Third Party Evidence Gathering „European Style“– and a word of caution on data protection

1. Third Party Evidence Gathering „European Style“– and a word of caution on data protection Balz Gross combar - North American Meeting | Vienna

2. Local Court: Germany Singapore Court SingaporeArbitral Tribunal Local Court: Switzerland Party AThailand Party BFrance

3. Obtaining Evidence from Third Parties At the Request of the "Juged'Appui" | Court of Seat of Arbitration At the Request of the Arbitral Tribunal At the Request of a Party

4. Request from Court Arbitral Tribunal requests local judge at the seat of the arbitration to request the foreign court to obtain evidence Arbitration Law must provide for a right of the Arbitral Tribunal to make a request the local judge at the seat of the arbitration (e.g. Model Law, article 27; Singapore, International Arbitration Act, schedule 1, article 27; Switzerland: Private International Law Act, article 184 para. 2) Right of the local judge at the seat of the arbitration to request the local judge at the place of the evidence to obtain it: Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (Hague Convention) Timing issues Limitations (reservations re fishing expeditions; form of witness questioning)

5. Direct request from the Arbitral Tribunal Arbitral Tribunal directly requests the foreign court to obtain evidence 1. Through Hague Convention procedure • Does an Arbitral Tribunal qualify as a court within the meaning of the Hague Convention → unclear; local law at the place requested court 2. Through local procedure • Court assistance in obtaining evidence (Model Law, article 27) • Does local law at the place of the requested court allow direct assistance to foreign arbitral tribunals? • Switzerland: Private International Law Act, article 184 para. 2 No (?) • Germany: Civil Procedure Act, article 1050: Yes Timing issues (only with Hague procedure) Limitations (reservations re fishing expeditions; form of witness questioning)

6. Request from a Party Party directly requests foreign court to obtain evidence. Normally no independent right of the party to request the foreign court to obtain evidence, e.g. Italy New continental European provisions on 'securing of evidence’ • Swiss Civil Procedure Code, article 158): Court orders taking of evidence if the applicant shows that it has a legitimate interest. • French Code de Procedure Civil, article 145 (only pre-trial) Provisions on preliminary measures → substantive or procedural right to evidence?

7. Data Protection: A word of Caution for EU-countries from a non EU-National General Data Protection Regulation (GDPR) implemented as from May 25, 2018 Generally also applies to arbitration proceedings, seated in the EU • consent of individuals to use their data needed (witnesses, experts, persons mentioned in documents?) • Obligation to process data according to GDPR Problem: Absolute right to access one‘s own data: Individuals, arbitrators, … Problem: Consent can be withdrawn any time -> evidence has to be removed? Requirement to protect data -> direct obligation of tribunals and counsel? Exemption for Arbitration needed. Exists in Ireland, Switzerland

8. Dr. iur. Balz Gross, LL.M. balz.gross@homburger.ch T +41 43 222 16 39 www.homburger.ch Homburger AG │ Prime Tower │ Hardstrasse 201 │ CH-8005 Zürich