find the latest legal job
Senior Associate - Litigation & Dispute Resolution
Category: Litigation and Dispute Resolution | Location: Melbourne CBD & Inner Suburbs Melbourne VIC
· Come work for a firm ranked in Lawyers Weekly Top 25 Attraction Firms
View details
Associate - Workplace Relations & Safety
Category: Industrial Relations and Employment Law | Location: Brisbane CBD & Inner Suburbs Brisbane QLD
· Employer of choice · Strong team culture
View details
Freelance Lawyers
Category: Banking and Finance Law | Location: All Perth WA
· Freelance opportunities through Vario from Pinsent Masons
View details
Freelance Lawyers
Category: Other | Location: All Adelaide SA
· • Qualified lawyer with a strong academic background
View details
Freelance Lawyers
Category: Other | Location: All Melbourne VIC
· • Qualified lawyer with a strong academic background
View details
Former Chief Justice warns on evidential pitfalls in arbitration

Former Chief Justice warns on evidential pitfalls in arbitration

CIArB Murray Gleeson

Despite the growing popularity of international arbitrations, questions remain over the role of evidence in such matters, former High Court chief justice Murray Gleeson has said.

Speaking at an event hosted by the Chartered Institute of Arbitrators and Clayton Utz in Melbourne, Chief Justice Gleeson highlighted several issues regarding the use of evidence in arbitration.

When international parties are involved, Chief Justice Gleeson suggested evidence rules differ between common law jurisdictions, and have a different form entirely in civil law cultures.

“In an international commercial arbitration where the hearing takes place in Australia and the law of the arbitration is Australian law, it may be that the arbitrators are from different backgrounds of legal culture. It may also be that, in the case of a contractual dispute, the governing law of the contract is that of some other jurisdiction,” he said.

“It would be unsafe to assume that disputes about evidence will be resolved in the same way as in the Supreme Court of one of the states, or the Federal Court.”

Under the International Arbitration Act 1974, the only rules laid down are that each party be given a full opportunity to present their case and the tribunal is free to decide on the admissibility, relevance, materiality and weight of any evidence.

Chief Justice Gleeson examined in-depth how these elements are balanced by evidence rules in Australian courts and how each might work in an arbitration context, including the rules around pre-contractual discussions, expert evidence and hearsay.

While he suggested arbitrations were unlikely to implement all rules of evidence like a court, he urged arbitrators to operate with a sense of rationality and fairness.

“Subject to the rules governing the particular arbitration, these rules of evidence are unlikely to be of direct application in an international commercial arbitration. It should be kept in mind, however, that they are not arbitrary; they are based on judicial experience and principles of rationality and fairness,” he said.

“Rationality and fairness ought to guide arbitral proceedings as well, and it is therefore not unlikely that, where there is an objection to evidence, the same practical outcome may result, even though the rubric under which a ruling is made may be different.”

Left to right:  The Hon Justice Ross Robson (Justice of the Victorian Supreme Court), Caroline Kenny QC (CIArb Centenary Chair), The Hon Murray Gleeson AC, Albert Monichino QC (CIArb Australia President), The Hon Stephen Charles QC, The Hon Peter Heerey AM QC (former Federal Court Justice)





Like this story? Read more:

QLS condemns actions of disgraced lawyer as ‘stain on the profession’

NSW proposes big justice reforms to target risk of reoffending

The legal budget breakdown 2017

Former Chief Justice warns on evidential pitfalls in arbitration
lawyersweekly logo
Promoted content
Recommended by Spike Native Network
more from lawyers weekly
Oct 23 2017
How to fail well
The legal profession is due for an attitude adjustment when it comes to perceived failures, accordin...
Oct 23 2017
Lawyers slam rushed consultation for SA repeat offenders bill
The Law Society of South Australia has expressed concern for a proposal to roll out new laws amendin...
Oct 23 2017
The pursuit of happiness in the law
A panel of legal experts have explored how to define success in the legal profession, and how lawyer...
Allens managing partner Richard Spurio, image courtesy Allens' website
Jun 21 2017
Promo season at Allens
A group of lawyers at Allens have received promotions across its PNG and Australian offices. ...
May 11 2017
Partner exits for in-house role
A Victorian lawyer has left the partnership of a national firm to start a new gig with state governm...
Esteban Gomez
May 11 2017
National firm recruits ‘major asset’
A national law firm has announced it has appointed a new corporate partner who brings over 15 years'...
Nicole Rich
May 16 2017
Access to justice for young transgender Australians
Reform is looming for the process that young transgender Australians and their families must current...
Geoff Roberson
May 11 2017
The lighter side of the law: when law and comedy collide
On the face of it, there doesn’t seem to be much that is amusing about the law, writes Geoff Rober...
May 10 2017
Advocate’s immunity – without fear or without favour but not both
On 29 March 2017, the High Court handed down its decision in David Kendirjian v Eugene Lepore & ...