Justice, Efficiency and Fairness in lnternational Arbitration Procedures for the Taking of Evidence: A "Rosetta Stone" for Civil Law and Common Law Lawyers

Abstract

International arbitration has flourished over the last two decades as an essential alternative forum to domestic courts for resolving cross-border commercial and investment disputes. Nevertheless, the rules for taking evidence in international arbitration remain fragmented, without a harmonised set of rules. Arbitral rules (both institutions’ rules and the United Nations Commission on International Trade Law Rules on taking evidence vary and tend to be drafted broadly to leave discretion to arbitral tribunals to decide the applicable evidentiary rules.

In an international arbitration involving counsels and arbitrators from civil and common law jurisdictions, the parties may question the evidentiary procedures that should be applied. While this situation is less likely to arise in international arbitration with sophisticated and experienced counsels of international law firms with vast networks, other counsels who were legally trained and practised in a particular jurisdiction may only be familiar with the procedures applied in their home jurisdictions (e.g. in civil procedural and domestic arbitration laws). Hence, feeling disadvantaged, such counsels may contest unfamiliar procedures adopted by the arbitral tribunal.

One may claim that such an argument may not arise given the existence of the International Bar Association Rules on the Taking of Evidence in International Arbitration, which are often suggested as being universal and balanced. However, civil law practitioners opine that the IBA Rules lean more towards the common law procedures and, therefore, introduce the Prague Rules on the Efficient Conduct of Proceedings in International Arbitration and the Gangnam Arbitration Model.

In this doctoral thesis, I seek to explain the divide between civil law and common law lawyers in international arbitration regarding the procedures for taking evidence. I explore and analyse the different procedural approaches in selected arbitral institutions’ rules, the soft laws, as well as the civil procedural laws and arbitration laws of selected jurisdictions (i.e. Singapore, the United States, England, the Netherlands, Germany, and France). I argue that regardless of the legal system, most evidentiary procedures can similarly achieve justice, fairness, and efficiency for disputing parties in international arbitration.

In light of this divide, arbitral tribunals face adaptation and resistance. Indeed, the evolution of international arbitration struggles similarly with these two forces. In this doctoral thesis, I propose a structured approach to functional analysis grounded in justice, fairness, and efficiency. In a practical sense, arbitral tribunals should embrace transparency by explaining the rationale for choosing a specific procedure and its practical application in the arbitrations to the disputing parties as a way to bridge the divide and minimise any potential conflict during the proceeding or post-award (i.e. set aside or challenge to enforcement).

Date of Award	13 Aug 2025
Original language	English
Awarding Institution	City University of Hong Kong
Supervisor	Julien Laurent CHAISSE (Supervisor)