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Chapter
Article 2 - Consultation on Evidentiary Issues pp. 31-40
Chapter DOI: http://dx.doi.org/10.1017/CBO9781139424714.008
Cambridge University Press
arti cl e 2
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Discussion
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14) nor the AAA Rules (Article 16). he remainder of this discussion
assumes any institutional rule is not inconsistent with the Rules.
[2-3] Article 2 directs specic attention to a number of matters
that the arbitral tribunal and the parties might consider. In each
case the consultation is directed to the scope or extent (necessarily including whether such a step is, on the particular facts of the
case, appropriate at all), timing (both in sequence i.e. what is consecutive to what and interval i.e. what time is required after one
step before the next) and manner (i.e. how compliance is to be
achieved). As discussed above any concept of a standard direction
should be banished for it is only by crafting a bespoke procedure
that it can be both t for purpose and achieve the aim of saving
time and cost.
[2-4] In practical terms the consultation by the arbitral tribunal is
likely to be both before and at the rst procedural meeting. he arbitral tribunal is likely, in xing the meeting, to invite the parties to
consult and to submit draft agreed orders to the tribunal.
[2-5] he rst item specically contemplated is witness statements.
By listing the preparation and submission of witness statements as
an issue for consultation, the Rules appear to assume that such statements are an ecient, economical and fair tool and the presence
of Article 4 (and specically Article 4.4) reinforces the point. In any
event witness statements have become standard practice and they generally establish a sound platform for an ecient witness-examination
process, particularly by replacing the examination-in-chief, enabling
the scope and extent of the cross-examination to be pre-planned and
dened by the opposing counsel such that there can be a smooth
ow of the evidence and without the need for frequent adjournments for cross-examination or rebuttal. However, the admission of
written witness statements has a number of consequences, including
intensive contacts between counsel and the witness and the necessity of granting the opposite party the opportunity to cross-examine
the witness. hese are features that may not be appropriate or useful
in every case. For example, where parties and counsel involved are
exclusively from civil-law jurisdictions, they may prefer not producing written statements and having the questioning of the witnesses
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Discussion
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Redfern schedule1, rather than let requests get out of hand and only
later try to bring the discipline of a Redfern schedule to the process.
[2-15] he promotion of eciency, economy and conservation of
resources is something that ought to challenge an arbitral tribunal.
Arbitral tribunals will have relatively limited knowledge of the facts
and issues at this early stage of the proceedings. he parties will be
far better informed and may well have agreed directions (or at least
counsel for the parties may have done so). Tribunals would be well
advised to encourage the attendance of the parties themselves (and at
a suitably senior decision-making level), should politely and rmly
challenge any procedure that seems to them to be unnecessary or
excessive and counsel should be asked to give costs budgets for particular stages and to budget alternatives. he parties themselves might
not have been given the option of some alternatives and a procedure
should only be adopted and ordered when the full implications of
the time and cost consequences are appreciated.
[2-16] One matter that might be discussed under Article 2.2(e)
is to create an arbitration hold. he provision encourages parties
to consult with each other as early as possible regarding document
production, emphasising the promotion of eciency, economy, and
resource conservation. Because the destruction of documents in the
absence of an arbitration hold would likely contravene these principles, the provision may serve as a basis to provide for such a hold.
In light of decisions in the U.S., U.K. and other jurisdictions dening the requirements for a litigation hold, arbitrators may increasingly expect practitioners to apply the concept in arbitral disputes.
Dierences in culture and the legal backgrounds of the parties will
necessarily result in dierent perceptions of what should be preserved
and tribunals are likely to have to allow for these dierences before
considering any stipulation, still less any sanction.
[2-17] Parties (and counsel) are likely to have widely varying expectations regarding preservation. It is obviously easier to meet demanding standards for preservation where there is a culture of document
retention. U.S. companies, or those with signicant U.S. operations,
accustomed to frequent litigation will be well aware of the reasonable
1
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Discussion
39
expectation standard and will generally have comprehensive document retention policies. his issue does not only aect companies
that operate exclusively in countries lacking a document retention
tradition. Even large multinationals may nd themselves in dicult
situations due to inconsistent policies. For example, in Zubulake2,
the court showed no sympathy for UBS argument that some of the
missing backup tapes were deleted after a month because they were
held by an employee in the Hong Kong oce, which had a dierent
preservation policy.
[2-18] hough in Zubulake the court failed to accept UBS invocation of cultural dierences, such an approach may well nd favour
with international tribunals. International arbitrators dealing with
international parties are far more likely to consider the parties
expectations based on their cultural dierences than would a domestic judge addressing a largely domestic dispute.
[2-19] Again due to the relatively limited information available
to the arbitral tribunal it may have limited scope for suggesting
or directing issues or matters that might be decided in advance of
others: bifurcation. However the practice of arbitral tribunals not
having evidentiary hearings beyond a maximum of two weeks may
prompt a tribunal to itself consider bifurcation.
[2-20] he traditional split of liability followed by quantum will no
doubt feature in the considerations of most tribunals: clearly if liability is not found there is no reason to explore quantum and hence
costs that might otherwise have been incurred can be saved. Similarly
if liability is found on some, but not all, issues. If, however, liability
is found on all issues it may enable the parties to compromise quantum rendering the second stage unnecessary but if both liability
and quantum are fully contested, bifurcation can lead to greater costs
than dealing with everything on one occasion.
[2-21] Certainly in ICC arbitrations and in most others as well, the
rst procedural meeting will be at a stage when there is a Request for
Arbitration and an Answer and before memorials. Tribunals might,
in all but the most complex cases, be well advised to avoid memorials
2
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