The discussion focused on the new Prague Rules as the main alternative to the existing IBA rules in obtaining evidence in international commercial arbitration. The idea of new evidentiary rules is to make the whole procedure cheaper and shorter.
“… From the civil law perspective, the IBA Rules are still closer to the common law traditions, as they follow a more adversarial approach with document production, fact witnesses and party-appointed experts, as well as the party’s entitlement to cross-examine the witnesses being taken almost for granted. Moreover, many arbitrators are reluctant to actively manage arbitration proceedings, including earlier determination of issues in dispute and the disposal of such issues, to avoid the risk of a challenge. These procedures contribute greatly to the costs of arbitration, while their efficiency is rather questionable” – stipulates the Declaration on Development of Prague Rules-Inquisitorial Rules of Taking Evidence in International Arbitration.
During panel discussion, Mrs. Perepelynska explained the key shortcomings of the existing cross-examination procedure – the system of witness examination traditional for the common law countries. In her arguments, she draw attention to the critics of this system by English barristers, including Toby Landau, which, in its turn, is based on scientific research on functioning of the human brain and memory. Even if all UK ethical standards of communications between the counsel and witness are complied with, and the witness is genuinely honest, the very manner of preparation of written witness statement and subsequent cross-examination essentially affect the way of person’s perception of information and its comparison with real events. Olena stressed that among the countries of Roman-German law there is already a request and the need for creating alternative examination procedures.
“The changes would be especially useful in the proceedings involving respondents from CIS countries, since they effectively use IBA Rules to delay and complicate in essence hopeless cases. The Prague Rules will provide the arbitrator with more effective case-managements tools to tackle such abuses and speeding up the resolution of the dispute“, – the lawyer summed up.
Olena Perepelynska also moderated the panel session of the Forum with representatives of major European arbitral institutions. The panelists discussed the role and practice of different institutions in various the evidentiary matters, arising primarily at the post-award stage – during settings aside or enforcement proceedings: authority of parties’ representatives, notification of the parties, appointment of arbitrators; as well as scrutiny of the awards and assistance of the institutions with various formalities for enforcement purposes upon the parties’ requests.
The Eastern Europe Dispute Resolution Forum (EEDRF) is an international event bringing together lawyers from 20 countries around the world to discuss key topics related to dispute resolution in international commercial arbitration and state courts. The forum is supported by leading law firms, the Arbitration Association (Moscow, Russia), the Ukrainian Arbitration Association and the Association of International Law and Arbitration (BILA).
Olena Perepelynska is Partner at INTEGRITES, President of the Ukrainian Arbitration Association, RAA Board Member and Fellow of the Chartered Institute of Arbitrators (FCIArb). Olena is listed as arbitrator at leading arbitration institution in Austria, Belarus, the Czech Republic, Georgia, Hong Kong, Kazakhstan, Kyrgyzstan, Lithuania, Malaysia, Poland, Romania, and. Vietnam. She is also member of the Prague Rules Drafting committee.