Differences in the Approach to Witness Evidence Between the Civil and Common Law Traditions - Chapter 2 - The Art of Advocacy in International Arbitration - 2nd Edition
Anthony C. Sinclair is a Senior Associate in the International Arbitration Group of Allen & Overy LLP. He is admitted as a Barrister and Solicitor of the High Court of New Zealand (1999) and a Solicitor in England and Wales (2006). He has been counsel in numerous bilateral investment treaty (BIT) and Energy Charter Treaty (ECT) arbitrations under ICSID and UNCITRAL arbitration rules, ICSID annulment proceedings, and international commercial arbitration matters. Anthony Sinclair is also the author of numerous articles and chapters on international investment law and arbitration and is frequently invited to speak at conferences and seminars on procedural and substantive matters arising in investment treaty arbitrations and related issues of public international law.
Originally from The Art of Advocacy in International Arbitration - 2nd Edition
I. Domestic Influences on the International Arbitration Bar
The differences in approach that can bear upon international arbitration proceedings have, in the past, been expertly illuminated in a great many settings. For all but the most senior arbitrators, with decades of practice behind them involving a great diversity of parties and jurisdictions, to update and offer a modern overview of differences in the approach to witness evidence in civil and common law countries is a daunting task. These observations fortunately benefit not only from the author’s own experience but that of an integrated global arbitration practice within a multinational firm, in which colleagues routinely work together, share and learn from each other’s practices. What follows are, nevertheless, observations of a generalised nature to which it is freely admitted there will be a great many more exceptions and qualifications than can be mentioned here.
Many of the differences that one can observe in the practice of international arbitration stem from the different levels and range of experiences of the counsel involved. Some differences in approach may be more directly cultural, linked to the practice of litigation in the courts of different jurisdictions. One should not over simplify the differences between civil and common law approaches, since there are differences both subtle and substantial within these systems.2 Nevertheless there are striking differences in the approach of civil and common law courts and tribunals when it comes to witness evidence. Some of the differences found in a selection of jurisdictions are as follows.