Range of Options for Evidentiary Process Sample Clauses

Range of Options for Evidentiary Process. ‌ There are important differences in methodology in the approach to taking of evidence and the weight that each legal system gives to oral or documentary evidence. When these differing methods are applied in international arbitrations, they can have a significant influence on the outcome of an arbitration. In common law jurisdictions the emphasis is on the parties who are required to introduce all the relevant evidence in their possession associated with the issues of the dispute in the proceedings. The approach in these jurisdictions adopts procedure involving oral evidence and hearings. Civil law jurisdictions are characterized by the inquisitorial method, which focuses on the active role of the arbitrator. This approach involves the tribunal investigating the case, establishing the facts and the law while the parties and their counsel assist in this process. The parties are not required to present all the relevant evidence and may withhold documents that are not in their best interests. There is greater emphasis on written evidence and documents rather than the necessity for oral explanation of the evidence to the tribunal during the hearings. In practice, party autonomy and flexibility provides a means to adopt a procedure that is a combination of both legal systems thereby achieving a fair and efficient method for the parties in taking of evidence. The International Bar Association (IBA) Rules on the Taking of Evidence in International Arbitration (“IBA Evidence Rules”) can provide a means to bridge the gap between the diverse legal backgrounds and cultures in arbitration.
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