Good Faith, Bad Faith, but Not Losing Faith: A Commentary on the 2010 IBA Rules on the Taking of Evidence in International Arbitration

Article excerpt

TABLE OF CONTENTS  I.     INTRODUCTION  II.    CONSULTATION AND SELF-DISCLOSURE IN ARTICLE 2:        HARMONIZING TRADITIONS AND THE APPLICATION OF PERSUASIVE        AUTHORITY        A. Article 2 of the Rules and the Effort to Strike a Balance        B. The Influence of the Federal Rules of Civil Procedure  III.   REVISITING STANDARDS AND DEFINITIONS: AN INQUIRY INTO        MEANING AND CONSISTENCY IN THE NEW IDA RULES        A. The "Relevant to the Case and Material to its Outcome"           Standard        B. The Need for Further Definition: "Relevance" and           "Materiality"  IV.    A NEW STANDARD OF GOOD FAITH: AT LEAST A GOOD FAITH        EFFORT TOWARDS h STANDARD        A. Introducing (and Interpreting) Good Faith        B. ReliaStar and the Rules' Good Faith Requirement: Twins or           Perhaps Strangers  IV.    REVISITING THE INHERENT AUTHORITY OF ARBITRATORS TO        IMPOSE SANCTIONS IN THE FORM OF ATTORNEY'S FEES AND        COSTS AS A PUNITIVE MEASURE ARISING FROM AN ABSENCE OF        GOOD FAITH        A. Jurisprudence From the Ninth and Eleventh Circuits cited by           the Second Circuit in ReliaStar Does Not Support the           Court's Novel Holding        B. In Reliastar, the Court Erroneously Conceptualizes the           Terms "Remedies" and "Punitive Sanctions" as well as           "Arbitrator" and "Judge"  V.     TRANSPARENCY AS A STEP TOWARDS DEFINING GOOD FAITH IN        THE TAKING OF EVIDENCE IN INTERNATIONAL ARBITRATION        A. Non-Disclosure of Requested Documents        B. Use and Access of Original Documents        C. Expert Witnesses        D. Understanding Transparency and its Application in           Different Contexts  VI. CONCLUSION 

"Le bon sens est la chose du monde la mieux partagee" (1)

Rene Descartes

Discours de La Methode


Despite considerable developments in the field of international economic law, (2) economic globalization is yet to witness the creation of its legal counterpart: juridical globalization. Particularly in the field of transnational contentions, the taking of evidence remains one of the most salient challenges in the formation and transformation of an international dispute resolution rubric. Although the chasm separating common and civil law judicial cultures, legacies, and traditions on this issue might appear unbridgeable at first, the imperative to harmonize disparate precepts and policies concerning the taking of evidence between these starkly different legal systems is underscored by economic globalization.

International arbitration, both commercial and treaty-based, has served as a temporal bridge until transnational tribunals of civil procedure have become capable of exercising jurisdiction for purposes of adjudicating commercial disputes in private and public international law. (3) This centrality underscores the need to harmonize conflicting and often inimical procedural tenets concerning common and civil law jurisdictions. Common law practitioners in the United States in particular seem critical of a civil law "taking of evidence" tradition that, viewed through the prism of American "discovery" procedural precepts, wrests all party-autonomy from the litigants and vests primary responsibility with the tribunal. (4) In contrast, civil law academics, jurists, and lawyers cannot fathom normative strictures that impel the production of documents and the disclosure of information that is relevant "to the subject matter involved in the action," where "relevance" is defined as "information [that] need not be admissible at the trial [or final hearing] if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." (5) The gradual resolution of these stark differences, a daunting task, has begun through the evolution of international arbitration.

On May 29, 2010, the International Bar Association (IBA) published a new edition of its rules that aspires "to provide an efficient, economical and fair process for the taking of evidence in international arbitrations, particularly those between Parties from different legal traditions. …