ENGLAND & WALES Law and Practice Contributed by: James Stacey, Peter Wickham, Samantha Holland and William Humphries, Slaughter and May
8. Evidence 8.1 Collection and Submission of Evidence Parties have broad discretion to agree evidential mat - ters, including: • the extent of disclosure and at what stage this should occur; and • whether evidence should be presented at an oral hearing. In the absence of agreement between the parties, the tribunal has broad powers to determine all procedural and evidential matters (Section 34 (2)). 8.2 Rules of Evidence Unless the parties agree otherwise, the tribunal has broad powers to decide all evidential matters, includ - ing about the disclosure of documents, witness evi - dence and whether to apply rules of evidence (Section 34). In practice, the IBA Rules on the Taking of Evidence in International Arbitration are often adopted in English- seated arbitrations. Unless the parties agree otherwise, the tribunal may appoint experts, legal advisers or assessors to report to it and the parties, and allow them to attend hear - ings (Section 37). 8.3 Powers of Compulsion The tribunal may order the disclosure of specific docu - ments from parties under its general power to deter - mine all procedural and evidential matters (Section 34 (2)(d)). Tribunals do not have the power to order disclosure from a non-party, nor the attendance of a witness. Accordingly, if a party wishes to compel a witness to attend a hearing and provide evidence, or requires a non-party to produce documents, they will need to apply to the court. For witnesses located inside the UK, a party to arbitral proceedings may apply to the court to “secure the attendance before the tribunal of a witness in order to give oral testimony or to produce documents or
other material evidence” (Section 43). This provision is mandatory. However, before applying to the court, the applicant must first obtain either the agreement of the other party/ies to the arbitration or the permission of the tribunal. For witnesses located outside the UK, a party to an arbitration must rely on Section 44, which allows it to apply to the court for an order in relation to “the taking of evidence of witnesses” (Section 44 2 (a)) and “the preservation of evidence” (Section 44 2 (b)) for the purposes of arbitral proceedings. Unless the case is one of urgency, the applicant must obtain either the agreement of the other party/ies to the arbitration or the permission of the tribunal. See also 5.6 Jurisdic- tion Over Third Parties and 6.2 Role of Courts . The 1996 Act does not contain provisions on confi - dentiality. However, under English law, in the absence of explicit agreement to the contrary, an arbitration agreement contains an implied term obliging the par - ties to maintain confidentiality ( Emmott v Michael Wil- son & Partners Ltd [2008] EWCA Civ 184). This reflects the prevailing view that arbitration is private in nature, and that confidentiality is a key perceived advantage of arbitration as opposed to litigation. This duty of confidentiality applies to all aspects of the arbitral pro - ceedings, including the award, the pleadings and all documents disclosed or produced. Confidentiality may also arise in equity ( Halliburton Co v Chubb Bermuda Insurance Ltd [2020] UKSC 48) or the tort of misuse of private information ( Campbell v MGN Ltd [2004] UKHL 22), for example. Furthermore, some institutional rules contain express confidential - ity provisions, including Article 30 of the LCIA Rules 2020. However, there are certain exceptions to confidential - ity in English law, including: • where parties agree to dispense with the obliga - tion; 9. Confidentiality 9.1 Extent of Confidentiality
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