课件一国际仲裁中的证据处理(1).pptVIP

正常披露（续） Shaw LJ in Lonrbo: “the documents of a subsidiary might be in the power of another ... where on the established facts a company is so utterly subservient or sub-ordinated to the will and the wishes of some other person … that compliance with that other person’s demands can be regarded as assured….” The test was whether the other companies are under the unfettered control of the defendants so as to be their alter egos (Re Tecnion Investments) 正常披露（续） Document not entitled to disclose because of an obligation to a third party (such as, documents disclosed in another arbitration and held it subject to confidentiality/collateral undertaking not to disclose) ; safe way to handle is to list the document in a court action, but refuse to allow inspection or to voluntarily disclose like a privileged document 正常披露（续） D. Duration of disclosure – Continuing duty of disclosure (Vernon v. Bosley (No.2) [1997] 1 All ER 614) and CPR at r.31.11 (until proceedings are concluded); Disclosure by orderly stages; Supplemental disclosure before hearing; Disclosure at the hearing or after hearing but before the Award (agreement of parties or leave of arbitral tribunal); Exceptions of (i) document referred to in cross-examination; (ii) document to discredit Opponent’s witness 正常披露（续） E. 披露的程序（Procedure） Exchange of list of documents ; CPR at r.31.10; must contain concise short description to identify the documents; Listing of [i] documents disclose voluntarily, [ii] documents had been in control but lost control, [iii] documents in control but refuse to allow inspection; Disclosure Statement Inspection (discretion of arbitrator [Whyte Co v. Abrens Co (1884) 50 LT 344]); Right to take copy. 正常披露（续） F. Too many documents in the modern world Disclosure/discovery becoming too expensive and time-consuming; complaint of a useless exercise of shadow-chasing in international arbitration; O M (1996) 2 Lloyd’s Rep. 347 (requirement of “substantial evidential material