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I include the following considerations attending exclusively to my personal interest. Considering that I am not a lawyer, I may be mesmerized by concepts you may find simply obvious…

Do not take this as the transcription of what was said or the real personal oppinions of those cited, but what I understood.

Opening Adress

As an introductory address Prof. Carmine Punzi, chairman at I.S.S.A., refers to the need of a harmonization in the way that evidences are treated in international arbitration. He points that even with the help of UNCITRAL Model Law and IBA Rules of Evidence, the differences between legal cultures make this harmonization a long term goal.

When he refers to differences between legal cultures, he is referring mainly to civil vs. common law, but also to other issues in a country to country basis, citing French law’s position in regard to witnesses as an example.

While this harmonization doesn’t happen, Prof. Punzi points that it has to be arbitrators who have to get to a balance for every case, keeping in sight what the agreements of the parties are and assuring a due process.

Ms. Francesca Mazza, Counsel at ICC International Court makes a brief introduction and reminds the origin of arbitrator, from the latin “arbiter”, “a witness, judge, literally one who goes and see” (ar for ad “to” plus betere “to come”).

Mr. Mauro Ferranti, Secretary General at the Italian Arbitration Assotiation, also makes a brief introduction and Mr. Giorgio Santacroce, president of the Court of Appeal of Rome points that there’s a lack of in depth analysis of evidence in international arbitration. From Mr Santacroce point of view, the lack of analysis and consensus puts the problem in hands of the arbitrators, but this problem ends being transferred to the jurisdiction if the award is challenged.

Harmonization

Prof. Piero Bernardini emphasizes the impact of the legal cultures differences on how evidences are taken into the process.

From his point of view all actors are responsible and have to collaborate:

• Arbitrators must be impartial and neutral when seeing the different cultural positions regarding evidences and getting the consensus of the parties to adapt the treatment of evidences to the case peculiarities.
• Parties can agree in formulas that allow a balanced way to introduce evidence.
• Arbitral institutions can relate their rules to flexible ways to take evidence.

By default, UNCITRAL and Washington Convention put the taking of evidence in hands of arbitrators, always according to the applicable law.

Applicable arbitral law and court’s rules use to be adapted to UNCITRAL and must take this into account. If the award isn’t produced according to the due process, it is exposed to be challenged.

As an example of differences between legal cultures, Mr Bernardini takes the figure of the “Consulente tecnico d’ufficio” in the Italian jurisdiction as a system of integration of technical knowledge with the judge’s knowledge, related but in contrast to the figure of the “expert witness” in common law jurisdictions, that is treated very differently.

Arbitrators can prepare and make explicit their position regarding evidence as soon as possible in the process, apply different relevance and weight to evidence to balance (or even draw inverse inference for the lack of it) and in general understand the different legal cultures, keeping themselves neutral. As an example of how concepts get shaped to offer a better fit into a process, Mr Bernardini cites the concept of “discovery” in common law, that IBA rules narrow so it doesn’t become a what is called a “fishing expedition”.

Choice of Rules

Prof. Andrea Carlevais emphasizes that arbitrators must seek as much specific and explicit consensus as possible from the parties regarding taking evidences and make it explicit to them as soon as possible, so they know exactly how they are going to be processed. Also applicable law to arbitration determines the different possibilities regarding the possible assistance of jurisdiction for precautionary measures.

Mr. Andrea Giardina thoughts about the procedural roots of the concept “damage” and his subsequent relation to the “lex causa”. He also points that arbitrators tend not to precisely justify the valuation or adaptations of the parties’ requirements to present or produce documents.

Powers and Discretion

Mr. Jonathan Blackman, partner at Cleary Gottlieb focused on the discretion of the arbitrators regarding evidence, always bound to what parties agree.

There was an interesting question during this intervention: what happens if none of the parties wants to pay the expenses of an expert appointed by the arbitrators?

One way of viewing this situation is that parties agreed on the institution rules that regulate what the arbitrators can do and how parties pay the expenses, and if they do not pay the expert expenses, there will be no arbitration. Depending on the circumstances arbitrators may apply burden of proof and even infer negative influence.

Ms. Valentine Chessa focused her presentation on the balance of efficiency of procedure, arbitrator discretion and parts autonomy depending on personality, legal background, approach or focus (on authority, on consensus, etc). She distinguishes presentation of evidence and assessment of evidence.

She advises to draw a procedural framework: terms of reference and specific procedural rules (they use to be drawn at the same time), terms of reference signed by the parties and arbitrators and procedural rules only signed by arbitrators. It includes evidence rules, and gives flexibility, i.e. how documentary evidence is presented, sequence of witnesses, etc.

She sees IBA rules as source of inspiration or guidelines, and sometimes they are even more than that: there had been problems to enforce awards in USA that do not follow IBA rules.

Ms. Chessa points that there’s no international rules, but there’s trends that can be followed. She advises a table with the columns “evidence”, “relevancy explanation”, “reasons to deny” and “arbitrator decision”. In general independent and interested witnesses can be balanced and weighted by evidence materiality.

ICC does not define admissibility of witnesses, but they do about the discretion of arbitrators to weight evidence and derive adverse inferences (relative weight depending on the existence of other evidence) always with caution. She also talked about burden of proof vs. burden of production.

Document Production

Ms. Francesca Mazza talks about the influence of the different legal traditions and the way this can affect the procedure duration. Document production is something that is better to make clear from the beginning of the procedure and is regulated by the institution rules or IBA. It is advisable to make a calendar (Redfern schedule) with phases and milestones, in an approach that looks to be transparent and efficient. Examples given show 55 to 280 days for this phase.
In the request to produce a document the description has to allow its identification or at least it has to be detailed enough to classify it in an specific category.

In the event of the allegation of proprietary or trade secret, arbitrators must take into account:

• legal advice
• settlement negotiations
• expected parties and advisors
• waivers

Ms. Loretta Malintroppi vice-president of ICC International Court of Arbitration focused on the production of electronic documents. She said there’s a fear in civil law countries that e-discovery enters international arbitration. A task force at ICC is dedicated to “electronic discovery and disclosure”.

There’s who think that an specific regime is not needed. I agree here.

Ms. Malintroppi talks about some particularities of the electronic document: persistency, metadata and easy to be altered. I would add volume and ability to search automatically.

She raises some questions:

Is it convenient to regulate electronic document production to the submission clause in the contract?

Who has to support the cost of the production?

How an email is evaluated in contrast of a signed letter?

Witnesses and Experts

Mr. Yves Derrains introduces the term syncretism when referring to the common law / civil law convergence. He structures his presentations in three items: qui, quo and quo modo.

Regarding qui:

Who is the witness? He says the word witness is treachery. Under some civil law, witness can not be an employee, can not have any interest in the case. In common law anybody can be witnesses. Under French law “everybody can be heard in court”, but it means “only people that does not have interest in the case”, in fact he cites awards rendered invalid because of this.

Regarding quo:

In common law, some lawyers pretend that they need witnesses to present the content of documents. It is not common that witnesses are used to prove facts, but just to put things into context, to explain the case to the arbitrators. Many lawyers fear that the arbitrator does not read the documents presented.

Regarding quo modo:

It is not advisable to use somebody who is arrogant, or who cannot explain well, etc. It is good to prepare the witness but not in the sense of telling the witness what to say, but you have to make sure that he is not going to lay, it is good that he presents a truth that is palatable and coherent with the case. He sees expert witness not as witness, but as someone in each party’s team: they explain some technical problems, and are trying to win the case.

Mr. Alexis Mourre talks about witnesses and cross examination as an element of contrast and credibility. Lawyers have to put their initiatives in context with the arbitrators’ background. He proposes that it is good to “warm up” (prepare) witnesses to be cross examined in the “fuocco” of the own questioning. He advises against questions like “isn’t that” or “don’t you think that” and about asking legal oriented questions.

One particular technique he finds useful is the “chess clock”, literally use a chess clock to allocate time to every part access to witnesses. He points that usually in commercial arbitration the conflict floats over responsibility and cause, not in the facts themselves, that use to be undisputable. Can cross examination discuss issues out of witnesses statements? This has to be defined in the procedure.

Iura Novit Curia

Mr. Sergio Carbone considers that applicable law is part of the facts and circumstances that affect the arbitrators’ decision. In the defect of a residual “lex fori” it is advisable to point the law, but in a clear, concise, unequivocal way and always without going “ultra petita”.

Arbitrators are not slaves to parties. They have an autonomy they can enforce. If there’s a rule collision, it is advisable to apply the rule that’s more restrictive or the one that provides more freedom to the parties.

It is better not to go against the parties’ freedom because they have chosen to litigate in arbitration.

Mr Carbone points a balance in the contractual relationship and the general interests of the parties as values to take into account. Applying a rule that wasn’t invoked by the parties may mean go “ultra petita”.

In any case, there has to be no surprises: there’s no surprises if parties can contradict it during the procedure even if this opportunity is given to the parties and not used.

Mr Diego Corapi points that in common law this isn’t exactly like this because law is a matter of fact. Normative sources are not a closed system, but one living system. He says that there has to be some discussion regarding the adequacy of the rule to be applied in the concrete facts and circumstances of the case. He says that applicable law is analogous to the definition of a matter of fact.

Federal Rules of Procedure 44.1 allows foreign law to be determined without the parties intervention.

Judicial Assistance

This part is full of different casuistic and it is difficult to give an abstract advise. To complicate things more, there’s the law in the place of arbitration and also the law in the place where the action is required.

Mr. Ferdinando Emmanuele cites some UNCITRAL and ICC rules and notes that if a witness is appointed by the judge the deadline to render the award lapses.

Ms. Teresa Giovannini talks about different experiences in Switzerland, France or UK. In general, if precautionary measures are needed it is advisable to try to get an enforcement previous the arbitration procedure or by a preliminary partial award.

Technorati: arbitraje, evidence, international arbitration

Tags: arbitraje, evidence, international arbitration