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CIArb AWARD WRITING TECHNIQUES: CONFRONTING REQUEST FOR ADDITIONAL EVIDENCE

5/10/2021

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​CIArb AWARD WRITING TECHNIQUES: CONFRONTING REQUEST FOR ADDITIONAL EVIDENCE

During the award writing examination, there are a series of ‘challenges’ that the examiner will put forward to test the candidate on the application of ‘practice and procedure’ and I would like to share a few, with an example of technique to answer.
 
Additional Evidence

  1. In the Hearing dated [DATE], the Respondent wanted to make an application with regards to a document that had come into its possession lately and would like to have it admitted and inserted into the agreed bundle for reference at the hearing. He suggested that I have a look at it.
  2. The Claimant expressed surprise and claimed that this was an ambush on part of the Respondent.
  3. I DIRECTED that Respondent explain the circumstances under which this document had been obtained and a general description of the contents before I could rule on its admissibility (and before I viewed it). Claimant would also be allowed an opportunity to comment.
  4. The Respondent stated that this was an offer made by Claimant in regard to […], is clearly an admission of liability.
  5. The Claimant protested vehemently, saying that Respondent was well aware that the said letter was part of a series of privileged communications between the two parties as the first letter in the series clearly indicated. To bring it to the Arbitrator’s attention was a disingenuous attempt to compromise the Claimant’s position. In fact, in revealing this, harm was already done to the Claimant’s position.
  6. After some deliberations, I ORDERED a short adjournment to allow both parties to submit to me copies of the correspondence (Claimant to submit what it deemed as the first letter and Respondent to submit the one it wanted admitted) for my perusal. I further stipulated that the letters were to be redacted as to the principle contents so as to avoid any prejudice; and that each party should view the respective letters before passing these to me. This was done – Exhibits J and K. If I needed more information, I would reach out to the parties in due course.
  7. Both parties agreed that I should also rule on any costs arising thereof. I said that I would consider these and I NOW RULE on this matter in my award, the issues that I must consider are:
    1. Having consider the ‘confidentiality’ of the additional-evidence and under Art.34.5Rules, such evidence is inadmissible.
    2. Third, the evidence are irrelevant and may have been ‘privileged’, not confined within this substantive law.[5]
    3. Second, it is mandatory that I shall adopt procedures, including but not limited to admission of evidence, to avoid unnecessary delay.[4]
    4. Foremost Claimant has to mount a defence that by default, I have, under Art.19(2)Law and Art.27(4)Rules, the ‘total discretion’[1] whether or not to admit such ‘new-evidence’, since parties did not state otherwise in the arbitration agreement,[2] before contemplating if the Respondent is allowed to amend its pleading[3].
    5. Whether I have the onus to admit all evidence submitted by the parties? If so, even if such evidence is irrelevant on both facts and law or is ‘privileged’, is admissible?
  8. I have contemplated the facts on legal grounds and within its jurisdiction I FIND AND HOLD that the ‘new-evidence’ shall be excluded in its entirety.[6]

---------------------------------------------
[1] Civil Evidence Act1995 is not mandatory to be applied in arbitration, i.e. full disclosure.
[2] S.34(2)(f)1996Act
[3] S.34(2)(c)1996Act
[4] S.33(1)(b)1996Act
[5] The RBS Rights-Issue Litigation[2017]EWHC1217(CH):lex fori i.e. English Law, in English court, ‘closest connection’ test.
[6] Art.9(2)IBA-Evidence
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    AWARD WRITING BLOG FOR ARBITRATION

    Objective of this Page:I am sharing these information with a caveat that these information is for educational purpose only and shall not be taken as an advice be it legal or otherwise. You should seek proper advice to your case with the relevant professionals. The author cannot guarantee the accuracy of the information so provided here.

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      • Studio 01
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    • Discourse in Studio 6 >
      • Ideation
      • The Production Model >
        • The Actors
        • The Stage
        • Urban Mass
        • The Box
        • The Play
        • The Break
        • The Newsletter
        • The Document
        • The Presentation
    • d:KON 4 >
      • Actors >
        • Chua LiCheng
        • Ng KenHong
        • Sean Tan
        • Peggy Chai
        • Elliotte Teoh
        • Vincent Tow
        • TzeLer
        • Elaine
        • Ng SongChun
        • Carissa Foong
        • Ng WeiMun
        • Ng ChenYin
        • Nicol Ong
        • Adron Liang
        • Ivan Sung
        • Lau HuiJew
      • Acts >
        • Portraiture
        • A Slice of Space Time
        • Box of Installation of Lights
        • Radio Misreading
        • Grid of Destinies
        • Shelter
        • Anatomy of Pain
        • Tensigrity of Ego
        • Of Prisons and Walls
        • Forest of Nails
        • Curtain of Fears
        • Dissolution of the Ego
        • If it's Ain't Broken it's Ain't Worth Mending
        • Flight of Freedom
        • Cross of Complexity and Contradiction
        • interrogation
      • Stage >
        • Soap Box
      • Play
      • Approach
      • Galleria >
        • Martial Gallery
        • Drive Through Gallery
        • Clinique Gallery
        • Cafe Gallery
        • MACC Gallery
        • Haunted Gallery
        • Backpacker Hotel
        • Audio Bookshop Gallery
        • Funeral Parlour
        • Extreme Game Gallery
        • Play Ground
        • Wedding Gallery
        • Meditation Gallery
        • Water Tower
        • Photography Studio
        • Chapel Gallery
    • External Critique >
      • Discourse in Sem 06
      • Discourse in Sem 05 >
        • The Site - KB
        • The Rectilinear
        • The Paired Kidneys
        • The Boat
        • The Decepticon
        • The Curvature
      • EnviroDesign MasterClass 2015
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    • Codes Regulations & Standards >
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