Recognising Your Tribunal: Dealing with Evidence in International Construction Arbitrations

Sean Brannigan QC

November 2012

A paper presented to the International Construction Law Conference held in London on 24th September 2012

This paper looks at how the wish to convince an arbitral tribunal of a party's case needs to start from an awareness of the legal-cultural background of the panel and its members. Sean Brannigan QC contrasts the approaches to evidence of practitioners with a civil law background to those in the common law tradition, with the IBA Rules of 2010 offering a bridge between them. He considers specifically documentary evidence and its disclosure, oral advocacy and the evidence of witnesses (especially the role of expert witnesses) and how practice in relation to each of these differs widely, so each party's advocate has to shape his/her tactics from an awareness of the approach the particular tribunal is likely to take. The Appendix contains a table summarising all these differences.

Introduction - The starting point - The key differences between legal traditions - General points - Statements of case - Disclosure of documents - The interaction between witness statements of fact and expert reports - The examination and cross-examination of factual witnesses - The examination and cross-examination of expert witnesses: the growing use of 'hot-tubbing' - Conclusions.

Sean Brannigan QC is a barrister and arbitrator practising from 4 Pump Court in London and Arbitration Chambers in Hong Kong.

Text and Appendix 12 pages