- One of the primary purposes of the arbitral hearing is the presentation of evidence, both as to disputed issues of fact (including through the use of documents and witness testimony) and disputed issues of opinion (through the use of expert testimony). Because international arbitration, by definition, tends to have some sort of international scope or multi-jurisdictional ramifications, regardless of whether aspects of “foreign” law are regarded as questions of fact or law, the presentation of evidence often includes expert testimony concerning foreign law.
- Similarly, the presentation of evidence in international arbitration can vary somewhat depending on whether the parties and/or the arbitrators are trained in the common law (where the parties assume primary responsibility for the presentation of evidence) or civil law (where judges play a much more active role in the proceedings). In general, international arbitration often tends to blend common law and civil law practices and approaches.
- Rules of Evidence
- One of the often attractive features of arbitration (as opposed to litigation before a national court) is the fact that an arbitrator or arbitral tribunal generally are not bound by inflexible procedural rules, including rules of evidence. That is not to say, however, that rules of evidence are irrelevant. To the extent an arbitrator has within his or her discretion the weight to be given to a piece of evidence, rules of evidence can affect his or her determination.
- Similarly, rules and doctrines that might govern attorney-client communications or attorney work product before a national court might not be applied (or might be applied to a greater or lesser extent) in arbitration. This fact underscores the need to clearly set forth the applicable procedural and substantive law in the arbitration or submission agreement.
- Presentation and Translation
- As with most judicial proceedings, documentary evidence nearly always plays a key role in any international arbitration. The presentation of documentary evidence at the hearing is often aided by the organization of the documents into binders or volumes that are made accessible to the parties, the arbitrator(s) and, as appropriate, witnesses.
- Often, documentary evidence presented at the hearing requires translation. The arbitrator or arbitral tribunal should be apprised early on of such a need, so that appropriate processes can be put in place to deal with the mechanics (and costs) of translation and any disputes that might arise concerning the accuracy of the translations.
- Fact Witness Testimony
- Factual evidence also may be presented in the form of witness testimony. Traditionally (at least from a common law perspective), the presentation of witness testimony takes the form of direct examination, followed by cross examination and, as appropriate, re-direct or re-cross. This method of presentation is also found in international arbitration (and, as with the translation of documentary evidence, the interpretation of witness testimony is often needed).
- To the extent, however, that arbitrators and arbitral tribunals generally are interested in streamlining the proceedings, witness testimony need not necessarily be presented orally – often the substance of a direct examination is presented in written form, often as a witness statement or sworn affidavit (see, e.g., AAA Article 20(5) and LCIA Article 20.3). This approach is increasingly common.
- Expert Witness Testimony
- Often, arbitrators are selected either because they have some relevant legal training or because they have a particular expertise in the subject matter of the dispute. Where, however, the arbitrator(s) have no particular expertise, where certain factual evidence is particularly complex, and/or where the dispute arises in the context of a business or profession with which the arbitrator(s) (or even the parties themselves) are not sufficiently familiar, the presentation of evidence can take the form of expert opinion.
- For the most part, experts can either be appointed by the arbitrator(s) or selected by one or more of the parties. Of course, it is common for the parties to select (and then present both in written reports and then at the hearing) conflicting expert testimony.
- Arbitrators often require that an expert’s opinion (i.e., the substance of his or her testimony at the hearing) be disclosed to the other party sufficiently in advance of the hearing so that an opposing expert has time to prepare a reply.
- The rules of the various arbitral organization each address the use of experts (see, e.g., ICC Article 20, AAA Article 22, LCIA Article 21).
Ch. 20 Stages of the Arbitral Process
PETER SHERWIN, KENNETH E. ALDOUS