HENRI ALVAREZ is a Partner with Fasken Martineau DuMoulin LLP’s international dispute resolution practice group. Based in Vancouver, he has acted as arbitrator or counsel in over one hundred institutional or ad hoc international arbitration proceedings in North and South America, Europe and Asia. of the Arbitration Committee of the International Bar Association and a member of the London Court of International Arbitration.
International arbitration practice combines elements of different legal cultures to create a balanced and flexible system suitable for the efficient and economical presentation of evidence in the resolution of international disputes. This approach has led to a considerable degree of harmonization of common or “best” practices reflected in recent instruments such as the IBA Rules on the Taking of Evidence in International Commercial Arbitration (the “IBA Rules”). These Rules or practices are said to combine basic aspects of the “common” and “civil” law systems: the oral examination of witnesses at an evidentiary hearing from the former, and reliance on detailed written pleadings and documentary evidence from the latter. The primary contribution to this combined system from common law practice is the cross-examination of witnesses at an oral hearing. This form of witness examination, which plays a key role in the oral, adversarial common law tradition, maintains an important role in modern international arbitration practice. However, the context is significantly different and the effective use of cross-examination will depend on understanding the transnational setting in which international arbitration is conducted and making appropriate adjustments.