Arbitral Award Structure and Enforcement (Chapter 2)

• The workbook aims to explain the role of evidence in decision-making, provide requirements for enforceable arbitral awards, and suggest an award structure reflecting the reasoning process.
• There is no set format for arbitration awards, arbitrators can adopt a comfortable style, focusing on clarity for the parties involved.
• The structure of an award is important, it should determine issues, be enforceable, explain the decision-making process, and guide the reasoning.
• Arbitrators must ensure awards are enforceable, as flaws can lead to annulment or hinder enforcement.
• Awards should respect fairness and equality principles to prevent attacks, this is crucial in international arbitration, requiring constant consideration of Article V of the New York Convention.

Article V of the New York Convention: Refusal of Recognition and Enforcement

• Recognition/enforcement of an award can be refused if the party against whom it's invoked proves:
• Parties lacked capacity or the agreement was invalid under applicable law.
• Lack of proper notice for arbitrator appointment/arbitration proceedings, preventing a fair case presentation.
• The award deals with matters outside the scope of submission to arbitration.
• The arbitral authority composition or procedure didn't align with the agreement or the law of the arbitration location.
• The award isn't binding or has been set aside/suspended by a competent authority.
• Recognition/enforcement may be refused if the competent authority finds:
• The subject matter cannot be settled by arbitration under that country's law.
• Recognition/enforcement would breach the country's public policy.
• The workbook reflects the 1985 UNCITRAL Model Law on International Commercial Arbitration, with 2006 amendments.
• The UNCITRAL Model Law fosters a transnational understanding of international commercial arbitration law, harmonizing legislation across legal systems, it’s familiar and accessible worldwide.
• The Model Law is a basis for international training in arbitration law, offering a comparison for "non-Model Law" jurisdictions.
• Arbitrators use the law and rules relevant to the case, not the Model Law, in practice.

Introduction

• 'Rules of Evidence' is vital in decision-making in tribunals, including arbitrations and adjudications.
• Courts prescribe 'rules' and precedent decisions. In arbitration, 'rules' may bind arbitrators during evidence review.
• The 'Rules of Evidence' provide an arbitrator with guidance for reviewing evidence and making informed decisions.
• Understanding the basics of evidence law is important for appreciating the 'Rules of Evidence'.
• The chapter explores the purpose of evidence, basic concepts (facts, evidence types), and applying evidence rules.

Learning Objectives

• Explain relevance of evidence in arbitration decision-making.
• Describe generic evidence rules for common law and civil law jurisdictions.
• Explain differences between facts in issue, relevant facts, and collateral facts.
• Describe evidence types/importance.
• Describe hearsay evidence and guidance for weighting it.
• Explain relevance/admissibility concepts in evidence.
• Apply concepts/rules on evidence weight to evidence evaluation in arbitration.

The Purpose of Evidence

• 'Evidence' stems from Latin 'evidentia', meaning 'to show clearly, discover, ascertain, or prove'.
• Evidence proves or disproves an alleged fact's existence.
• The party alleging a fact's existence must prove it; the denying party must disprove it.
• Evidence can be considered what's presented in court to prove/disprove the issue.
• Evidence is the means by which a party convinces the court of the truth of a disputed fact.
• Evidence is defined as information proving facts, with the law of evidence regulating how facts are proved in courts, tribunals, and arbitrations.
• Presenting evidence helps tribunals determine disputed facts and issues of opinion, including expert evidence.
• The law of evidence governs facts for court consideration, methods to secure facts, facts not needing proof, and who secures the consideration of facts.
• Relevant evidence, proven through real/documentary evidence, must support an allegation.
• Facts not needing proof include notorious facts or authoritative texts and judicial admissions.
• The party securing fact consideration bears the burden of proof.
• Arbitrators must manage evidence flow efficiently, ensuring party representatives present evidence logically and effectively.
• Including only evidence from submissions and providing chronological, paginated, annotated documentary evidence assists arbitrators.

Basic Concepts - Facts

• Facts in issue (principal facts): The referring party must prove these to succeed, such as proving contract formation, breach, and loss in a contract dispute.
• In negligence claims, facts in issue establish breach of duty/causal link to damages.
• Referral notices, which help identify facts in issue, should outline dispute terms and undisputed aspects.

Relevant Facts

• Relevant facts prove facts in issue, also known as 'circumstantial evidence'.
• Example: Eyewitness testimony best proves if A shot X. If unavailable, finding the gun in a car is a relevant fact, assisting in proving the fact in issue.
• Cargo delivery delay example: A document showing the arrival date is useful evidence, a witness statement from the harbour-master confirming the date of arrival supports the claim if a document is unavailable.

Collateral Facts

• Facts about witness competence: Evidence proving mental illness makes a witness unable to provide competent evidence.
• Facts about witness credibility: The Thomas v David case allowed disproving testimony that a witness wasn't the mistress of someone in whose favor she was giving evidence.
• Preliminary facts: Related to evidence admissibility. Example: Confessions must not be obtained through oppression. If a defendant claims torture, the court hears evidence before deciding if the confession is admissible.

Types of Evidence

• Real evidence: A material object produced for inspection, the characteristics of the object may be relevant and important. Example: Defective work or materials in a case about work quality.
• Demonstrative evidence: Supplements witness evidence, e.g., e-maps/hand-drawn diagrams, photographs illustrating a scene.
• It is brought into evidence through witness testimony.
• The question is whether photograph shows fact or merely adds weight to witness testimony.
• A witness saw a defect, and the photograph illustrates it.
• Documentary evidence: Evidence in written form and includes, printed, handwritten, or computer-generated materials (maps, photos). Like demonstrative, admissibility and weight depend on witness authentication.
• A document proves its contents, existence, or condition (real evidence).
• Documents with human language/hearsay present special problems under common law.
• A contract shows the agreement between parties and in the specified form with specified terms.

Parol Evidence Rule

• The 'parol evidence rule' in common law excludes evidence outside the contract to interpret its terms. This includes minutes of contract negotiation meetings.
• Written instruments are viewed as a parties' complete mutual understanding, and cannot be challenged by past or contemporary evidence. This is not applicable in Civil Law.

Oral Evidence (Testimony) and Hearsay

• Testimony: An oral statement of a witness made on oath during a hearing, providing evidence of what's said. It is normally direct evidence of firsthand knowledge (what the witness experienced through their senses).
• This differs from hearsay and circumstantial evidence.
• "“hearsay’ means a statement made otherwise than by a person while giving oral evidence in the proceedings which is tendered as evidence of the matters stated and (b) references to hearsay includehearsay of whatever degree.”".
• Multiple hearsay: A tells B about a traffic accident, B tells C, and C tells what B recounted about A's recollection of the accident.

The Rules of Evidence in Arbitration

• Court evidence rules include relevance, admissibility, burden of proof, weight of evidence, order of evidence, privilege, hearsay, written evidence, documents, witness evidence, and expert evidence.
• Understanding evidence and its underlying concepts is important for arbitrators, even when 'rules' aren't binding.
• The arbitration analytical process for deciding dispute facts:
• What the referring party alleges.
• Which facts the responding party disputes.
• Which party bears the burden of proof for each disputed fact.
• What is the evidence that the party providing the burden of proof provides?
• What is the incontrovertible evidence of the disputed facts?
• In the absence of incontrovertible evidence, what evidence does the party refute the allegation?
• Whose evidence does the arbitrator prefer?

The Rules of Evidence in Common Law and Civil Law Jurisdictions

• Common law is ‘adversarial’: The judge is a neutral arbiter, the parties lead proceedings, and the judge doesn't investigate the subject matter, but ensures procedure is respected. The judge doesn't interrogate witnesses, but monitors whether questions are relevant. The judge decides cases based on convincing presentations.
• Civil law is ‘inquisitorial’: The judge examines witnesses, parties have limited cross-examination rights. The judge plays a more active role, clarifying issues and helping parties argue. The court clarifies issues and helps parties argue. The judge ensures truth in available evidence, initiating evidence introduction and potentially ordering parties to disclose it. The judge decides justly after determining definitive truth.
• With respect to legal issues, civil law follows ‘jura novitcuria’ (Court knows the law), meaning parties need not plead the law.
• In civil law, there is no analysis of proof admissibility. The judge has a discretion to determine evidence admissibility, by applying personal evaluation. In court law, there is law. Precedents may exist for and against each are distinguished.
• Common law and civil law procedures are different in many aspects (establishing facts, service of documents, rules on admission, weight of evidence, witness statements, position of court experts, and standard of proof).
• Some say that distinctions between laws are overgeneralized.
• USA law is different than England law and Germany and france also differ
• A harmoniced approach is required for many aspects of evidence to permit concentrated generalization of the common aspects and not the differences of Civil and Common Law
• Differences in tradition include production/disclosure of documents, treatment of witnesses and expert evidence.
• Adverse interference (silence of a party or failure to comply with a request from the arbital is followed by arbitrator coming from different cultures and systems.

Protocols and Guidelines

• Arbitration may be referred to protocols and guidelines which aide in referring Assessing evidence:
• Bar Association (IBA) Rules on the Taking of Evidence in International Arbitration
• Ciarb Protocol is used for: E-disclosure in Arbitration, Use of a party appointed experts
• UNCITRAL Notes on Organizing Arbitral Proceedings
• The IBA Rules on the Taking of Evidence in International Arbitration: Each party shall be entitled to know

Assessing Evidence

• Circumstantial Evidence
• Explained before: oral, documentary or real
• One strand may be to weak but several cords add sufficient strength
• Three circumstances of low impact may be significant when combines together
• Relevance
• Fudnamental for understaning evidence
• Proof or disptove must fall upon any other rule provided
• Lord Simon’s defines evidence to be relevant if “evidence is relevant to prove any specific matter”
• Section 55 provides how evidence must be accepted in proceeding

Assessment of Evidence

• Arbitration is the first for admission, but not easy to separate from other factors
• Arbitrators are reluctant to limit the submissions of evidence and often over allow parties to present evidence, this leads may lead to introduction of questionable relevance
• One may get set aside when “unable to present a case”
• Parties much give a fair opportunity for being heard
• National Arbitration rules do not counterbalance the arbital proceeding
• The Evidence must prove to disprove in order to introduce evidence from “Court” and only relevant will stand in court.

The admissibility criterion assessment

• the admissibility criterion functions through rules of exclusion - trier-of-fact may attach undue weight to particular types of evidence (e.g. hearsay), or on the belief that certain values or interests need to be protected (e.g. privileges)
• the legal systems in many countries must be specific (legal system need only apply as otherwise per agreement by parties)
• the determination may serve as a ground for it to be refused in admission or excluded from evidence if already admitted
• (e.g. non-compliance with the terms established by the tribunal for submissions) and exclusion on the grounds of inadmissibility

Hearsay is often exclusionary rules.

• Rules are applicable at all times
• The evidence act may require admissible, however, it may remain inadmissible.
• It may remain inadmissible for evidence will be excluded, then it is not.
• If the significance of hearsay evidence is largely weighted which may be raised on abrasion
• Significant may be weight and abrasion
• The exclusion and significance of relevance may be limited as inadmissible.
• Example of the statement being heard in civil, while the laws of other traditions state they are admissable
• Arbitration must regard to any circumstances and drawn to reliability of what otherwise is required.

Weight

• The most basic is what degree the statement has been presented to bear
• Factors of support can assist with the evidence produced
• Testimony and plausibility will provide what circumstances has occurred
• An account must be taken on below

Section 4 provides specific issues

• It may not be reasonable for the parter on hand
• The original must be present
• There may be multiple hearsay
• No one may conceal any misinterpretations involved
• The statement must be as its own and collaborative
• The statement must not provide proper evaluation of its value

Impeaching

• Impeaching often permits the laws to be supported by evidence
• It must have it’s own rules to permit evidence where it is not given for the account by the person
• If it has been convicted
• Or if the evidence statement is incomplete

Assessment

• How to assist arbitrator
• What are the far civils when considering evidence
• The issues
• A definition from the definition of hearsay
• Define what Is of relevance
• What does it means to have something waighter?
• Can Hearsay Be excluded?
• Degrees of the state?