نوع مقاله : مقاله پژوهشی
نویسندگان
گروه حقوق خصوصی، دانشکده حقوق، دانشگاه علوم قضائی و خدمات اداری، تهران، ایران
چکیده
کلیدواژهها
موضوعات
عنوان مقاله [English]
نویسندگان [English]
The process of fact-finding in arbitration is closely tied to the ability to obtain effective evidence. Relying on the principle of party autonomy, the disputing parties are free to determine the rules governing the taking and presentation of evidence. However, due to the inherent features of arbitration, the scope of this autonomy becomes restricted when dealing with third parties. The acquisition of evidence in the possession of third parties—when such evidence is material to the outcome of the dispute—can play a significant role in the fact-finding process. Nevertheless, obtaining such evidence from non-parties is not straightforward; considerable legal and procedural obstacles exist in this regard. An arbitral tribunal's jurisdiction derives solely from the consent of the parties and does not extend to third parties. The silence of many legal systems and international instruments has further intensified uncertainties in this area. However, the laws and arbitral practices of certain jurisdictions indicate the development of specific frameworks for obtaining evidence from third parties. Accordingly, this article adopts a descriptive-analytical approach to explore the following question: if certain relevant and material documents are in the possession of third parties, how can those who have not consented to the arbitration agreement be brought within the scope of the tribunal's authority ?The findings of this study reveal that, as a general rule, arbitral tribunals lack jurisdiction over third parties. Nonetheless, under certain procedural conditions, national courts can play a crucial role in enhancing the efficiency of arbitral proceedings and in facilitating cooperation with arbitral tribunals.
کلیدواژهها [English]
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