The DOSSIER VI deals with documentary evidence at the heart of the arbitral process. Arbitrators are increasingly confronted with new challenges, such as requests for E-Discovery, as well as ever more frequent objections to confidentiality and privilege. Document production may also confront arbitrators with difficult issues of fraud and forgery. Further, this DOSSIER VI may aid Arbitral tribunals that have to decide which rules apply to issues such as the evidentiary value of documents or their admissibility.
With the practice of documentary evidence changing, international arbitrators look for transnational solutions capable of executing a proper balance between efficiency and fairness. Transnational instruments such as the IBA Rules on the Taking of Evidence in International Commercial Arbitration may need to evolve to accommodate these new improved approaches and solutions.
This Dossier of the ICC Institute of World Business Law seeks to encourage reflection on future practice in relation to documentary evidence in international arbitration. With the publication of Dossier VI, Written Evidence and Discovery in International Arbitration, the ICC Institute of World Business Law fulfills its dual mission: training and acting as a think-tank for the International Chamber of Commerce particularly in the field of arbitration.
| Code ISBN : | 978-92-842-0062-7 |
| Number of pages : | 509 |
| Publishing date : | 2009 |
| Language : | English |
| Format in cm : | 16*23.9 |
Dossier VI of the ICC Institute of World Business Law
Foreword by Serge Lazareff ...5
Introduction ...7
Written Evidence and Discovery in International Arbitration by Teresa Giovannini, Co-Editor
1. Document disclosure, evidentiary value of documents and burden of evidence ...11
by Julian D.M. Lew
2. Privilege-related issues in international arbitration ...29
by Guido Santiago Tawil & Ignacio J. Mirorini Lima
3. State Courts and document production ...57
by Laurence Shore
Annexes
- NBC v Bear Stearns ...73
- Intel Corp v Advanced Micro Devices, Inc ...83
- Roz Trading Ltd ...117
- Babcock Borsig ...141
- Life Receivables Trust ...161
4. Production of documents and fraud in international arbitration ...177
by Markus Wirth
5. Adverse inferences in international arbitration ...195
by Vera van Houtte
Annexes
- Tribunal Fédéral Suisse, January 9th, 2008 ...221
- ICC Award in Case n°8694 ...225
- Ontario Superior Court of Justice ...229
- Court of Appeal for Ontario ...247
- Dongwoo Mann + Hummel Co. Ltd. v Mann + Hummel GmbH ...265
- Delhi High Court ...315
6. Are the IBA Rules perfectible? ...321
by V.V. Veeder
7. US-style discovery: good or evil?...339
by Lucy F. Reed & Ginger Hancock
Annex
- ICDR Guidelines ...354
8. Massive productions of documents and demonstrative exhibits ...357
by Bernard Hanotiau
9. The paper tsunami in international arbitration: problems, risks for the arbitrators' decision making and possible solutions ...365
by Michael Schneider
10. Will electronic evidence and e-discovery change the face of arbitration? ...373
by Carole Malinvaud
11. Electronic disclosure in international arbitration: the CIArb, protocol for e-disclosure in arbitration ...395
by David Howell
12. The ICC task force on the production of electronic documents in arbitration - an overview ...415
by Loretta Malintoppi
13. Options for approaching evidentiary privilege in international arbitration ...423
by Amy F. Cohen
Concluding remarks ...447
by Alexis Mourre, Co-Editor
Indexes ...453
IBA Rules on the taking of evidence in international commercial arbitration ...455
CIAarb protocol for e-disclosure in arbitration ...475
Key-words Index ...481
Table of cases ...497
Selected bibliography ...499
About the authors ...503
Contributors ...505
ICC at a glance ...510
Serge Lazareff
Alexis Mourre
Teresa Giovannini
Julian D.M. Lew
Guido Santiago Tawil
Ignacio J. Mirorini Lima
Laurence Shore
Markus Wirth
Vera van Houtte
V.V. Veeder
Lucy F. Reed
Ginger Hancock
Bernard Hanotiau
Michael Schneider
Carole Malinvaud
David Howell
Loretta Malintoppi
Amy F. Cohen