The Conduct of the Hearings - Chapter 16
Bernard Hanotiau is a Partner at Hanotiau and Van den Berg, Brussels and Council Member. Since 1978, Bernard Hanotiau has been actively involved in international commercial arbitration as party-appointed arbitrator, chairman, sole arbitrator, counsel and expert in various parts of the world. He is a member of ICCA (International Council for Commercial Arbitration), the ICC International Arbitration Commission and a Council Member of the ICC Institute of World Business Law. He is also Vice-President of the LCIA, of CEPANI and of the Institute of Transnational Arbitration (Dallas). He is a member of the International Arbitration Club (London) and served as chairman of the Club of International Arbitrators (Milan).
In this chapter we will analyze how, in practice, arbitral hearings are prepared, organized, and conducted. It is, however, important to determine in the first place what is the purpose of the hearing(s) as it may substantially differ depending upon the prevalent civil law or common law culture of the parties and counsel to an international commercial arbitration.
I. INTRODUCTION: THE VARIOUS APPROACHES TO CIVIL PROCEDURE
Traditionally, the approach to civil procedure has been different in the civil law and the common law systems. As Professor Claude Reymond once pointed out, if lawyers easily admit that the substantive law may differ from one country to another, they have more difficulties accepting that the rules of the game are not identical and that consequently, the procedure to be followed might be different from the one with which that they are familiar. Consequently, arbitral tribunals composed of arbitrators originating from civil law jurisdictions are often inclined to follow the rules of procedure that are applied by civil law courts. Conversely, arbitral tribunals composed of arbitrators originating from common law jurisdictions prefer to follow the rules of procedure applied by common law courts.
Arbitral tribunals sitting in cases involving parties from both civil and common law countries are often composed of arbitrators that are trained in different systems. It is in these tribunals, with their mixed composition, that the most interesting developments have taken place. They have evolved a system that is neither civil law, nor common law, but which has borrowed from both systems their better elements and avoided their weaker aspects, throwing a bridge between the continental and the common law approaches.
A. The Civil Law Approach
In the civil law, written submissions are not limited to summary assertions of ultimate facts. They tell a story, contain allegations of material, as well as evidentiary facts, and make legal arguments.
Legal and factual arguments are supposed to be proved by the documents and authorities attached to the pleadings. Civil law systems do not provide for pretrial discovery in the common law sense. The essential problem is to communicate to the one party the documents relied upon in the submissions of the other party. If documents detained by a party or a third party are not produced and one of the parties wishes to obtain their communication, it will have to ask the court to order it.
Oral testimony is generally secondary to written evidence. If the claims are supported by contracts or exchanges of correspondences, judges will generally not go further. If a contract is contradicted by testimony, it is not unusual for the contract to prevail. There has been traditionally a distrust of witnesses in the civil law system. The evidence is predominantly documentary.