Prof. Dr. Rolf Trittmann on "The fact-finding process in International Arbitration"
Our class had the opportunity to learn about the fact-finding process in international arbitration from an expert in the field, Prof. Dr. Rolf Trittman, LL.M. (Berkeley), Partner with rothorn legal.
During this lecture, we discussed the search for truth. Meaning, the real facts of the process, through the perspective of state courts, arbitral tribunals, parties, and their counsels. It highlighted the beauty of international arbitration’s main principle, flexibility.
We also discovered differences in the search for truth in both the civil and common law legal systems. Under civil law, the truth of the proceedings will be discovered through the perspectives and evidence submitted by the parties. On the other hand, in the common law system, it is common for the claimant to rely on obtaining information from the other party.
Regarding fact finding in arbitral tribunals, we discussed that the DIS and ICC Rules provide the possibility for arbitral tribunals to investigate the facts of the underlying matter themselves, through requesting specific documents, examining witnesses, and appointing experts on their own initiative.
To achieve the above-mentioned findings, we navigated soft law regulations, such as the IBA Rules for the Taking of Evidence (“IBA Rules”) and the Prague Rules, applicable in proceedings only if agreed by the parties.
We concluded that nowadays, there is an attempt to “civilize” the fact-finding process in international arbitration, specifically by applying the Prague Rules. While successful, the IBA Rules’ approach relies mostly on common law principles.
Finally, we ended the lecture by establishing that the burden of proof under the civil law system depends on the applicable substantive law, or on the decision-making power of the arbitral tribunal.
- Michelle Lichtenberger De Ferrater, IDR LL.M. Candidate, Class of 2024/2025