Parties in international arbitration can occasionally find it difficult to obtain evidence from non-compliant parties. While U.S. courts have not yet considered this issue,(1) Gary Born – perhaps the leading commentator in the field – has suggested that it is “plausible that a tribunal could apply to a national court in the arbitral seat and request that it issue a letter of request, which could be executed pursuant to” the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, more commonly known as the Hague Evidence Convention.(2) This approach is bolstered by a statement from the Hague Conference on Private International Law indicating that the Hague Evidence Convention may be used in arbitration.(3)
The relevance of the Hague Evidence Convention to arbitration is of particular interest now, given the recent release of the 2020 Guide to Good Practice on the Use of Video-Link Under the 1970 Evidence Convention (2020 Guide).(4) Although the Guide may look to be a rapid-response effort to the current COVID crisis, the document has actually been six years in the making and analyzes the latest developments regarding video-link usage under the Hague Evidence Convention, with references to both internal law and other international agreements. The Guide includes a section on best practices and is intended to complement the Practical Handbook on the Operation of the Evidence Convention, which is also published by the Hague Conference.
While most other recent works on the use of remote technology in arbitration (eg, the Seoul Protocol on Video Conferencing in International Arbitration, the Chartered Institute of Arbitrators (CIArb) Guidance Note on Remote Dispute Resolution Proceedings, etc.) focus on the nuts and bolts of the process, the 2020 Guide focuses on legal issues of interest to international practitioners. Thus, for example, the 2020 Guide discusses whether the use of videolink technology is prohibited or permitted under a variety of national laws as well as international agreements, with particular emphasis on the effect that blocking statutes (statutes meant to prohibit the taking of evidence within a particular territory for use in foreign proceedings) might have on the remote conferencing process. The 2020 Guide also identifies the way in which the process of taking of evidence under the Hague Evidence Convention varies, depending on whether the request involves standard or remote proceedings.
Those who are involved in international arbitration should consult the 2020 Guide to identify issues that might arise in any cross-border, video-linked evidentiary process. While the 2020 Guide is of course not itself authoritative, it contains a wealth of detailed technical advice not readily available from other sources. Furthermore, it addresses issues that are now more relevant than ever as arbitral hearings go online. The Hague Conference has done the international legal community a great service in compiling this particular resource.
1) See S.I. STRONG, INTERNATIONAL COMMERCIAL ARBITRATION: A GUIDE FOR U.S. JUDGES 53 (2012).
2) See GARY B. BORN, INTERNATIONAL COMMERCIAL ARBITRATION 1939 (2009).
3) See Hague Conference on Private International Law: Special Commission Report on the Operation of the Hague Service Convention and the Hague Evidence Convention, 28 I.L.M. 1556, 1566–67 (1989).
4) See Hague Conference on Private International Law, Guide on Use of Video-Link Under Evidence Convention, https://www.hcch.net/en/news-archive/details/?varevent=728.
Dr. Stacie Strong (published as S.I. Strong) is an Associate Professor specialising in private international law, international arbitration, international mediation and comparative law. Dr. Strong has taught at law schools around the world and has acted as a dual-qualified (England-US) practitioner with major international law firms in the UK and the US. She has also written over 130 award-winning books, articles and other works and has acted as an expert consultant to a variety of governmental, non-governmental and intergovernmental organisations. In addition to teaching at the University of Sydney, Dr. Strong acts as an arbitrator, mediator and expert in commercial, IP and trust-related matters in both the domestic and international spheres.