| Abstract [eng] |
Evidence and Evidentiary Procedure in Arbitration The following master thesis analyzes the role of evidence and the evidentiary procedure in arbitration, examining arbitration and courts’ practice and systemic analysis of doctrince and legal acts, including arbitration rules. Different approaches of the legal cultures are shown on the means of evidence and the evidentiary procedure as well as how that procedure is shaped based on the activity of parties and arbitrators. The thesis examines the factors inhibiting the effectiveness of arbitration, which relate to unpredictability regarding the admissibility, standard and burden of proof, and analyzes the international arbitration community's ambition to harmonise the procedures used by the different legal systems. The main focus will be on the means of evidence, revealing the specification and each of their influence during the evidentiary procedure, while assesing possible alternative means of promoting the effectiveness of arbitration. In order to reduce uncertainty and increase the effectiveness of arbitration, a proposal is made for arbitration to adapt the list of criteria for admissibility of evidence, to establish a standard of proof based on the “balance of probabilities” principle and to develop guidelines that allow arbitration to predict where to look for answers on the allocation of burden of proof. The topic of this master thesis aims to analyze the impact and the options of parties' participation relating of the seat of arbitration and the application of rules of the evidentiary procedure, while also demonstrating the relationship between parties and arbitrators and the varying powers of arbitrators. Assessment of the applicability of the additional rules and examination of the specificities of the request to produce. The extent to which arbitrators have discretionary powers to conduct arbitral procedures and require evidence not only from the parties but also from corporate affiliates are examined, and proposes to supplement the section of concpets of the IBA Rules on the Taking of Evidence in International Arbitration with the definition of “control”. Furthermore, practical applicability of the alternative instruments to balance the gap between the powers of arbitrators and their impact on the effective arbitration process are analyzed as well. |
