The last twenty-five years have seen an explosive growth in international commerce, fueled by fundamental changes in communications, in transportation and in newly developing markets. Such growth in trade-often characterized as globalization-has brought with it profound economic, political and social changes, as well as changes in the basic way business is done. It has also brought with it-inevitably-a corresponding surge in cross-border litigation and international disputes arising out of such trade. As large scale cross-border transactions and investments have proliferated, so also have the disputes grown in importance and complexity.

The traditional national courts were in most cases ill-equipped to handle such disputes. They generally did not have the expertise or the experience to deal with the issues, particularly where different languages, different cultures and different legal systems were involved. This was especially true in the case of countries where courts traditionally dealt with criminal or civil, as opposed to commercial, matters.

More importantly, where the parties came from different countries-and particularly where one of the parties was a State or State-owned entity-there was and is an understandable reluctance by either party to submit to the courts of the other party. Such reluctance is exacerbated because national courts are necessarily required to follow local procedural rules and practices which, in many cases, appear strange, or burdensome, or downright unfair to a foreign party.

It is against this background that a dramatic growth in international arbitration has taken place, a growth which continues year after year. Much has been written about the advantages and disadvantages of arbitration, compared to national court procedures, but one factor seems clear: independent arbitration [Page52:] is the only means of having a truly neutral adjudication procedure, neutral with respect to the identity of the arbitrators and the location, and also theoretically neutral with respect to the procedure to be followed.

The principal focus of academic and professional commentators, when discussing international law and legal rights, has usually been on the substantive law and related issues of conflicts of law, comparative law and the like.1 Yet the rules of procedure and the practices applied by the adjudicating body may have every bit as much effect on the outcome of a dispute, and on the rights of a party, as the substantive law. While most systems recognize some general concept of 'due process' or 'fairness', the way such goals are achieved, and the actual procedures applied, differ widely between countries and between legal systems. It is in the arena of international arbitration that those differing procedures, and the attendant expectations of the parties, have most often come face to face and where lawyers and arbitrators have had to find practical solutions. As a result, there has over the years been a steady evolution, whereby certain procedures and practices, some taken from one system and some from another, often with an element of compromise, have come to be commonly accepted in the context of international arbitration. This has led to some degree of standardization in the practice of arbitration, 'denationalized' from any single legal system, while still leaving considerable flexibility and discretion in the hands of the arbitrators.2 There is, however, no single all-encompassing procedure, and a number of significant differences in approach continue to exist. In discussing the substantial progress which has been made, and the differences which continue to exist, this paper will focus primarily on civil law and common law procedures, recognizing that other legal systems-for instance those prevailing in many parts of the Middle East and the Far East-may raise very different considerations.

There have been-and continue to be-notable differences between the civil law and the common law approaches to trial or dispute resolution procedures, [Page53:] and to the assumptions underlying such approaches. Indeed, in the case of arbitration, while not strictly divided along civil law/common law lines, there have even been basic differences as to the role of the arbitrator. In most countries the arbitrator was expected to be totally independent of the parties, but in the United States, until recently, the co-arbitrators were not only permitted, but were expected, to act as representatives of the parties, in effect second tier advocates, with only the third arbitrator as a true neutral.3 This has gradually changed, first with the adoption by the American Arbitration Association (AAA) of its International Arbitration Rules in 1991,4 and more recently in its far-reaching revision of the Commercial Arbitration Rules.5

Turning to the arbitral proceedings themselves, the civil law tradition was to expect each party to marshal and present its own evidence, as needed to support its case. A party was not expected to produce evidence supporting its adversary, and only rarely would a court-or arbitrator-intervene to request additional evidence. Under common law, particularly in England and in the United States, a very different approach had developed whereby each party had the right, under the generic title of 'discovery', to require the other to produce a wide range of documents and other relevant evidence in its possession, even those unfavourable to its case. These procedures, which also engendered enormous amounts of work, understandably encountered vehement objection from civil law practitioners. When the two approaches came face to face in the arbitration arena some solution or compromise became necessary.

Similarly, civil law trial procedures traditionally were focused on documentary evidence, with far less importance, if not outright scepticism, devoted to oral evidence. Under civil law it has even been argued that, in some circumstances, no oral testimony at all is appropriate. Common law, in contrast, placed oral testimony, and with it the well-established process of cross-examination, at the [Page54:] centre of the process. While many of the institutional rules provided for a hearing as an obligatory step if either party requested one,6 the scope of such hearing and the procedures to be followed varied widely. Following civil-law concepts, judges (i.e. arbitrators) would usually take on a pro-active, inquisitorial role, asking the questions on their own initiative or on the basis of written questions from the lawyers, with little or no opportunity for cross-examination. Frequently, the exact forms of the questions and of the answers would not be recorded, with the judge (arbitrator) instead summarizing the gist of the testimony. Such procedure would seem totally inadequate to a common law advocate. Again, some pragmatic solutions had to be developed.

Other differences, too numerous to list, became apparent. Civil law practice distinguished between so-called party-representatives and truly independent third party witnesses; in common law eyes, both were witnesses of fact, whose testimony could legitimately be challenged by cross-examination. Under the rules of most civil law jurisdictions any prior contact between the lawyers and potential witnesses is forbidden, while in the United States (and to varying degrees in other common law jurisdictions) such contact is accepted as normal and necessary.

United States practice also foresees preliminary, pre-trial questioning of potential witnesses (the notorious 'deposition' procedure), an unthinkable process for civil law lawyers. In arbitration practice such pre-trial depositions have seldom been authorized or used outside the United States, but the use of written witness statements, prepared and exchanged in advance, has become more and more common as something acceptable under both systems. Issues of legal privilege and confidentiality have also been subject to different treatment, and some of those differences have in fact been exacerbated in recent years.

The role of experts was and continues to be controversial. In civil law practice, an independent expert is usually selected by the arbitral tribunal to advise the tribunal directly, while under common law practice each party nominates its own expert to support that party's case, with varying (and often suspect) degrees [Page55:] of independence. Issues of foreign law are matters to be argued by the lawyers under some legal systems; in others they are matters of fact, to be established by expert testimony. Witness conferencing, particularly among experts, is a recent development in arbitration which may help to circumvent some of these differences.

Many other examples could be cited, some of them relatively minor and some of real significance, but all of them capable of creating friction if sensible procedures have not been formulated to satisfy the expectations of all parties.

The path toward reconciling these very different procedures has been an evolutionary one, forged largely by the practical day-to-day work of lawyers and arbitrators in the field. Nonetheless, there have been periodic events which have helped to move the process forward. It might be said that the adoption of the New York Convention of 1958 itself was a seminal event, not only because of its Article V(i)(b) requirement that each party be allowed 'to present its case', but because of its underlying assumption that all signatory States recognized some generally accepted, international principles. More immediately, the process was encouraged by the adoption and revision over time by the

various arbitral institutions of their rules of procedure which, although far from

identical, usually reflected comparable overall structures.7

The 1975 revision of the Rules of Arbitration of the International Chamber of Commerce (ICC), for instance, was a significant step forward, with its provision in Article 11 (now Article 15(1)) that, absent other agreement, the arbitrators might apply any procedural rules they deemed appropriate 'whether or not reference is thereby made to a municipal procedural law to be applied to the arbitration'. This change explicitly freed the arbitrators from any obligation to apply any municipal procedural rules (except for mandatory provisions, applicable in the place of arbitration, under public policy or ordre public).

Similarly, the issuance of the UNCITRAL Arbitration Rules in 1976, and subsequently of the UNCITRAL Model Law on International Commercial [Page56:] Arbitration of 1985, no doubt contributed in a general way to a harmonization process, by underscoring the fact that arbitration was an international procedure, having an existence of its own, divorced from traditional local requirements.8

The most important step forward, on the purely procedural level, however, was almost surely taken by the publication, in 1999, of the IBA's Rules on the Taking of Evidence in International Commercial Arbitration (the 'IBA Rules on Evidence'). These 'rules', prepared with considerable effort by a committee of experienced practitioners from a broad spectrum of countries and legal systems, sought to set out some basic ground rules of commonly accepted procedures to be applied in international arbitration. As such, they provided, among other things, detailed procedures for document production (Article 3), for the presentation of witnesses and witness statements (Article 4), for experts (Article 5), and for the actual conduct of the hearing (Article 8).

The IBA Rules on Evidence were, as far as this commentator is aware, the first attempt to set out in a cohesive and formal manner a set of practical ground rules to be followed by arbitrators and advocates in the conduct of an arbitration, whether in administered or ad hoc proceedings. These rules, by their nature, are not binding as such. They are guidelines, which may or may not be formally adopted by the tribunal and the parties or which may simply be cited as a reference. They are intended to be a complement to, not a substitute for, the rules of the various institutions. There have been criticisms of the IBA Rules on Evidence-including criticisms that they are tilted somewhat toward Anglo-Saxon concepts-and not all arbitrators or advocates are willing to apply them, or at least not all of their provisions. In the experience of this commentator, however, the IBA Rules on Evidence are now more and more widely accepted and used as a reference by practitioners from very diverse backgrounds, albeit most often as guidelines rather than as strict requirements. As such, the IBA Rules on Evidence have done much to narrow the differences in procedure referred to above and to harmonize the expectations of parties. [Page57:]

In addition, a number of very recent developments, although not aimed directly at the conduct of the proceedings, should nonetheless contribute considerably to a more standardized approach to arbitration. After many years, the historic United States domestic approach to the role of an arbitrator has, in effect, been reversed, by the issuance in 2004 of a completely new version of the AAA/ABA Code of Ethics for Arbitrators.9 Under the new code, contrary to the earlier position, a party-named arbitrator is presumed to be 'neutral' and can no longer have any relationship or contact with the party, but must instead be totally independent. As a result, henceforth no distinction will be made between the party-named arbitrators and the chair of the tribunal, all arbitrators having to be independent and neutral.10 Even before, in anticipation of such change, the AAA in 2003 had issued a sharply revised version of its Commercial Arbitration Rules, reflecting the same change of policy, as a result of which even in domestic US arbitration all three arbitrators are presumed to be independent and impartial.11 This had already been the case for international arbitrations administered by the AAA, following adoption of its International Arbitration Rules, but these latest revisions, both in the Code of Ethics and in the AAA's domestic Commercial Arbitration Rules, finally bring United States principles in this respect in line with those of most of the rest of the world. Once again, the climate for the standardization of international arbitration has been strengthened.

Both the revised AAA/ABA Code of Ethics and the revised AAA Commercial Arbitration Rules also set out new and more stringent rules for disclosure to be made by potential arbitrators at the time of nomination. These rules go further than the previously existing rules and may go further than the rules or practices in many other jurisdictions. They require disclosure of almost any relationship, past or present, with a party, without any limit in time. As a consequence, such [Page58:] portions of the new Code of Ethics and of the Commercial Arbitration Rules, intended to provide a greater degree of transparency, may in fact cause some contradiction and confusion.12

The Code of Ethics is not a legally binding instrument, but it is in theory applicable to any person participating in an arbitration in the United States, while the AAA Commercial Arbitration Rules apply in any arbitration administered by the AAA.13 Concurrently with these developments in the United States, a Committee of the IBA has been preparing a new set of guidelines, the IBA Guidelines on Conflicts of Interest in International Arbitration, aimed at establishing some uniform standards to measure conflicts and disclosure requirements for arbitrators in the course of being appointed. There was a widely felt need for some such guidelines, given the very different criteria applied by arbitrators everywhere on the basis of individual appreciation more than any general or national policies. The preparation of these guidelines, however, took more time and was considerably more controversial than anticipated. They were eventually published in mid-2004, setting out various guidelines for the assessment of conflicts and for disclosure by individual arbitrators, including the much-discussed classifications into 'Red', 'Green' and 'Orange' categories.

It remains to be seen how widely or uniformly these IBA Guidelines on Conflicts will be followed, and what weight may be given to them in eventual challenge proceedings before institutions and before national courts.

Where, then, has the path toward uniformity led? In the experience of this commentator, there has indeed been a great deal of progress in creating some degree of uniformity in the procedures commonly applied in international [Page59:] arbitration. Many of the procedures that previously gave rise to objections and controversy have gradually been tailored to meet the needs and wishes of a majority of practitioners from very diverse jurisdictions. Collaterally, the 'arbitration community' has grown to include very many more practitioners from diverse jurisdictions, who have had experience with these procedures and know generally what to expect.14

Thus, it seems to be universally recognized that, in an international arbitration, all three arbitrators must be completely independent and must take careful steps to make disclosure.15 Similarly, it seems to be widely accepted that, in an international arbitration, there may be some form of document production. It seems to be equally accepted that such document production will not be as wide or as onerous as it might be under some national procedures. Here, in particular, the IBA Rules on Evidence frequently serve as a reference. That being said, there continue to be sharp differences as to the types and quantities of documents which can appropriately be requested in any given case, and the actual process of successive document requests, as well as the objections, replies and possible hearings, is a common, and often frustrating, stage in most large arbitrations today. Most practitioners agree that it must be vigorously controlled, lest the arbitration process become submerged (although this does not preclude many from still trying to make over-reaching demands in their own interest!). The IBA Rules on Evidence provide some guidance, but not a panacea.

At the same time, the use of oral pre-trial depositions, a staple of American litigation, is rarely seen in international arbitration today (although not infrequently still proposed by some American practitioners).

Instead, written witness statements have become virtually standard practice, and such statements serve some, though not all, of the same objectives as do depositions. The degree to which the advocates can participate in preparing [Page60:] such statements, or otherwise work with the witnesses, remains an area of marked difference. The IBA Rules on Evidence provide that legal advisors may interview witnesses,16 but in some jurisdictions such contacts are prohibited as a matter of ethics; in others they are not only permitted, but affirmatively expected. Similarly, the IBA Rules on Evidence recognize an objection to admissibility of evidence based on 'legal impediment or privilege', under the legal or ethical rules which the tribunal deems applicable;17 yet those local rules may be very different from one country to the next, and may lead to surprising (for one party) results.18 Such differences, especially where they touch on ethics, can create serious misunderstandings, and some experienced arbitrators choose to address them openly at the first meeting.

Common law practitioners continue to be hostile to the concept of tribunalappointed independent experts, in the belief that this will in effect empower someone other than the chosen arbitrators to decide the case. Civil law arbitrators and advocates, on the other hand, have little faith in party-presented experts, noting that in most cases they are far from independent and simply add one more layer of argument. Frequently, in practice, arbitrators now admit both types of expertise, side by side, deeming them to be complementary. Witness conferencing, particularly with experts, whereby all the witnesses are confronted and examined together, is being increasingly used and may provide an effective, innovative solution in many, but not all, instances.19

There is no doubt that differences in the actual procedures applied and differences in expectations continue to exist. Such differences may be magnified in the course of actual proceedings, where individual arbitrators and advocates have personal preferences and idiosyncrasies that may lead to extremes. But this is not necessarily a bad thing.

Arbitration is, after all, built on the underlying premise of diversity. What is important is that the arbitration community, faced with a tangle of opposing theories, principles and procedures, has, by way of experience and a pragmatic approach, been able to develop a generally acceptable 'menu' of procedures [Page61:] which are reasonably foreseeable and acceptable to most participants. Equally important, such 'menu' is divorced from any national rules or any one system of law. There is no single code of procedure and no mandatory or binding set of regulations (apart from local mandatory requirements of law and the relevant rules of an administration institution, if any, as far as relevant). Instead, there is an amalgam of guidelines, proposals and commentaries which, laced with experience, have led to a somewhat wavering bundle of common practices.

And this is as it should be. There should not be any binding, rigid code of procedure, applicable to all arbitration proceedings. For arbitration is also built on the need for adaptability, flexibility and pragmatism. The ability of arbitrators to fashion procedures suitable to the very diverse issues facing them, and to use their discretion and their experience, is a key ingredient which must not be destroyed.

1
Considerable efforts have also been made to bring various areas of substantive law into harmony; see-to name but a few,-the Vienna Convention on Contracts for the International Sale of Goods (1980), the UNIDROIT Principles of International Commercial Contracts and the Energy Charter Treaty.

2
See e.g. S.H. Elsing & J.M. Townsend, 'Bridging the Common Law-Civil Law Divide in Arbitration' (2002) 18 Arbitration International 59; A.H. Baum, 'Reconciling Anglo-Saxon and Civil Law Procedure: The Path to a Procedural Lex Arbitrationis' in Law of International Business and Dispute Settlement in the 21st Century, Liber Amicorum Karl-Heinz Böckstiegel (Carl Heymanns, 2001) 21.

3
See AAA Commercial Arbitration Rules (1999 edition and prior editions); various sections distinguished between a party-appointed arbitrator and a neutral arbitrator (e.g. Section R-12 (b) ('an arbitrator selected unilaterally by one party is a party-appointed arbitrator and not subject to disqualification pursuant to Section R-19'); Section R-19; Section R-20; etc); See also A.H. Baum, 'Conflicts of Interest in International Commercial Arbitrations: Some Aspects of United States Practice' in Conflicts of Interest in International Commercial Arbitration, ASA Conference, Zurich, 26 January 2001, ASA Special Series No. 18, 7.

4
The AAA International Arbitration Rules were amended in November 2001, providing in effect for a special administrative body, the International Centre for Dispute Resolution (ICDR), but continuing the requirement of impartiality and independence for all arbitrators.

5
See AAA Commercial Arbitration Rules (as revised July 2003).

6
See e.g. ICC Rules of Arbitration, Article 20(2) ('the Arbitral Tribunal shall hear the parties together in person if any of them so requests'); LCIA Rules, Article 19.1 ('Any party which expresses a desire to that effect has the right to be heard orally before the Arbitral Tribunal'); UNCITRAL Arbitration Rules, Article 15(2). In fact, all these rules require an oral hearing, if one is requested, but it is not always clear whether such requirement extends to hearing testimony by witnesses. Compare e.g. ICC Rules of Arbitration, Article 20(2), containing a reference to hearing the parties, with UNCITRAL Arbitration Rules, Article 15(2), which explicitly requires the hearing of witnesses if requested.

7
The overall structures foreseen in the different rules can also have significant influence on the day-to-day procedures, as shown e.g. by the importance of the Terms of Reference in ICC proceedings (ICC Rules of Arbitration, Article 18). In referring to the procedures and practices applied in arbitration, however, this paper is focused more on the day-to-day working procedures, rather than the structural framework embodied in such rules. Most such institutional rules (as well as the UNCITRAL Arbitration Rules) leave substantial discretion to the arbitrators in the actual conduct of the proceedings.

8
The UNCITRAL Arbitration Rules also provide considerable discretion to the arbitrators, e.g. in Articles 22, 24, 25, etc.), while at the same time endorsing certain procedures, such as the production of documents (see Article 24), not yet universally recognized at the time. As an aside, the UNCITRAL Arbitration Rules may also have indirectly advanced the cause of harmonization, because their use, in modified form, at the Iran-US Claims Tribunal in The Hague introduced many American lawyers to international arbitration and to the notion that procedures different from those used in United States courtrooms might be applied, and might work reasonably well.

9
See AAA/ABA Code of Ethics for Arbitrators in Commercial Disputes (as revised March 2004). The IBA had long before issued its own ethical guidelines, entitled Ethics for International Arbitrators (1987), which reflected the generally accepted international standard.

10
Nevertheless, the Code of Ethics, as so revised, still permits the parties to elect to have their partyappointed arbitrators serve as non-neutrals (Canon IX(B)), in which case other specific ethical obligations will apply (as set out in Canon X). No similar provisions exist, as far as this commentator is aware, in other legal systems (apart from the general principle that parties may freely agree on the procedures to be applied, including possibly a waiver of these requirements by express agreement). Moreover, even a neutral party-named arbitrator is permitted to have direct contacts with the party on matters of compensation (Canon III(B)(3)).

11
See AAA Commercial Arbitration Rules (as revised March 2003). These generally apply to purely domestic (US) arbitrations, as opposed to the AAA's International Arbitration Rules (now ICDR's) which apply to international arbitrations. Note, the Commercial Arbitration Rules, as so revised, preserve the same right for the parties to overcome the presumption, by agreeing that the partynamed arbitrators will act as non-neutrals (Section R-17(a)).

12
See e.g. the discussion below concerning the new IBA Guidelines on Conflicts of Interest in International Arbitration. Such guidelines provide specific cut-off dates (e.g. three years) for some relationships; however an arbitrator relying on such cut-off dates might be in contravention of the unlimited periods provided in the Code of Ethics. Moreover, it has been noted that there are minor differences between the provisions of the Code of Ethics and the AAA Commercial Arbitration Rules themselves. See J. Townsend, Symposium 2004: International Arbitration, organized by the University of Miami Inter-American Law Review, April 2004.

13
The AAA Commercial Arbitration Rules, as so revised, contain one important clarification which should be implicit but is not always taken as such: they explicitly state in Section R.16 that disclosure should not be taken to indicate that the disclosing arbitrator believes the disclosed circumstances affect impartiality or independence. It would be helpful if all rules or codes calling for disclosure made a similar statement, so as to encourage full disclosure.

14
Other international initiatives are currently continuing, seeking to establish some level of uniformity in various related areas. See e.g. the work of the UNCITRAL Working Group on arbitration on a draft Article 17 of the UNCITRAL Model Law to provide for interim measures of protection in arbitration proceedings (including the granting of such measures by a tribunal and the enforcement thereof).

15
This is not changed by the fact that, in actual practice, some individual arbitrators may still abuse the process and act in a less than impartial way. It might be noted that the ICC Rules of Arbitration, in contrast to most other rules, refer in their general provisions only to 'independence' and not to 'impartiality' (Article 7(1)), presumably because 'independence' is a more objective standard; in practice, this does not seem to have made a great deal of difference, and lack of impartiality is often cited in challenges (usually relying on the reference to 'impartially' in Article 15(2)).

16
See IBA Rules on Evidence, Article 4(3); see also LCIA Rules, Article 20.6.

17
See IBA Rules on Evidence, Article 4(2)(b).

18
e.g. local rules regarding the legal privilege afforded to in-house lawyers differ sharply between the United States (privilege in most states) and many European countries (no privilege).

19
See e.g. W. Peter, 'Witness 'Conferencing'' (2002) 18 Arbitration International 47. The possibility of such 'conferencing' is explicitly recognized in the IBA Rules on Evidence, Article 5 (3) (conferencing of experts) and Article 8(2) (confrontation and examination of witnesses).