Approaches to Evidence across Legal Cultures

Introduction

What is evidence? In summary, evidence is the material that a party provides to the arbitral tribunal in support of its factual assertions.

In domestic court proceedings, there are a variety of procedural rules regarding the admissibility of evidence, as well as rules regarding when and how evidence is to be submitted. In international arbitration, however, flexibility and party autonomy are prized qualities, and much is accordingly left to the discretion of the arbitral tribunal in cooperation with the parties.^[2] Evidentiary questions are generally governed by the law of the seat of arbitration, but arbitration laws are flexible with respect to evidential issues.^[3] Institutional rules also leave much to the discretion of the arbitral tribunal.^[4]

As is well known, the IBA Rules on the Taking of Evidence in International Arbitration (the IBA Rules) seek to fill this ‘intentional gap’ in international arbitration rules by providing general guidelines regarding evidential issues that have been widely accepted throughout the world. Nevertheless, as discussed below, there remain a number of issues on which arbitrators and counsel from different legal traditions can see matters quite differently.

This chapter provides a high-level introduction to issues concerning evidence as seen from an international perspective.

Evidence in international arbitration – the wider context

Having once been seen as a narrow western European field in which most protagonists knew each other socially, international arbitration has developed in the current century into a truly worldwide form of international dispute resolution.^[5]

In our view, it is important to remember this wider context when considering issues concerning evidence in international arbitration. It is sometimes suggested that there is an ‘international best practice’ by which diverse international procedures are being harmonised,^[6] and there is some considerable truth in this as is set out below. Nevertheless, local procedures and traditions still play a considerable role, depending on the parties, counsel and arbitrators involved.

In particular, there is a marked difference between those legal traditions (particularly, common law jurisdictions, but also Scandinavian countries) that strongly favour oral presentation of evidence and argument, and those legal traditions (including many civil law jurisdictions) that give precedence to written procedure and evidence.

The standard procedure in international arbitration places strong emphasis on written presentation, with detailed written submissions, written witness statements and expert reports, and often written post-hearing briefs. Yet the focus is still very much on the oral hearing, where the witnesses and experts are cross-examined.

We suggest that it is important to be aware that lawyers from different legal traditions will instinctively view the various parts of the international arbitration procedure differently. Thus, for example:

• Lawyers from civil law countries may expect to see a clear identification of the facts in dispute, and of the evidence relied upon to prove each of those facts. Common law lawyers, on the other hand, often prefer to use the evidence to tell their side of the story in a more discursive manner.
• Whereas common law lawyers prefer to rely on witnesses to present a narrative of what happened in the case, civil law lawyers prefer to rely on the underlying documents. In many civil law countries, witnesses play a rather minor role in civil court procedure.
• Lawyers from adversarial systems generally wish to use their own party-appointed experts, whereas lawyers from inquisitorial systems are accustomed to court-appointed or tribunal-appointed experts.
• Common law jurisdictions have far-reaching disclosure or discovery of documents, but civil law jurisdictions typically have only limited procedures for mandatory production of documents.
• Arbitrators from some civil law countries, such as Switzerland, tend to adopt rather more inquisitorial styles of questioning than would be done by arbitrators from countries that take a rather strict adversarial approach.

Set out below is an overview of standard procedure in international arbitration, followed by a discussion on a number of areas in which practices differ in different parts of the world.

Standard practice in international arbitration

There is a relatively standardised practice in international arbitration, which can be summarised as follows.^[7]

• The first step after the arbitral tribunal is constituted is for a case management conference to be held at which the arbitral tribunal and the parties seek to agree upon the detailed procedural rules for the arbitration (as generally set out in Procedural Order No. 1), as well as agreeing upon a procedural timetable. The case management conference is generally held virtually by videoconference.
• The parties prepare and submit two or three rounds of ‘memorial-style’ written submissions to which they attach the witness statements, expert reports and documentary evidence upon which they rely.
• A document production phase generally follows the first round of written submissions. The parties make specific requests for production of documents, usually in table format in the form of Redfern^[8] or Stern^[9] schedules. To the extent that the parties cannot agree, the arbitral tribunal rules upon the document requests.
• A further case management conference is often held prior to the main hearing.
• The main hearing lasts from one to two days up to one or two weeks, but rarely longer than that. The main hearing starts with oral opening statements, which are often limited to one or two hours each, followed by examination and cross-examination of witnesses and experts. The written witness statements are deemed to take the place of direct examination of witnesses, whereas experts often give oral presentations in which they summarise the contents of their expert reports. Most of the hearing is devoted to the cross-examination of witnesses and experts.
• Closing statements are often presented in writing in the form of post-hearing briefs, although (particularly in smaller cases) closing statements are sometimes presented orally.
• Short costs submissions are exchanged once the substantive proceedings have been completed.
• The arbitral tribunal is generally expected to issue its award within about three months of completion of the substantive proceedings.

This standard procedure places considerable importance on the written procedures. Most of the evidence – in the form of written witness statements, expert reports and documentary evidence – is presented in writing. Yet the focus often remains on the oral hearing and on the performance of witnesses and experts under cross-examination.

The fact that the oral hearing remains important is confirmed by the fact that it is rare for parties to agree to have a case resolved without a main hearing. It is commonly thought that parties have a right to a main hearing.^[10] A main hearing is generally held if one of the parties so requests,^[11] although in some cases the main hearing may be held online.^[12]

Nevertheless, at least in our experience, it is generally the contents of the relevant documents, supplemented by the contents of the written witness statements and expert reports, that determine the outcome of the case.

The IBA Rules versus the Prague Rules

It has become standard practice to have regard to the IBA Rules.^[13]

However, because of a perceived concern about the IBA Rules being based on common law procedures, the Rules on the Efficient Conduct of Proceedings in International Arbitration (the Prague Rules) were launched in December 2018. The Prague Rules aim to increase the efficiency of arbitral proceedings.^[14] The Prague Rules, inter alia:

• provide for the arbitral tribunal to take a proactive role;
• encourage the arbitral tribunal and the parties to avoid any form of document production;
• suggest that the arbitral tribunal and the parties should seek to resolve the dispute on a documents-only basis;
• provide for the arbitral tribunal to direct and control the examination of witnesses at any hearing; and
• include provisions for the arbitral tribunal to assist in amicable settlement of the case.

The Prague Rules provide interesting suggestions regarding various alternative procedural steps that arbitral tribunals and parties could agree upon. However, at least insofar as we have been able to ascertain, the Prague Rules have received only a limited uptake in practice. We suggest that one of the reasons for this is that there is no real need for alternative rules.^[15] As the IBA Rules themselves make clear, they do not need to be used slavishly and can be adapted to suit the particular requirements, and preferences, relevant to the case at hand.^[16]

It is relevant to note in this context that the aim of increasing efficiency is widespread in international arbitration (see, e.g., the case management techniques set out at Appendix IV of the International Chamber of Commerce (ICC) Arbitration Rules). It is therefore open to arbitrators in many cases to adopt some of the ideas that have been promoted in the Prague Rules, even when the Prague Rules themselves are not used. Thus, some civil law arbitrators may naturally seek to avoid any form of document production, or at least they may try to limit document production considerably. There is also sometimes a desire from civil law arbitrators to control the cross-examination process; in extreme cases, the arbitrators can end up taking over the questioning from the lawyers, but, less controversially, arbitrators from civil law jurisdictions often seek to limit or curtail the allotted time for cross-examination.

The issue of arbitrators assisting in amicable settlement is also particularly culturally sensitive. In Germany, it is common for arbitrators to be asked to give a preliminary view on various issues in the case, as a means of promoting settlement. However, in many other jurisdictions, this would generally be considered unacceptable.

Regional variations

As mentioned above, local procedures and traditions still play a considerable role in international arbitration, and so it is not surprising that variations can be seen in the standard procedure when considering international arbitration in different parts of the world.

Below, we seek to take account of possible regional variations and preferences in the following matters:

• witness evidence;
• expert evidence;
• documentary evidence;
• document production; and
• the burden and standard of proof.

Witness evidence

As noted above, it is standard practice to prepare written witness statements for use in international arbitration. Article 4 of the IBA Rules provides some suggestions on how witness statements can be prepared.

However, it can be useful to bear in mind that regional variations can arise.

Party representatives as witnesses

There can be considerable scepticism in certain jurisdictions about party representatives acting as witnesses since party representatives are unlikely to give independent testimony.^[17] It should therefore be borne in mind that some civil law arbitrators may give rather less weight to the testimony of party representatives.

Length and style of witness statements

The length and style of witness statements can vary greatly, depending on how they are prepared. Common law lawyers, who are accustomed to preparing witness statements, often submit witness statements that are very detailed and run to many pages (commonly 50 or more). However, lawyers from jurisdictions in which witness statements are uncommon are more likely to submit much shorter witness statements, and these witness statements may have been prepared largely by the witnesses themselves.

How different styles of witness statements are perceived by the arbitral tribunal depends, of course, on the arbitrators.

Different procedures for filing witness statements

English lawyers may seek to have witness statements served simultaneously after written submissions have been filed, which is the usual practice in the English courts. The purpose of this procedure is to prevent one side from being able to read another side’s witness statements in advance of filing. However, even though the purpose of this procedure may be understood, this is likely to be perceived as a curious anomaly to international arbitration practitioners from outside England.

Preparing and coaching witnesses

Lawyers from continental Europe, as well as from England, are generally cautious about preparing or coaching witnesses, whereas the preparation of witnesses is generally expected in some other jurisdictions.^[18] It is important to be aware of these differences in approach as early as possible, and, if it seems likely to cause problems, this point should be discussed with the arbitral tribunal at an early case management conference.^[19]

Direct examination

Scandinavian lawyers prefer direct examination of witnesses, at least in part, and this in turn can result in requests for longer hearings.^[20]

Again, this difference of approach can cause difficulties unless it is discussed and planned for at a relatively early stage in the proceedings.

Different styles of cross-examination

Common law lawyers are taught specific techniques for cross-examination, and these techniques are often employed in international arbitration.^[21]

However, lawyers from other jurisdictions may have a different approach. Moreover, arbitrators from other jurisdictions may find certain styles of cross-examination to be objectionably aggressive.

Considerable care is needed to adapt the cross-examination to the needs of each particular case.^[22] In our experience, focus should be placed on the overall impression that is ultimately conveyed by the witness, with less emphasis being placed on counsel seeking to score detailed points. Whereas counsel sometimes try to get witnesses to admit that they are mistaken in various respects, arbitrators are often less concerned about minor errors that may, or may not, have been made by the witness. Thus, even if counsel manage to show that the witness is mistaken, the point may fall flat if the arbitrators nevertheless conclude that the witness has given a good overall impression.

Witness conferencing

Witness conferencing or ‘hot tubbing’ – where two or more witnesses or experts are heard together – can sometimes be very effective. However, considerable planning is needed for this procedure to work well, and there is considerable scope for disagreement as to how it should be carried out.

If witness conferencing is to be used, it is important that it is discussed and planned for in detail in good time before the hearing.

Concerns about witness reliability and memory

As has been recently publicised by the ICC,^[23] witnesses’ memory can be very unreliable and care needs to be taken to cater for this.

Counsel would be wise to take account of these concerns. Again, this is a matter that can usefully be raised at an early stage in the proceedings.

Generally regarding witness evidence

One of the most obvious cultural differences that arises in international arbitration concerns the length of witness evidence, and in particular the length of cross-examination. Counsel may sometimes plan to set aside a full day, or even longer, for the cross-examination of a key witness, but if the tribunal expects there to be only a limited number of specific questions, counsel’s strategy may need to be revised.

Similarly, if the arbitrators show that they consider the witness evidence to be rather unimportant, counsel should seek (as far as possible) to prove their case by reference to the documents.

Expert evidence

Not all cases require expert evidence, but where experts are required, their evidence is often central to the case. Article 5 of the IBA Rules provides some suggestions for how expert reports can be prepared.

In practice, some lawyers are more experienced than others in dealing with experts. Those who are experienced will generally take care to ensure that the expert’s role is carefully defined and that the expert remains independent and impartial without seeming to become part of the counsel team.

However, some parties do not follow these guidelines. It is not uncommon for experts to develop and present the party’s case theory, particularly in specific fields such as construction where experts often have a prominent role. In our experience, it can be dangerous for experts to become part of the counsel team in this way since experts are less likely to be relied upon by the arbitrators when it is clear that they are not impartial.

It can be good practice to identify early on the issues that may require expert evidence, as is regularly seen in the English courts. However, this is somewhat uncommon in international arbitration.

Some arbitral tribunals prefer to appoint their own experts. The IBA Rules provide fairly detailed guidance on how tribunal-appointed experts should best be dealt with,^[24] but in our experience it is quite rare for parties to agree to these experts being appointed.^[25]

On the other hand, civil law arbitrators sometimes insist that they wish to appoint a tribunal-appointed expert. This is a particularly difficult cultural legal issue that needs to be handled carefully. One solution, by way of compromise, can be for the party-appointed experts to be jointly instructed to assist the arbitrators with certain tasks (e.g., the calculation of quantum).

Documentary evidence

Documentary evidence is generally submitted in the form of exhibits to written submissions.

Different formats for filing exhibits

International arbitration of 10 years ago involved multiple ‘bundles’ of hard copy documents, with a corresponding need for large amounts of documentation to be couriered around the globe. Thankfully, processes have improved and most arbitrations now deal for the most part with electronic documents.

Electronic documents present their own challenges. One particular issue concerns different levels of technical sophistication between lawyers from different jurisdictions. Some larger law firms are accustomed to using specialised software and presentation service providers, whereas other lawyers may have never encountered these systems.

Some arbitrators also have particular requirements with respect to electronic filing of documents, and it is wise for counsel to be prepared to be adaptable. Nothing annoys an arbitrator more than counsel’s failure to follow specific document filing instructions.

Different approaches to presentation of documentary evidence at hearings

As mentioned above, the standard procedure in international arbitration tends to focus on the hearing, but at the same time there is often rather little time at the hearing for the presentation of written documentation.

We suggest that, particularly in document-heavy cases, these issues need to be considered carefully at an early stage in the proceedings.

Issues concerning authenticity of documentary evidence

Many arbitral tribunals inform the parties that the authenticity of documentary evidence is assumed unless a party takes specific steps to challenge it.^[26]

In this new world where documents can be produced with the help of artificial intelligence, arbitral tribunals and parties may need to become more vigilant with respect to questions of authenticity.^[27]

Document production

Document production in international arbitration generally follows Article 3 of the IBA Rules. However, there are different views as to what is relevant and material, and there is very little guidance.

Lack of clarity concerning relevance and materiality

Article 3(3) of the IBA Rules states as follows:

Article 3: Documents

3. A Request to Produce shall contain:
   1. 1. a description of each requested Document sufficient to identify it, or
      2. a description in sufficient detail (including subject matter) of a narrow and specific requested category of Documents that are reasonably believed to exist; in the case of Documents maintained in electronic form, the requesting Party may, or the Arbitral Tribunal may order that it shall be required to, identify specific files, search terms, individuals or other means of searching for such Documents in an efficient and economical manner;
   2. a statement as to how the Documents requested are relevant to the case and material to its outcome; and
   3. 1. a statement that the Documents requested are not in the possession, custody or control of the requesting Party or a statement of the reasons why it would be unreasonably burdensome for the requesting Party to produce such Documents, and
      2. a statement of the reasons why the requesting Party assumes the Documents requested are in the possession, custody or control of another Party.^[28]

The criteria ‘relevant to the case’ and ‘material to its outcome’ are not defined in the IBA Rules. The official commentary also provides little guidance beyond noting that the intention was to find ‘a balanced compromise between the broader view [concerning requests for production of documents] generally taken in common law countries and the narrower view generally held in civil law countries’, that Article 3.3 ‘is designed to prevent a broad “fishing expedition”’, and that ‘the relationship between the documents and the issues must be set forth in the request to produce with sufficient specificity so that the arbitral tribunal can understand the purpose for which the requesting party needs the requested documents’.^[29]

However, in the context of each particular case, it may be appropriate for the arbitral tribunal to provide clarity at a relatively early stage so that the parties can understand the basis upon which the arbitral tribunal will consider these issues. At the very least, the arbitral tribunal should ensure that it acts consistently in dealing with the various document requests made by each party – and in a large case with a considerable number of document requests, this requires diligence and care.

Some assistance can be obtained from the leading textbook on the IBA Rules.^[30] The authors note that there are two separate limbs to the test under Article 3.3(b) of the IBA Rules – ‘relevant to the case’ and ‘material to its outcome’ – both of which must be satisfied.^[31] Accordingly, it is good practice for parties to explain in their document production requests the relationship between a document request and the issue in the written submissions to which it is said to relate.^[32]

The main cultural legal sensitivity in this context concerns the extent to which a party can be ordered to hand over sensitive documents. For example, claimants from the United States may assume that they are entitled to obtain rather wide-ranging document production, whereas civil law respondents may assume that they should not have to disclose their trade secrets or other sensitive commercial documents. It is difficult to resolve such a culture clash.

Different approaches to e-discovery

E-discovery is a standard feature of US litigation, and it is apparently also common in domestic US arbitration for discovery of electronically stored information to be required.^[33]

However, wide-ranging discovery of documents is generally discouraged in international arbitration, and outside the United States it is relatively uncommon for e-discovery to be used in international arbitration cases.

Different views regarding legal privilege

It is also important to note in this context that rules concerning legal privilege vary widely across different jurisdictions. There is no standard guidance for dealing with privilege issues in international arbitration,^[34] and there is little guidance.^[35]

Against this background, parties and arbitral tribunals would be wise to identify any difficult issues concerning legal privilege at an early stage in the proceedings, and the arbitral tribunal should seek to adopt an even-handed approach that provides fairness in the circumstances of the particular case.

The burden and standard of proof

The important issues concerning the burden and standard of proof are largely unregulated in international arbitration.

The asserting party generally has the burden of proof with respect to an assertion.^[36] However, this simple rule does not necessarily resolve the complex issues that can arise concerning which party bears the burden of proof in determining the case as a whole.^[37] In some jurisdictions, it is sometimes suggested that the burden of proof should be placed on the party that has the best possibility of securing the evidence in question.^[38]

One preliminary consideration is whether the question of burden of proof is procedural or substantive, and accordingly which law applies – the law of the seat of arbitration or the substantive law. Although this question rarely arises in practice, issues could potentially arise in this context.

As regards the standard of proof, common law practitioners generally expect that proof needs to be shown in terms of a balance of probabilities, which is the usual requirement in civil cases. However, civil law lawyers may consider that something more is needed – in other words, that there is a requirement for the arbitrator to be convinced. Although it is sometimes suggested that, in practice, these standards are the same, in certain cases this issue could be determinative.^[39]

In our opinion, questions concerning the burden and standard of proof raise particularly sensitive cultural legal issues. Ultimately, counsel need to persuade the arbitrators, but if it is not even possible to agree upon these ground rules, then it is difficult to be sure of what is required. It is rare for these issues to be raised but we suggest that, in some cases, it could be very important for them to be discussed and agreed upon.

Conclusion

We conclude by noting that the international nature of the practice of international arbitration has a tendency to produce challenges and surprises whenever lawyers from different jurisdictions are involved, not least with respect to evidence.

Arbitrators and counsel would be wise to assume that every case is different, and that practices, views and expectations can differ widely.

Many of the possible issues that can arise are highlighted in the UNCITRAL Notes on Organizing Arbitral Proceedings.

The key point in each case is to remember the essential duties of the arbitral tribunal – to act fairly and impartially, and to give each party a reasonable opportunity to present its case.^[40] The arbitral tribunal and the parties should work together to identify and apply suitable procedures to resolve each case accordingly.

Notes