Unavailability of evidence is an issue every practitioner is only too

familiar with: Frequently the client’s only knowledgeable employees

have left the firm by the time the proceedings are initiated and have

taken their knowledge with them, or documents remain nowhere to be

found or have never been in the possession of the client, but are at the

disposal of a third party.

 

Winning or losing a case may then depend on whether the witnesses

can and will effectively be forced to give testimony or whether those

in possession of the documents can actually be forced to release them

as evidence. It is then crucial that coercive powers vis-à-vis an

unwilling witness be at the forum’s disposal and that it be prepared

to execute them. The failure to meet either of these prerequisites,

leading to the unavailability of evidence, can be tantamount to its nonexistence.

 

Due to their purely contractual nature and unlike state courts,

arbitral tribunals lack coercive power to enforce procedural decisions

on the taking of evidence. For the purpose of issuing orders for the

production of particular documents, summoning witnesses and similar

measures, tribunals and parties therefore must rely on state courts.

Most national arbitration laws are straightforward in providing such

judicial assistance in the domestic field. In sharp contrast, accessing

evidence abroad is usually highly complicated and may delay the

proceedings substantially.1 This obstacle especially affects

international arbitration since the seat of the tribunal is often chosen in

light of its neutrality so that evidence frequently is located abroad.2

 

German law, however, paves the way for the German courts to provide

assistance to international arbitral tribunals as well. This relatively

generous and arbitration-friendly offer to the international arbitration

community has to date not received sufficient attention.3 Before

addressing the particularities of this German approach (below Sections III

to V), it is useful to elucidate how other jurisdictions deal with judicial

assistance in aid of international arbitration (below Section II).

 

 

 

Judicial assistance supporting international arbitration can generally

assume two separate forms: (1) support mediated by additional bodies,

especially the state courts at the seat of the arbitration and (2) the

tribunal’s direct access to the supporting court. The first approach is

broadly available by invoking the Hague Evidence Convention.4 Under

Article 1 of the Convention, judicial authorities of one state may request

the competent authority of another state, by means of a letter of request,

to obtain evidence for use in judicial proceedings or to perform some

other judicial act. For this purpose, Article 2 of the Convention provides

that each contracting state designate a central authority which undertakes

to receive letters of request and to transmit them to the authority

competent to execute them. According to Article 12 of the Convention,

the execution of a letter of request may be refused only for two narrowly

defined grounds: lack of judicial authority and prejudice of sovereignty

or security. Since arbitral tribunals are not judicial authorities of a state

and arbitral proceedings are not judicial proceedings, it is widely

acknowledged that arbitral tribunals are not entitled to directly issue

letters of request under the Hague Evidence Convention.5 However,

most national arbitration laws entitle domestic arbitral tribunals to ask

the state courts for judicial assistance including the issuance of letters of

request under the Hague Evidence Convention.6 Since the original

request is necessarily mediated twice – by a state court and by the central

authority – the process is not only complicated and time-consuming,7 but
the arbitral tribunal is also likely to lose control of the request.8 Given