The world of arbitration has tired of the long-standing debate which separated common law and civil law as antagonistic, irreconcilable positions. This debate, which arose during the large-scale arbitrations regarding construction projects in the Middle East as a result of the importance of petrodollars in the global economy, is no longer relevant. Arbitrators experienced in transnational disputes know that in either system, the administration of justice through arbitration comes down to whether the parties can achieve a fair trial, or due process. Arbitration theory has progressed far beyond the exaggerated differences between the common law adversarial system and the inquisitorial system more characteristic of civil law systems. The preference of the latter for written proceedings over oral proceedings is not a practice which separates them from the common law colleagues. A presiding arbitrator experienced in transnational arbitration tends to curtail the dilatory excesses committed by the enthusiasts of cross-examination, which can at times transform arbitration proceedings into a circus, more of a bullfight than a legal proceeding to resolve commercial disputes. Neither does an experienced presiding arbitrator allow unlimited discovery which enables one of the parties to convert arbitration proceedings into fishing expeditions to obtain documentary evidence from the files of the opposing party.

The globalization of the economy in recent years has ended the common law versus civil law debate. The time has now come to speak of international arbitration as a true clash of legal cultures, thereby making arbitration a victim of its own success. The participation of businessmen and legal counsel from countries around the globe, all so different from each other, has made arbitration a true test-bed for the cultural conflicts which arise in the interpretation of contracts.

The International Council for Commercial Arbitration convened a meeting several years ago in Seoul (South Korea) for the specific purpose of discussing this cultural conflict. The conclusion we reached was that although it is possible to discuss this conflict from a theoretical perspective, arbitration in practice resolves different points of view in a swift, flexible manner. Since then, arbitrators have become truly emblematic figures. In the day-to-day exercise of their discretion, they shape the arbitration proceedings, bringing together the positions of both parties and getting them to understand each other's claims. After a long journey, arbitration culture has returned to the arbitrator as the means of resolving day-to-day problems. For this reason, we feel that the theme of this fifteenth joint symposium, the powers of arbitrators to decide on the admissibility of evidence and organize the production of evidence, is fitting. [Page50:]

The International Bar Association recently discussed in Vancouver (Canada) the IBA Supplementary Rules Governing the Taking of Evidence in International Commercial Arbitration. The fundamental objective of the drafters of these rules is "to know, reasonably in advance of any evidentiary hearing, the evidence on which the other party intends to rely" (preamble, paragraph 3). These rules are the state of the art in the field of evidence in international commercial arbitration, at whose heart is the reasonable discretion of the arbitrators in deciding what evidence to accept and how to conduct the evidentiary proceedings. The rules are based on the advances contained in the 1998 International Chamber of Commerce (ICC)'s arbitration rules and the American Arbitration Association's commercial rules, whose use is becoming increasingly widespread. Within the framework of the ICSID, bilateral investment agreements have given rise to a veritable explosion of arbitration, most particularly in Latin America. This has converted commercial relationships between North and South America into a breeding ground for exchanges of points of view between U.S. attorneys and attorneys trained in Hispanic law. All of these developments are, to a large extent, the product of UNCITRAL's efforts to unify the legislation and case law of comparative arbitration law, particularly after its publication in 1996 of the UNCITRAL notes on organizing arbitral proceedings.

At the end of the day, those whose commercial and legal positions are in conflict with each other should return to the source: to find an arbitrator or a presiding arbitrator capable of understanding the claims of the parties, analyzing and resolving them with the greatest of prudence.

I. The function of the arbitrator

Arbitrators must fulfil their mission in interaction with the parties. As stated in the second paragraph of the preamble of the IBA Rules, "the arbitral tribunal is encouraged to identify to the parties, as soon as possible after an initial exchange of the parties' pleadings, the issues it may regard as relevant to the outcome of the case, including issues where a preliminary determination may be appropriate." It must therefore identify, initially and thereafter, along with the parties, the issues it considers important to present the parties' points of view and, especially, to prove their allegations and arguments. There is nothing more frustrating in arbitration proceedings than the silence of the tribunal, which gives rise to a two-fold field of play: that of the parties before the tribunal and the discussions of the members of the tribunal outside the presence of the parties. After months of deliberations following the conclusion of the allegation phase, awards are sometimes issued based on reasoning that could not have been foreseen by the parties or which, had it been so foreseen, would have had quite different arguments presented than those used by the members of the tribunal in their decision made in secret.

On accepting their duties, arbitrators should schedule the arbitration proceedings. Without knowing the arguments of the parties in depth, the arbitrators must nevertheless attempt to design a timetable for the arbitration proceedings up to the time of the award. Article 18(4) of the new ICC Rules provides that:

When drawing up the terms of reference, or as soon as possible thereafter, the arbitration tribunal, after having consulted the parties, shall establish in a separate document a provisional timetable that it intends to follow <page nr="51" /> for the conduct of the arbitration and shall communicate it to the Court and the parties.

The parties must know as soon as possible whether the arbitrators intend to decide in one or in several arbitration awards, in the latter case separating issues of liability from issues of quantification of damages.

The decision of the arbitrators may be informal in nature, included in a procedural order, or be the subject of a partial award, as a function of its importance to procedural matters. It sometimes contains the agreement of the parties or, in certain circumstances, the arbitrators may decide against the will of the parties to the dispute. If their decision is not complied with voluntarily, the arbitrators may even collaborate with one of the parties, or request at their own initiative judicial measures to provide access to evidence or the effective execution of their eventual arbitration award.

Their decision is based on the discretion of the arbitrators, who decide whatever they feel to be most appropriate for the conduct of the arbitration proceedings, as provided in Article 2(5) of the IBA Rules: "The arbitral tribunal may, in its discretion, conduct the taking of evidence as it deems fit, while seeking to comply with the general principles of the rules of evidence." The fundamental limits on the exercise of discretion by the arbitrators is international public policy, along with the concept of the venue of the arbitration. This two-fold concept in the area of international commercial arbitration is currently being unified at a global level. This unification can be summarized in the interplay of three principles: the right of the parties to be heard, the opposition of their points of view and equal treatment of the parties. The number of countries adopting arbitration legislation based on criteria more or less approximating those contained in the UNCITRAL Model Law is increasing. The application of the New York Convention, perhaps the international legal instrument with the greatest number of ratifications, is also unifying case law at a national level in the field of international commercial arbitration.

Article 9 of the IBA Rules clearly expresses the scope of the discretion which may be exercised by arbitrators: "the arbitral tribunal shall determine the admissibility, relevance, materiality and weight of evidence." Article 9(2) defines the limits of the discretion, as follows:

The arbitral tribunal shall, at the request of a party, exclude from evidence any document or statement that involves:

a. A legal impediment or privilege under the legal or ethical rules determined by the arbitral tribunal to be applicable.

b. Grounds of commercial or technical confidentiality that the arbitral tribunal determines to be compelling.

c. An unreasonable burden to produce the requested documents; or

d. Lack of evidence.

The difference between the position of judges and arbitrators is that the former have the power to forcibly impose such legal measures as they feel appropriate to the evolution of the proceedings. Arbitrators, whose actions are based exclusively on the will of the parties, neither can nor should use coercive measures. Nevertheless, their decisions have the same effect as a presumption in matters of evidence: "the arbitral [Page52:] tribunal may infer that the evidence could be adverse to the interests of the party failing to make available the document or the relevant evidence." (Article 10 of the IBA Rules).

The parties theoretically have the decisive power to set the manner in which the evidentiary hearing will evolve. Nevertheless, the tribunal has the power to vary, at its discretion, the order in which the evidence is presented and to ask any questions it feels to be relevant at any time. In any event, "the arbitral tribunal shall at all times have complete control of the questioning of any evidence, and the arbitral tribunal may limit or exclude any questions that it considers to be irrelevant, burdensome, duplicative or covered by a basis for objection." In other words, the discretion of the arbitrators breaks down the alleged traditional barrier between the adversarial system (characteristic of common law systems) and the inquisitorial system (characteristic of civil law systems). An experienced presiding arbitrator will be able to terminate excessively long interventions of the parties, thereby avoiding unnecessary delays. The arbitral tribunal is not a prisoner of the parties in the evolution of arbitration proceedings, and should intervene, if necessary, to set limits on the occasionally excessively dilatory actions of the parties.

Upon the conclusion of the evidentiary phase and the arguments of the parties regarding the evidence, the tribunal orders the end of the proceedings in order to avoid any future last-minute presentation by any of the parties of evidence that was not able to be taken into account. This is a highly interesting issue in practice, because a long period of time may elapse from the time the proceedings end until the award is issued, especially in arbitration systems such as the one followed by the ICC. Months may elapse between the agreement of the members of the tribunal regarding a particular decision, the final drafting of the text of the award and its final approval by the Court, a period of time which may be used strategically by one of the parties to present evidence that the tribunal may deem produced too late.

None of this prevents the tribunal from exercising its power to admit evidence produced for valid reasons after the conclusion of the proceedings if it feels that such evidence may be relevant to making its decision. This is clearly provided for in Article 20 in the ICC Rules: "at any time during the proceedings, the arbitral tribunal may summon any party to provide additional evidence." It sometimes happens that after the conclusion the proceedings, and during the discussions of the tribunal, issues not discussed with the parties during the proceedings may be raised which the tribunal feels are relevant. The tribunal may request the parties to state their positions on these issues or to produce evidence regarding them.

II. Arbitrator and the types of evidence

The discretion of the arbitrators in the admission of evidence and in structuring the evidentiary phase is manifested in each of the types of evidence usually used in international commercial arbitration. The provisions of the IBA Rules in this regard are interesting. [Page53:]

A. Production of documents

Article 3 of the IBA Rules establishes the procedure for producing documents. First, the parties may produce documents voluntarily after having filed the complaint, answer and any potential counterclaim. Thereafter, the parties are entitled to request, within the above limits, the production of documents considered relevant in the evidentiary phase of the arbitration. The tribunal decides on the appropriateness of the production of the documents requested by the opposing party. As provided in Article 3(6) of the IBA Rules, "The arbitral tribunal may, after consultation with the parties, appoint an independent and impartial expert to review any such document and to make the determination [as to its admission] behalf of the arbitral tribunal." In all cases, "The arbitral tribunal may, at any time before the arbitration is decided, request a party to produce to the other parties and to the arbitral tribunal any document(s) the arbitral tribunal believes to be relevant to the outcome of the case" (Article 3(8), IBA Rules).

Sometimes, one of the parties requests the other party to produce documents which are not in its possession. In this case, the tribunal must deliberate and reach a conclusion as to whether the production of such documents falls within the reasonable possibilities of the party from whom they have been requested. The failure to produce documents is sometimes nothing other than a formal excuse, perhaps based on the fact that the documents are in the possession of a different company within the same group.

In some exceptional cases, Article 20(6) of the ICC Rules of Arbitration provides that "The arbitral tribunal may decide the case solely on the documents submitted by the parties unless any of the parties requests a hearing."

B. Witnesses of fact

In order to avoid surprises in the hearing with the parties, Article 4 of the IBA Rules provides that the parties must present a witness statement in advance of the hearing, including the most important issues about which witness testimony will be presented. The tribunal may, of course, also request the appearance of witnesses who have been neither presented nor requested by the parties.

On occasions, the tribunal, after consulting the parties, may decide that the presentation of a written statement by the witnesses is sufficient. These statements are usually later presented orally at a hearing.

The requested witness may not wish to testify voluntarily. In this case, the parties may request the arbitral tribunal "to take whatever steps are available under the relevant procedural law to obtain the oral testimony of the witness" (Article 4(6), IBA Rules).

The tribunal may only reach a conclusion based on the failure of a witness to appear at a hearing. Article 4(7) of the IBA Rules leaves this issue open to the unlimited discretion of the arbitrators: "The arbitral tribunal shall disregard that witness statement unless, in exceptional circumstances and under conditions determined by [Page54:] the arbitral tribunal, it determines in its discretion nevertheless to give weight to the witness statement."

C. Party-appointed experts and tribunal-appointed experts

The parties may appoint one or several experts to support their claims. These experts usually present a written opinion, with the expert(s) later appearing at a hearing to orally defend their conclusions. The tribunal also has the power, as provided in Article 5 of the IBA Rules, to either give no weight to an expert opinion whose author does not appear at a hearing or, in exceptional circumstances, reach its own conclusions from the written opinion.

Tribunal-appointed experts are especially important to the evolution of arbitration proceedings. It is well known that on technical issues, the tribunal will place great weight on the conclusions reached by the expert(s) it has appointed. These experts issue their opinion and work with the members of the tribunal to comprehend matters outside the personal knowledge of the members. Experts appointed by the tribunal, especially legal experts, should not stand between the arbitrators and the parties. Nevertheless, "the authority of a tribunal-appointed expert to request [...] information or access shall be the same as the authority of the arbitral tribunal" (Article 6(4), IBA Rules). Naturally, "any disagreement between a tribunal-appointed expert and a party as to the relevance or appropriateness of such a request shall be decided by the arbitral tribunal."

The tribunal defines, in the best case in agreement with the parties, the terms of reference for the activity to be performed by the tribunal-appointed expert(s). The report and conclusions of such expert(s) "shall be assessed by the arbitral tribunal with due regard to all the circumstances of the case" (Article 6(3), IBA Rules). Tribunal-appointed experts appear at the hearing and may be questioned by both the parties and the party-appointed expert(s).

The report and opinions of the tribunal-appointed expert(s) have great practical importance. Such expert(s) "may request a party to provide any relevant information or to provide access to any relevant documents, goods, samples, property or site for inspection" (Article 6(4), IBA Rules). They nevertheless have no decision-making power, a power which belongs to the arbitrators.

D. On-site inspection

As regards on-site inspection, "The arbitral tribunal may, at the request of the party or on its motion, inspect or require the inspection by a tribunal-appointed expert of any site, property, machinery or any other goods or process as it deems appropriate" (Article 7, IBA Rules). The tribunal also decides on the manner in which the inspection will be conducted, in the presence of the parties and under the best conditions for the type of evidence involved. [Page55:]

III. Right to present a case and dilatory tactics

International commercial arbitration has a very different operating framework today than it had in the past. The attorneys who participate in arbitration proceedings are overly influenced by their day-to-day actions before the courts. In many countries, the procedural culture leads its actors to delay the proceedings as much as possible in order to benefit their clients.

The dilatory tactics used relatively often in arbitration proceedings are a veritable plague, against which arbitrators should take clear, decisive action. Among the actors who participate in arbitration proceedings, arbitrators, especially presiding arbitrators, are the most important in the prevention of dilatory tactics. A party who is reluctant to participate in arbitration proceedings may make several attempts to delay them. These attempts, if successful due to the lack of decisiveness of the arbitrators, may cause the arbitration proceedings to fail. Conversely, if the parties see that the tribunal does not allow dilatory abuses, while guaranteeing their rights to present a defense, they become more reasonable and ponder their procedural requests more carefully.

It has always been said that arbitration proceedings have the same value as the arbitrators. This statement is truer than ever today. The arbitration decision-making process has become more complex. I would say that in order for the President of an arbitral tribunal to be good, he or she must be an accredited professional. It no longer suffices for the chairman to merely be a person accepted by all of the parties. The international commercial disputes of today need arbitrators who are experienced in making decisions in the framework of arbitration, and who perform their obligations and duties in a fully professional manner.

The fundamental principles guiding the actions of arbitrators should be equal treatment of the parties and eminent respect for their right to present a defense. An additional fundamental obligation has been added, which is the duty to perform arbitral functions with diligence. Those who accept an appointment as arbitrators agree to be neutral, to be at the disposal of the parties and to perform their duties with due diligence.

The performance of duties with due diligence is undoubtedly the best antidote against dilatory tactics in arbitration proceedings. It is generally accepted today that the refusal of a party to participate in arbitration proceedings, such party's strategic default, is of no use if arbitrators decide disputes without hearing the points of view of the defaulting party. The duty to act with due diligence also requires a taking a firm, intelligent and reasonable stand against any potential obstructionist tactics of the parties.

Even in the face of a possible agreement of the parties, great emphasis is placed today on the obligation of the arbitrators to take any necessary measure to achieve the best possible administration of arbitral justice. Any possible discrepancy between an agreement of the parties and the performance by the arbitrators of their duties must [Page56:] be resolved with prudence, because, when all is said and done, the powers of the arbitrators arise from the arbitration agreement.

Arbitrators have the right, the duty and the power to take all necessary measures to prevent unnecessary delays. Sometimes arbitrators assume the risk of potential liability for performance of their duties.

Finally, the duty of arbitrators to act with due diligence is the best solution to prevent the malicious intent of the parties to delay arbitration proceedings. The discretion of the arbitrators in the performance of their duties is fundamental. Their neutrality, independence and dedication are indispensable factors to enable a reasonable decision to be made. At the end of the day, human activity, in particular the complex activity involved in decision-making, remains up to the discretion of the arbitrators. However complex the circumstances of arbitration functions in a global economy, the bottom line is the arbitrators' reasonably exercising their discretion in solitude, in other words, deciding.