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Efficiency of Arbitration Proceedings versus Rules on Witnesses and Experts – Is There Any Space for Rationalization?

Gašo Knežević ; Pravni fakultet Univerziteta u Beogradu, Beograd, Srbija

Puni tekst: hrvatski pdf 521 Kb

str. 659-682

preuzimanja: 831



The necessity of increasing the speed of judicial and para-judicial proceedings and reducing their costs appears as a major concern of all arbitral institutions and represents a priority issue in their agendas. The same is true in the realm of “public” justice and the means for protection of rights before State courts.
Given that ICC arbitration is one of the biggest and the most renowned arbitral institutions in the world, and that it is committed to rendering its proceedings more efficient and less costly, in this paper the author tried to analyze its measures aimed at improving time management and reducing costs of the proceedings introduced in the new 2012 ICC Arbitration Rules. These measures include, inter alia, evidentiary hearings at which both witnesses and experts appear and help establishing the facts of the case and sometimes even the content of the applicable law. Due to their role, witnesses and experts are indispensable actors in the process of making the arbitral decision, so it is necessary to explore the options for rendering their participation more efficient.
Firstly, it is legitimate to assume that a speedier evidence-gathering procedure might have repercussions on the quality of the arbitral awards (good justice, like wine, takes time). In that respect, some commentaries have already opened a sensitive issue of the relationship between the quality and efficiency of legal protection. The author seeks to establish whether the evidentiary procedure, as the most time- and money-consuming stage of the proceedings, may be subject to rationalization while keeping the satisfying level of quality of the awards.
Secondly, the new 2012 ICC Arbitration Rules clearly seek to promote the individualization of disputes by, among other methods, increasing the amount and the scope of preparatory activities of the tribunal (various Case Management Conferences, Case Management Techniques, Pre-Hearing Conferences). This leads to a conclusion that the creators of the ICC 2012 Rules consider that a more thorough preparation of the proceedings and their individualization in the preparatory stage, before evidentiary hearings, will result in hearings that are more efficient. Therefore, a question arises: is the desired result achievable?
Despite being an avid supporter of the individualization of disputes, the author provides a skeptical answer to this question. As far as the costs of arbitration services are concerned: if the inputs of pricing are the same and if the demand remains stable, but the number of operations that need to be performed in order to reach a decision increases due to the changes in the technology of decision-making process, there is no place for reduction of costs.
As far as the time-aspect is concerned: the advantage that arbitration has over ordinary courts is already so big that it puts the fairness of their “competition” into question. Namely, what “sells” ICC dispute resolution products is the fact that the awards of this institution are not subject to a second-degree review by any institution and that the New York Convention guarantees their efficient enforcement.
If these observations are correct, then the evidentiary hearing appears not to be the appropriate aspect of the proceedings where possible reduction of costs may be sought. Along with the quality and the impartiality of arbitrators, this guarantees the quality of the awards and contributes to further promotion of the reputation of the institution in the name of which the awards are rendered. As it is usually upon the parties to choose the arbitrators, the arbitral institutions (including the ICC system) should do all they can to allow that all facts are properly established, whatever the costs and the duration of the evidentiary hearing may be.

Ključne riječi

efficiency of decision-making process, witness, experts, individualization of the proceedings, case management techniques

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Podaci na drugim jezicima: hrvatski

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