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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.