Читать книгу Anuario de arbitraje 2018 - Mª José Menéndez Arias - Страница 13

Many American practices related to witness testimony have come to prevail in international arbitration, such as the permissibility of receiving testimony from party witnesses, the widespread use of witness statements, increased emphasis on preparing witnesses, and cross-examination. In a sense, the first three of these four elements represent a closed circle of evidence through which counsel attempt to tightly control the narrative of the case to support their client’s claims or defenses. Cross-examination exists to give either party a chance to break that circle and cast doubt on the story being told by the opposing party. Despite the prevalence these practices have gained, however, international arbitration best practices related to witness evidence, like those related to document production, do not mirror US practices in many respects.

3.1. Party-affiliated witnesses

Although some civil-law systems allow striking parties or party representatives as witnesses56), international arbitration rules «generally recognize the common law approach that a party-affiliated witness can testify57)». However, arbitrators hailing from civil-law backgrounds may be inclined to give less weight to such testimony58). Thus, even where the American practice of allowing such witnesses to testify is followed, the utility of that testimony to the party may depend more on the composition of the arbitral tribunal than it does on the practices followed.

3.2. Witness statements

The second element of the closed circle is witness statements, which everyone knows are drafted by lawyers59). As a result, they can sometimes seem tailor-made to fit the statement of claim or defense, or vice versa. In a recent case in which one of the authors has been involved between parties from a civil-law jurisdiction and from the United States, the statement of claim read like a summary of the witness statements.

While there is technically no such thing as a «witness statement» in US litigation, affidavits and unsworn declarations60) are likewise out-of-court statements that are used to serve a similar function, and, like witness statements, they tend to be drafted by lawyers in consultation with the affiant or declarant. However, in US litigation, rare is the circumstance in which a written statement is substituted for direct testimony61), while that is standard practice in international arbitration62).

Furthermore, despite their ubiquity and massive volume, and as with party-affiliated witnesses, arbitral tribunals are likely to give witness statements less weight than documentary evidence or live testimony63). So, again we see that decision makers in international arbitration have the flexibility and discretion to decide the extent to which they will utilize or accept tools imported from American or common-law litigation.

3.3. Witness preparation

Somewhat more controversial still is the question of what goes into preparing party and expert witnesses for hearings. Just as cross-examination, discussed below, has become more common in international arbitration as a means to test the truth of witness statements, so too has preparation of witnesses become more common as a perceived prerequisite for cross-examination.

However, as witness preparation goes up to or beyond the line of what is ethically permissible in different jurisdictions64), it presents a unique challenge in international arbitration in that it is one aspect of Americanization which may not be available to counsel on all sides of a dispute, thus creating the potential for an uneven playing field. However, arbitrators can usually tell from the first questions to a witness –within the first ten minutes or so– the degree to which counsel has prepared the witness beforehand and can evaluate the witness’s testimony accordingly. In that sense, obvious preparation of witnesses could negatively impact arbitrators from backgrounds that view witness preparation as unethical. Knowing that certain members of the arbitral tribunal come from civil-law backgrounds may temper counsel’s propensity to rigorously prepare witnesses.

3.4. Cross-examination

As a consequence of allowing witness statements, cross-examination has become commonplace in international arbitration. Generally, counsel trained in civil law recognize that cross-examination can be an effective tool to call a written witness statement into question65). Sometimes, they even invoke conditions that are not the rule in international arbitration procedures. For example, in a case involving Argentinian counsel on one side and American counsel on the other, the Argentinian lawyers rejected the use –proposed by the Americans– of videoconferencing during cross-examination. This sort of «as you would do, so shall we» emulation is one of the reasons why we have seen the spread of American practices in international arbitration.

In addition to casting doubt on the testimony relied on by the other party, cross-examination offers two less direct benefits. For one, it has the effect of forcing counsel to get to know its case; good cross-examination requires ready knowledge of the details of the case while questioning the other party’s witness. More importantly, allowing the parties to question the opposing party’s witnesses gives all parties the sense that they have had their day in court, that the tribunal has heard their side of the case in a way that is more evident and satisfying than submitting written witness statements.

As we mentioned before, while cross-examination has become a common fixture of international arbitration, it does not have the same features as it does in US court. First, it is more flexible and less fixed than it is in federal court in the United States66). For example, the scope of cross-examination is not necessarily limited to the scope of direct examination as it is under Federal Rule of Evidence 611(b)67). Second, the lack of prior deposition testimony taken by the cross-examining attorney makes impeaching the other party’s witness’s testimony more difficult in international arbitration68). After all, it is far more likely that a witness speaking during a deposition will frame an answer in a less ideal way than it has been in a witness statement that has been carefully crafted by an attorney. Third, just as deposition practice is rare in international arbitration, the formalistic rules of evidence on admissibility, hearsay, and probative value outweighing prejudicial harm have not been imported into international arbitration69). The lack of prior deposition testimony with which to impeach witnesses with greater ease and of formalistic evidentiary rules, combined with common law-trained counsel recognizing the need to soften their approach70), results in what we might call «decaffeinated» cross-examination.

While the IBA Rules on the Taking of Evidence in International Arbitration provide general grounds for excluding evidence71), the kinds of formalistic American evidentiary rules intended to prevent lay people on juries from hearing or misusing evidence that does not meet certain minimum standards do not formally exist in international arbitration. This indicates that, to the extent US litigation practices have made their way into international arbitration, they have not been imported wholesale because of some colloquial obstinance of American practitioners, but rather only where it made sense in the arbitration context72). In the area of witness testimony, international arbitration practice is charting its own course, not blindly following the practice of one tradition or another73). As the anecdotes in this subsection show, even counsel from a civil-law background may take US litigation tactics into mind if it serves their clients’ needs. The embrace of US-style evidentiary tactics comes from the desire of clients and counsel, regardless of origin, to feel their case has been heard fully74).