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12Feb/10Off

Stereotype 3. Arbitration is a unified procedure


”So far as international commercial arbitration is concerned, it would save considerable time, trouble and expencse if the laws governing arbitrations were the same throughout the world, so that there was – so to speak – a universal lex arbitri.”

(Law and Practice of International Commercial Arbitration. Alan Redfern. London, Sweet&Maxwell Limited, 2004)

With this post we continue the series of comments “Stereotypes of international arbitration”. There is nothing new in the statement that the procedures that govern the commercial arbitration proceeding is a subject that has been left to the parties. Some arbitration agreements call for the use of an off-the-shelf set of procedures, such as the rules of the International Chamber of Commerce, or the United National Conference on International Trade Law (UNCITRAL). The institutions which support international commercial arbitration essentially contribute to the process of permanent development of the arbitration practice. At least I hope that the amendments to the rules adopted by the world-renowned arbitration centers were aimed at that development. Some of them may be treated as a step toward unification of arbitration procedures. Here I would like to draw your attention to certain differences in arbitration procedures generally and without particular stress on national legislation governing arbitration in different states. Even in the states that adopted the UNCITRAL Model Law commercial arbitration procedures differs due to the legal culture and traditions and the history of arbitration. In the table below we tried to present the contrast in the case (common) law and civil law arbitration systems.

9m92n1qyg57g5f6d copy1 500x371 Stereotype 3. Arbitration is a unified procedureCertainly, we understand that in many cases there might be features which are usually associated with one system, but we find them applied in another, especially when the parties select arbitrators from case and civil law countries, so the panel is rather hybrid.

Civil law Common law
Style of an international arbitration Inquisitorial procedure requires the arbitrator to adjudicate on the basis of his own investigations Adversarial procedure invites the parties to make their cases to an impartial arbitrator
Pleadings Lengthy oral presentations the parties' counsel make during the hearing:

case-in-chief,

rebuttal,

reply and rejoinder.

The pleadings are usually read from written papers called "memorials," which have exhibits attached.

Often brief pre-hearing statement of a claim or defense, possibly combined with a counterclaim
Presenting evidences Each party has the burden of proving its own case

Each party is obliged to provide substantial evidence at the outset of a case before a claim is heard

Discovery
Documentary Evidence Selfauthenticating To be introduced by counsel and authenticated and explained by a witness
Party Testimony Representatives of the parties do not typically testify because of their interest in the outcome Representatives of the parties may testify
Witness’ Involvement Usually no cross-examination of witnesses

Written witness statements are widely used

Cross-examination of witnesses

Begun to use written witness statements because they are more efficient than direct examination

Expert Witnesses Typically an expert is appointed and retained by the tribunal Usually the parties retain an expert (experts)
Application of the Law “Foreign law is law”

Law is a fact which must be proven by the parties

“Foreign law is a fact”

the tribunal can research foreign law ex officio

Record Keeping Applicable Applicable if parties additionally request
Costs Usually may awarded by the tribunal to the prevailing party (this is true also for UK). Typically payable by each party (arbitration costs are divided equally) unless an agreement contains a fee-shifting clause providing for the loser to pay all costs

I really hope that the development of the world arbitration systems is directed to synthesize the positive and progressive features of the case and civil law and use them in international arbitration to the satisfaction of parties from different jurisdictions.

(c) by International arbitration blog

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