Alexandr Mares - The Power to Search for the ... - Arbitration Austria

Vienna Arbitration Days 2013
The (perceived) Powers of the Arbitrators:
The Power to Search for the Truth
Some practical remarks
Dr. Alexandr Mareš
26 January 2013
1

General
• Philosophical aspects of searching for the truth
• Desirable goal in all arbitration cases
• Difference between “actual truth” and “formal truth”
• Difference what really happened and what happened according to the evidence which the
parties are able to present
• Preferably focus on 3 practical issues:
• (1) Truth is daughter of time (“Veritas filia temporis”)
• (2) Truth is in the details (contrary to “Devil is in the details”)
• (3) Truth is in the law (“Iura novit curia”)
2

First, Truth is daughter of time
• Requirement for well-timed and efficient arbitrators
• Balance of the requirement of speed, due process is upheld, parties are able to fully argue
their case, arbitrators take the time necessary to reach the right decision
• The Boeckstiegel method
• Each party will have a max 2 hours for its first round presentation and a max of 1 hour for its
rebuttal presentation, after deduction time for breaks and other business. Each side is free to
determine how much time it will spend on the presentation of evidence, including witnesses
and experts, and on argument, respectively. …
• Accelerated proceedings
• Arbitral award is rendered within 4 months of payment of the increased arbitration fee,
accelerated proceedings shall be conducted on application of any party that has paid the
increased arbitration fee, unless the above periods of time have been extended on request of
the party that paid the increased arbitration fee (§ 30 of the Rules of the permanent Czech
Arbitration Court) …
3

Second, Truth is in the details
• Requirement for economically and technically oriented, simply skillful
arbitrators
• Arbitrators are good in deciding the liability issue, but the quantum
(damages) is often another story
• Need for not only legal skills, but also experience in economics, book-keeping or real business
life on the relevant territory
• Lessons from a complex software law VIAC case
4

Third, Truth is in the law
• Requirement for arbitrators to apply the substantive law to the case
properly
• Arbitral awards are not subject to review for a legal error
• Iura novit curia / arbitrators know the law
• Ex aequo et bono
• Arbitrators review evidence that has been presented to them voluntarily
by the parties
• Guidance in exceptional cases, examples:
• IBA Rules on the Taking of Evidence in International Arbitration
• The Redfern schedule
5

Conclusion
• Requirements for arbitrators
• Prevailing principles
• Thank you for your attention
6