International arbitration News, analytics and practice

8Jul/140

Evidence in International Arbitration: Evaluation Criteria

(extract from Konstantin Pilkov. Evidence in International Arbitration: Criteria for Admission and Evaluation. Arbitration. – 2014. – Vol. 80. – Issue 2 2014)

It is commonly recognised that the admissibility of evidence does not automatically guarantee that the evidence will be considered as having probative value. There are more or less explicit relevance, admissibility and materiality criteria for determining whether a piece of evidence is admissible, whereas the methods for weighing evidence and determining the sufficient level of proof are subjective and somewhat inexplicable.[1] The weight of the evidence usually refers to its persuasive effect on the arbitrator’s mind. It is within the discretion of the tribunal to evaluate the evidence submitted by the parties, though the parties can agree on the sufficiency, as will be discussed later.

The weight of the evidence includes questions of credibility (reliability) and the evaluation of inferences which can be made from the evidence.

5May/140

Evidence in International Arbitration: Criteria for Admission

(extract from Konstantin Pilkov. Evidence in International Arbitration: Criteria for Admission and Evaluation. Arbitration. – 2014. – Vol. 80. – Issue 2 2014)

Arbitration rules give broad authority to arbitrators regarding the consideration of evidence.[1] They usually do not set any formal procedure of admission and evaluation of evidence and say little if anything about the criteria for such admission and evaluation. The UNCITRAL Arbitration Rules (as revised in 2010) art.27(4) provide that once a party offers evidence to prove the facts it relies on, the tribunal is required to “determine the admissibility, relevance, materiality, and weight of the evidence offered”.

8Oct/121

2012 International Arbitration Survey: Current and Preferred Practices in the Arbitral Process

White & Case LLP and the School of International Arbitration at Queen Mary, University of London have published 2012 International Arbitration Survey: Current and Preferred Practices in the Arbitral Process with the focus on the views of in-house counsel, arbitration practitioners and arbitrators on the current and preferred practices in the international arbitration process.

28Oct/100

Dear arbitration practitioners, be precise in specifying the name of an arbitral institution in a contract

With this post we continue the Ukraine – arbitration-friendly jurisdiction set of comments. In our previous posts we already warned arbitration practitioners, attorneys and solicitors who are dealing with drafting arbitration agreements so that they should be precise in specifying the name of an arbitral institution in a contract if the dispute somehow is connected to the Ukrainian jurisdiction. The reason why is that Ukrainian state courts are not trained in favor of arbitration and in many cases do not consider seriously the doctrine of competence-competence in international commercial arbitration.

On October 13, 2010 the Supreme Court of Ukraine ruled in case upon the petition of VKT ARDO LLC against the award of the International Commercial Arbitration Court at the Chamber of Commerce and Industry of Ukraine issued in favor of Аrсеlоrmittal Аmbalaj Сеligі Sanауі ve Тісаrеt Аnоnіm Sіrkеtі against VKT ARDO LLC for app. USD 3 mln. Since I have no interest in that case I believe that I can share my opinion.

21Oct/100

Document Production in International Arbitration – Where to draw the Line?

The admissibility of requests and orders for Document Production has been a disputed subject for considerable time now. The aim of Document Production is to give the requesting party the opportunity to close evidentiary gaps in their own submissions. It is based on the principle that the two contesting parties will have the option to survey all relevant documents. In practice, it is often used by parties for much more than just the gathering of evidence and the dispute on its admissibility and scope focuses to a high degree on the divide between civil and common law traditions.

24Jun/100

All or Nothing? – A Debate on the Production of Documents

On 15 September 2010, Young Arbitrators Stockholm (YAS) will host a seminar together with ICDR Y&I, the International Centre for Dispute Resolution Young & International.

 The program will take the form of a debate, titled "All or Nothing - A Debate on the production of documents", and will be moderated by Patricia Shaughnessy (Stockholm Centre for Commercial Law, Sweden) and Mark Kantor (Georgetown University, Washington, USA).All or Nothing Arbitration2 All or Nothing? – A Debate on the Production of Documents

14May/10Off

ICSID Panel Denies Ukraine’s Challenge to Arbitrator

On March 19, 2010 two members of an ICSID arbitral tribunal – the Honourable Davis R. Robinson (President) and Dr. Stanimir A. Alexandrov – dismissed the Ukraine’s challenge to the tribunal’s third member, Dr. Yoram Turbowicz, reported Investment Treaty News.

Arbitral proceedings between Alpha Projektholding GMBH (Alpha) and the Ukraine began in 2007 after the Austrian company alleged violations of the Austria-Ukraine BIT in relation to its investment in a hotel-development project in Kiev in the mid-1990s.

11May/10Off

Summary Proceedings in International Arbitration

The separation of the state courts’ and of the arbitrators’ respective spheres of competence, which is uncontroversial with respect to the merits of a dispute, is much more problematic in relation to summary proceedings, i.e. proceedings aimed at obtaining a rapid decision on one or more aspects of dispute. Whether, and to what extent, arbitral tribunals and state courts have jurisdiction to hear applications for summary judgments in the presence of an arbitration agreement on merits of the dispute, is one of the major problems of international arbitration, and the solutions adopted differ significantly from one jurisdiction to another.

rome arbitration1 Summary Proceedings in International Arbitration

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 procedure

10Feb/10Off

Stereotype 2. Arbitration is less formal

”The LCIA arbitration rules are universally applicable.

They offer a combination of the best features of the civil

and common law systems, including in particular:

maximum flexibility for parties and tribunals to agree on procedural matters..”

London Court of International Arbitration

This post is the second in the special set of comments “Stereotypes of international arbitration”. It is worth mentioning that here we discuss the myths which re typical for international arbitration. If you are interested in discovering the misconceptions about the domestic arbitration process you may read about some of them on Arbitration-Truth.com. In this post we would like to draw your attention to the idea, that flexibility of international arbitration procedure does not mean that there is no “scenario”.

less formal 500x480 Stereotype 2. Arbitration is less formal