ACICA45 Webinar: Lifecycle of an Arbitration Series — Evidence in Arbitration
On 27 August 2020, the third webinar of the ACICA 45 Lifecycle of an Arbitration Series was held. Peter Sadler, lawyer at Quinn Emanuel moderated the discussion between the speakers: Bruce O’Shea, Partner at KordaMentha, Cara North, Consultant at Lipman Karas, and Tim Breakspear, Barrister at Banco Chambers.
The discussion centred around evidence generally, what it is, where it fits in and how we should be thinking about it in the context of international arbitration.
Have a Purpose:
The speakers discussed a dynamic framework for setting out the evidentiary task which considers the purpose of evidence:
- Claims: start by identifying the claims setting them out in the notice of arbitration and the notice of dispute, well before pleadings exist.
- Legal Framework: it is critical to work out the legal framework such as the contractual terms, their proper interpretation, the elements of the causes of action and the juridicial basis for defences.
- Assessment: taking the legal framework and using it as the prism through which you view the factual landscape. What are the crucial facts the tribunal needs to find? What is disputed? Make a list of the essential evidence, and then choose the forms (document, witness, expert). There are no rules of evidence but do not lose sight of the need for evidence to be persuasive.
- Themes: identify the common themes and ask what context and perspective should you seek to bring to those facts? This is about advocacy and forensic choice.
- Narrative: the overall case theory and narrative set out primarily in submissions.
Know your audience:
It is important to have a detailed understanding of the composition of the tribunal, their expectations and the assumptions they will come with, so as to know how best to present the evidence. Consider what they come from. The common law system places greater emphasis on oral evidence as compared to the civil law system which places more emphasis on documentary evidence. In civil law jurisdictions court appointed experts are considered more impartial and credible. There are some jurisdictions where expert witnesses are partisan and cannot be expected to be impartial as in other jurisdictions.
There are also differences in the way foreign law is considered in the two jurisdictions as well, with it being a matter of law in civil jurisdictions, and a matter of fact in common law jurisdictions.
Get across the Evidence:
It is crucial to ensure you have read all the evidence in the detail, have identified risks and made informed forensic judgements. This allows you to get a broader framework of the events of the case and the persuasive course of steps. Preparing for cross-examination depends on the particular scenario. Witness preparation is important and is part of the process for obtaining reliable and persuasive evidence. It is mainly ensuring familiarity with the documents as the tribunal and the counsel will rely upon the documents. The visualisation of data, using models and images, is very helpful to bring the report to light and assist the tribunal to have a detailed understanding of the expert witness.
A useful judgement which gives some practical guidelines regarding witnesses and cross-examination is a recent decision in the Court of Appeal of the Republic of Singapore Ernest Ferdinand Perez De La Sala v Compañia De Navegación Palomar, S.A. and other appellants,  SGCA 16.
Author: Jana Thoumi, ACICA Intern