Module 3 Chapter 2: Arbitration Awards & Article V of the New York Convention

• This study guide explains the role of evidence in decision-making for arbitrators.
• It outlines the requirements for an enforceable arbitral award.
• It suggests an award structure that reflects the reasoning involved.

Arbitration Awards

• There is no set format for arbitration awards due to the process's flexibility.
• The award should benefit the parties in the dispute more than satisfy the arbitrator.
• The award structure must be determinative and enforceable, guiding the reasoning of the decision.
• An arbitrator must remember that the award should be enforceable to avoid annulment.
• Awards exemplify fairness, equality, and respect for procedure, to prevent attacks against it.
• Arbitrators in international arbitration should consider Article V of the New York Convention from appointment to publication of the award.

Article V of the New York Convention

• Provides grounds for refusing recognition and enforcement of an award if proof exists that:
  • Parties lacked capacity or agreement wasn't valid under applicable law.
  • The party wasn't properly notified of arbitrator appointment or proceedings, hindering their case.
  • Deals with matters beyond submission terms; unless separable, only submitted matters are recognized.
  • The arbitral authority/procedure didn't align with party agreement or the law of the arbitration location.
  • The award isn't binding yet, or was suspended by the relevant country's authority/law.
• Recognition/enforcement can also be refused if the subject is not arbitrable or if it violates public policy in the country where recognition is sought.

UNCITRAL Model Law

• The study guide is updated to reflect the 1985 UNCITRAL Model Law on International Commercial Arbitration, with 2006 amendments.
• The UNCITRAL Model Law standardizes international commercial arbitration law, adopted by various legal systems.
• The Model Law's broad adoption makes it familiar to arbitrators, counsel, and parties globally.
• CIArb uses the Model Law as a basis for international training in arbitration law.
• Arbitrators use laws/rules relevant to the case, not only the Model Law.

Chapter 2: Evidence

• The 'Rules of Evidence' is vital in decision-making for tribunals, courts, arbitrations, and adjudications.
• Courts prescribe 'rules' , and common law jurisdictions use precedent decisions.
• Arbitration 'rules' may bind arbitrators, aiding evidence evaluation for the award.
• 'Rules of Evidence' serve as arbitrator guidance for reviewing submissions, assisting fact/law findings to decide issues.
• Key aspects of evidence law include the purpose of evidence, facts and evidence types, and rules of evidence with applications.

Learning Objectives

• Explain evidence relevance in arbitration decision-making
• Describe the 'rules of evidence' for common law and civil law jurisdictions.
• Explain differences between facts in issue, relevant facts, and collateral facts.
• Describe types of evidence and their importance.
• Describe hearsay evidence, guiding how to weigh it.
• Explain relevance/admissibility concepts in evidence.
• Apply these concepts to evaluate evidence in arbitration.

Aim of Evidence

• Evidence comes from Latin 'evidentia,' for clear demonstration, discovery, proof.
• It serves to prove/disprove a fact.
• Proving a fact's existence falls on the party alleging it.
• Disproving a fact's existence falls on the party denying it.

Evidence

• Evidence is presented to prove/disprove issues, satisfying the court of a disputed fact's truth.
• Keane defines evidence as "Information by which facts tend to be proved."
• Law of evidence regulates how facts are proved in courts, tribunals, and arbitrations with strict rules.
• Evidence supports a tribunal in determining disputed facts and issues, including expert opinion.
• The law of evidence governs facts considered in court, securing consideration of these facts, and which party secures the consideration of.

Evidence Management

• Arbitrators ensure time efficiency, while representatives present evidence relevantly, understandably, logically, and effectively.
• Arbitrators benefit from including only submission-referred evidence, and chronological, paginated, annotated documentary evidence.

Basic Concepts

• There are three types of facts in Basic Concepts: Facts, they are provable or disprovable by evidence.

Facts in Issue

• Facts in issue are critical for the referring party, such as proving a contractual relationship or breach.
• In negligence allegations, facts in issue establish breach and resulting damages.
• Identify facts in arbitration from the referral notice, outlining non-disputed terms.

Relevant Facts

• Relevant evidence proves the 'fact in issue' exists, known as 'circumstantial evidence'.
• An eyewitness directly proves facts, but circumstantial evidence, like finding a gun, can also prove the 'fact in issue'.
• Evidence of delayed cargo delivery includes the arrival date or a harbour-master witness statement.

Collateral Facts

• Competence of witnesses impacts their ability to provide evidence.
• Credibility of a witness can be supported or undermined by examples such as the case of Thomas v David.
• Preliminary facts involve admissibility, like confessions needing to be free of oppression for admission.

Types of Evidence

• Forms of evidence include real, demonstrative, documentary, and testimonial evidence.

Real Evidence

• Real evidence involves tangible objects for inspection, relevant in assessing the work's quality or defects found.

Demonstrative Evidence

• Demonstrative evidence includes e-maps, diagrams or photos, to supplement testimony, illustrating occurrences.
• Weight is added to the witness's view of the defect being demonstrated, not as independent evidence.

Documentary Evidence

• Documentary evidence includes written, printed, or computer-generated materials.
• Like demonstrative evidence, admissibility and weight rely on witness authentication.
• Documents may prove content truth, existence, or condition (regarded as real evidence).
• Documents can present special problems regarding hearsay.
• A contract proves party agreement terms, fitting real and documentary evidence.
• Extrinsic evidence beyond the contract is limited by the 'parol evidence rule' in common law.
• A written instrument expresses mutual understanding, unchallenged without consent issues.
• Civil law lacks an equivalent rule.

Oral Evidence

Testimony and Hearsay

• Testimony involves witness statements under oath, offered as truth.
• Direct evidence comes from first-hand sensory experiences.
• This differs from hearsay and circumstantial evidence.
• Hearsay is a specific type of testimony, using statutory definitions like the Civil Evidence Act 1995 (E&W).
• A statement not made by a witness during proceedings is considered hearsay when offered as truth.
• Original evidence proves a statement was made, unlike hearsay that proves its contents are true.
• "Multiple hearsay" involves recounting an event through multiple people.

Rules of Evidence in Arbitration

• Rules of Evidence in Arbitration cover evidence relevance/admissibility, burden of proof, weight, order, privilege, hearsay, documents, witnesses, and expert opinion.
• Understanding evidence concepts is crucial for arbitrators, even though 'rules' are non-binding.
• Questions the arbitrator asks in analysis for factual decisions include:
  • Facts are alleged by the referring party?
  • Which facts are disputed by the responding party?
  • Which party is burdened with proof per disputed fact?
  • What evidence is supplied by that burdened party?
  • Is any disputed fact conclusively proven?
  • How does the other party attempt to rebut alleged, unsupported facts?
  • Which party does the arbitrator favour?

Rules of Evidence in Common Law and Civil Law Jurisdictions

• Common law is 'adversarial' with a neutral judge, while civil law is 'inquisitorial' with an examining judge.
• Common law's judge ensures procedure, civil law's judge clarifies issues.
• A judge in civil law establishes truth based on evidence, not just stronger arguments.
• Civil law pleads no law, deferring to the court's knowledge versus common law using precedents.
• Civil law procedures differ in determining facts, admissions, evidence, and experts, compared to common law.

Evidence assessment

• Evidence is weighed and admitted in Civil Law and Common Law traditions.
• Uniform approaches in evidence exist, focusing on admissibility, proof burden, presentation methods.
• Traditions differ on doc production, disclosure, and handling witness expertise.
• Over-emphasizing differences pertaining to evidence national assessment should be avoided.
• International Tribunals seek to harmonize procedure, providing equal representation within submissions.
• Arbitrators may infer from a party's silence/non-compliance when requesting document production or witness testimony.
• Protocols and guidelines, like IBA rules, help assess evidence in domestic and international arbitration.
• These rules are key when the tribunal, counsel, and parties come from different legal backgrounds.

IBA guidelines

• The IBA Rules on Taking Evidence ensure parties know the evidence the other parties will rely on in advance of the evidentiary hearing.

Relevance concepts

• Circumstantial evidence combines strands of evidence to strengthen proof, as Pollock CB illustrated (R v Exall).
• Evidence must be relevant and admissible.
• Evidence is relevant "if it is logically probative or disapprobative of some matter which requires proof" (Lord Simon in DPP v Kilbourne).
• Evidence is relevant if it can rationally affect the probability of a fact in issue (Evidence Act 1995 (NSW)).
• Irrelevant evidence relates only to witness credibility, admissibility of other evidence, or failure to adduce evidence.

Arbitrators

• Arbitrators avoid evidence limits but ensure parties can present cases, but the award can be set aside if a party was unable to present the case
• Parties deserve a fair chance to present, not guaranteed success and a tribunal can consider evidence irrelevant if the hearing becomes excessively delayed.
• National laws protect a party's right to be heard, which don't let arbitrators rule based on relevancy.
• Risk is thus associated with irrelevancy-based refusal to admit if evidence presented by a party is connected to irrelevancy.
• Evidence must prove or disprove an issue to be admissible.
• Irrelevant evidence adds confusion, hindering matter resolution.

Admissibility criterion

• The admissibility criterion excludes evidence based on potential trier-of-fact bias (hearsay) or need to protect values/interests (privileges).
• Legal systems differ in admissibility limits, where laws may have specific rules.
• It is debated whether rules are "procedural" versus "integral", affecting arbitrator obligation.
• Arbitrator discretion is limited by int'l public policy (torture), privilege/secrecy, and trade.

Privilege

• Privilege rules protect information from required disclosure, even if relevant/reliable.
• Holcombe v Hewson is an old case of irrelevant evidence: plaintiff can't prove supplying good beer and then call publicans to testify to breach of selling bad beer.
• Relevant evidence has admissibility requirements.
• Legally admitted evidence is considered "admissible".
• Relevant but inadmissible evidence may be excluded by public policy (national security).
• Main categories of inadmissible evidence are opinion (non-expert) and specific rules on expert witness testimony.

Questions to Ask

• Privilege rules affect evidence admissibility via confidential legal conversations/documents.
• Evidence questions involving relevance and exclusionary rules are handled with arbitrator discretion (can ignore).
• Arbitrators must be cognisant of rules/prejudice without them.

Admissibility in Arbitration

• International arbitration recognizes general admissibility of relevant evidence, drawing from common law (USA evidence law).
• Generally, relevant evidence is admissible unless against mandatory rules or party's agreement.
• Deciding to 'admit'/'exclude' evidence broadly means evaluating and assessing evidence to decide the case.
• Arbitrators consider admissibility the most general condition for evidence to be admitted.
• Once inadmissible, a ground for it to be refused in admission or excluded from evidence if already admitted is created.
• Procedure grounds (tribunal submission terms) must be distinguished from inadmissibility exclusions.
• Parties/tribunals can demand timely evidence submission, and tribunals can refuse submissions made after and evidence non-compliance affects evidence properties and can be admitted if with procedural fairness.
• Arbitrators may still adjourn the hearing even where there is no exchanged documents.

Hearsay

• It can be exclusionarily rule and is applicable in some jurisdictions.
• The rule against admissibility has been abolished in some jurisdictions, and such is governed by legislation.
• Hearsay evidence was inadmissible in civil courts until 1995 in England and Wales.
• The Civil Evidence Act 1995 (CEA) admitted hearsay evidence.
• Hearsay may be inadmissible for another reason, not the merit that it is inadmissible.

Civil Law

• Hearsay is only used in oral law, rare in arbitration.
• Oral evidence is excluded in civil and commercial cases (France - no cross-examination).
• Civil law actually imposes hearsay, like unproven correspondence and statements.

Evidence Law

• Legislation removes common/civil law courts' distinctions for hearsay.
• Traditions value legislation and arbitrators apply its weighing factors to support rulings in the assessment of evidence.
• Where applicable, hearsay rules require clear identification and advance intention notice.
• Those offering hearsay must be competent.
• Those mentally/physically unfit or lacking understanding can't offer evidence.

Weight

• The weight to be assigned to it is a concept considered for this stage.
• Judges weigh evidence unlike admissibility (law), weight is weighed in fact.
• 'Weight' describes the cogency/probative worth of evidence.
• These factors may assist judge common sense with evidence weight:
  • Extent of support/contradiction.
  • Demeanour, credibility, plausibility
  • Hearsay and its civil code. -Credibility, reliability, honestly.
• Weight resembles "a question of degree".
• "Degree" has an effect on the party as well.
• Conclusive weight needs regard.
• In cases of two colliding events.
• Witnesses may need to be called on the stance for its belief.
• There need to be honesty and not too much nervousness.
• A framework has the framework.

Hearsay Evidence

• Legislation, like the CEA (E&W), guides hearsay evidence's weight and provides guidance followed by UK arbitrators and others.
• Section 4 provides guidelines for court estimations in civil proceedings to be followed and that these considerations can be regarding (1) practicality, (2) contemporaneous statements, (3) whether there a multiple hearsay event, (4) motive, (5) if there any suggestion of evaluation or weight.

Impeaching Creditability

• Legislation lets an individual damage a witness or help them by supporting the statement through permits.
• This applies when in court not to give evidence based on previous crime, bias, or statements.

Docs Within

• Some Singaporeal law differentiate based on Docs that are available in the records/authority.
• If that is so, there should be authentic copying.