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This presentation is specially focused on the Inquisitorial Model because we are more or less familiar with the Negotiated Model and the Adversarial Model.
PART I
NEGOTIATED MODEL
This provides the means for settling disputes amicably with the full and unqualified consent of the parties.
On the upside, this may be the best way to settle disputes. On the downside:
This in the end is entirely dependent on the parties. This mode may also violate or dilute justice more so in those cases where the bargaining strengths of the parties are lopsided.
PART II
In the adversary models, the winner wins what the loser loses in an all or nothing outcome.
The parties are compelled to comply with the deciding authoritys decision where appeals are exhausted (or not allowed) even if they were dissatisfied with it.
In the adversarial approach, the deciding authority is passive and relies on the presentation of the parties.
In the inquisitorial approach, the deciding authority is proactive and generates his own evidence.
PART II-A
Party calls his witness (in arb., normally witnesses of fact first before experts); Witness takes his oath of affirmation; Party ask the witness to confirm his name, address and involvement in the subject matter; Direct examination or examination in chief follows; no leading questions except on noncontroversial matters
Cross examination by adverse party; leading questions allowed; Redirect examination (sometimes called reexamination) by proponent; Recross examination; Third party neutral makes his own examination, normally restricted to clarificatories. Depending, however, on the nature of questions asked by the neutral, the parties may be allowed to ask supplementary questions on the issues raised by the neutrals questions. Witness thereafter excused.
On the upside, it is said to have the advantage in that it entails a much more comprehensive and thorough examination of the truth. This is, of course, conditioned on the assumption that the contending lawyers are well matched (more so in cross examination skills). Rightly or wrongly, the adversarial model became synonymous with delay and technicalities.
PART II-B
Third party neutral plays an active role instead of just being a mere referee; Process directed by third party neutral; does not depend on parties action; and Lawyers role is restricted. In short, the third party neutral generates his own evidence. He uses his subpoena powers to compel production of evidence and to conduct his own investigation.
The clause the tribunal generates it own evidence is descriptive of what the tribunal can do.
On its own, it may decide to look into the books of the parties, conduct ocular inspections, require the presence of witnesses, require the production of documents, etc.
Preliminaries
Witnesses have filed their written statements. Agreement on when witnesses are available is already in place.
Neutral calls the witness to be examined. Witness takes usual oath or affirmation. Neutral confirms name and address of witness; also that the content of his witnesss statement is true and is the evidence witness wishes to give.
Neutral ask the witness such questions as the former considers appropriate.
Examination by Parties
Witness turned over to the parties for examination for the usual direct (if necessary), cross, re-direct and recross. As a rule, proponent of the witness may not ask leading questions. The other party may ask leading questions. Parties may ask witness to clarify his answers to the questions of the third party neutral.
After the parties were finished with their examination, the neutral may then ask further questions arising from the questions asked by either party.
NOTE:
The discussion omitted matters pertaining to the opening of the proceedings, introductions, explanation of the procedure (in arb.) the opening and closing statements (sometimes called pre-hearing memorials and post hearing memorials), etc.
It is said that, normally, the tribunal may end up asking about 70% of the total number of questions directed to a witness.
In other words, the tribunal under normal circumstances may end-up asking more questions than the total number of questions asked by the party representatives.
Note that the procedure described in the previous slides may be combined with other types of arbitration proceedings such as in the so-called witness conferencing. If Mr. Justice Roberto A. Abad were to have his way, the first and second level courts will go inquisitorial in the so-called run of the mill cases excluding small claims.
It is said that the advantage of the model is that the evidence is generally confined to a search for the truth.
The downside is that there is the tendency that the quality of the evidence may not be subjected to the test provided by cross examination.
PART II B1
Accordingly, in agreement based arbitration, one of the matters that should be taken-up during the preliminary conference is whether or to what extent the tribunal should take the initiative in ascertaining the facts and the law. [Not widely known in Phl.]
OTHER LIMITATIONS
The tribunal in the exercise of its discretion cannot contravene mandatory provisions of law. This is obvious as the provisions involved are matters of public policy and therefore needs no further explanation. Note that institutions may also have mandatory rules. UNCITRAL Rules 1976 has a mandatory provisions clause in Sec. 1 Article 1.2.
OTHER LIMITATIONS
The tribunal cannot exercise its discretion in those cases where the law provides default procedures (usually with the words failing such agreement, subject to the agreement between the parties, or similar phrases). Note that institutions also have default rules. UNCITRAL Rules 1976 has a general default provisions clause in its Section 1 Article 1.1. ICC RULES has several default provisions.
OTHER LIMITATIONS
Needs strength of character More so in Phl where there is prejudice against the inquisitorial model. Danger of apparent or perceived bias (so arb must exercise caution) Requires more preparation on part of tribunal
NOTE: Most Phl lawyers/arbs would most likely want to veer away from it
PART II-B-2
CIAC RULES
In CIAC, the rule is arbitral discretion re procedure. Sec. 13.5. The arbitral tribunal xxx shall have complete control over the proceedings. (Parties have only such leeway that the tribunal would allow them.) So, given the strict time lines, it is adviseable, almost mandatory given other CIAC rules, to go inquisitorial in CIAC Arbitration.
The tribunal xxx shall at all times adopt the most expeditious procedures for the introduction and reception of evidence and xxx in any case shall afford full and equal opportunity to all parties to present relevant evidence (see Rule 13.4).
INADVERTENT LIMITATION?
CIAC Rules Sec. 13.7. Examination by the Arbitral Tribunal. The Arbitral Tribunal may ask clarificatory questions of the witnesses at any stage of the proceedings. Comment: In inquisitorial proceedings, the deciding authority generates its own evidence. Therefore, it is not limited to asking clarificatory questions only. Note: See Sec. 9 of old Rules.
CIAC Rules Sec. 13.16. Submission of memoranda or draft decision. If any or both parties so desire, written memoranda or draft decisions may be submitted not later than ten (10) calendar days from termination of the hearing or from the date of the filing of additional documents as previously agreed upon, whichever is later. Sec. 13.16.1. If both parties agreed to submit memoranda or draft decisions, the filing shall be simultaneous.
BIBLIOGRAPHY
CIArb Teaching Manual (culled from various sources) PIArb Teaching Manual (culled from various sources) CROWTER, Harold FCIArb: An Introduction to Arbitration, LLP Reference Publishing, London CIAC RULES; UNCITRAL MODEL LAW 1985; ICC Rules; UNCITRAL Rules 1976; UNCITRAL Guidelines