About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

39 Constr. Law. 18 (2019)
The Prague Rules: What U.S. Practitioners Need to Know about the Civil Law World's Answer to the IBA Rules on the Taking of Evidence in International Arbitration

handle is hein.journals/conlaw39 and id is 70 raw text is: I ARBITRATION The Prague Rules: What U.S. Practitioners Need to Know About the Civil Law World's Answer to the IBA Rules on the Taking of Evidence in International Arbitration By R. Zachary Torres-Fowler Unlike federal or state court litigation, international arbi- tration proceedings lack explicit and mandatory pro- cedural rules. Instead, both institutional and ad hoc arbi- tration rules in international arbitration allow the parties to conduct the proceedings in the manner they believe most appropriate. As a result, unless they agree otherwise, par- Zachary Torres-Fowler ties who select international arbitration as their preferred dispute resolution method are not required to follow a stan- dardized procedural schedule (e.g., complaint, motion to dismiss, summary judgment, etc.), discovery methods (e.g., document production, depositions, interrogatories, initial disclosures), or trial/hearing procedures (e.g., Federal Rules of Evidence). The absence of default procedural rules for interna- tional arbitration is, in part, what makes the process a flexible and attractive dispute resolution mechanism. But that absence also requires parties and tribunals to develop their own best practices, often in a vacuum. To fill this gap, a working group from the International Bar Association's Arbitration Committee developed the IBA Rules on the Taking of Evidence in International Arbitra- tion (IBA Rules), a standardized set of rules developed by international arbitration practitioners from various legal traditions concerning topics such as document production, witness and expert testimony, and the man- agement of evidentiary hearings. Since their release in 1999 and subsequent update in 2010, the IBA Rules have become one of, if not the most, commonly accepted set R. Zachary Torres-Fowler is an associate in the Construction Practice Group of Pepper Hamilton LLP in Philadelphia and New York and is a member of the Group's International Construction Projects Practice. He has extensive experience in international arbitration matters arising from projects located in Africa, the Middle East, and Latin America. of procedures for the taking of evidence in international arbitrations.2 While the IBA Rules' popularity in international arbi- tration speaks to the efficacy of those procedures, much of their success may also stem from the fact that the IBA Rules are, quite simply, the only real game in town. In recent years, however, the IBA Rules have been increas- ingly criticized, particularly by practitioners from civil law jurisdictions, for ostensibly favoring common law practices that civil law practitioners find distasteful, such as expan- sive discovery, lengthy legal submissions, and unnecessary party-driven examinations.3 According to these critics, the increasing Americanization of international arbitration, in part caused by the growing acceptance of the common law procedures contained in the IBA Rules, has given rise to a variety of problems within modern international arbitration practice and led to more lengthy and costly proceedings.' While many practitioners in the field of international arbitration find those criticisms misplaced,' the sentiments of these civil law practitioners were on full display on April 20, 2017, during a panel session of the Fourth Russian Arbi- tration Association Annual Conference in Moscow entitled Creeping Americanization of International Arbitration: Is It the Right Time to Develop Inquisitorial Rules of Evidence.6 There, panelists explained the efforts of a working group focused on the development of an alternative set of stan- dardized rules for international arbitrations to counter the influence of the IBA Rules.' After more than a year of internal debate and drafts, on December 14, 2018, the working group released the Rules of the Efficient Conduct of Proceedings in International Arbitra- tion, otherwise known as the Prague Rules.I True to their promise, the Prague Rules offer a distinct set of standard- ized procedures for international arbitration proceedings that are clearly influenced by civil law norms most promi- nently the inquisitorial, tribunal-driven approach instead of the adversarial, party-driven approach, adopted by com- mon law practitioners.9 The ongoing development and anticipated release of the Prague Rules sparked an intense debate within international arbitration circles concerning the effectiveness of the IBA Rules and other common practices and whether the Prague Rules present a viable alternative. To some, the Prague Rules 18 THE CONSTRUCTION LAWYER Spring 2019 Published in The Construction Lawyer,Volume 39, Number 1 Winter 2019.0 2019American Bar Association. Reproduced with permission.All rights reserved.This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most