Publish time: Mon Dec 24 15:59:05 CST 2018
On December 14 2018, the practical seminar themed “Document Disclosure in International Arbitration” jointly organized by the Beijing Arbitration Commission / Beijing International Arbitration Center (the “BAC”), the China Institute of Corporate Legal Affairs of Legal Daily and Hui Zhong Law Firm was successfully held at the BAC international conference hall.
The seminar
As part of the BAC forum series, the BAC worked with Hui Zhong Law Firm this time, and invited Mr. Philip Yang, a well-known international arbitrator, Mr. Rimsky Yuen, SC and Mr. Val Chow, Barristers of Temple Chambers, Ms. Zhao Fang and Ms. Yang Xueyu, Partners of Hui Zhong Law Firm, to share issues concerning document disclosure in international arbitration and their practical experience and skills.
Mr. Liu Jing
The seminar wad moderated by Mr. Liu Jing, Senior Counsel of Hui Zhong Law Firm. Dr. Chen Fuyong, Deputy Secretary General of the BAC, delivered an opening address. Dr. Chen said that ever since the “western learning” in modern times, China has been adopting the advanced experience of the west. This seminar on document disclosure jointly held by the BAC and Hui Zhong Law Firm is an uncommon learning opportunity for PRC domestic legal practitioners. He also reviewed the BAC’s friendship with Mr. Philip Yang and Mr. Rimsky Yuan, SC, and extended thanks to their continuous support to the BAC and their trip to Beijing this time to share their precious experience. At last, he wished the event a full success.
Dr. Chen Fuyong
The seminar started with the speech by Ms. Zhao Fang. Under the topic of the status quo and trend of document disclosure in international arbitration, Ms. Zhao presented an introduction of the concept of document disclosure, the professional ethics concerning document disclosure, the primary forms and approaches of document disclosure in international arbitration, and the development trend of rules on burden of proof in international arbitration after the Prague Rules come into force.
Ms. Zhao Fang
In session two, Ms. Yang Xueyu gave her speech. She talked about the disclosure under the IBA rules, providing the audience with an introduction of the regular process of disclosure, how the claimant and the respondent raise their requests for disclosure, how rebuttals are to be raised, and the outcomes of non-disclosure, by reference to vivid cases.
Ms. Yang Xueyu
Mr. Val Chow shared issues concerning privileged files and attorney-client privilege with the audience in session three, and specifically introduced the importance of “legal professional privilege” and “without prejudice privilege” in international commercial arbitration.
Mr. Val Chow
The highlight of the seminar was unveiled in session four. Moderated by Mr. Liu Jing, Mr. Philip Yang, Mr. Rimsky Yuen, SC, Ms. Zhao Fang and Mr. Val Chow conducted a panel discussion, where they had exchanges on and gave answers to the provoking questions raised by the moderator and the audience. The five speakers firstly discussed whether document disclosure is required in the event both parties come from civil law countries. Mr. Yang thought that either in common law countries or in civil law countries, the pursuit of truth and justice shall always be the ultimate goal of adjudicators. Only when the documents are disclosed could the adjudicators get closer to the facts, and what needs more consideration is how the disclosure process could be more cost effective based on the coordination between the parties. Mr. Yuen was of the view that whether in common law system or in civil law system, enterprises of the western countries usually regard the dealing with documents as important. When disputes arise, it will be highly important to disclose all relevant documents at the very beginning, as it could help make sure each sentence is evidence-based when raising claims to the counterparty.
Mr. Philip Yang
Mr. Rimsky Yuen, SC
Another issue attracted hot discussion between the speakers and the audience was whether document disclosure could be excluded by the agreement of the parties. Mr. Yang believed that although the parties could agree not to disclose documents, for public policy reasons, such agreements could not restrict the arbitral tribunals from requesting the parties to disclose relevant documents for purpose of justice and fact-finding. Mr. Yuen viewed that by interpreting the agreement between the parties, an adjudicator may determine whether the parties really excluded the application of document disclosure as required by the adjudicator. Apart from that, the panelists also had discussion on other issues such as whether the exchange between a party and its in-house counsels is covered by attorney-client privilege and the adverse outcomes of non-disclosure. The seminar came to its end in the active interaction between the audience and the speakers.
Panel discussion
Question by audience
Group photo
As a leading arbitration institution in China, the BAC built a platform for legal practitioners to learn and exchange when providing parties from various countries with qualified and efficient dispute resolution services. The BAC will pay continuous attention to the hot topics in international arbitration, and organize events accordingly. Professionals from various areas are welcome to pay attention to the BAC’s diversified dispute resolution efforts, and participate actively in various events organized by the BAC, and also pay attention to the BAC’s official website and WeChat account for more information.