The International Bar Association (IBA) recently provided a write-up of the rules governing evidence in international arbitration (“IBA Rules”). The IBA Rules are used primarily by international arbitration practitioners to assist them in their efforts to resolve domestic and cross-border commercial disputes. But that’s not to say that students should not take an interest in the IBA Rules and their impact. In fact, a basic understanding of the IBA Rules is helpful for aspiring international arbitration students and practitioners. So let’s take a moment to explore what international arbitration actually is and its interesting history.

What Is International Arbitration?

International Arbitration is basically a contract between two or more parties to settle a dispute outside of a courtroom. The parties each name an arbitrator, both arbitrators select a third arbitrator, and those three arbitrators together hear evidence, hear arguments, make a decision as a panel, and then issue a final decision. That decision is in essence a final judgment that is enforceable in numerous jurisdictions worldwide, and further, parties who lose may not appeal that decision in the traditional sense.

Why Should Students Care About The IBA Rules On The Taking Of Evidence?

The IBA Rules allow the parties to agree whether they will give shorter or longer time periods to produce documents, whether they can require non-parties to produce documents, whether they will allow witnesses to provide expert reports without hearing testimony, and whether certain questions may be posed to witnesses.

In short, the IBA Rules allow the parties to customize their discovery process and even eliminate the entire process by stipulation. For instance, they permit parties to assign responsibility to pay the cost of producing documents. Further, they permit parties to stipulate that they will not take depositions of non-party witnesses during the evidence-taking process.

The point of the IBA Rules is to speed up the evidence-taking process, bring down the costs of taking evidence, and create relative equality of power during the evidence-taking process (e.g., if Party A has better access to certain documents than Party B). It is preferable to achieve these goals through agreement because the underlying goal of international arbitration is to provide a final and binding resolution. Once the parties stifle evidence-taking opportunities, they can’t go back for more.

These IBA Rules are important because if a dispute goes to international arbitration and the parties have not considered terms for their evidence-taking process, there is a good chance that gaps or issues will arise during the evidence-taking process.

Indeed, the IBA Rules are powerful and provide a template for international arbitration evidence-taking, but it is always advisable that students read them and understand them so that when they draft a new international arbitration agreement, they know how important taking evidence will be to resolving disputes.

Is The IBA Rules On Taking Evidence Fair To The World?

Yes. International arbitration provides a forum for parties to settle disputes worldwide. Domestic courts and many governmental bodies are not bound by the jurisdiction of any international organization, but private companies may apply the IBA Rules to their disputes directly.

The catch is, however, that the party seeking security for its arbitration-related claims must be able to find another nation that is willing to enforce and recognize such an arbitration agreement. In many cases, such another nation may very well be able to do that, but in other alleged cases, the nation may not.

For instance, the United States Supreme Court recently examined a case dealing with disagreements over whether arbitration agreements are valid and enforceable. In Amgen v. Harris, the Court ruled in favor of Amgen, a California-based company, against Harris, an employee who alleged trade secret violations and a breach of contract.

Now, Amgen and Harris may have agreed to use the IBA Rules to settle their dispute and each of their agreements may have been governed by a different country’s international arbitration rules and laws.

While the US Supreme Court decided that Amgen’s arbitration claim was valid, other courts will likely wrestle with the broader issue of whether certain contracts are valid generally.

Hence, the larger question remains: Should the IBA Rules provide a process that may be applied once disputes for enforcement of international business agreements arise, or should the IBA Rules regulate the dispute-resolution process overall?

While Amgen v. Harris addressed California state law, the larger question has not yet been answered.

What Does The IBA Do?

The IBA was founded in 1940 to promote world peace and development for the legal profession through greater awareness and cooperation amongst its members. The IBA is currently composed of lawyers from twenty-eight countries who practice law early on in their careers and subsequently meet at international law events hosted by the IBA around the world.

What’s Going On In The World That The IBA Can Help With?

Recently, the International Bar Association spoke out against a controversial bill proposed in Hong Kong that would target certain social media outlets which provide information on fundamental rights. The IBA’s statement also called upon China to keep its word in keeping the law.

What Are Some Good Examples Of Possible Careers In International Law And Arbitration?

It is entirely possible to work in international law and arbitration at a basic or mid-level, right out of law school. Often, the best first position is in an advocacy role (where you are tasked with arguing on behalf of your client), with the possibility of later advancing in senior levels to an attorney who advocates on behalf of the organization that employs you.

The IBA certainly provides education and other resources to support aspiring international law and arbitration students. It does not, however, assist students directly through educational sponsorships or grants.

Even so, students may apply the IBA’s principles of impartiality, professionalism, collegiality, and respect for independence to enhance their own education. Some good examples of possible careers include, but are not limited to: An oral advocate; a technological or pen-and-paper evidence-taker; a document reviewer; an executive-level expert; an investigative reporter; an oral expert; or the organizer of evidence-processing.

What Are Your Thoughts?

International arbitration seems like a lot, but it can be simplified for discussion. Are the IBA Rules on the Taking of Evidence more technical than helpful? Why do you think that is and what would you do differently?

Understanding Share Purchase Agreements

For all of you students at the University of Gadjah Mada in Yogyakarta – have you ever wondered about share purchase agreement formats? Have you ever come across one of these documents? Well fear not, dear readers, for today we are going to explore the world of legal documents by looking at the world of share purchase agreements. So, what is a share purchase agreement, you may ask? Well, quite simply, it is an agreement whereby a seller will sell their shares in a company to a buyer, and in return, the buyer will provide the seller with some form of consideration. Sounds simple, right? But why would you want to learn about such things as a UGM student? Well, knowing how to interpret a share purchase agreement can be useful during your professional career when you are looking to buy or sell shares in a company.

These types of documents can often be confusing and therefore, being able to read and interpret them is a useful skill to have. So, what can a comprehensive share purchase agreement format look like? The types of clauses you might come across in one of these documents include the following: Of course, there are many other clauses you might encounter, but just take note that a share purchase agreement can contain many different types of clauses (some of which can get rather fancy!).

As for an analogy to explain this process, let’s say you wanted to sell your car. You might think, “How can I make sure that the person buying my car pays me in the exchange for the car?”. Well, you could put in writing that the buyer must pay you a particular amount of money, and in exchange, you will give the car to the buyer. That is essentially what is happening here.

Now, share purchase agreements are not a new thing – their origins go all the way back to the 1600s! In those days, companies were set up so that individuals could come together and invest their money in some type of enterprise. These shareholders would then participate in the profits and losses of that enterprise. Overall, the transaction is very similar to a share purchase agreement format today; however, the process and documentation used has evolved over time.

Knowing what a share purchase agreement is can be handy for your future career (even if you are not studying law!). If you ever find yourself wanting to buy or sell shares in a company, you will more than likely need to come across a share purchase agreement. There are many situations where share purchase agreements are used – for instance, if you were looking to buy a company, or if a company wanted to buy out a shareholder.

So, what can you do to learn more about legal documents? Well, there are plenty of resources available on the internet, and you can also learn from practical experience by interning with a law firm! You can also connect with other students who study law by commenting on blogs and interacting with them online. If you are a student at UGM, feel free to comment on this blog post with any questions, potential recommendations or thoughts on the material covered!