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Peter Megens  
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Paul Starr  
Partner

Peter Megens  
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Hong Kong
Paul Starr  (保羅仕達)


27 June 2006

Compulsion of evidence in international commercial arbitration

A. INTRODUCTION

It is of course trite to say, but fundamentally true, that international commercial arbitration is consensual in nature and its efficacy as a dispute resolution regime still depends on the co-operation, often ‘encouraged’, of the parties. As in any system of dispute resolution where a third party - in this case an arbitrator - is to make a decision binding on the parties, each party will be determined to put before the arbitral tribunal evidence which supports its case, or disproves its opponent’s case. From a public policy point of view, it is obviously desirable that any decision-making tribunal have available the best and most accurate evidence which enables it to reach a fair and impartial result. This is a powerful reason for giving the tribunal the power to exercise some compulsion over the parties and ‘strangers’ in the evidence gathering process. But why should an arbitral tribunal (which is, after all, there by the agreement of the parties, not the sanction of the state) have a power to compel third parties and ‘strangers’ to the contract (such as former employees, employees of the state or consultants to one or other party), to appear before the tribunal, give evidence, produce documents or do other things?

Possibly because there is a public policy imperative in assisting parties - especially those involved in international transactions - in resolving their disputes without recourse to national courts, in a venue of their own choosing, under rules of their own choosing and resulting in a decision which will be enforceable in more than one jurisdiction.

Unlike state courts, however, arbitral tribunals, having their foundations in the agreement of the parties, do not have the power of the state to compel compliance with their procedures and directions unless the state is prepared to assist the tribunal by making such powers available to it. International arbitrations often involve participants from different states, apply substantive laws which govern the contract in relation to which they are appointed, may have their seat in yet another state, and may in fact sit at a venue (which is chosen for convenience or other reasons) which has its own arbitration law. Party-chosen institutional or ad hoc rules of arbitration may impose a further layer of complexity. Yet in any international arbitration, the parties and their advisers will be faced with the fundamental question: ‘How can I get the appropriate evidence before the arbitral tribunal?’

In approaching this topic the authors do so principally as practitioners trained in the common law system, practising predominantly in the Asia-Pacific region.

The starting point for this discussion shall be the following passages from the excellent text by Redfern and Hunter, Law and Practice of International Commercial Arbitration.1

Those learned authors say at paragraph 6-69, on page 298, as follows:

In international commercial arbitrations, the best evidence that can be presented in relation to any issue of fact is almost invariably contained in the documents which came into existence at the time of the events giving rise to the dispute. This contrasts with the presentation of evidence in national courts in common law systems where most facts are proved by direct oral testimony, and even documentary evidence must in principle be introduced by a witness.

Then at paragraphs 6-73 and 6-74, at page 300, the authors say as follows:

In countries that follow the civil law tradition, the usual practice - although it is unwise to generalise - is for each party to produce the documents upon which it relies to establish its case and, exceptionally, to ask for the production of specific documents which it believes to be (a) in the possession of the opposing party and (b) likely to assist its case.

This practice has considerably influenced institutional rules, such as those of the ICC, the LCIA and also rules that are applied in ad hoc arbitrations, notably the UNCITRAL Rules.

The usual practice in international commercial arbitrations is for the parties, and the tribunal, to follow a blend of common law and civil law procedures, with the latter being predominant. In part, this is a matter of economics. Wholesale disclosure of documents is an expensive and time-consuming process for all concerned and rarely reveals the ‘smoking gun’ that is being sought.

Then at para 6-79, on page 303, they say:

An arbitral tribunal lacks power to order production of documents in the possession of a third party, even where such documents may be relevant to the matters in issue. However, in some countries a third party may be compelled by subpoena to attend at the hearings to give evidence, and the courts can assist the arbitral tribunal in enforcing the attendance of such witnesses. In England, a party may apply to a court to compel the attendance of a witness and to bring with him any material documents in his possession. In the US, the Federal Arbitration Act provides that the arbitrators may summon a person to attend before them and to produce any material documents.

It sometimes happens in arbitration proceedings that a third party appears voluntarily at the request of one of the parties and gives testimony helpful to that party. Then, on questioning by the other party, the witness may object to the production of documents. The Arbitral Tribunal does not usually require such a witness to produce documents, but an adverse inference may be drawn in respect of the evidence of the witness in question if it appears to the tribunal that the witness is deliberately withholding documents without good reason.

Finally, at paragraph 6-89, page 308, the learned authors say:

The Hague Convention of 1970 does not apply to arbitrations. Accordingly, there is no method of compelling a witness who is not within the jurisdiction of the court of the place of arbitration to give testimony. However, some countries have legislation that enables arbitral tribunals sitting in other countries to obtain evidence from witnesses within their jurisdiction, either at the request of the arbitral tribunal itself, or on the application of a party. The Model Law also envisages this possibility.

Where judicial intervention is required to compel people to give evidence to an arbitral tribunal, reference must generally be had to the domestic law of the seat of the arbitration. In this regard, the International Bar Association (‘IBA’) Working Party on Rules of Evidence in International Commercial Arbitration has noted that:

[u]nder most arbitration laws, the arbitral tribunal may ask the State courts to compel the witness to appear or to examine the witness itself. As a general rule, it shall be the State courts at the seat of arbitration which may help the arbitral tribunal with the recalcitrant witness.2

It is within this context that the authors will discuss, briefly, the approaches to this topic in a number of regional countries where arbitration, particularly of an international nature, may be commonly practised.

While arbitrators draw their powers and jurisdiction, originally, from the agreement of the parties as found in the arbitration agreement pursuant to which the arbitrators are appointed, these arbitration agreements rarely deal expressly with the manner in which evidence is to be given. The instead incorporate either an institutional set of rules (such as the LCIA Rules3, the ICC Rules4, the ACICA Arbitration Rules5, the HKIAC Procedures for the Administration of International Arbitration6) or ad hoc rules (such as the UNCITRAL Arbitration Rules7), or such rules are adopted by the parties before or after a dispute arises. The authors will consider some regional examples below.

Matters as to the mode of proof of issues, such as, for example, the receipt of expert evidence, are generally in the common law matters for the lex fori.8 It has been noted that the mode of proving particular facts (for example, whether oral evidence can be led to add to or vary a written contract) may be a matter for the lex fori unless the lex fori allows proof by modes otherwise not used in the lex fori (for example, by evidence of foreign legal practices).9 Quite often local statutes applicable in the place where the arbitral tribunal is sitting may have modified the common law position. By way of example, while in Re Enock and Zaretzky Bock & Co’s Arbitration10 it was found to be misconduct for an arbitrator to call a witness, provisions such as section 19(3) of the uniform Commercial Arbitration Acts in Australia now entitle the arbitrator to inform himself or herself in relation to any matter in such manner as the arbitrator or umpire thinks fit.

Most international arbitration agreements in use in the Asia-Pacific region adopt and incorporate by reference either the rules of an institution, such as the ICC, LCIA, Singapore International Arbitration Centre (‘SIAC’), China International Economic and Trade Arbitration Commission (‘CIETAC’) or the like, or incorporate ad hoc rules, such as the UNCITRAL Arbitration Rules.

In addition, as a result of the choice of the seat of the arbitration, the parties will also have chosen the law of a particular place (which will quite often also carry with it a legislative framework), or set of laws which will be more or less sympathetic to the conduct of the arbitration and which will to some extent govern the manner in which the arbitration is conducted and also the powers which the arbitrators have. Importantly, from the point of view of this article, that will carry with it particular powers relating to the gathering of evidence before the tribunal. In the absence of some legislative assistance in particular countries, the arbitral tribunal itself is unlikely to have any powers which it can use to compel third parties to give evidence or to otherwise take part in the arbitral process.11

The authors will examine briefly the arbitral tribunal’s power to elicit evidence from the parties.

The authors will then examine briefly the position in Australia, and will then look in turn at Hong Kong, China, Singapore and Malaysia for their particular models, for eliciting evidence from third parties.

B. COMPULSION OF EVIDENCE FROM THE PARTIES

The rules of every significant Asian international arbitral institution acknowledge the importance of ensuring that appropriate evidence is available in proceedings. Thus, each body of rules contains provisions for ensuring that the parties provide the tribunal with material pertinent to the particular matter.

Article 24 of the UNCITRAL Arbitration Rules, for instance, provides as follows:

Evidence and Hearings

Article 24

(1) Each party shall have the burden of proving the facts relied on to support his claim or defence.

(2) The arbitral tribunal may, if it considers it appropriate, require a party to deliver to the tribunal and to the other party, within such a period of time as the arbitral tribunal shall decide, a summary of the documents and other evidence which that party intends to present in support of the facts in issue set out in his statement of claim or statement of defence.

(3) At any time during the arbitral proceedings the arbitral tribunal may require the parties to produce documents, exhibits or other evidence within such a period of time as the tribunal shall determine.

Article 20 of the ICC Rules of Arbitration gives wide powers to the arbitral tribunal and provides at article 20.1 to 20.6 as follows:

(1) The Arbitral Tribunal shall proceed within as short a time as possible to establish the facts of the case by all appropriate means.

(2) After studying the written submissions of the parties and all documents relied upon, the Arbitral Tribunal shall hear the parties together in person if any of them so requests or, failing such a request, it may of its own motion decide to hear them.

(3) The Arbitral Tribunal may decide to hear witnesses, experts appointed by the parties or any other person, in the presence of the parties, or in their absence provided they have been duly summoned.

(4) The Arbitral Tribunal, after having consulted the parties, may appoint one or more experts, define their terms of reference and receive their reports. At the request of a party, the parties shall be given the opportunity to question at a hearing any such expert appointed by the Tribunal.

(5) At any time during the proceedings, the Arbitral Tribunal may summon any party to provide additional evidence.

(6) The Arbitral Tribunal may decide the case solely on the documents submitted by the parties unless any of the parties requests a hearing.

Article 22 of the LCIA Rules goes even further, giving the tribunal power, in the absence of contrary agreement of the parties:

(c) to conduct such enquiries as may appear to the Arbitral Tribunal to be necessary or expedient, including whether and to what extent the Arbitral Tribunal should itself take the initiative in identifying the issues and ascertaining the relevant facts and the law(s) or rules of law applicable to the arbitration, the merits of the parties’ dispute and the Arbitration Agreement,

(d) to order any party to make any property, site or thing under its control and relating to the subject matter of the arbitration available for inspection by the Arbitral Tribunal, any other party, its expert or any expert to the Arbitral Tribunal,

(e) to order any party to produce to the Arbitral Tribunal, and to the other parties for inspection, and to supply copies of, any documents or classes of documents in their possession, custody or power which the Arbitral Tribunal determines to be relevant.

The IBA Rules on the Taking of Evidence in International Commercial Arbitration12 (‘the IBA Rules’) are widely used now in international arbitrations and may be adopted either by the ad hoc or institutional rules in question, or as a result of the parties’ subsequent agreement by, for example, incorporation by reference in the terms of reference of an ICC arbitration. They give the arbitral tribunal wide powers over the parties in relation to evidentiary matters, including significant powers of production and disclosure of documents (art 3), over witnesses, both factual (art 4) and expert (art 5) as well as tribunal appointed experts (art 6) and inspection of property, goods and processes (art 7).

Article 2 of the recently-adopted HKIAC Procedures provides that the UNCITRAL Arbitration Rules shall be the rules for any arbitration conducted under the HKIAC Procedures. As such, the compulsion of evidence under the HKIAC Procedures is governed by Article 24 of the UNCITRAL Arbitration Rules which is outlined above.

The Rules of Arbitration of the Regional Centre for Arbitration Kuala Lumpur likewise adopt the UNCITRAL Arbitration Rules and thereby Article 24.

The SIAC Rules13 in articles 23 to 25 give the tribunal extensive powers over the parties and the evidence they can, and can be compelled to, produce.

In a recent addition to the rules published by institutions in the region we now also have the ACICA Arbitration Rules. These rules have been drafted for use in international arbitrations but can equally be adopted for use in domestic arbitrations within Australia.

The ACICA Arbitration Rules are essentially a variant on the UNCITRAL Arbitration Rules. The two major deviations from the UNCITRAL Arbitration Rules lie in the degree of institutional involvement and in the level of sophistication of the ACICA Arbitration Rules. Basically the ACICA Arbitration Rules allow for ACICA itself to have some continued involvement in managing the arbitral process, but not so much involvement as the ICC Rules provide for the ICC Court and Secretariat. Further the UNCITRAL Arbitration Rules were released in 1976 and since then there have been significant advances in arbitration laws and practices. The ACICA Arbitration Rules seek to provide for these developments in certain areas. For instance, the ACICA Arbitration Rules adopt, in a rather interesting way, the IBA Rules.

The ACICA Arbitration Rules again give the arbitral tribunal wide powers when it comes to the evidence which the parties will produce. These powers can generally be found in article 27, and are somewhat different from the other institutional rules the authors have commented on as they make specific reference to the IBA Rules. They provide as follows:

27.1 - Each party shall have the burden of proving the facts relied upon to support its claims or defence.

27.2 - The Arbitral Tribunal shall have regard to, but is not bound to apply, the International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration in the version current at the commencement of the arbitration. [Emphasis added.]

27.3 - An agreement of the parties and the Rules (in that order) shall at all times prevail over an inconsistent provision of the International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration.

The authors have already commented on the IBA Rules above14 and have noted the significant powers these Rules give the tribunal in so far as it may be necessary to compel parties to provide evidence to the tribunal. It will be interesting to see how the ACICA Arbitration Rules are used in practice and how tribunals in practice will ‘have regard’ to but are ‘not bound to apply’ the IBA Rules.

All of these regimes rely primarily on the arbitral tribunal’s direct control of the parties, although there may well be a legislative regime supporting arbitration in the particular jurisdiction which gives the tribunal some effective ‘teeth’ in the enforcement of its process. Predominantly, however, these rules work, as between the parties, because parties rarely wish to be seen as unco-operative with or obstructive to the arbitral tribunal and usually will wish to comply when they reasonably can.

C. COMPULSION OF EVIDENCE FROM NON-PARTIES

Different issues arise when it comes to compulsion of evidence from non-parties and it is important to realise that the ability of the arbitral tribunal to compel people not parties to the arbitration to provide evidence does not so much depend on the arbitral tribunal’s power to control the parties, but on enforcement of options, both legislative and judicial, which the arbitral tribunal has access to. Often these options work not because they have to be used, but because a person knows that the possibility exists that the option may be used and co-operation may be less troublesome than actually being forced to comply. The authors will consider first the Australian model, and then some other jurisdictions in the region.

1. The Position in Australia

Australia is a federation of states and territories and, as a consequence, has a Federal (or Commonwealth) Parliament and also State (and Territory) Parliaments.

Australia has an International Arbitration Act 1974 which is a federal Act. At the state and territory levels, Australia also has individual Commercial Arbitration Acts which usually also apply to domestic arbitrations conducted within particular states and territories of Australia. The International Arbitration Act, amongst other things, gives effect in Australia to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards15 (‘the New York Convention’) and, subject to the Act, gives the UNCITRAL Model Law on International Arbitration16 (‘the Model Law’) the force of law in Australia. The Model Law is not given absolute application in Australia as section 21 of the Act provides:

If the parties to an arbitration agreement have (whether in the agreement or in any other document in writing) agreed that any dispute that has arisen or may arise between them is to be settled otherwise than in accordance with the Model Law, the Model Law does not apply in relation to the settlement of that dispute.

Therefore the adoption of the Model Law is not absolute, and may be contracted out of. In Australian Granites Ltd v Eisenwerk Hensel Bayreuth GmBH17 (‘Eisenwerk’), the Queensland Court of Appeal came to the somewhat unfortunate conclusion that the choice of institutional arbitration rules in the arbitration agreement could itself be an implicit opting out of the Model Law of the type contemplated by section 21.18

In American Diagnostica Inc v Gradipore Ltd,19 Chief Justice Giles of the New South Wales Supreme Court held that the proposition that the Commercial Arbitration Act 1984 of New South Wales (‘NSW’) did not apply to an international commercial arbitration convened in NSW is not maintainable. His Honour held that while parties to an international commercial arbitration may choose a lex arbitri (the procedural law governing the conduct of the arbitration) different from the law of the place they choose for holding the arbitration, so far as the local procedural rules under the Commercial Arbitration Act applied and are inconsistent with the chosen lex arbitri, they cannot be put aside by an agreement that they do not apply. In that case, it meant that a provision in the arbitration agreement which sought to avoid the grounds on which a court might give leave to appeal under the Commercial Arbitration Act was not effective. Further, the UNCITRAL Arbitration Rules chosen by the parties as the particular ad hoc rules to govern the procedures of the arbitration would do so only in so far as they were not inconsistent with the Commercial Arbitration Act of NSW, where the Act was applicable, and the Act could not be contracted out of.

As a result of section 109 of the Australian Commonwealth Constitution, where there is inconsistency between federal law and state law, the federal law applies. In ACD Tridon v Tridon Australia Pty Ltd, Justice Austin of the NSW Supreme Court declared that ‘the application of the International Arbitration Act does not exclude the concurrent operation of the State Commercial Arbitration legislation’.20 The extent of the inconsistency required is beyond the scope of this article and for present purposes it is sufficient to note that in Australia the regime of legislation means that if an international arbitration tribunal is sitting in Australia it may be governed in its process, by:

(1) the federal International Arbitration Act 1974 (possibly with or without the Model Law),

(2) the Commercial Arbitration Act of the state or territory in which it sits,

(3) the institutional or ad hoc rules which the parties have chosen,

(4) the laws of the seat of the arbitration as chosen in the arbitration agreement or otherwise,

(5) the substantive law of the contract under which it is appointed, and

(6) finally (as the parties to the arbitral process, and the arbitrators themselves, are likely to be nationals of one or more countries), it is possible that national laws, to the extent that they have extra-territorial effect, may have an impact on how the arbitration can be conducted by the individuals involved.

The authors will now briefly consider how the legislative regime in Australia impacts on the arbitral tribunal’s ability to coerce third parties to co-operate in the evidence gathering process.21

a. The International Arbitration Act 1974 and the Model Law

As noted above, the International Arbitration Act 1974, subject to the Eisenwerk difficulty, imports the Model Law into Australian law.

Article 27 of the Model Law provides as follows:-

The arbitral tribunal or a party with the approval of the arbitral tribunal may request from a competent court of the State assistance in taking evidence. The court may execute the request within its competence and according to its rules on taking evidence.

While this provides a means by which the arbitral tribunal, or a party, may have access to the Australian courts and authorises the courts to assist arbitral tribunals, the exact process involved is not spelt out and, as it is left to the court to execute the request, it will be attended with all of the costs and delays of court applications. Nevertheless, court third party discovery processes may be invoked by this route. By way of example, Order 40.12(2) of the Victorian Supreme Court Rules extends the court’s power to order a witness to attend and to produce documents and could be invoked in aid of arbitral tribunals under the Model Law.

At the time of writing, Australia was not yet a signatory to the Hague Convention on Service Abroad of Judicial and Extrajudicial documents in Civil and Commercial Matters. Nevertheless, under certain court rules, courts will permit the service of subpoenas outside of Australia.22

Australia is a signatory to the Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters but doubts have been expressed about its application to arbitral tribunals, as arbitration proceedings may not be judicial proceedings for the purpose of this Convention. We doubt therefore that an Australian court could exercise Hague Convention processes in aid of an arbitration.

It is still not clear whether the process of letters rogatory, sanctioned under federal and state law in Australia, can be used in aid of arbitral proceedings as a result of the operation of Article 27 of the Model Law. At least one international arbitral tribunal sitting in Australia has expressed the view that letters rogatory could be used.

It is here that the regimes of the state uniform Commercial Arbitration Acts may prove useful to the parties or the tribunal if the tribunal is prepared to sit in Australia. These Acts generally contain quite broad powers which may be exercised by the arbitral tribunal, or by the courts in aid of arbitral tribunals.

The Commercial Arbitration Acts applicable in the Australian states and territories contain extensive provisions and processes to assist arbitrators in evidence gathering functions. The following examples are taken from the Australian Capital Territory Act.

Section 14 - Procedure of arbitrator or umpire

Subject to this Act and to the arbitration agreement, the arbitrator or umpire may conduct proceedings under that agreement in such manner as the arbitrator or umpire thinks fit.

Further in relation to compulsion of witnesses:

Section 17 - Subpoenas and summonses to attend etc

(1) On the application of a party to an arbitration agreement, the court may, in accordance with the Supreme Court Rules or the Magistrates Court (Civil Jurisdiction) Act 1982, as the case requires, issue a subpoena or a summons, as the case requires, requiring a person to attend for examination before the arbitrator or umpire or requiring a person to attend for such an examination and to produce to the arbitrator or umpire the document or documents specified in the subpoena or summons.

(2) A person shall not be compelled under any subpoena or summons issued in accordance with subsection (1) to answer any question or produce any document which that person could not be compelled to answer or produce on the trial of an action.

This then allows the court, on the application of a party, to issue subpoenas in aid of arbitral proceedings. This process is relatively cheap, expeditious and effective. Often no real court intervention is required. By way of example, in Victoria one merely files the subpoena in the court registry and it is then issued and ready for service.

And if witnesses remain in any doubt as to the need to co-operate, section 18 provides as follows:

Section 18 - Refusal or failure to attend before arbitrator or umpire etc

(1) Unless a contrary intention is expressed in the arbitration agreement, where any person (whether or not a party to an agreement)

(a) refuses or fails to attend before the arbitrator or umpire for examination when required under a subpoena or summons or by the arbitrator or umpire to do so, or

(b) appearing as a witness before the arbitrator or umpire

(i) refuses or fails to take an oath or to make an affirmation or affidavit when required by the arbitrator or umpire to do so, or

(ii) refuses or fails to answer a question that the witness is required by the arbitrator or umpire to answer, or

(iii) refuses or fails to produce a document that the witness is required under a subpoena or summons or by the arbitrator or umpire to produce, or

(c) refuses or fails to do any other thing which the arbitrator or umpire requires,

the court may, on the application of a party to the arbitration agreement or the arbitrator or umpire, order the person so in default to attend before the court for examination, to produce to the court the relevant document or to do the relevant thing.

(2) Where the court makes an order under subsection (1), it may in addition make orders for the transmission to the arbitrator or umpire of

(a) a record of any evidence given under the order, or

(b) any document produced under the order or a copy of any such document, or

(c) particulars of anything done under the order,

and any such evidence, document or thing shall be deemed to have been given, produced or done (as the case requires) in the course of the arbitration proceedings.

(3) If a party to an arbitration agreement

(a) refuses or fails to attend before the arbitrator or umpire for examination when required under a subpoena or summons or by the arbitrator or umpire to do so, or

(b) fails within the time specified by the arbitrator or umpire or, if no time is so specified, within a reasonable time to comply with a requirement of the arbitrator or umpire,

the arbitrator or umpire may continue with the arbitration proceedings in default of appearance or of any other act by the party if in similar proceedings before the Supreme Court that court could in the event of such a default continue with the proceedings.

This then allows both the arbitral tribunal and, if necessary, the court in aid of the arbitral tribunal, to exercise fairly wide ranging powers of evidence gathering.

Section 19 then gives the arbitral tribunal very wide powers to receive, and use, such evidence as follows:

Section 19 - Evidence before arbitrator or umpire

(1) Unless a contrary intention is expressed in the arbitration agreement, evidence before the arbitrator or umpire

(a) may be given orally or in writing, and

(b) shall, if the arbitrator or umpire so requires, be given on oath or affirmation or by affidavit.

(2) Unless a contrary intention is expressed in the arbitration agreement, an arbitrator or umpire may administer an oath or affirmation or take an affidavit for the purposes of proceedings under that agreement.

(3) Unless otherwise agreed in writing by the parties to the arbitration agreement, an arbitrator or umpire in conducting proceedings under an arbitration agreement is not bound by the rules of evidence but may inform himself or herself in relation to any matter in such manner as the arbitrator or umpire thinks fit.

Finally there is a very broad, complementary power granted to the courts by section 47 of the Act which provides:

Section 47 - General power of court to make interlocutory orders

The Court shall have the same power of making interlocutory orders for the purposes of and in relation to arbitration proceedings as it has for the purposes of and in relation to proceedings in the Court.

The limits of this provision are still to be fully tested but it has enabled, for example, security for costs orders to be made by the courts in respect of parties to an arbitration.

The authors have chosen the Commercial Arbitration Act of the Australian Capital Territory (‘ACT’) not only because the other Acts of the other states and territories are nearly identical, but also because that Act has been amended to insert a new section 20A which, subject to any contrary provision in the arbitration agreement, expressly allows arbitrators to take evidence by audiovisual or audio links. This is, in itself, a very useful mechanism for gaining the co-operation of witnesses who, while they may refuse to travel in order to physically appear before the arbitral tribunal to give evidence, may not be reluctant to give evidence by electronic means from their home jurisdiction. The added importance of such provisions is that they may also make those who give evidence from the particular jurisdiction (in this case from the ACT) by audiovisual or audio means, to a tribunal which has the benefit of the provisions, subject to the same controls as if they were giving evidence to their own courts (for example, it may subject them to possible prosecution for perjury or wilful contempt). Those interested in this topic are referred to the Evidence (Miscellaneous Provisions) Act 1991 (ACT) and especially section 16 where ‘an arbitrator or umpire conducting proceedings under the Commercial Arbitration Act 1986’ is deemed, for the purposes of the Act, to be a ‘Territory Court’.

And the Australian courts have not been reluctant to allow the Commercial Arbitration Act powers to be used in aid of international arbitration. In Transfield Philippines Inc v Luzon Hydro Corporation,23 Mr Justice Byrne of the Victorian Supreme Court allowed the subpoena powers of the Commercial Arbitration Act, (Vic) to be used by an ICC arbitral tribunal, for the purposes of compelling witnesses to produce evidence, both oral and documentary, to the tribunal while it sat in Melbourne, Australia. The seat of the arbitration was Singapore, the substantive law of the contract was Philippine law and the parties were Philippine incorporated entities. His Honour noted:

In my opinion, where, as here, the hearings for interlocutory matters are to be conducted in Melbourne, the agreement in Clause 11.10 of the Terms of Reference [incorporating Commercial Arbitration Act powers] requires that the local Court and the local law should govern those interlocutory hearings. Any other course would be productive of great inconvenience. It would mean that the parties would be obliged to resort to the Singapore Court for orders in aid of interlocutory processes which are to be carried out in and from Melbourne … I conclude, therefore, that the subpoenas were properly issued out of this Court and returned before the Tribunal at its hearings in Melbourne.

b. The ACICA Arbitration Rules

Building on this statutory base, the ACICA Arbitration Rules have now embraced, by means of article 27, the IBA Rules.24

In article 3.8 the IBA Rules provide a method by which a party can seek the assistance of the arbitral tribunal in obtaining access to documents held by third parties. It provides as follows:

Article 3.8

If a party wishes to obtain the production of documents from a person or organisation who is not a Party to the arbitration and from whom the Party cannot obtain the documents on its own, the Party may, within the time ordered by the Arbitral Tribunal, ask it to take whatever steps are legally available to obtain the requested documents. The Party shall identify the documents in sufficient detail and state why such documents are relevant and material to the outcome of the case. The Arbitral Tribunal shall decide on this request and shall take the necessary steps if in its discretion it determines that the documents would be relevant and material.

Further article 4.10 of the IBA Rules enables a party to seek the assistance of the arbitral tribunal in obtaining testimony from third parties. It provides as follows:

Article 4.10

If a Party wishes to present evidence from a person who will not appear voluntarily at its request, the Party may, within the time ordered by the Arbitral Tribunal, ask it to take whatever steps are legally available to obtain the testimony of that person. The Party shall identify the intended witnesses, shall describe the subjects on which the witness’s testimony is sought and shall state why such subjects are relevant and material to the outcome of the case. The Arbitral Tribunal shall decide on this request and shall take the necessary steps if in its discretion it determines that the testimony of that witness would be relevant and material.

Therefore the new ACICA Arbitration Rules may yet open up the possibility that either the parties themselves, or the arbitral tribunal, will have significant access to comparatively fast track processes to enable them to obtain the assistance of the courts in Australia for the purposes of compelling third parties to co-operate with arbitral tribunals by providing evidence to those tribunals.

Even without the benefit of the ACICA Arbitration Rules, however, there appears to be significant support for the proposition that international arbitral tribunals which are prepared to sit in Australia for the purpose, even if the seat of the arbitration is not in Australia, may be able to have access to what would otherwise be local court processes to enable ‘strangers’ to the arbitration to be compelled to co-operate in the production of evidence. If the arbitral tribunal is not prepared to sit in Australia, the compulsion of evidence from witnesses in Australia is still possible but may take longer and be a bit more convoluted.

2 The Position in Hong Kong

Arbitration in Hong Kong is governed by the Arbitration Ordinance25 which, like its Australian counterpart, incorporates the UNCITRAL Model Law. This Ordinance applies to both international and domestic arbitrations, with certain parts being applicable only to international or domestic arbitrations.

Under section 2GB of this Ordinance, the tribunal is empowered to exercise its discretion26 and make orders or give directions in respect of the following:27

(1) the discovery of documents or the delivery of interrogatories,

(2) giving evidence by affidavit,

(3) gathering evidence, in particular the inspection, photographing, preservation, custody, or detention of property by the tribunal, a party to the proceedings or an expert; or directing samples to be taken from or experiments conducted on such property. The property must be owned by or in the possession of a party to the proceedings, and it must be the subject of the proceedings, or any question relating to the property arises in the proceedings.

(4) directing the attendance before the tribunal of witnesses in order to give evidence or to produce documents or other material evidence, and

(5) exercising initiative in ascertaining relevant facts and law, taking on a more inquisitorial role.

The tribunal has wide powers, including power to obtain interim measures of protection without the need to seek court assistance.

However, the tribunal can only ‘direct’ that a witness attend and give evidence, but cannot ‘compel’ a witness to do so. Hence, the tribunal will need help in compelling non-parties to attend and give evidence. In Leviathan Shipping Co Ltd v Sky Sailing Overseas Co Ltd,28 his Honour Findlay J noted:

There must be some doubt whether or not an arbitral tribunal may make an order under section 2GB that binds persons other than the parties to the arbitration.

Section 2GG of the Arbitration Ordinance is a useful provision which provides that awards, orders or directions of an arbitral tribunal are enforceable as though they were orders of a court, provided that a judge or a court has given leave for them to be treated as such. The provision reads as follows:

Section 2GG(1)

An award, order or direction made or given in relation to arbitration proceedings by an arbitral tribunal is enforceable in the same way as a judgment, order or direction of the Court that has the same effect, but only with the leave of the Court or a judge of the Court. If that leave is given, the Court or judge may enter judgment in terms of the award, order or direction.

This enables an arbitrator’s order or direction to be enforced against a non-party witness, with party or arbitrator consent.

There was some authority to the effect that section 2GG is only effective in the case of arbitral proceedings actually held in Hong Kong.29 However, the Arbitration Ordinance was subsequently amended to read:

Section 2GG(2)

Notwithstanding anything in this Ordinance, this section applies to an award , order and direction made or given whether in or outside Hong Kong.

Thus, lawyers might be able to make use of these powers in the interlocutory stages of international arbitral proceedings. In appropriate cases, section 2GG could be used to enforce orders of tribunals sitting outside Hong Kong by contempt proceedings within Hong Kong. For instance, the courts of Hong Kong can enforce an order by a tribunal in Singapore that a citizen of Hong Kong attend and give evidence.30

Further, Hong Kong’s Evidence Ordinance31 provides an avenue for obtaining evidence from witnesses in Hong Kong for use in proceedings held outside of Hong Kong. This Ordinance may be applied to evidence to be obtained in Hong Kong pursuant to a request issued by a ‘court or tribunal’ exercising jurisdiction in a country or territory outside Hong Kong.

Another power vested in the High Court is section 2GC(3) of the Arbitration Ordinance which provides:

Section 2GC(3)

The Court or a judge of the Court may order a person to attend proceedings before an arbitral tribunal to give evidence or to produce documents or material evidence.

This power implicitly assists parties to obtain orders against non-parties.

Further, the Ordinance provides for powers held concurrently with the tribunal, in respect of inspection, photographing, preservation, custody, or detention of property.32

For court assistance in these matters, applications must be made by summons to the judge-in-charge of the Construction and Arbitration List and sitting in chambers.33 Generally courts avoid intervening in arbitration proceedings, unless necessary. The court may decline to make an order sought on the basis that it is more appropriate that the arbitral tribunal make the order, as provided by section 2GC(6):

Section 2GC(6)

The Court or a judge of the Court may decline to make an order under this section in relation to a matter referred to in subsection (1) on the ground that -

(a) the matter is currently the subject of arbitration proceedings, and

(b) the Court or judge considers it more appropriate for the matter to be dealt with by the relevant arbitral tribunal.

An example of where court assistance is required: A party resists orders being made in respect of its property, or resistance to a witness giving evidence or producing documents such that a summons is required. The evidence sought must be specific. The power does not allow a general disclosure order against a non-party.34

In addition, Article 27 of the Model Law allows an arbitral tribunal or a party with the tribunal’s consent to request court assistance in taking evidence.

In Astel-Peiniger Joint Venture v Argos Engineering & Heavy Industries Co Ltd,35 Kaplan J held that the Hong Kong court had jurisdiction to grant subpoenas for the production of documents under Article 27 of the Model Law.

In view of the provision in the Model Law requiring the tribunal’s consent, it would be prudent for a party to seek the tribunal’s consent first before applying for court assistance under section 2GC(3).

A useful tool for claimants to compel evidence from a respondent in arbitration is an Anton Piller order. It may be sought where civil search and seizure of documents is required against a party who is believed to have incriminating documents or property belonging to the claimant, and where there are grounds to believe that they may destroy those documents or property. The court can assist where certain strict criteria are met.36 Applications are made by summons to the judge-in-charge of the Construction and Arbitration List, sitting in chambers.37

In many cases, although the parties to the arbitration may have agreed to select Hong Kong as the seat of arbitration, persons who are able to give evidence or produce documents may reside outside of Hong Kong. Can section 2GC(3) be invoked to issue and serve a subpoena on a person outside of Hong Kong?

The Hong Kong RHC provide for special modes of service in respect of service on persons in particular countries as follows (although these are not exclusive):38

(1) for service in a country which is party to the Hague Convention on the Service Abroad of Judicial and Extrajudicial documents in Civil or Commercial Matters, of which Hong Kong is one, a subpoena may be served through the authority of that country designated under that convention,39 or, if the law of that country permits, through the judicial authority of that country40 or through the consular authority of the People’s Republic of China (‘PRC’) there,41

(2) for service in a country belonging to another civil procedure convention,42 service may be through the judicial authorities of that country43 or through a consulate of the PRC there,44

(3) for service in a country which has an agreement with Hong Kong, service shall be in accordance with the terms of that agreement,45 and

(4) for service in a country where no civil procedure convention subsists, service may be through the government of that country, if it is willing to effect the service46 or through the consular authority of the PRC there, unless such service is contrary to the law of that country.47

However, in Hong Kong Civil Procedure, 200648 at page 630, it is noted that:

Both ss2GB(7)(c) and 2GC(3)49 apply only to witnesses that are in Hong Kong [See Morgan R, The Arbitration Ordinance of Hong Kong, A Commentary, 1997 Supplement, pp 53 and 56] … and there is no power over a witness outside the jurisdiction.

Further, in accordance with the general principle of comity of nations, courts of one jurisdiction do not exercise their judicial powers beyond their territorial limits. Service of judicial process in a foreign country is an exercise of sovereignty in that country, which can only be done with the consent of that country.50 A person is not entitled, as of right, save for specific exceptions, to issue and serve judicial processes outside of the jurisdiction. He or she must first obtain leave of the court to do so. The courts in Hong Kong may be reluctant to grant leave for service of a subpoena on a person outside of Hong Kong, particularly if the person is a national of another country.

3. The Position in Mainland China

In China, arbitration and associated evidence issues are governed by the Arbitration Law 1994, and the Civil Procedure Law 1991. Other laws also provide for arbitration related matters.

The Arbitration Law sets out a unified legal framework for international and domestic arbitration in China, based on international precedents and some principles of the Model Law. It deals only with institutional arbitration. Failure to nominate an institution in the agreement renders it void.51

The applicable institutional rules of arbitration in China depend on the institutional arbitral body agreed upon. The most commonly used arbitral body in foreign arbitration in China is the China International Economic and Trade Arbitration Commission (‘CIETAC’). Its rules have been substantially developed over the past two decades. As in all arbitration, the rules do not have the force of law, but they are still important in that they bind the parties, arbitrators and the arbitral tribunal.

Chinese arbitrators tend to be more proactive than their counterparts from common law jurisdictions in determining relevant facts and issues at the hearing. Unless otherwise agreed by the parties, the tribunal may adopt an inquisitorial or adversarial approach when conducting the hearing.52

Section 43 of the Arbitration Law empowers a Chinese arbitral tribunal to undertake its own investigations and collect evidence, although reportedly such power is rarely used. The CIETAC arbitration rules also allow the tribunal to, on its own initiative, undertake investigations and collect evidence as necessary.53 The rules do not contain a provision expressly allowing the arbitral tribunal to compel evidence.

Article 37 - Investigations by the Arbitral Tribunal

(1) The Arbitral Tribunal may, on its own initiative, undertake investigations and collect evidence as it considers necessary.

(2) When investigating and collecting evidence by itself, the Arbitral Tribunal shall promptly notify the parties to be present at such investigation if it considers it necessary. In the event that one or both parties fail to be present, the investigation and collection shall proceed without being affected.

(3) The Arbitral Tribunal shall, through the Secretariat of the CIETAC, transmit the evidence collected by itself to the parties and afford them an opportunity to comment.

Other than this general rule, the Arbitration Law does not specifically address an arbitrator’s powers. Specific powers are addressed in the particular institutional rules agreed upon.

Further, there is no discovery as such in Chinese arbitrations. However, a party is entitled to request the other to produce documents to support the latter’s claim or defence, and if the documents are not produced, the requesting party may invite the tribunal to draw appropriate inferences.

The Arbitration Law does not make provision for the compulsion of evidence from non-parties. The Civil Procedure Law is of no assistance in this regard, and there are no applicable conventions. Parties are totally dependent on the co-operation of witnesses and possible reliance on diplomatic channels if the witnesses reside outside of mainland China.

Thus, there is little power to obtain the court’s assistance for arbitration in mainland China.

4. The Position in Singapore

Singapore has a dual track arbitration regime for arbitrations held in Singapore. These are the international regime, governed by the International Arbitration Act,54 and the domestic regime, governed by the Arbitration Act.55

The Singapore domestic Arbitration Act also makes it clear that, unlike in Australia, where the Singapore International Arbitration Act applies, the domestic Arbitration Act does not apply.56

In section 3(1) of its International Arbitration Act, Singapore has adopted the UNCITRAL Model Law, except Ch VIII (which concerns the recognition and enforcement of awards, and is dealt with under Part III of the International Arbitration Act). As a result of the incorporation of the Model Law and the availability of Article 27 of the Model Law, parties can request assistance from the country’s courts where the arbitral tribunal has given its consent.

The Australian decision in Eisenwerk57 was followed to similar effect in Singapore in John Holland Pty Ltd v Toyo Engineering Corp (Japan),58 where it was held that by adopting ICC Rules the parties had implicitly opted out of the Model Law but not the whole International Arbitration Act of Singapore. The effect of this decision has now been overcome by an amendment to the Singapore International Arbitration Act.

Section 15A(1)

It is hereby declared for the avoidance of doubt that a provision of rules of arbitration agreed to or adopted by the parties, whether before or after the commencement of the arbitration, shall apply and be given effect to the extent that such provision is not inconsistent with a provision of the Model Law or this Part from which the parties cannot derogate.

As was pointed out by Lawrence Boo in Singapore Academy of Law Annual Review 2001,59 it is a basic concept of arbitration that every arbitration must be supported by a lex arbitri to give validity and nationality to the arbitral award but it is a mistake to confuse the contractual or procedural rules of arbitration which are adopted to regulate the conduct of the arbitration (such as the ICC Rules or LCIA Rules) with the lex arbitri merely because these rules sometimes appear to cover similar procedural aspects.

Section 12(1) of the Singapore International Arbitration Act empowers the tribunal to make orders or give directions to parties for:

(1) making discovery of documents and interrogatories,

(2) giving evidence by affidavit,

(3) gathering evidence, in particular preserving property (which is the subject matter of the dispute), taking samples, conducting experiments and making observations, and preserving and keeping interim custody of any evidence, and

(4) adopting inquisitorial proceedings.

Section 12(6) is a useful provision which provides for all orders or directions given by an arbitral tribunal in the course of an arbitration to be enforceable in the same way as if they were given by a court, but only with the leave of the court. However, it is doubtful whether section 12 can be invoked to enforce a tribunal’s directions against a non-party to provide discovery of documents or attend to give evidence, because section 12(1) refers to the tribunal’s powers to make orders or give directions ‘to any party’. The Act defines ‘party’ to mean ‘a party to an arbitration agreement…’.

Concurrent powers (in respect of discovery, giving evidence by affidavit, preserving property, taking samples, conducting experiments and preserving evidence) are vested in the High Court.60 There is a view that, since this provision has the restriction ‘same power … as it has for … an action or matter in the court’ and that the court’s power is limited by the rules of court, unlike an arbitrator’s power, it may be arguably better to obtain an order or direction from an arbitrator first in some situations. This can then be enforced, by the leave of the court, as if it were an order of the court.61

To compel a non-party to provide documents or to give evidence, section 13 of Singapore International Arbitration Act may be invoked. It contains express provisions facilitating the compulsion of witnesses by subpoena to give evidence in arbitral proceedings. This provision specifies that both the subpoena compelling oral evidence and the subpoena compelling the production of documents are available in this manner:

Section 13

(1) Any party to an arbitration agreement may take out a subpoena to testify or a subpoena to produce documents.

(2) The court may order that a subpoena to testify or a subpoena to produce documents shall be issued to compel the attendance before an arbitral tribunal of a witness wherever he may be within Singapore.

(3) The court may also issue an order under section 38 of the Prisons Act (Cap. 247) to bring up a prisoner for examination before an arbitral tribunal.

(4) No person shall be compelled under any such subpoena to produce any document which he could not be compelled to produce on the trial of an action.

It should be noted that this power is limited to witnesses ‘wherever he may be within Singapore’ which constrains greatly any ability to use this provision for arbitration proceedings where the witnesses are outside of Singapore.

For arbitration proceedings held in Singapore, there are other avenues available to obtain the evidence of witnesses who reside outside of Singapore. This is by way of obtaining evidence by deposition in foreign jurisdictions, pursuant to Order 39 of the Singapore Rules of Court (‘RC’).

Pursuant to Order 69A, rule 8 of the RC, Order 39 is applicable to arbitration proceedings.

Order 69A, rule 8 of the RC provides:

Taking of evidence (Order 69A, rule 8)
Order 39 shall apply in relation to the taking of evidence for arbitration proceedings under Article 27 of the Model Law as it applies for the purpose of proceedings in the Court.

Sometimes an arbitration proceeding held outside of Singapore may require assistance from witnesses within Singapore.

Section 13 of the International Arbitration Act also appears to be broad enough to compel persons in Singapore to provide documents and attend and give evidence in arbitration proceedings held outside of Singapore. However, following the line of reasoning of the court in the Hong Kong case of Ng Fung Hong Ltd v ABC,62 this provision may be interpreted to apply only to arbitration proceedings in Singapore.

Singapore’s Evidence (Proceedings in Other Jurisdictions) Act63 also provides a useful avenue to obtain evidence from witnesses in Singapore for use in proceedings held outside of Singapore.

5. The Position in Malaysia

Arbitration in Malaysia is governed by the recently enacted Arbitration Act 2005 (‘the 2005 Act’). The 2005 Act applies to both international and domestic arbitrations, with Part III being applicable only to domestic arbitrations. Part III deals with certain procedural matters and reference to the court.64 The 2005 Act allows the parties to a domestic arbitration to opt out of Part III and allows parties to an international arbitration to opt in to Part III. Whilst Malaysia has chosen not to adopt the UNCITRAL Model Law, the 2005 Act incorporates many features in the Model Law. The 2005 Act provides a refreshing update to the outdated Malaysian Arbitration Act 1952 (the 1952 Act’).

Under the old regime, except for the enforcement provisions, the 1952 Act did not apply to arbitrations held under the International Centre for Settlement of Investment Disputes (‘ICSID’) Convention, UNCITRAL Arbitration Rules and the Kuala Lumpur Regional Centre for Arbitration (‘KLRCA’) Rules.65 The KLRCA is the main arbitral institution in Malaysia and its rules incorporate the UNCITRAL Arbitration Rules with minor modifications.

Thus, arbitrations under the ICSID, UNCITRAL or KLRCA Rules were not subjected to the intervention and supervision of the Malaysian courts, as provided in the 1952 Act. This led to much debate as to whether the 1952 Act applied to local parties who arbitrate under the KLRCA Rules.66 This issue had significant implications. One implication is that if the 1952 Act was not applicable, a party was unable to avail itself of the courts’ powers to assist a tribunal in taking evidence as provided by the 1952 Act. Another implication relates to the courts’ supervisory jurisdiction over arbitration proceedings. Normally, the courts of a country have certain supervisory jurisdiction, albeit limited, over domestic arbitrations held in that country. According to one view, on a plain reading of the 1952 Act, the Malaysian courts did not have such supervisory jurisdiction even over domestic arbitrations administered by the KLRCA or conducted under UNCITRAL Arbitration Rules.67 This difficulty is now resolved by the 2005 Act, which only differentiates between domestic and international arbitrations, and which clearly provides for the Malaysian courts’ powers over these two types of arbitrations.

As regards the compulsion of evidence, the arbitrator’s powers are derived from the arbitration agreement. To ascertain whether an arbitrator has acted within his powers, the terms of the arbitration agreement need to be examined.68

Under the new regime, the 2005 Act provides an additional source of power to the arbitrator. These powers are available to both domestic and international arbitrations.

Section 19(1)69 of the 2005 Act gives the arbitral tribunal powers to make orders for:

(1) security for costs,

(2) discovery of documents and interrogatories,

(3) giving of evidence by affidavit, and

(4) the preservation, interim custody or sale of any property which is the subject matter of the dispute.

But if a non-party witness is not prepared to attend the hearing or produce documents, the arbitral tribunal cannot compel the witness to attend. Thus, to compel a non-party witness to attend, the Malaysian courts’ powers must be invoked. Under section 11(1) of the 2005 Act, the Malaysian High Court is also given similar powers as those given to the arbitral tribunal to make orders for matters such as security for costs, discovery of documents and interrogatories, giving of evidence by affidavit and the preservation of property.

This could lead to conflicts or confusion caused by overlapping applications to the High Court under section 11(1) and to the arbitral tribunal under section 19(1). The 2005 Act does not expressly provide that the High Court may exercise its discretion to decline making an order if the court considers it more appropriate for the matter to be dealt with by the relevant tribunal (as provided in the legislation of some countries70). In the case of overlapping applications, the court may resolve the matter according to principles laid down by case law.71

In addition, under section 29 of the 2005 Act, a party to the arbitration may apply to the Malaysian High Court for assistance in taking evidence.72 The High Court has the power to order the attendance of a witness to give evidence, produce documents before an officer of the High Court or any other person, including the arbitral tribunal. This provision may only be invoked with the approval of the tribunal.73

D CONCLUSION

An arbitral tribunal usually has the power to require parties to the arbitration to produce evidence. As for evidence from non-parties, in the countries discussed in this article, with the notable exceptions of mainland China, courts do have powers to assist an arbitral tribunal sitting in the country in question, to compel the attendance of non-party witnesses to give evidence or to attend a hearing to produce evidence. These powers are generally restricted to witnesses within the country itself. In some cases, it may be possible for the arbitral tribunal or a court of a country where the arbitral tribunal sits, to request the court of a foreign country assistance to obtain evidence by deposition in foreign jurisdictions.

Footnotes

1. Fourth Edition, 2004, Sweet & Maxwell.

2. IBA Working Party, ‘Commentary on the New IBA Rules of Evidence in International Commercial Arbitration’, (2000) 2 Business Law Online 14 at 27.

3. Ie, the London Court of International Arbitration (‘LCIA’) Arbitration Rules (effective 1 January 1998), available online at <http://www.lcia.org/ARB_folder/arb_english_main.htm (accessed 23 February 2006).

4. Ie, the Rules of Arbitration of the International Chamber of Commerce (‘ICC’) International Court of Arbitration (effective 1 January 1998, costs scales effective 1 July 2003), available online at <http://www.iccwbo.org/court/english/arbitration/rules.asp> (accessed 23 February 2006).

5. Ie, the Rules of Arbitration of the Australian Centre for International Commercial Arbitration (‘ACICA’), available online at <http://www.acica.org.au/arbitration-rules.html> (accessed 23 February 2006).

6. Ie, the Hong Kong International Arbitration Centre Procedures for the Administration of International Arbitration (effective 31 March 2005) (‘HKIAC Procedures’), available online at <http://www.hkiac.com/HKIAC/pdf/Rules/HKIAC%20Procedures%20for %20International%20Arbitration.pdf> (accessed 23 February 2006).

7. Ie, the Arbitration Rules of the United Nations Commission on International Trade Law (‘UNCITRAL’), General Assembly Resolution 31/98, 15 December 1976, available online at <http://www.uncitral.org/pdf/english/texts/arbitration/arb-rules/arb-rules.pdf> (accessed 23 February 2006).

8. Sykes & Pryles, Australian Private International Law (3rd Ed, 1991), Lawbook Co, page 261.

9. Sykes & Pryles, ibid. See also Korner v Witkowitzer [1950] 2 KB 128.

10. [1910] 1 KB 327.

11. For this reason the authors will not be focussing on de-nationalised or ‘stateless’ arbitrations in this article.

12. Adopted in 1999.

13. Second Edition, 22 October 1997, available online at <http://www.siac.org.sg/rules2.htm> (accessed 23 February 2006).

14. Supra, at page 38.

15. New York, 10 June 1958.

16. Adopted by UNCITRAL on 21 June 1985.

17. [2001] 1 Queensland Rule 461.

18. The new ACICA Rules in article 2.3, make it clear that by selecting the ACICA Rules, the parties do not intend to exclude the Model Law, thereby avoiding the Eisenwerk problem.

19. (1998) 44 NSWLR 312.

20. [2000] NSWSC 896 at paragraph 245. His Honour adopted dicta to this effect by Gillard J in Abigroup Contractors Pty Ltd v Transfield Pty Ltd & Ors [1998] VSC 103 at 120.

21. For a far more detailed discussion of the Australian position see Peter Chow, ‘Issues in International Commercial Arbitration: Court Assistance for Production of Documents and Obtaining Evidence of Witnesses’ (2003) 22(3) The Arbitrator & Mediator 57.

22. See Arhill Pty Ltd v General Terminal Co Pty Ltd (1990) 23 NSWLR 545, where the court also stated that ‘the rule should be construed consistently with the “established criteria of international law with regard to comity”’.

23. [2002] VSC 215.

24. ACICA Arbitration Rules, article 27 is set out above.

25. Ie, the Arbitration Ordinance (Cap. 341).

26. In accordance with the Arbitration Ordinance, section 2GA(1)(a) and Model Law, Article 18.

27. Arbitration Ordinance, section 2GB(1)(c),(d),(e), (2), (6) and (7).

28. [1998] 4 HOC 347 at 355.

29. Ng Fung Hong v ABC [1998] 1 HKC 213.

30. In the United States (‘US’), eg, 28 US Code section 1782 may be interpreted to confer on a US court power to grant assistance to obtain evidence for use in a ‘foreign or international tribunal’. In the United Kingdom (‘UK’), similar use may be made of section 43 read with section 2(3) of the UK Arbitration Act 1996. Such powers and remedies are not unusual.

31. Evidence Ordinance (Cap. 8), section 75.

32. Arbitration Ordinance , section 2GC(1)(b), (2), (5) and (6).

33. Rules of the High Court (‘RHC’), Order 73, rule 3(1).

34. BNP Paribas v Deloitte and Touche LLP [2004] 1 Lloyd’s Rep 233.

35. CLOUT Case 78.

36. Arbitration Ordinance, sections 2GB(1)(e) and 2GC(1)(b). See requirements set out in Justice Ma & Kaplan (eds), Arbitration in Hong Kong: A Practical Guide (2004), Sweet and Maxwell, page 395.

37. RHC Order 73, rule 3(1).

38. RHC Order 73, rule 7(3) and Order 11, rules 5 and 6.

39. RHC Order 11, rule 6(2A)(a). China has designated the Ministry of Justice.

40. RHC Order 11, rule 6(2A)(b)(i).

41. RHC Order 11, rule 6(2A)(b)(ii).

42. Ie, a convention, treaty or agreement between different states relating to the civil procedure of that court.

43. RHC Order 11, rule 6(2)(a).

44. RHC Order 11, rule 6(2)(b).

45. Eg, a memorandum of agreement on the mutual service of judicial documents has been signed between mainland China and the Hong Kong Special Administrative Region (‘HKSAR’) although this does not apply to arbitration.

46. RHC Order 11, rule 6(3)(a).

47. RHC Order 11, rule 6(3)(b).

48. Published by Sweet & Maxwell.

49. Arbitration Ordinance, section 2GB(3) provides as follows: ‘The Court or a judge of the Court may order a person to attend proceedings before an arbitral tribunal to give evidence or to produce documents or other material evidence.’ And section 2GB(7)(c) provides as follows: ‘An arbitral tribunal may … (c) direct the attendance before the tribunal of witnesses in order to give evidence or to produce documents or other material evidence.’

50. Lord Denning in Afro Continental Nigeria Ltd v The Meridian Shipping Co SA [1982] 2 Lloyd’s Rep 241 at 244.

51. Arbitration Law, articles 16 and 18.

52. CIETAC Arbitration Rules 2005, article 29(3).

53. CIETAC Arbitration Rules 2005, article 37.

54. Ie, the International Arbitration Act (Cap 143A, 2002 Ed).

55. Ie, the Arbitration Act (Cap 10, 2002 Ed).

56. See the Arbitration Art, section 3.

57. Supra, n 17.

58. [2001] 2 SLR 262.

59. At pages 24-29.

60. International Arbitration Act, section 12(7).

61. International Arbitration Act. section 12(6).

62. [1998] 1 HKLRD 155.

63. Ie, the Evidence (Civil Proceedings in Other Jurisdictions) Act (Cap 98, 1985 Ed).

64. These matters include consolidation of proceedings, determination of preliminary points of law by the court, reference on questions of law, costs and expenses of arbitration and extension of time for commencing arbitration proceedings and for making award.

65. Arbitration Act 1952, section 34.

66. See, eg, the views by Dato’ PG Lim in Arbitration Act 1952 – Section 34 and the Kuala Lumpur Regional Centre for Arbitration – Origins and Implications (2003), ACL Publications and by WSW Davidson, ‘Reform of Malaysian Arbitration Law – Moving Towards the UNCITRAL Model Law on International Commercial Arbitration’, 17 April 2002, CIARB Malaysian Branch article.

67. WSW Davidson, ibid.

68. Cheng Keng Hong v Government of the Federation of Malaya [1996] 2 MLJ 33.

69. Some of these powers of the tribunal are repeated in the Arbitration Act 2005, section 21.

70. See, eg, the Hong Kong Arbitration Ordinance, section 2GC(6).

71. See, eg, the approach in Channel Tunnel Group v Balfour Beatty Construction [1993] AC 334.

72. Arbitration Act 2005, section 29(2).

73. Arbitration Act 2005, section 29(1).