Witness Conferencing - Chapter 19
Hilmar Raeschke-Kessler is a member of the exclusive bar of the German Federal Court - Bundesgerichtshof. He has acted as chairman or arbitrator in numerous international arbitrations. He also represents clients before the Bundesgerichtshof in cases related to the enforcement or setting aside of arbitral awards. He is member of the ICC-Commission on International Arbitration, Vice President of the German branch of the International Law Association and Board Member of the German Arbitration Institution - DIS. He has been member of the IBA-Working Groups on the IBA-Rules of Evidence and on the IBA Guidelines on Conflicts in International Arbitration. He is Honorary Professor at the Faculty of Law of the University of Cologne.
I. THE BALANCE BETWEEN FAIRNESS AND EFFICIENCY FOR THE TAKING OF EVIDENCE
Every substantial international commercial arbitration is for two reasons a procedural laboratory: (1) Arbitrators with different legal backgrounds, different personal styles and different experiences in international arbitration meet to form one arbitral tribunal. (2) The same is true for the parties and their counsel, who with different legal backgrounds have different expectations as to the procedure the arbitral tribunal is to follow. This is why each arbitral tribunal for each international arbitration has to strike a new balance between the fairness and the efficiency of the proceedings, particularly for one of its most important and most sensitive parts, the taking of evidence, whereby allegations are to be transformed into facts on which the arbitral tribunal is to base its final award.
Seen from the viewpoint of an Anglo-American party and its counsel it may be inherently unfair for an arbitral tribunal chaired by a Swiss and sitting in Switzerland, if witnesses are examined by the chairman in the inquisitorial style common to court proceedings in civil law countries, with very little opportunity for counsel or even the party appointed members of the tribunal to ask additional questions. It may appear equally unfair to a party and its counsel coming from a civil law country, if its arbitral tribunal in London permits counsel from an Anglo-American country to subject the witnesses of the civil law-party to a rigorous cross examination as is practiced before an English or American court.
The constant struggle for a just equilibrium between fairness and efficiency over the last ten years has developed almost miraculously – similar to the functioning of a market – into a best practice in international arbitration. To name two recent developments: (1) the emergence of the pro-active arbitrator and (2) the production of documents as laid out in the IBA Rules on the Taking of Evidence. Both elements have been developed by leading international arbitrators from common-law and civil law countries and are by now generally accepted. The “This was not invented here”-syndrome that besets some lawyers or judges operating within strictly national limits is absent with experienced international arbitrators. Were this not so, civil law-based arbitrators would still abhor the production of documents as laid out in the IBA-Rules whereas Anglo-American arbitrators would regard the idea of a pro-active arbitrator as unsound.