I.THE BALANCE BETWEEN FAIRNESS AND EFFICIENCY FOR THE TAKING OF EVIDENCE
Substantial international commercial arbitrations are often a procedural laboratory for two reasons: (1) Arbitrators with different legal backgrounds, different personal styles and different experiences in international arbitration meet to form one arbitral tribunal. (2) The same is true for the parties and their counsel, who with different legal backgrounds may have different expectations as to the procedure the arbitral tribunal is to follow. This is why each arbitral tribunal for each international arbitration has to strike a new balance between the fairness and the efficiency of the proceedings,1 particularly for one of its most important and most sensitive parts, the taking of evidence, whereby allegations are to be transformed into facts on which the arbitral tribunal is to base its final award.
Seen from the viewpoint of an Anglo-American party and its counsel it may be inherently unfair for an arbitral tribunal chaired by a Swiss and sitting in Switzerland, if witnesses are examined by the chairman in the inquisitorial style common to court proceedings in civil law countries, with very little opportunity for counsel or even the party appointed members of the tribunal to ask additional questions. It may appear equally unfair to a party from a civil law country and its counsel as a newcomer to international arbitration if an arbitral tribunal sitting in London permits an English QC to subject the witnesses of the civil law-party to rigorous cross examinations as is practiced before an English or American court.