Court Assistance in the Taking of Evidence in International Arbitration

§ 2Distinctions

The interplay in international arbitration between arbitrators and the parties and their counsel, all of whom may sometimes be from different legal backgrounds, is unique. This is especially true when it comes to the taking of evidence and the clash of views in crosscultural arbitration is a muchdebated topic.²⁷ As this book examines court assistance in the taking of evidence in common and civil law countries, the following remarks focus primarily on these two legal systems.²⁸ In this regard, two preliminary remarks must be made.

First, anyone who tries to combine the two systems in an attempt to arrive at ‘the best of both worlds’ must bear in mind that the goal is to find an optimal, tailormade compromise, and never a perfect solution or a feeling of being ‘at home’ in a procedural sense, which would contradict the very nature of international arbitration.²⁹

Second, the term ‘common and civil law’ is very broad and should not be overestimated or generalised.³⁰ As an example, a closer look at the rules of discovery/disclosure of two (mostly) common law countries, such as the US and England, reveals significant differences and variations.³¹ The same applies, of course, to civil law countries: again, there are significant differences between the Roman and German families of civil law.³² Nonetheless, and despite these divergences, there seems to be enough uniformity in evidentiary matters to justify the classification of common and civil law countries.³³

§ 3Common Law Approach

The common law has its origins primarily in England and its former colonies, including the US, Canada, Australia, New Zealand and many more.³⁴ Despite the technical differences concerning evidentiary rules in many common law countries, some common principles can be identified in order to distinguish the common law approach to the taking of evidence from its civil law counterpart.³⁵

First, the common law system is in many ways adversarial, with the rivalry of the parties at its centre.³⁶ This is true even, for instance, of English law, where the adversarial approach has been maintained despite the revision of civil procedure and its partial adaption to civil law countries.³⁷ For the sake of simplicity, the following remarks will therefore focus on the US approach according to the FRCP USA, where the adversarial method is best illustrated.³⁸

The common law civil procedure for the taking of evidence can be divided into five stages: (1) filing the complaint, followed by (2) the pretrial stage, during which the parties gather the relevant evidence for (3) the trial stage, when it is presented to the court, after which (4) the judge (as the case may be, together with a jury) renders his or her verdict;³⁹ (5) an appeal may follow if one of the parties wants to challenge the decision.

Compared to civil law proceedings, the complaint in common law proceedings is not as detailed and only defines the scope and nature of the action⁴⁰—or, in the words of the US Supreme Court, ‘enough facts to state a claim to relief that is plausible on its face’.⁴¹ Next, as opposed to civil law proceedings, where evidence is gathered through the exchange of written submissions and in the court proceedings, the pretrial stage serves to obtain a wide range of evidence from the adverse party prior to any court proceeding.⁴² In — S. 11 —this critical stage, the parties try to collect evidence in the form of depositions, interrogatories, production of documents and even inspections.⁴³ If the evidence in question is protected by privilege, the court can impose a protective order.⁴⁴

In contrast, if a party fails to produce evidence without a valid reason, it can be forced to pay any expenses resulting from its failure to produce evidence, or the misconduct may be treated as contempt of court.⁴⁵ Aside from this, however, the role of the court is rather passive.⁴⁶ To summarise, during the pretrial stage, the parties weigh up their chances of success and are encouraged to reach a settlement before the trial begins.⁴⁷

In the trial stage, the judge takes a mostly passive role and does not participate in the gathering of evidence, but rather acts as referee by determining whether the evidence offered by the parties (gathered in the pretrial discovery) is admissible and choosing between the two options presented by the parties.⁴⁸ The idea here is that the best way to reveal the truth is to leave it solely to the parties to prepare and present their cases, in order to convince the court.⁴⁹ This should ensure a fair and just trial, since the judge remains receptive to the arguments of both parties until he or she finally renders a verdict.⁵⁰

Although a strict application of the adversarial method makes sense from a theoretical point of view, in most common law systems, no such strict model exists.⁵¹ In the interests of clarification, the judge is free to ask questions directly to witnesses, or to interrupt their examination if there is no need for further evidence on either a certain point or the entire case. Nevertheless, the judge must be very cautious on this point, to avoid a possible violation of the right to be heard.⁵²

Second, a great deal of common law evidentiary rules become comprehensible when considered in light of the jury trial.⁵³ Its underlying principle is that a person can be judged fairly only by a group of ordinary people (the jury).⁵⁴ The task of the jury is to determine the facts; the judge has exclusive authority over the application of law.⁵⁵ Traditionally, in civil and criminal cases, the arguments are presented to the court orally by the parties and their counsel in such a way that the jurors—who mostly have no legal education—can understand the relevant facts and arguments in order to render a verdict.⁵⁶

The principle of orality has its historical foundation in the idea that the most direct way to reveal the truth is by examining and crossexamining witnesses.⁵⁷ In this way, parties can confront their accusers and even disprove certain facts or the claim as a whole.⁵⁸ Because of the mandatory attendance of the jury, trials can last for hours, if not days; thus, court proceedings reach their climax in a single trial.⁵⁹ Consequently, lawyers must obtain relevant evidence before trial in order to present it to the judge.⁶⁰ While the role of the jury has weakened in recent times, its tradition and the important role of lawyers in convincing the jury have persisted.⁶¹ The fact that there are also lay judges in the judiciary, and that juries consist of individuals without any legal education, has necessitated complex laws of evidence relating to how evidence is obtained, adduced and evaluated at trial.⁶² Otherwise, misleading evidence could impress a jury and unduly influence their verdict.⁶³ While these laws of evidence are not binding on arbitrators, they may serve as inspiration in conducting the arbitral proceedings.⁶⁴

With these two differences in mind, it makes sense that a discovery procedure exists in common law countries, whereby all relevant—and even unfavourable—documents must be disclosed to the other party.⁶⁵ If the court — S. 13 —has not had all available relevant information, it cannot render a just verdict.⁶⁶ Notably, US discovery under the FRCP USA is very wide ranging,⁶⁷ while socalled ‘disclosure’ under the CPR 1998 is much more restrictive.⁶⁸ As will be discussed in detail, ‘discovery’ in international arbitration is less extensive than in domestic litigation, but nonetheless plays a vital role.⁶⁹

To sum up, one must bear in mind that the aim in common law systems is to reveal the ‘whole truth’.⁷⁰ This is possible only if the means of gathering evidence are very wide ranging.