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the form and language of representation of proofs

According to D.Vajnsajmeru, in the international commercial arbitration exists at least three presumptions concerning the presented documents. The first concerns that the presented document concerns on the origin that person or body which in it is specified.

The second presumption consists that the sent document has been received by the addressee. The third presumption consists that the copy, as a rule, to the full transfers the original maintenance. To challenge the corresponding presumptions, the second

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The party should make the statement.

In result, in the modern international arbitration documentary proofs are represented by the parties, as a rule, in copies. In the presence of doubt actually the document the party on demand of arbitration structure should give the original on its review, however in most cases it it is not required.

So, in Sweden arbitrators, accepting those or other proofs, start with a presumption of conscientiousness of participants of trial and the authentication of documents [237 [238] do not demand. According to § 31 Rules MKAS at TPP the Russian Federation the party can present written evidences in the original or in the form of certified it to an original copy, but the arbitration court has the right to demand representation by the parties of originals of documents [239].

The form of representation of written evidences has essential value in practice MKAS. In one of affairs the arbitration structure has come to conclusion, that as the copies of letters presented by the claimant as the proof of increase of the price of the goods, do not comprise the signature, such proofs do not meet the requirements of an admissibility [240].

In the literature it is noticed, that earlier international commercial arbitration insisted on granting of originals of documents. In case of copy granting its contents should be assured a corresponding inscription, or are confirmed by a testimony [241]. In many respects such approach was defined by banal absence of copy technics. Historically in the general law countries the so-called rule of the best proof («best evidence rule») operated. This rule meant, that each document should be presented in the original, that is the form in the best way confirming its reliability. Now, the given rule practically has disappeared - now in Anglo-American process by the general rule the following is: if the original is accessible,

It should be presented, if is not accessible - that the court can admit the secondary

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The proof.

In some trials of the party are forced to represent that proof,

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That transferred by the opponent in materials the document copy has put mismatches the original. We believe, that such approach is rule distortion about the onus of proving - if the person declares necessity of check of the original of the presented proof, arbitrators are obliged to be convinced of its presence. If the party refuses to give the written evidence original, the arbitration structure should exclude it from among proofs.

There is an uncertainty of a question on, whether follows by document granting in the language which is distinct from language of arbitration proceeding, to show also transfer of this document. So, according to point «D» item 3.12 Corrected to MAY transfers of documents it is necessary

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To submit together with originals and to mark them as transfers with source language instructions.

Here Rules obviously fall outside the limits the regulation established by the majority of arbitration regulations - representation of transfers of written evidences is not a party duty by default. It is supposed, that arbitrators of the international commercial arbitration can own not only trial language, but also other languages, including on what the written evidence [242 [243] [244] [245] [246] is constituted. In this case there is no necessity for granting by the parties of transfers.

In a situation when such requirement nevertheless has arisen, arbitrators can oblige the party to present corresponding transfer, thus, unlike the state civil procedure, in the international commercial arbitration the party does not have duty any in special way to assure qualification of the translator [247]. In a case if the party of the opponent will consider the transfer presented by the opponent, doubtful or inadequate, it always will have a possibility to present an own variant of translation.

It is represented, that in procedure of the international commercial arbitration foreign diplomas should not be exposed every time to legalisation in

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The established order as it occurs in the state civil procedure, and on them the simplified order of representation of written evidences, except for situations when the adversary in dispute or arbitrators has doubts in their authenticity can be quite widespread.

In the majority of foreign arbitration institutions there was a certain format of representation of written evidences. So, in practice of Arbitration institute of a chamber of commerce of Stockholm for representation of documents format А5 on which sheets the proofs represented by the party are copied is widely used, later the specified sheets are glued among themselves or fastened by a spring in special folders. If the specified format does not approach for correct display of the text, the party can present proofs in that format which will count necessary, receding from establishments concerning the form. Infringement of similar requirements does not attract negative consequences for the parties [248 [249] [250]. In case of representation of great volume of the documentation usual there is a practice of a direction of the scanned copies of the documents collected in electronic databases on

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Various carriers.

B.Onote recommends each group (class) of proofs to form in the form of a separate folder. Documents in a folder should be numbered consistently, and the numbering order should remain throughout all trial. In turn for the claimant documents should be designated a letter "With" (from English claimant), for the respondent - a letter «R» (from English respondent). Such folder should contain the list of the proofs presented to it with instructions of their number, date and the short description of each proof. With representation of new folders of documents the general list of the presented written evidences should be updated by each of the parties. After the termination of oral hearing arbitrators should enquire following materials of the party:

1. The summary list of the proofs presented by the party in chronological sequence;

2. A separate folder with proofs which the party considers as the cores and to which she refers in a substantiation of the requirements and objections. Such proofs also should be numbered and contain the separate independent list.

With a view of simplification of research of written evidences the Belgian author suggests [251] to use modern computer systems in which each paper document will have own stroke-code allowing with ease to find in archive its electronic version and to display the necessary proof. It is necessary to carry duration and dearness of preparation of similar electronic base to lacks of such model. In turn, D.Vajnsajmer suggests to store documents on a web site with the limited access for participants of arbitration proceeding [252]. Notes JUNSITRAL on the arbitration proceeding organisation in § 5 4 [253] suggest to use in case of the volume and difficult documentary evidentiary material services of the competent expert which will help to issue them in the form of certain tables, lists, endurances.

In the event that the party wishes to use demonstration materials within the limits of oral hearing (demonstration exhibits), she, as a rule, resorts to use of program PowerPoint. In our opinion, such way of representation of own position taking into account high availability of a presentation material to understanding of participants of process should be encouraged with arbitrators [254]. However during preparation of a similar sort of presentation the party should not refer to the proofs which earlier have been not opened. It is recommended to arbitration structure some days prior to date of carrying out of hearing to issue the procedural order according to which the parties should exchange such presentation materials on the paper carrier and direct the similar complete set to arbitration structure. The similar order will allow to avoid abusing the party representation earlier not opened proofs.

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A source: Grebelsky Alexander Vladimirovich. of the PROOF In the INTERNATIONAL COMMERCIAL ARBITRATION. The DISSERTATION on competition of a scientific degree of the master of laws. Moscow,. 2017

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