GOOD FAITH, BAD FAITH, BUT NOT LOSING FAITH: A COMMENTARY ON THE 2010 IBA RULES ON THE TAKING OF EVIDENCE IN INTERNATIONAL ARBITRATION

摘要

The 2010 iteration of the International Bar Association (IBA) Rules on the Taking of Evidence in International Arbitration constitutes a laudable effort, albeit organic work-in-progress, that expressly aspires to provide an "efficient, economical, and fair process" for the taking of evidence in international arbitrations. The newly introduced standards of "reasonably relevant to the case and material to its outcome, " as well as "good faith " have the potential of serving as pivotal premises in the Rules' workings. The application of the identical standard for purposes of both the taking of evidence pre-final hearing phase and at hearings and the final hearing concerning admissibility requires sustained consideration and reconsideration. The arresting absence, however, of definition and specificity attendant to terms rudimentary to these criteria hampers the Rules' theoretical underpinnings and practical application by inordinately enhancing the scope of inherent arbitral authority at the expense of the most critical, almost sacrosanct principles that underlie international arbitration: party-autonomy, uniformity, predictability, and transparency of standard. A suggested approach in addressing the absence of any definition for "good faith" within the Rules' rubric is to borrow from the "transparency" requirements that now pervade the Rules as a principle susceptible to cross-cultural understanding and one that may meet the most fundamental expectations of parties from different legal traditions. Good faith in the taking of evidence is inextricably intertwined with transparency and may perhaps find theoretical support and functional application when understood through the prism of a "transparency" standard, as arbitral authority cannot be boundlessly enhanced as a consequence of uncertainty and lack of definition.