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BOOK REVIEWS 97

Procedure and Evidence inInternational Arbitration

Professor Jeffrey Waincymer
(Kluwer Law International, 2012); 1,408 pages (hardback)
ISBN: 9789041131683

ProcedureandEvidenceinInternationalArbitrationbyProfessorJeffreyWaincymer
provides a lucid and exhaustive exploration, comparative review and analysis
of key evidence and procedural issues in international arbitration. While it
focuses on commercial arbitration, it also makes reference to investment
arbitration. In the course of this, Professor Waincymer outlines supporting
or interrelating substantive principles of international arbitration and also
describes and analyses comparative law issues that arise.
In his Preface to the work, Professor Waincymer describes his aim in
writing it as being to 'combine practical analysis of the procedural and
evidentiary stages of international arbitration with a theoretical and
comparative perspective in order to identify optimal solutions to promote
fairness and efficiency'. He says that he has concentrated on practice and
procedure to fill a gap he perceives to exist between general introductory
international arbitration works and detailed works on the laws and rules
of various key jurisdictions. He comments that he has endeavoured to be
'more exhaustive as to general issues and practical options' but not to focus
on every relevant rule or case wherever they may be found.
This work looks at issues from varying perspectives including those of
arbitrators, parties, counsel, institutions and courts and the reconciliation
of the tension that can regularly arise between fairness and efficiency where
different legal cultures are involved. The relationship between the tribunal's
power and duty to act fairly and efficiently in an objective sense and the
extent of the parties' autonomy to determine the procedural conduct of
the arbitration is also considered.
As Professor Michael Pryles writes in his Foreword to the text, while its
title 'suggests a book of limited compass, a scrutiny of its Table of Contents
quickly reveals otherwise'.
Professor Waincymer's text is organised into three parts (consisting of a
total of 16 chapters over nearly 1,350 pages) as follows:
(I) Policy and Principles;
(II) The Process of Arbitration; and
(III) The Award.
In Part I, Professor Waincymer discusses the nature of international arbitration,
the specific role of procedure in international arbitration and the policy
criteria for evaluating procedural models (Chapter 1), and then discusses in
some detail the powers, rights and duties of arbitrators (Chapter 2).
98 DisPuTE RESOLUTION INTERNATIONAL Vol 8 No 1 May 2014

In Part II, which concerns the process of an arbitration, Professor

Waincymer, among other things, reviews the procedural framework for
international arbitration (Chapter 3) including the arbitration agreement,
the sources of procedural laws, the sources of procedural laws-both municipal
and international - discusses the pros and cons of institutional and ad hoc
arbitration, and pre-arbitral applications. He then discusses written notices,
submissions and the articulation of claims and defences (Chapter 4), the
selection, challenge and change of arbitrators (Chapter 5), and establishing
the procedural framework.
Chapter 6, which concerns 'complex arbitration', provides a good
example of the breadth and depth of this work, discussing as it does:
* multi-party scenarios;
* multiple claims and contracts;
* joinder and consolidation;
* case management of parallel proceedings;
* class action;
* insolvency in arbitration;
* amicus curiae and
* third-party funding in international arbitration.
In Part II, Professor Waincymer continues his review of the process of
arbitration to discuss preliminary, interim and dispositive determinations
(Chapter 8), hearings (Chapter 9), approaches to evidence and fact finding
(Chapter 10), documentary evidence (Chapter 11), general witness and
expert evidence (Chapter 12), and procedure and evidence in choice of
law and interpretation (Chapter 13).
Finally, in Part III, Professor Waincymer then discusses the 'award' reviews,
remedies and interest (Chapter 14), the costs in arbitration (Chapter 15)
and the award (Chapter 16).
Professor Waincymer's sources are wide ranging, and include texts,
commentaries, articles, cases and procedural rules and guidelines updated
to 2012. His approach enables the reader to quickly review the range of
main issues likely to arise with regards to a procedural issue, the various
approaches that are commonly taken to it including their pros and cons,
and to consider which principles or policies are relevant to the topic
the reader is researching. The detailed index is a useful resource when
searching the text for all relevant discussion.
An area of increasing interest in international arbitration is whether
arbitrators have a duty to seek an early disposition of a case and engage
in, or encourage the parties to engage in, alternative dispute resolution.
Professor Waincymer discusses these issues in Chapter 8 ('Preliminary
Interim and Dispositive Determinations'). Among other things, he discusses
BOOK REVIEWS 99

the role and responsibility of arbitrators in encouraging early resolution of

a key issue that may potentially resolve a case and considers the pros and
cons of this including the type of techniques that can used. He observes
that it is 'important to distinguish between what alternative dispute
resolution (ADR) specialists describe as a mediator/arbitrator process
and the discrete question of whether an already appointed arbitrator may
assist in the process'. Professor Waincymer focuses on the second question,
looking at the 'optimal processes where lex arbitri, arbitral rules and/or
party agreement allow an arbitrator to exercise a mediation/conciliation
function'; he also touches on other means to promote settlement.
In the course of Professor Waincymer's review of an arbitrator's potential
role as mediator, he reviews rules where a positive duty is imposed on an
arbitrator, and those where a mediator in a dispute is prohibited from acting as
an arbitrator such as Rule 1(4) of the ICSID Rules. He suggests that in situations
of uncertainty, 'an arbitrator should be guided by the Parties consent'. At the
same time he warns of the danger of defects in drafting of an escalation clause
that may render a clause pathological. He discusses protocols and procedure,
addresses the issue of mediation and multi-member tribunals and considers
which model of mediation would work best if used by a tribunal, and the timing
of such mediation. He also addresses the scope of jurisdiction of arbitrators
to mediate. Finally he discusses how arbitrators may aid settlement without
mediation. This discussion is over 14 pages - the range of issues canvassed
illustrates the breadth and detail of Professor Waincymer's discussion generally.
Another example of the author's broad and meticulous approach is his
discussion of evidence and fact finding in Chapter 10. He discusses the
divergent views and practice in international arbitration. After providing a
comparative law perspective, he addresses the rights and powers of parties
and the tribunal as to evidentiary issues, legal approaches to fact finding,
and such challenging topics as:
* economic, scientific, statistical and accounting evidence;
* objective evidence and subjective evidence;
* evidence from prior ADR processes between the parties;
* evidence and findings in other arbitral cases; and
* issue estoppel and ex parte hearings.
Other topics in this chapter include admissibility of evidence and privilege
and professional secrecy.
In conclusion, this is an ambitious work in which scholarship and
practical experience are combined to provide a valuable resource for an
international arbitration practitioner.

Kim Rooney
Arbitratorand Barrister Hong Kong