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Fortior Arbitration Guide - Lecture 6 - Evidence and Disclosure of Documents

This lecture explains the most common procedures for disclosure and exchange of witness and expert evidence in international arbitration.


In this lecture, I will discuss the standard procedure for witness evidence, expert evidence and disclosure of documents in international arbitration.

Disclosure

Disclosure is the process whereby each party submits documents relevant to its case. Usually, parties submit relevant documents upon which they rely together with their statements of case or witness statements. These documents include contracts, invoices and other documents evidencing the relevant facts. However, sometimes the party may fail to submit all relevant documents, because some of the documents may be adverse to its case. It is for the purpose of uncovering such documents, and allowing Tribunal to see the full factual background, that there is a process called disclosure.

Three Disclosure Mechanisms: 1. Redfern Schedules

There are three main disclosure mechanisms in international arbitration. The most common nowadays is the disclosure by way of Redfern Schedules. You can find a sample Redfern Schedule in our Arbitration Guide. The Redfern Schedule is a document split into columns, who’s purpose is essentially to combine all of the parties’ submissions on disclosure in one place. The first column will contain a party’s request for disclosure of specific category of documents together with reasons for the request. The second column will contain the other’s party agreement or objection for the disclosure of specific categories of documents, also with reasons. The third column will contain the first party’s reply to objections and the final column will contain the Tribunal’s ruling on the requests. Where the party agrees to disclose the category of documents or the Tribunal order the party to disclose the category of documents at the Redfern Schedule, the party normally has to disclose all relevant documents specified in the request. For this purpose, it may have to search its computers, servers, hardcopy documents and other records. Normally, all relevant search results have to be disclosed. However, search results which contain privileged information, such as emails, which are relevant to the case, or which contain legal advice in relation to arbitration, need not to be disclosed.


Three Disclosure Mechanisms: 2. Standard Disclosure

Another disclosure mechanism is equivalent to what is called standard disclosure in English Courts. Under this mechanism, each party has to disclose all relevant documents and not just those requested by its opponents. The way this process normally works is that the parties agree on the list of keywords that will be used to conduct searches. They may also agree on the email senders and recipients and the relevant search periods. Once searches are conducted, each party has to produce the list of all relevant document, excluding the privileged one. The other party may then select from that list all of the documents that it wishes to review or upon the documents must be provided for inspections.

Three Disclosure Mechanisms: 3. Specific Disclosure

Finally, there are applications for specific disclosure. In court, these are normally used where one party thinks that the other has failed to comply with its standard disclosure obligations. In arbitration, they also used where one party thinks that the other has failed to comply with an order containing in Redfern Schedule, or where after finalization of Redfern Schedules it becomes apparent that another relevant category of documents exists. This may be the case, for example, when some new documents are mentioned in witness statements. An application for specific disclosure will seek an order that certain narrow searches be conducted, and the relevant results be disclosed.


Why Disclosure Is Important?

Disclosure is important for several reasons. Firstly, if both parties comply with their disclosure obligations, it helps the Tribunal to see the full picture of the case. Secondly, it helps question or cross-examines witnesses at the final hearing. If the witness is telling the truth, his narrative will normally be supported by the documents. And thirdly, where a party refuses or fails to disclose documents, the Tribunal is entitled to draw adverse inferences, that it is entitled to conclude that the documents which party failed to disclose support the case of its opponent’s.


Witness Evidence

Factual witness evidence is important because not all background facts can be recorded in the documents. Sometimes, the relevant facts are recorded but the parties disagree as to the meaning or the fact of the record. Witness evidence is normally provided by way of exchange of witness statements, that is a document which records the witnesses’ narrative and attaches the documents upon which the witness is asked to testify. A sample witness statement is available as part of our Arbitration Guide. Exchange of witness statements normally proceeds in 2 stages: exchange of main witness statements and exchange of reply witness statements. The witness statements must be exchanged simultaneously, so that one party’s witnesses do not adapt their narratives to what the other’s party witnesses are saying. Where the party provides the witness statement from a factual witness, the other party is normally entitled to cross-examine or question the witness at an oral hearing. The purpose of cross-examination is to test whether what the witness saying is true. Lawyers will normally seek to find inconsistencies between different witness statements, witness statements and statements of case, and witness statements and documents. In order to demonstrate that what the other party’s witnesses are saying is unreliable. You can find an example of how cross-examination works in practice by following the link: www.fortiorlaw.com.


Expert Evidence


Expert evidence is evidence of a person with specific knowledge, education or experience, which might help the Tribunal to decide the case. Expert evidence will be required, for example, where a party receives a cargo of oil, but says that the quality of the cargo is inferior. An expert will then be required to confirm whether the quality was indeed inferior, in what way and how much this affected the price of the oil. Another example is where the party says that the signature on the contract is forged. An expert will then be required to confirm whether the signature is genuine. In common law jurisdictions, like the UK, exchange of expert reports normally proceeds in the same way as an exchange of witness evidence. Each party then entitled to cross-examine the other side experts at an oral hearing. In civil law jurisdictions, Tribunals sometimes refer to appoint their own experts whom they consider to be more impartial.

I hope this lecture was useful. If you require more information, please download our Arbitration Guide at www.fortiorlaw.com. Our Arbitration Guide provides more information as to how to commence the arbitration proceedings and it contains template notice of arbitration and the template response to the notice. Alternatively, get in touch with one of our lawyers at info@fortiorlaw.com.

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