国际仲裁中的证据处理

1. 国际仲裁中的证据处理 杨良宜 2013年11月于上海

2. 争议解决针对的两个问题 • Issue of Law (法律问题) • Issue of facts (事实问题)

3. 法律问题 • ISSUE OF LAW: • (i) Types of dispute (predominantly construction/ interpretation of contracts/documents). • Freedom of contract; Bingham J. in Pagnan SpA V. Feed Products Ltd (1987) 2 LLR 601: “The parties are to be regarded as masters of their own contractual fate.” • Lord Hobhouse in The “Star Sea” (2001 ) UKHL 1: “The commercial and mercantile law of England … preferring the benefits of simplicity and certainly which flows from requiring those engaging in commerce to look after their own interests”.

4. 法律问题（续） • Contractual obligations or promises are strict liability. • Limitation on freedom : (1) against public policy [Brown Jenkinson & Co. v. Percy Dalton (1957) 2 QB 621]; (2) Statutes [Hague Rules 1924/COGSO 1924/197; Control of Exemption Clause Ordinance 1984; etc.]

5. 法律问题（续） • English law does not recognize any general duty to act in good faith in the formationor performance of contracts– Wilford v. Miles (1992) 2 AC 128. • No general duty to act in good faith in negotiation – Yeoman Row Management Ltd. v. Cobbe (2008) UKHL 55. • Pros and Cons to remain in negotiation.

6. 法律问题（续） • Holman Construction Ltd. v. Delta Timber Co. Ltd. (1972) NZLR 1081; Box v. Midland Bank Ltd. (1979) 2 LLR 391; Yeoman Row Management Ltd. v. Cobbe (2008) UKHL 55. • Limitation in recoverable damages even if there is a cause of action (e.g. tort) - Lord Scott in Yeoman Row: “But, unless the representation had become a term of the contract, no one, I think, would suggest the victim could claim to be compensated for the loss of the expected profit. The tortuous damages recoverable for the deceit would be limited to consequential loss. How could the victim be entitled to a better result than if there were no contract at all ….”

7. 法律问题（续） • Lord Steyn in “The Clifford Chance Millennium Lectures [2000]” : “Thus the continental systems recognize an overarching duty of good faith in the performance of contracts. The common law achieves similar results by a resort to implied terms, rectification and estoppel”.

8. 法律问题（续） • Implied terms (based on presumed intention) in a contract as to the prevention of performance (妨碍原则[Prevention Principle]); • Cockburn CJ in Sterling v. Maitland (1864) 5 B & S 841: “I look on the law to be that if a party enters into an arrangement which can only take effect by reason of the continuance of a certain state of circumstances, there is an implied engagement on his part that he shall do nothing of his own motion to put an end to that state of circumstances, under which alone that arrangement can be operative.”

9. 法律问题（续） • Implied terms as to co-operation; Lord Blackburn in Mackay v. Dick (1881) 6 App.Cas.251: “… where in a written contract it appears that both parties have agreed that something shall be done, which cannot be effectually done unless both parties concur in doing it, the construction of the contract is that each agrees to do all that is necessary to be done on his part for the carrying out of that thing, though there may be no express words to that effect.”

10. 法律问题（续） • Implied terms vs. Express terms; Presumed Intention（默示条文的基础是假设双方有此意图） • Must yield to express term – Parker J. in Tamplin Steamship v. Anglo-Mexican Petroleum Products (1916) 2 AC 387: “It is, of course, impossible to imply in a contract any term or condition inconsistent with its express provisions, or with the intention of the parties as gathered from those provisions…” • Implied by law and implied by fact

11. 法律问题（续） • (ii) Basis of decision by arbitrator in construction / interpretation of express terms in contracts / documents - (authorities and leading texts): precedent judgments; persuasive judgments (obiter dictum); the art of distinction; rules of interpretation or construction; overall impression of judge / arbitrator, etc.; • (iii) Leave to appeal to the supervising court – one-off; affecting general public (standard form of contract); etc.

12. 法律问题（续） • Construction of ordinary language in Express Terms in documents/contracts is a question of law for purposes of procedure – Woodhouse Israel (1972) AC 741. • Many rules of construction of documents/contracts and at times conflicting with one another in application. • Often a matter of impression of the judge or arbitrator.

13. 法律问题（续） • The shift to “commercial construction” / “liberal construction” / “purposive construction” • Lord Steyn in Mannai Investments v. Eagle Star Life Assurance(1997) AC 749: “There has been a shift from strict construction of commercial instructions to what is sometimes called purpose construction of such documents. Lord Diplock deprecated the use of that phrase in regard to construction of private contracts as opposed to the construction of statutes … That is understandable…. It is better to speak of a shift towards commercial interpretation”

14. 法律问题（续） • Lord Hoffmann in Investors Compensation Scheme v. West Bromwich Building Society (1998) 1 WLR 896: “The Rule that words should be given their ‘natural and ordinary meaning’ reflects the commonsense proposition that people have made linguistic mistakes, particularly in formal documents. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had.”

15. 法律问题（续） • Lord Hope in Multi-Link Leisure Developments Ltd v North Lanarkshire Council (2010) UKSC 47:“Words… should not be changed, taken out or moved … until it has become clear that the language the parties actually used creates an ambiguity which cannot be solved otherwise.” • Lord Clarke in Rainy Sky SA and others v Kookmin Bank (2012) LLR 34: “Where the parties have used unambiguous language, the court must apply it.”

16. 中国合同法 • 中华人民共和国合同法 • 第五十四条: 下列合同，当事人一方有权请求人民法院或者仲裁机构变更或者撤销： 　　（一）因重大误解订立的；　　（二）在订立合同时显失公平的。 　　一方以欺诈、胁迫的手段或者乘人之危，使对方在违背真实意思的情况下订立的合同，受损害方有权请求人民法院或者仲裁机构变更或者撤销。 　　当事人请求变更的，人民法院或者仲裁机构不得撤销。

17. 中国合同法（续） • 第一百一十四条: 当事人可以约定一方违约时应当根据违约情况向对方支付一定数额的违约金，也可以约定因违约产生的损失赔偿额的计算方法。 　　约定的违约金低于造成的损失的，当事人可以请求人民法院或者仲裁机构予以增加；约定的违约金过分高于造成的损失的，当事人可以请求人民法院或者仲裁机构予以适当减少。

18. 事实问题 • ISSUE OF FACT: • (i) Types of dispute – past facts; future “facts”; fact vs opinion. • (ii) Basis of decision (fact-finding) by arbitrator -evidence; weight of evidence; needs not follow the rules of evidence (hearsay evidence [Civil Evidence Act 1968 / 1995]) • (iii) Finding of facts final in the first instance – Court’s interference in (a) finding of fact based on no evidence; (b) no reasonable arbitrator could reach the decision

19. 律师在证据处理中扮演的角色 • Salmon J. in Woods v. Martins Bank (1959) 1 QB 55: “It cannot be too clearly understood that solicitors owe a duty to the court, as the officers of the court, to go through the documents disclosed by their client to make sure, as far as possible, that no relevant documents have been omitted from their client’s list.” • Officers of the arbitral tribunal?? • Role of lawyer (act in the best interest of the client but legitimately and observe professional ethics/conduct); Justice is for the judge/arbitrator

20. 证据的主要类型 • 文件证据（Documentary evidence）; • 口头证据（Oral evidence）; • 专家意见证据（Opinion or Expert Evidence）.

21. 文件证据 • Meaning of “document”; Importance of contemporaneous documentary evidence. • Importance of document-management (complete record of self-serving documents; good management; avoid being sued; etc.)

22. 文件证据（续） • Sources of documentary evidence in litigation – • (i) Client’s files and records • (ii) Investigation and documents from Third Parties - Norwich Pharmacal Orders (Norwich Pharmacal v. Commissioners of Custom & Excise (1974) AC 133/Bankers Trust Orders (Bankers Trust Co. v. Shapira (1980) 1 WLR 1274); Company registry; Foreign courts and authorities; etc • (iii) Disclosure/discovery; etc., from Opponents

23. 文件证据（续） • Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters 1970; US Federal Statue 28 WC # 1782 (injunction against discovery in USA: South Caroline Insurance v. Assurantie Maatschappij ‘de Zeven’ Provincien [1986] 2 Lloyd’s Rep.317; Bankers Trust Int’l v. PY Dharmala Sakti Sejahtera [unreported] 19/10/1995); HK Arbitration Ord. s.61(1): “An order or direction made, whether in or outside HK, in relation to arbitral proceedings by an arbitral tribunal is enforceable in the same manner as an order or direction of the Court …” （只局限在针对对手与仲裁庭必须已经成立）

24. 诉前披露 I. Pre-action discovery from Opponents • Injury cases under Supreme Court Act 1981 and expanded to other cases under Civil Procedure Rules in r.31.16 [will promote settlement; no fishing expedition (Radio Corp of America v. Rauland Corp [1956] 1 QB 618); limited and specific documents, etc.]; • Anton Pillar Orders /Search Orders – Pre-action or Early discovery; “instant discovery granted on ex parte application”; must show “strong evidence that the potential defendant/defendant will destroy the incriminating evidence” (IP piracy cases; former employees removed confidential information and fraud cases)

25. 提前披露 II. Early discovery from Opponents Discretionary (unlike jurisdictional in the case of Pre-action discovery); Examples: • Historical exceptions of marine insurance cases; etc. • Documents entitled to demand production in contracts; • Documents referred to in the pleadings;

26. 正常披露 III . Normal disclosure/discovery A. Timing - After close of pleadings B. Extent - Compagnie Financiere v. Peruvian Guano (1882) 11 QBD 55 defining “relevant document”; (i) document to advance own case; (ii) document to damage adversary case; (iii) document which may fairly lead to a train of enquiry which may have either of these two consequences.

27. 正常披露（续） C. Meaning of “possession, custody or power” in RSC; CPR changed to “in a party’s control”; “physical possession” and “right to possession” (r.31.8[1] + [2]) Dubai Bank v. Galadari, The Times, Oct.14,1992, CA reversed the judge’s order that a party should “use all lawful means available to obtain the documents” “Possession” meant the right to possess (B v. B [1978] Fam.181); documents with agent;

28. 正常披露（续） • “Custody” meant physical possession (B & B, a coy director held company’s docs as an officer); what about holding docs not in its own right – trustee, fiduciary or agent? (B & B) • “Power” meant “a presently enforceable legal right to obtain document from the holder without having to obtain consent”; Lonrbo v. Shell Petroleum (1980) 1 WLR 627 (outside parent company’s power even with controlling shares); affirmed by HL in Re Tecnion Investments (1985) BCLC 434

29. 正常披露（续） • Shaw LJ in Lonrbo: “the documents of a subsidiary might be in the power of another ... where on the established facts a company is so utterly subservient or sub-ordinated to the will and the wishes of some other person … that compliance with that other person’s demands can be regarded as assured….” • The test was whether the other companies are under the unfettered control of the defendants so as to be their alter egos (Re Tecnion Investments)

30. 正常披露（续） • Document not entitled to disclose because of an obligation to a third party (such as, documents disclosed in another arbitration and held it subject to confidentiality/collateral undertaking not to disclose) ; safe way to handle is to list the document in a court action, but refuse to allow inspection or to voluntarily disclose like a privileged document

31. 正常披露（续） • D. Duration of disclosure – Continuing duty of disclosure (Vernon v. Bosley (No.2) [1997] 1 All ER 614) and CPR at r.31.11 (until proceedings are concluded); • Disclosure by orderly stages; • Supplemental disclosure before hearing; • Disclosure at the hearing or after hearing but before the Award (agreement of parties or leave of arbitral tribunal); Exceptions of (i) document referred to in cross-examination; (ii) document to discredit Opponent’s witness

32. 正常披露（续） E. 披露的程序（Procedure） • Exchange of list of documents ; CPR at r.31.10; must contain concise short description to identify the documents; Listing of [i] documents disclose voluntarily, [ii] documents had been in control but lost control, [iii] documents in control but refuse to allow inspection; Disclosure Statement • Inspection (discretion of arbitrator [Whyte & Co v. Abrens & Co (1884) 50 LT 344]); • Right to take copy.

33. 正常披露（续） F. Too many documents in the modern world • Disclosure/discovery becoming too expensive and time-consuming; complaint of a useless exercise of shadow-chasing in international arbitration; • O & M (1996) 2 Lloyd’s Rep. 347 (requirement of “substantial evidential materiality”);

34. 正常披露（续） • 英国（1999年）与香港（2009年）的民事诉讼改革（Civil Justice Reform）: Standard Disclosure; Specific Disclosure; Proportionality; Disclosure Statement (formally Affidavit in Rules of Supreme Court [RSC])

35. 正常披露（续） • CPR at r.31.6 Standard disclosure requires a party to disclose only – “(a) the documents on which he relies; and (b) the documents which- (i) adversely affect his own case; (ii) adversely affect another party’s case; or (iii) support another party’s case; and (c) the documents which he is required to disclose by a relevant practice discretion.”

36. 正常披露（续） • “Train of enquiry” and “relevant” (background) documents are out. • The new test is narrower. But (b)(iii) has been extended to multi-party situation where no issue between co-claimants or co-defendants; see Manatee Towing v. Oceanbulk Maritime SA (1999) 1 LLR 876

37. 正常披露（续） • Uncertainty in the exclusion of relevant (background) documents. See Documentary Evidence, 7th ed., para.9-30, p.144 re Specific Disclosure application to court: “That means it will not be sufficient in order to obtain an order for specific disclosure to show that the document or classes of document sought are relevant. Something more than that must be shown. Otherwise we would be back to Peruvian Guano…. One ground … would be that the search … is inadequate. ..A third would be … apparent from the list that there are important documents have not been disclosed…”

38. 正常披露（续） d. Practice in arbitration IBA Rules of Evidence 2010; Redfern Schedule; • Sanctions for non-disclosure (adverse inference) after Peremptory / Final Order (but not an Unless Order [which signalled an intention to strike out]); • Importance in making the right specific request.

39. Redfern Schedule Claimant’s/Respondent’s REQUESTS FOR DISCLOSURE OF DOCUMENTS

40. 国际律师协会之2010年国际仲裁证据规则 • Relevant and Material; limited scope; specific demand for production; etc. • Rules of Evidence in International Arbitration: An Annotated Guide by Nathan D. O’Malley, said in para.3.14: “Article 3.1 (of the IBA Rules) affirms the position generally adopted in international arbitration that a party is only required to produce, of its own initiative, those documents on which it relies. Failure to voluntarily (e.g., without an order from the tribunal) disclose evidence adverse to a party’s position is not a violation of the IBA Rules.”

41. 国际律师协会之2010年国际仲裁证据规则 （续） • Article 3.3 of IBA Rules: 5 conditions must be met in a request to produce: (i) Sufficiently describe the documents. (ii) If a category of documents is requested, a “narrow and specific” description must be provided. (iii) A reasoned explanation as to why they are “relevant to the case” and “material to its outcome”. (iv) Confirm that the documents are not in its control. (v) Explain why the documents are assumed to be in the control of the other party. • If Redfern Schedule is used, then the five conditions should be stated therein.

42. 国际律师协会之2010年国际仲裁证据规则 （续） • Mr. Justice Arkenhead in L. Brown & Sons Ltd v. Crosby Homes (North West) Ltd. [2008] BLR 366 in para.36(ii): “Under some agreed or standard procedures for disclosure (for instance the IBA Rules) disclosure is voluntary unless specific documents are either agreed or ordered to be disclosed.”

43. 国际律师协会之2010年国际仲裁证据规则 （续） • Mr. Justice Flaux in Chantiers de l’Atlantique SA v. Gaztransport & Technigas SAS (2011) EWHC 3383 (Comm) in para. 213: “In particular the rules for disclosure of documents were based on the IBA Rules. There was no duty to disclose relevant documents, akin to CPR Part 31, such as would be the case with London arbitration conducted in accordance with English procedure.”

44. 国际律师协会之2010年国际仲裁证据规则 （续） • E-disclosure/discovery • The English Commercial Court Working Party’s Report on Electronic Disclosure, 6 October 2004 (the Cresswell Report of 2005); Practice Direction to Part 312 of the English Civil Procedure Rules (CPR 31) in November 2005. • US Federal Rules of Civil Procedure (FRCP), December 2006 • The Chartered Institute of Arbitrators Protocol on E-disclosure in Arbitration • Dangers: Treating emails like conversation which would not have written down formally; a lot of scope for smoking gun; training and guidance.

45. 享有特权的证据 • 特权与机密的区别（Difference between privilege and confidentiality） • Types of privilege: • Legal profession privilege; • Without prejudice privilege

46. 享有特权的证据（续） • Types of privilege: • Self-incrimination privilege • Public interest privilege • Common interest privilege • Waive of privilege.

47. 口头证据 • Pros and Cons of oral evidence • Oral evidence-in-chief • Written Witness Statement in lieu of evidence-in-chief; Pros and Cons; problems in international arbitration (brief statement; lengthy statements; attempts to limit pages; etc) • To be exchanged shortly before hearing • Factual witness who did not gave Witness Statement is not permitted to testify at the hearing

48. 口头证据（续） • Oral evidence-in-chief (continue) • supplemental Witness Statement; • number of factual witnesses by the parties; • request to cross-examine; • etc.

49. 口头证据（续） • Factual witness must be available for cross-examination • In 2010 IBA Rules of Evidence, Art.4 (10) stated: “If a witness whose appearance has been requested … fails without a valid reason to appear for testimony at an evidential hearing, the Arbitral Tribunal shall disregard any Witness Statement related to that evidential hearing by that witness unless, in exceptional circumstances, the Arbitral Tribunal decides otherwise.”

50. 口头证据（续） • Cross-examination a. purpose of the exercise; b. skill in conducting; c. skill in answering; d. 10 (or 15) questions not to ask. • Re-examination • Question from the arbitrator