NEWSLETTER-2020-metin

213 ARBITRATION LAW of giving the arbitrators a more proactive role during the conduct of the proceedings. As for fact finding, Article 3 of the Prague Rules reemphasizes the arbitrator’s duty to take a proactive role. This article encourages the arbitrator to take an active role in establishing the facts of the case, which is also no stranger for a civil law judge. The traces of civil law tradition, and perhaps the most charac- teristic features of the Prague Rules, may be found in Article 4. Ac- cording to this article, the arbitral tribunal will try to avoid extensive production of documents, including any form of e-discovery. Parties, however, may always request the arbitral tribunal to order the other party to produce a specific and identified document, so long as it is relevant and material to the outcome of the case, it is not in the public domain, and it is in the possession of the other party. In general, the Prague Rules discourage the common law practice of extensive discovery, while preserving the parties’ right to request the tribunals’ proactive involvement to the fact-gathering process, when needed, and giving the tribunal extensive discretion on admissi- bility of such requests. Even though these restrictions may help reduce the costs for the parties and the length of the proceeding, the concerns over the right to be heard and due process remain in dispute. Conclusion Due to the consensual nature of international arbitration and the principle of party autonomy, the parties have the freedom to determine the arbitral procedure to be applied to their dispute in arbitration. If the parties fail to determine such procedure, the applicable procedure will be determined by the arbitrators, unless otherwise provided for by the applicable laws and, in most of the cases, the arbitrators tend to apply the procedural laws of the seat of arbitration. When the seat of arbitration is in a civil law jurisdiction, it is im- portant to be mindful of the depths and limits of voluntary document production. The applicable laws of civil law countries tend to give the arbitral tribunal the power to gather the evidence it deems appropriate. However, this power heavily relies upon the voluntary performance