Originally from The Art of Advocacy in International Arbitration - 2nd Edition

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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.[1] 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.