Young ICCA Skills Training Workshop: Evidence in International Arbitration

Post Event Report

By April Gaye Suller, Associate at Sycip Salazar Hernandez & Gatmaitan.
 

On September 19, 2018, Young ICCA organized for the very first time in Manila, Philippines a skills training workshop on evidence in international arbitration. The workshop was generously sponsored by Quisumbing Torres and SyCip Salazar Hernandez & Gatmaitan, and was organized by a Steering Committee composed of Mr. Michael Macapagal and Ms. Camille Bianca Gatmaitan-Santos of Quisumbing Torres, and Mr. John Christian Joy Regalado of SyCip Salazar Hernandez & Gatmaitan. The workshop was attended by a number of lawyer-participants, who are young international arbitration practitioners. April Gaye Suller reports.
 

The guest of honour speaker was Dr. Michael Hwang, a seasoned Barrister and Arbitrator, with main focus on international arbitration and mediation.
 

The workshop began with a warm welcome speech delivered by Ms. Charis Tan of DWF, Singapore, and Events Coordinator at Young ICCA. Ms, Tan introduced Young ICCA and ICCA's programs and activities . The workshop was divided into three sessions. The first two sessions were conducted by four speakers over two panels moderated by Mr. Macapagal and Mr. Moses Wanki Park of Liberty Chambers, Hong Kong, with the guest of honour speaker, Dr. Hwang provding his inputs for each panel. In the afternoon, speakers and moderators guided the participants in accomplishing the practical exercises on document production in international arbitration.
 

First Session – Written Evidence in International Arbitration
 

As the participants composed mostly of young lawyers with little to no international arbitration experience, Ms. Tan started the first session with a brief overview or walk through of international arbitration proceedings. Thereafter, she situated the relevance and purpose of evidence presentation in international arbitration proceedings, which, in a nutshell, is to tell the parties’ individual stories of the dispute. Ms. Tan then discussed: (i) the rules of evidence, or lack thereof, in international arbitration, (ii) the IBA Rules on Taking of Evidence (the "IBA Rules") with particular focus on Article 3 on documentary or written evidence; (iii) presentation of written evidence; and (iii) use of other discovery procedures to aid requests for written evidence. During Ms. Tan’s discussion, Dr. Hwang emphasized that while as a rule, there is are no specific rule of evidence governing evidence presentation in international arbitration, the IBA Rules have become an industry standard or virtually required, and can be said to be the controlling rule as of date. Dr. Hwang noted that the use of IBA Rules have in fact been used a justification or defense against a petition to set aside an award that is generally based on a procedural flaw. Ms. Tan and Dr. Hwang also emphasized the main tests in evidence presentation in international tribunal, which are (i) relevance to the issue; and (ii) materiality to the outcome.
 

Thereafter, the second speaker, Mr. Regalado, localized Ms. Tan’s discussion and discussed admissibility issues in international arbitration in comparison with court litigation in the Philippines. Mr. Regalado noted that except for technical objections, admissibility issues in international arbitration are similar to admissibility rules in court litigation. In particular, Mr. Regalado discussed the applicability of court litigation rules on relevance, materiality, legal privilege (depending on what laws apply in international arbitration), confidentiality and fairness in international arbitration. Mr. Regalado also discussed available interim reliefs or court assistance in evidence taking. During the panel’s Q&A, the question of timing of objections on evidence presented was raised. Mr. Regalado pointed that, unlike in court litigation where parties formally offer their evidence and objections are raised in the comments on the formal offer, in international arbitration parties are required to request for the exclusion of evidence objected. On this point, Dr. Hwang noted that there are no prescriptive rules on admissibility in international arbitration, and requests for exclusions are always left to the discretion of the tribunal.

Second Session – Witness Evidence in International Arbitration
 

The second session focused on witness evidence with Ms. Smitha Menon of Wongpartnership, Singapore, and Ms. Sheila Ahuja of Allen & Overy, Singapore as speakers, and Mr. Park as moderator. The session went about with Mr. Park asking questions on particular issues on witness presentation and the speakers and Dr. Hwang providing his inputs and advise.  The discussions covered considerations and procedures involved in witness presentation, which include witness preparations, witness statements, witness examination and presentation of expert witnesses. On witness preparation, the discussion highlighted some pointers to have an effective witness, which include confidence building, allowing the witness to delve into the evidence on his own and understand how he fits in the scheme of things, and questioning the witness’s story while being careful in not teaching the witness what to say. The discussions also covered some practical tips on witness presentation and statements, which should always begin with the question: “do you really need a witness?” Ms. Ahuja emphasized, especially in commercial arbitration, that documentary evidence has generally more weight than oral evidence. Thus, if a document can speak for itself, a witness may not be necessary. On witness statements, the speakers noted the common misunderstanding of a witness’s role and the pitfall of having argumentative witness statements. They stressed that a witness’s job is not the lawyer’s job (that is to argue the case). On examination of witnesses, similar to written evidence, a main point to consider is the necessity of cross-examining a witness or challenging a point of fact, which is better availed of only if necessary. Dr. Hwang also gave a useful discussion on presenting expert witnesses through hot-tubbing and outlining a process on how to better manage expert witnesses and break-down their testimonies into something that is easy for non-experts to digest.
 

Practical exercises on document production in international arbitration
 

Following the two sessions, the participants had the opportunity to put their knowledge into practice through the practical exercises on document production.  The participants were divided into teams and given the same set of factual background and scenarios where they were asked to come up with (i) a list of documents to be requested from their client following an initial meeting; (ii) an effective and efficient proposal to manage documents from a client; and (iii) a list of additional documents to be produced by a counter-party. For each practical exercise, each team discussed their findings with the group as the speakers, moderators and Dr. Hwang gave their comments and practical advice. The workshop ended with a closing remark delivered by Mr. Donemark Calimon of Quisumbing Torres.
 

Following the workshop, the speakers and participants were invited to a cocktail reception kindly sponsored by Quisumbing Torres that provided further opportunity for discussions and interactions amongst speakers and participants.