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The Prague Rules on the Taking of Evidence: The "Civil War" in the "Common Law" World of Arbitration?

November 13, 2018

The panel discussion began with an introduction of the Prague Rules by Andrey Panov, one of the drafters of the new rules. Andrey Panov stressed that the Prague Rules are a soft law instrument which were not invented to replace the IBA rules on the taking of evidence. Rather, they are intended to address deficiencies in existing international arbitration rules. Alexander Milner elaborated on the deficiencies in the IBA rules, suggesting that currently many witness statements and oral submissions are underutilized by tribunals. Under the Prague Rules, the tribunal has the power to reject witnesses which it deems not to be useful, meaning that the parties will not waste time preparing witness statements which are ultimately not used.

Milner also noted that the Prague Rules encourage having only one tribunal-appointed expert, which is beneficial as it increases impartiality in expert evidence. Artem Doudko agreed, arguing that – although not perfect – the Prague Rules will encourage tribunals to be more proactive in their case management and will help to reduce costs and the length of arbitration proceedings. Khawar Qureshi QC and Maxim Kulkov argued against the Prague Rules. Qureski stated that the Prague Rules are problematic because there is an assumption that they apply only to civil law practitioners and they envisage document based determination where there is a lack of cross examination of evidence. Maxim Kulkov argued that, while the Prague Rules encourage expediency and reduce costs, ultimately this will lead to a sacrifice in the quality of the decision making process.

Tigran Ter-Martirosyan ended the discussion by giving his opinion of the Prague Rules from the perspective of an expert witness. Ter-Martirosyan suggested that, while the Prague Rules will encourage expert impartiality, their use will lead to a delegation of quantum decision making from tribunals to experts. Also, given that parties will retain the right to cross-examine experts, many tribunals will end up listening to three experts (one tribunal appointed expert and one expert cross examining for each party) and so there will be a minimal reduction in costs. At the end of the discussion, the audience was asked to vote for or against the use of the Prague Rules in international arbitration. The majority of the audience voted against.

The discussion was moderated by Tatiana Minaeva, of counsel at Jones Day (London).

The following panelists shared their views:
  • Khawar Qureshi QC of Serle Court Chambers (London) and McNair Chambers (Qatar) 
  • Alexander Milner of Fountain Court Chambers (London) 
  • Maxim Kulkov, Partner at Kulkov, Kolotilov & Partners (Moscow) 
  • Tigran Ter-Martirosyan, Director at Berkeley Research Group (UK) Ltd (London) 
  • Artem Doudko, Partner at Osborne Clarke (London)

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