Previous
Page
New International Evidence Rules
Advance Arbitration Process
However, in a bow to the common law discovery tradition, the
new rules contain an expanded mechanism for the disposition of
requests by a party for the production of documents in the possession
of an opposing party, whether or not such documents are intended
to be relied upon by the possessing opponent.
21
Any such request is required to be presented to the presiding
arbitrators rather than directly to the opponent,22
and such requests are to be judged by the arbitrators by the
extent to which the requested documents are both "relevant
and material to the outcome of the case."23
Moreover, the rules prescribe that the arbitrators may grant
a request for document production only if the tribunal first
determines that none of the grounds of objection to production
enumerated in the rules is applicable.24
This approach gives the arbitrators considerable power over the
pre-hearing development of the case and foreshadows greater arbitrator
involvement in pre-hearing activities. And, because a requesting
party must demonstrate the materiality of the evidence sought,
not just its relevance, it also significantly restricts the scope
of documentary discovery.
The new rules set out seven possible grounds of objection
to requested document production. Included among them are largely
undefined categories of "special political or institutional
sensitivity" and "considerations of fairness or equality"
that the panel finds to be "compelling."25
These new provisions promise to occupy the attention and test
the skills of arbitration counsel and arbitrators alike. They
also suggest that business people will continue to have sound
reasons for ensuring that every detail of their international
transactions is fully documented, including relations with third
parties, and that the documentation is faithfully collected and
retained so that the risk of reliance upon documents in the hands
only of potential opponents in arbitration is minimized.
The Use of Witnesses
As to the treatment of witnesses, the new rules retain the
principle that any person may be a witness in arbitration, including
a party,26 and they provide implicitly
that witness statements need not be sworn.27
But, in another bow to the concerns of common law practitioners,
such statements, including reports submitted by or for expert
witnesses, must contain "an affirmation of the truth of"
the statement.28
Consistent with the increasing importance of expert witnesses
in arbitration, the new rules' provisions on the participation
of experts are more precise and detailed than were their 1983
counterparts. The arbitrators are specifically empowered under
the new rules to order party-appointed experts to confer and
report on points of disagreement,29
and tribunal-appointed experts are given the same authority as
are the presiding arbitrators to compel production of relevant
and material evidence.30 Provision
also is made in the new rules for "on site inspection"
of pertinent goods, machinery, or facilities, either by the arbitral
tribunal itself or its designated expert.31
With respect to the testimony of witnesses, the 1999 rules
track closely the practice in common law regimes. There is a
new provision, reflective of increasingly popular practice in
international settings, permitting the arbitral tribunal to require
witnesses offered by different parties to appear together for
presentation of their testimony.32
The rationale of this provision is that differences in the evidence
of opposing witnesses can best be explored when they appear simultaneously.
This innovation can be expected to be employed most often in
the case of expert witnesses, but the rule does not limit it
to that context.
Balancing the Civil Code and Common Law Systems
Taken as a whole, the new rules favor neither the common law
nor the civil code tradition.33
Instead they favor the common law approach to the treatment of
witnesses while preferring the civil code treatment of documents,
including at the pleading stage, and, in so doing, they strike
a genuine balance between the two systems.
The Challenge Ahead: Accommodating Other Legal Cultures
While the IBA's 1983 evidence rules were a ground-breaking
advance in international commercial arbitration practice, their
1999 offspring, which now are available on the Internet,34 offer several significant improvements
on the original. Despite this, they almost certainly will remain
a work in progress as dispute resolution worldwide evolves at
an ever faster pace.
In addition, although developed by a truly global body, the
new rules represent the product of a working party composed almost
entirely of representatives from Europe and the United States.
At the start of the new millennium, therefore, one of the challenges
facing the IBA and the international arbitration community will
be to demonstrate to people from still other legal cultures that
the evolving rules and institutions of arbitration can and will
be accommodated to their needs and interests as well.
Implications for Domestic Arbitration Practice
The IBA's new evidence rules derive from a distinguished
source. Thus they can be expected to impact arbitration not only
internationally, but within U.S. domestic practice, including
here in Wisconsin. Among developments to watch will be the following:
Speaking pleadings. We can anticipate a trend away from notice
pleadings and in the direction of speaking pleadings in domestic
arbitration practice. This trend will be bolstered by an appreciation
among practitioners that arbitrators, unlike judges, most often
come to their task on short notice, and so without a significant
opportunity prior to hearing on the merits to become acquainted
with the parties or the issues. The use of Spartan notice pleadings
in arbitration thus represents a lost opportunity to inform the
decision-makers.
Perry Peppard, U.W. 1973, practices law in Madison
and serves on the panels of arbitrators and mediators of the
World Intellectual Property Organization, the American Arbitration
Association, and other forums. He is a Fellow of the Chartered
Institute of Arbitrators, London, and a member of the State Bar
of Wisconsin's Alternative Dispute Resolution Section board
of directors. |
Direct examination by affidavit. The new rules have captured
an international trend, especially in large and complex cases,
away from live direct examination of witnesses and in favor of
the substitution of affidavits for direct testimony, with only
cross-examination and redirect allowed of the live witness. This
technique was employed in the recent bench trial of the Microsoft
antitrust case, with the result that the examination of witnesses
was confined to a period of days instead of months. Appreciating
that time is money, arbitrators and parties can be expected to
adopt this approach.
Joint appearances of expert witnesses. The new rules allow
arbitrators in international cases to require opposing witnesses
to appear before the tribunal for joint examination. This technique
allows the arbitrators to make instant comparisons of contending
views. It also encourages the witnesses to explain themselves
to their collegial peers and to make concessions of uncontested
matters, thus to sharpen the issues to be decided. Although it
raises some delicate procedural challenges, arbitrators find
it ever more appealing, so we can expect the method of joint
witness appearances, especially of experts, to catch on in both
international and domestic practice.
Endnotes
1 Karrer, Pierre A., Alexander
Lecture 1998, Is Arbitration a Window to the Future?,
reprinted in 65 Arbitration 3, the Journal of the Chartered Institute
of Arbitrators, at 170, 172 (Aug. 1999).
2 Id.
3 Other leading international arbitral
institutions include the International Court of Arbitration of
the International Chamber of Commerce, the London Court of International
Arbitration, the World Intellectual Property Organization, and
the Inter-American Commercial Arbitration Commission.
4 See, e.g., Articles 16,
19 and 20 of the International Arbitration Rules (1997) of the
American Arbitration Association; Articles 4 and 5 of the Rules
of Arbitration of the International Chamber of Commerce (1998);
and Articles 18-20 and 22 of the United Nations Commission on
International Trade Law Arbitration Rules (1976).
5 Although the title suggests that
the rules were limited in scope to the "presentation and
reception of evidence," the 1983 IBA Rules also addressed
the pleading process and pre-hearing discovery. See, e.g.,
Article 3 - Introductory Submissions and Article 4 -
Production of Documents.
6 See the expansive definition
of "Introductory Submissions" in 1983 Rules, Article
2, and the provisions of Article 3 - Introductory Submissions:
"The Introductory Submissions made by any party shall contain
(inter alia) the means by which the facts relevant to
the dispute are intended to be proved by that party, including,
for each of such facts, the names of witnesses and reference
to documents."
7 1983 Rules, Article 4, section
1, and Article 5 - Witnesses.
8 1983 Rules, Article 5.
9 1983 Rules, Article 5, section
9.
10 1983 Rules, Article 5, section
8.
11 Id.
12 1983 Rules, Article 1 -
Scope of Application, section 1.
13 The working party was chaired
by its sole American member, David Rivkin, of Debevoise &
Plimpton, New York, who also serves as chair of the IBA's
Committee on Arbitration and ADR.
14 Peter S. Caldwell, member.
15 Goldstein, Marc J., "International
Commercial Arbitration," 33 Int'l Law. 2, at 389, 402
(Summer 1999).
16 Forward, the 1999 IBA Rules,
¶ 2.
17 Id., ¶ 4.
18 See, e.g., American
Arbitration Association International Arbitration Rules (1997),
Articles 2-4.
19 1999 Rules, Preamble, section
4.
20 1983 Rules, Article 4 -
Production of Documents, section 1.
21 1999 Rules, Article 3 (Documents).
22 Id., section 2.
23 Id., section 6.
24 Id.
25 1999 Rules, Article 9 (Admissibility
and Assessment of Evidence), section 2.
26 1999 Rules, Article 4 (Witnesses
of Fact), section 2.
27 Id., section 5(d).
28 Id., section 5(c).
29 1999 Rules, Article 5 (Party-Appointed
Experts), section 3.
30 Id., Article 6 (Tribunal-Appointed
Experts), section 3.
31 Id., Article 7 (On Site
Inspection).
32 Id., Article 8 (Evidentiary
Hearing), section 2.
33 David Rivkin, chair of the
IBA's Committee on Arbitration and ADR and of the drafting
working party, reports that the 1999 rules "are already
being used by many practitioners." Email to the author,
Nov. 8, 1999.
34 The International Bar Association's
homepage can be found online.
|