony of a witness in international arbitration leads to various negative consequences in the fact-finding process. For arbitrators to keep pace with artificial intelligence in the fact-finding process and increase their demand in the arbitration market, it is necessary to adopt a stricter approach to the latter admissibility rule. This approach leads to the exclusion rather than the evaluation of written witness testimony in international arbitration proceedings.
... Tyrime esminę reikšmę turėjo šie panaudoti šaltiniai ir literatūra -minėtas V. Mikelėno, V. Nekrošiaus ir kitų bendraautorių darbas, kuriame apžvelgiama įrodymų leistinumo samprata (Mikelėnas, et al., 2020). Užsienio autorių F. Schauerio ir S. Saleho darbai įrodymų leistinumo civiliniame procese ir arbitraže tematika (Schauer, 2020;Saleh, 1999). Tyrimui svarbią reikšmę taip pat turėjo CPK ir Lietuvos Respublikos komercinio arbitražo įstatymas (KAĮ) (Lietuvos Respublikos komercinio arbitražo įstatymas, 1996). ...
This article analyzes the concept of admissibility of evidence in Lithuanian civil proceedings and arbitration. The first part of the article reviews the past and current legislation, case law and doctrine, which reveal the concepts of the admissibility of evidence in both civil and arbitral proceedings.
The second part of the article provides a critical assessment of these concepts. It is proposed to improve the concept of the admissibility of evidence in civil proceedings, and an alternative of this concept is presented. As far as arbitration law is concerned, it is acknowledged that the concept of the admissibility of evidence in arbitration causes legal uncertainty in the proceedings, which forces to consider possible corrections to this concept.
THE PROPHET Muhammad acted as arbitrator for the Muslims in the beginning of Islam.1 The Prophet also recognized arbitration by appointing an arbitrator, accepting that arbitrator's decision, and counselling a tribe to use arbitration to resolve a dispute.2 The Qur'an expressly addresses arbitration with regard to family matters, and requires that Muslims use arbitration to resolve such disputes.3 The Rashidin Caliphs who immediately succeeded the Prophet in leading the Muslims applied these arbitration principles to disputes arising out of commercial transactions.4 Many leading Islamic scholars have promoted arbitration in similar matters over the centuries.5 Today, most, if not all Middle Eastern countries have legislation favourable to arbitration in resolving international trade disputes.6
Despite this long history and doctrinal nexus between Islam and arbitration, many contemporary Muslims are wary of international arbitration.7 One potential reason for this scepticism is the disastrous application of international arbitration to the political dispute that split the Islamic world into Sunni and Shi'ite.8 The perceived reluctance of tribunals to rely on Islamic law, or Shari'a, is another.9 Critics who subscribe to this latter reasoning demand greater incorporation of Islamic law into arbitration proceedings.10 This Note responds to these demands by analysing the ways in which the Iran-United States Claims Tribunal (‘the Tribunal’) relies on Islamic law, and by exploring the limitations upon the Tribunal, and other tribunals, in relying on Islamic law to a greater extent.11
This Note is divided into four sections. Section I describes each instance where the Tribunal explicitly mentions Islamic law in a decision or dissenting opinion. Section II draws parallels between Islamic and Tribunal jurisprudence. Section III explains how several Islamic countries have constitutionalized Islamic law, thus making it their municipal law.12 It is this constitutionalization that hinders greater …
MANY YEARS ago, many of us then commencing our professional careers came to London responding to the kind invitation extended by one of the pioneers of international commercial arbitration – Mr Cedric Barclay. With his arbitration activities – and his friendship – he managed to interest many of us in the cause of arbitration.
Back in those days, international commercial arbitration was a small artisanal speciality. As the much esteemed former Secretary General of the ICC's International Court of Arbitration, Frederick Eisemann, quite rightly told us, arbitration was only worth as much as the quality of the arbitrators. At that time, there was only a handful of law firms which represented parties in arbitration proceedings, although each of those firms was becoming familiar with the rules of the game being established through flexible procedures.
Today, on the contrary, great economic battles are fought and a true arbitration industry has emerged. It has ceased to be the activity of a few and has now become a universally accepted solution for the resolution of international commercial conflicts. The number of uhose of us who today participate as arbitrators is extensive. Few companies, dedicated to the world of commerce, industry or international finance, have escaped participation in one way or another in international commercial arbitrations. The generalized inclusion of arbitration clauses in those contracts which they execute daily have attracted law firms from very different backgrounds and with distinct approaches to the world of arbitration. As a result, international arbitration is presently undergoing a process of harmonization in its basic notions through a limitless combination of its different elements in order to achieve a pleasing effect: the adaptation of legal systems throughout the world to a global economic market and, following innovations in telecommunications and the development of a global information infrastructure, to …
IN DUE course, 1996 will come to be recognized as a vintage year for the arbitration community. A little more than a decade after the formal promulgation by the United Nations of the UNCITRAL Model Law on International Commercial Arbitration,1 England2 found itself in the company of a number of other countries – including India and Zimbabwe – in enacting new legislation governing arbitration. A total of some 30 jurisdictions had by the end of 1996 adopted legislation based on the Model Law, including a number of Latin-American states which previously had been perceived to be hostile to arbitration. It is now clear that legislators around the world will not even think about introducing new arbitration laws without paying due regard to the structure of the Model Law and the concepts it contains. This means that the Model Law has already become a potent force for harmonization of national arbitration law. Furthermore, 1996 saw the adoption by UNCITRAL of its Notes on Organizing Arbitration Proceedings which in the medium to long term is also likely to become a significant influence for the harmonization of procedures practised by tribunals in international arbitration.3
Somewhat confusingly, although the Bill passed through Parliament and received its Royal Assent in the summer of 1996, the new English Act did not come into force until 1997.4 The philosophy underlying the Act is to take arbitration back to its roots. It opens with a broad statement of general principles, the first of which makes the lofty declaration that ‘the object of arbitration is to obtain a fair resolution of disputes by an impartial tribunal without unnecessary delay or expense’.
In pursuit of this aim those responsible for framing the new legislation set out to adopt, as far as possible, the scheme and language …