CIArb AWARD WRITING TECHNIQUES: CONFRONTING REQUEST FOR ADDITIONAL EVIDENCE

​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]

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[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