The Prague Rules

Author:Dr. Michael Pocsay, LL.M., and Christina Thiele
Profession:Clyde & Co

The "Inquisitorial Rules on the Taking of Evidence in International Arbitration", the so-called "Prague Rules", were officially launched on 14 December 2018. The Working Group consists of 46 members from 31 countries, including Germany, Sweden, Russia and the UK.

The aim was to create an alternative to the IBA Rules on the Taking of Evidence ("IBA Rules") as, in the view of the Working Group of the Prague Rules, the rather common law like approach of the IBA Rules contributed to high costs and inefficiency of arbitration. In contrast, the Prague Rules follow the civil law approach to the taking of evidence with the aim of reducing costs and time and to achieve more effective and faster arbitral proceedings.

An arbitral tribunal may apply the Prague Rules upon the parties' agreement or its own initiative after having heard the parties (Art. 1 Prague Rules). The Prague Rules expressly encourage the arbitral tribunal to take a proactive role. Moreover, the approach regarding the taking of evidence through document production, witnesses and experts is more inquisitorial when compared with that of the IBA Rules, which is more adversarial.

Document Evidence

While the IBA Rules allow the parties to request categories of documents, the Prague Rules provide only for limited options of document production. In general, Art. 4.2 states that the parties and the arbitral tribunal "are encouraged to avoid any form of document production". If a party believes it to be necessary to request certain documents, it should indicate this to the arbitral tribunal as soon as possible, preferably even already at the case management conference and explain the reasons why document production may be needed in the particular case. A request for document production at a later stage of the arbitration is only possible in exceptional circumstances. In contrast to the IBA Rules, the parties may in any case not request categories of documents but only specific documents which are relevant for the outcome of the case (Art. 4.5).

Witness Evidence

Under the IBA Rules, the parties decide which and how many witnesses will be examined at the hearing (Art. 8.1 IBA Rules). Under the Prague Rules, it is the arbitral tribunal that ultimately decides which witnesses will be called for examination. Similarities exist, however, regarding the arbitral tribunal's role at the evidentiary hearing. Under both the IBA Rules and Prague Rules, the examination of fact witnesses is controlled by...

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