Originally from American Review of International Arbitration - ARIA

Preview Page

I.  INTRODUCTION: CHALLENGES OF ACCESSING EVIDENCE ABROAD

Unavailability of evidence is an issue every practitioner is only too familiar with:  Frequently the client’s only knowledgeable employees have left the firm by the time the proceeding is initiated and have taken their knowledge with them, or documents remain nowhere to be found or have never been in the possession of the client, but are at the disposal of a third party.

Winning or losing a case may then depend on whether the witnesses can and will effectively be forced to give testimony or whether those in possession of the documents can actually be forced to release them as evidence.  It is then crucial that coercive powers vis-à-vis an unwilling witness be at the forum’s disposal and that it be prepared to execute them.  The failure to meet either of these prerequisites, leading to the unavailability of evidence, can be tantamount to its non-existence.

Due to their purely contractual nature and unlike state courts, arbitral tribunals lack coercive power to enforce procedural decisions on the taking of evidence.  For the purpose of issuing orders for the production of particular documents, summoning witnesses and similar measures, tribunals and parties therefore must rely on state courts.  Most national arbitration laws are straightforward in providing such judicial assistance in the domestic field.  In sharp contrast, accessing evidence abroad is usually highly complicated and may delay the proceedings substantially.   This obstacle especially affects international arbitration since the seat of the tribunal is often chosen in light of its neutrality so that evidence frequently is located abroad.

German law, however, paves the way for the German courts to provide assistance to international arbitral tribunals as well.  This relatively generous and arbitration-friendly offer to the international arbitration community has to date not received sufficient attention.   Before addressing the particularities of this German approach (below Sections III to V), it is useful to elucidate how other jurisdictions deal with judicial assistance in aid of international arbitration (below Section II).