Arbitration Evidence and Discovery in Arbitration 2 — Questions and Answers
Question 1: What is the purpose of a 'tribunal-appointed expert' in arbitration proceedings?
- To replace party-appointed experts entirely
- To provide an independent technical opinion to assist the tribunal (Correct answer)
- To act as a co-arbitrator on technical matters
- To negotiate a settlement between parties
Correct answer: To provide an independent technical opinion to assist the tribunal
A tribunal-appointed expert provides an independent opinion on technical or specialized matters to help the arbitrator make an informed decision.
Question 2: Which type of witness statement is typically exchanged before a hearing in international commercial arbitration?
- Oral deposition transcripts
- Written witness statements submitted in advance (Correct answer)
- Notarized affidavits filed with a court
- Grand jury testimony
Correct answer: Written witness statements submitted in advance
International arbitration typically requires parties to exchange written witness statements before the hearing, which then serve as direct testimony.
Question 3: Under AAA Commercial Rules, how are requests for document production typically handled?
- Automatically granted without arbitrator review
- Through a procedural order after arbitrator review of objections (Correct answer)
- Through a separate court proceeding
- By agreement of counsel only, with no arbitrator involvement
Correct answer: Through a procedural order after arbitrator review of objections
Under AAA rules, document requests and objections are reviewed by the arbitrator, who issues procedural orders governing production.
Question 4: What does 'hot-tubbing' (concurrent expert evidence) involve in arbitration?
- Witnesses testifying simultaneously and being cross-examined together (Correct answer)
- Off-the-record settlement discussions
- Simultaneous submission of written briefs
- Joint deposition of party representatives
Correct answer: Witnesses testifying simultaneously and being cross-examined together
Hot-tubbing involves expert witnesses from both sides testifying at the same time, enabling direct comparison and cross-examination of competing opinions.
Question 5: What is the significance of 'electronically stored information' (ESI) in modern arbitration?
- ESI is inadmissible in all US arbitrations
- ESI must be produced in paper format only
- ESI has become a major component of document discovery, requiring protocols for collection and production (Correct answer)
- ESI is handled exclusively by courts, not arbitrators
Correct answer: ESI has become a major component of document discovery, requiring protocols for collection and production
ESI including emails, databases, and electronic files is now central to arbitral discovery, requiring specific protocols for preservation, collection, and production.
Question 6: What is 'adverse inference' in the context of arbitral evidence?
- A presumption that all arbitrators are biased
- A negative inference drawn against a party that destroys or fails to produce relevant evidence (Correct answer)
- A rule requiring both parties to testify
- An inference that a claim is fraudulent
Correct answer: A negative inference drawn against a party that destroys or fails to produce relevant evidence
An adverse inference allows the arbitrator to presume that withheld or destroyed evidence would have been unfavorable to the party who failed to produce it.
Arbitration Evidence and Discovery in Arbitration 2
What is the purpose of a 'tribunal-appointed expert' in arbitration proceedings?