Asistencia de Jueces Extranjeros en la Práctica de la Prueba en el Arbitraje Internacional

• Autores: Giulio Palermo, Ignacio Guaia
• Localización: Spain arbitration review: revista del Club Español del Arbitraje, ISSN 1888-4377, Nº. 20, 2014, págs. 109-128
• Idioma: español
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• Resumen

  • Producing evidence during an arbitration may require the assistance of local or foreign judges depending on where the documents, witness or evidentiary elements are located.

    Since arbitral tribunals are only empowered to adjudicate within the confines of the parties » arbitration, their coercive power is limited. Hence, recourse to the judiciary may be sought by either the Tribunal or the parties when the production of evidence so requires.

    The fashion in which judges may be requested to assist in the production of evidence for an arbitration varies considerably, there being in this respect countries with various degrees of arbitration friendly regulations dealing with this subject. Direct requests for assistance are those addressed to a court directly by a foreign arbitral Tribunal or the parties to a foreign arbitration. Conversely, indirect requests usually entail a cumbersome procedure whereby the arbitral Tribunal (or the parties in the arbitration, if permitted) must necessarily apply to the courts of the place of the seat of the arbitration to file a request that will eventually reach the courts of the place where the required evidence is located. These alternative ways to assist foreign arbitrations in the evidentiary stages (or even in discovery phases) function pursuant to international conventions, multilateral and regional agreements and domestic laws. The importance of designing arbitration agreements paying due regard to such norms is paramount in securing a fair and efficient procedure.