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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
Introduction
It seems advisable to recall some key factors which are to be taken into account during all the discussions we may have on the subject of the present Annual Meeting of the Institute:
One of the reasons why parties to an international contract decide to have recourse to arbitration is to avoid the uncertainties and problems inherent in national court proceedings.
The organisation of the proceedings is left to the autonomy of the parties and the arbitrators, who are not under any obligation to apply the rules of procedure of a national law (Art. 15(1) ICC Rules of Arbitration, Art. 14(1) and (2) LCIA Arbitration Rules, Art. 16(1) AAA International Arbitration Rules, Art. 15(1) UNCITRAL Arbitration Rules, Art. 19 UNCITRAL Model Law, Art. 1494 French NCPC, Art. 182(1) and (2) of the Swiss PIL Statute). We are in front of the phenomenon of "délégalisation" 1 of arbitration proceedings.
Experience has shown that there is no categorical divide between civil law and common law in international arbitration2, and that a specific procedural system has developed which contains distilled influences from both systems.
The "IBA Rules on the Taking of Evidence in International Commercial Arbitration (1999)" are the result of the actual rapprochement of the two systems as regards taking of evidence in international arbitration. The[Page11:] parties and the arbitrators may adopt all or part of the IBA Rules, or use them as guidelines or as a source of inspiration when freely determining the procedural rules of their own arbitration.
It is the arbitral tribunal's duty to ensure that evidence is taken in an efficient and economical manner, while also ensuring "equality of arms" between parties from different legal traditions. The procedural rules governing the taking of evidence must be determined in advance in each case, to avoid surprising the parties and their counsel during the proceedings.
Oral evidence vs documentary evidence
1. Impact of the composition of the arbitral tribunal
It is true that the legal culture of an arbitrator may influence the way the arbitrator will determine the rules on the taking of evidence, admit or not certain persons as witnesses, conduct their hearing, intervene during their examination and, most importantly, assess the evidence submitted by weighing differently the documentary and the oral evidence. Some fourteen years ago Professor Claude Reymond stated during an Annual Meeting on a similar subject: "However we must have no illusions: nobody approaches a procedure […] with a mind totally freed of his usual way of thinking and of his conception of the requirements of justice" 3 .
This may well be always true from a psychological viewpoint. However, in practice, experienced arbitrators are capable of adopting different approaches in order to respond to the wishes of the parties and their counsel in homogeneous arbitration proceedings and, in "transnational" proceedings, of making use of the best of both systems (civil law/common law), and defining suitable rules. In the latter arbitration proceedings, which are the most usual ones, equilibrium is attained between oral and documentary evidence and there are not really big divergences in the rules that are finally applied, though the arbitrators come from differing legal traditions. Moreover, in most cases, the arbitral tribunal, in light of the arguments put forward by the parties' counsel and of the particular facts of the case, succeeds in finding its internal cultural equilibrium in the way it will approach and assess the evidence.
Needless to revert to the importance of the choice of the arbitrators (especially, but not only, of the chairman). An ineffable quality in the international arbitrator is however reminded and stressed in the present context: the open-mindedness, which presupposes but does not coincide with neutrality. [Page12:]
2. Respective values and roles
"Documentary evidence is the most precise and reliable means of evidence: a fact established in a document can - as a general rule - be held as a certainty, subject only to forgery"4.
Documentary evidence has a preponderant role in international arbitration, and this seems normal in the context of international business. Indeed, in most cases, the parties have signed a written agreement and have exchanged correspondence and other documents which they have kept on file. The parties use these documents to support or prove the legal grounds or points of fact they are submitting. Moreover, according to a general practice, these documents are enclosed with the parties' first submissions. An initial establishment of the facts of the case based on documents can therefore be completed fairly quickly, before any hearing.
The production of documents5, which is very common in practice, supplements
- irrespective of whether the documents are produced voluntarily or following an order by the arbitral tribunal - the documentary evidence. As a consequence, witnesses are thus at times relegated to a secondary role. However, in some cases precisely because of the sheer volume of the documentation, with the parties submitting thousands of documents, the arbitral tribunal, in its attempt to identify the key points in the huge case file, will turn to witnesses demanding precise details and clarifications; witnesses may thus regain their essential role.
It is difficult to measure the influence that the civil law tradition has exerted on the role of documentary evidence in international arbitration proceedings. One should rather perceive this role as a direct result of arbitration's omnipresent pragmatism.
Oral evidence6
The testimony "is the eldest evidence, the most indispensable and widespread. Once two people are confronted in a dispute, there is need to call in witnesses of fact in order to decide who is right"7.
Nowadays, regarding international arbitration, one may say, first, that the testimonies of witnesses supplement documentary evidence when the latter is insufficient. Second, that there is often a real need for witnesses to provide additional information or clarify certain points. Moreover, quite apart from[Page13:] any theoretical discussion on the inquisitorial or "accusatory" (in the French meaning of "accusatoire") role of the judge/arbitrator, the generally used method for conducting evidentiary hearings, which is largely based on the common law system, contributes to achieving the above objectives. Oral evidence also satisfies such other need of the arbitral tribunal, which is linked to the very nature of arbitration, that is to meet the people involved in the performance of the contractual relationship in order to gain a better understanding, do better in general, and progress more effectively towards forming its conviction.
The taking of oral evidence, as a second phase of the establishment of the facts of the case, is in practice regarded as a priori necessary in order to find the "truth" which the arbitral tribunal will lay down in the reasoning of the award. What is meant is, of course, only a relative truth8, the truth which the arbitral tribunal will retain, after having freely weighed and assessed all the evidence submitted (documentary and oral).
As a rule, both types of evidence - documentary and oral - are used in most international arbitration cases, in compliance with the applicable institutional rules and with what was agreed by the arbitrators and the parties at the start of the proceedings and subsequently confirmed and specified in procedural orders. This combined evidentiary procedure corresponds, in principle, to the real will of the parties and the arbitrators, notwithstanding the fact that at times, for practical reasons related to the insufficiency of one type of evidence, the other type of evidence may acquire more weight.
It may however happen, during a particular arbitration case, that the question arises for discussion between the arbitrators and the parties as to whether an evidentiary hearing is actually necessary. It is generally accepted that the arbitral tribunal may rule solely on the basis of documentary evidence if the parties so request or agree to this; that is in the latter case, if the tribunal considers that the documentary evidence is sufficient and permits the establishment of the facts of the case and their assessment and if the parties consent to the non-examination of witnesses (Art. 20(6) ICC Rules of Arbitration, Art. 19(1) LCIA Arbitration Rules, Art. 15(2) UNCITRAL Arbitration Rules, Art. 24(1) UNCITRAL Model Law). [Page14:]
The entire question "which type of evidence should be chosen - documentary or oral?" can only be raised internally between a party and its counsel, when preparing the evidence they will submit in support of their case. Arguably, the answer depends to a great extent on the legal culture of the party and its counsel. So one may be inclined to believe that lawyers from common law countries who are used to the pre-trial procedure will quite comfortably produce all documents they have in their possession, even when these undermine their position, while paying particular attention to the preparation and mise en scène of the hearing of witnesses. In contrast, lawyers from civil law countries will have a tendency to closely examine all the documents in their possession and, if they consider that these are not pertinent, or not sufficiently favourable to their case, or even dangerous, they will probably hold them back and focus, without great enthusiasm, on the preparation of the witnesses available (risking even an order on production of documents); if, on the contrary, they consider that their client's case can be argued on the basis of the documentary evidence alone, they may decide to forgo oral evidence.
The above are rather theoretical, however, as the persons engaged by the parties as counsel more often than not have considerable experience in international arbitration, and are at times even "too professional". Instead of relying on preconceived national procedural approaches, they implement carefully considered strategies developed in view of the strong and weak points of the case, and make full use of the flexibility of arbitration proceedings.
Be that as it may, the arbitral tribunal has absolute control over the taking of evidence. It can, accordingly, refuse further evidence - be it the production of a document or the hearing of a witness - if it considers that the facts have already been sufficiently established or that the evidence offered is not relevant and material. Conversely, it can summon a party to produce additional evidence of any kind, at any time (Art. 20(5) ICC Rules of Arbitration, Art. 24(3) UNCITRAL Arbitration Rules, Art. 8(4) IBA Rules).
Obligations and rights of the witnesses
1. Obligation to appear, to take the oath, to testify, to tell the truth
There is need to differentiate between parties and third-parties. There is also need to differentiate between appearing and testifying, on the one hand, and telling the truth, on the other. [Page15:]
As regards the parties (and their representatives), it could be assumed that they have an obligation if summoned by the arbitral tribunal, but also a right if they so wish, to appear and testify. This obligation9 and right vis-à-vis the arbitral tribunal would derive from the arbitration agreement and from the arbitral "process ties" ("liens d'instance") marked by the private character of arbitration and the element of trust10. It is further suggested that the parties' obligation to act fairly in the contractual relationship is extended into the dispute. The obligation to inform, being a specific application of the good faith principle11, could be operative even during the arbitration proceedings. Thus, each party would have an obligation vis-à-vis the other party to appear as witnesses if so requested by the latter, and to explain why the contractual relationship has deteriorated into a dispute.
Having said that, the question arises whether an arbitrator has the power to summon a party to appear as witness on astreinte12. The answer should be in the affirmative, if one accepts that the obligation for a party to appear as a witness does actually exist and if he shares the opinion that the astreinte is a private sanction and not a means of enforcement, in other words a juridical police measure within the sphere of arbitral jurisdiction13.
As for third-parties, one might advance that legislation such as Article 10(1) of the French Civil Code14, or other similar provisions in other countries, could be transposed and applied to international arbitration. We should not delude ourselves, however. This type of provision, which imposes a civic obligation on any person to cooperate with the judicial authorities so that truth be revealed, only concerns the interest of the public service of the national judicial system, and is tied to the judge's imperium, which is essential in order to compel someone to cooperate. In international arbitration, any "obligation" incumbent upon a third-party, which by definition is extraneous to the arbitral proceedings, to appear and testify cannot but be based on a specific legal relationship binding said third-party to one of the parties in the arbitration proceedings. In the absence of any such relationship, there would be no obligation; the third-party would be voluntarily rendering a service on the request of one of the parties, whether or not motivated by an underlying interest. [Page16:]
Is it possible to differentiate between testifying and telling the truth15 ? It depends on what truth we are talking about. Such a differentiation is not inconceivable if we accept that a testimony does not necessarily disclose everything the witness16 has seen, heard or known. In other words, a differentiation might be conceivable, if we accept that it is possible to give an honest testimony that does not contain the "whole truth".
Yet, who draws the line between testifying and telling the truth, and how? Arguably, it is the counsel representing the party which calls the witness, and the witness himself, when preparing the witness's written statement and/or his appearance before the arbitral tribunal. This means it is the cultural background and integrity of the counsel and the witness that will dictate the substance of the testimony, which is nevertheless given with the objective of serving the interests of one of the parties and is based on a desire to win that party's case. The above stand irrespective of the quality of a witness as representative or employee of a party, or as third-party. We are here before a real challenge to look for the golden rule between pragmatism and honesty. We should not forget, however, that as a result of the cross-examination any testimony - even those prepared with all due professional integrity - may be reformed and let emerge or permit the approach to the "whole truth".
In any event, there is a valid deontological obligation incumbent upon the counsel17 - confirmed as far as European counsel is concerned by the CCBE18 - and a moral obligation incumbent upon the witness to, at the least, refrain from knowingly giving false or misleading information to the arbitral tribunal.
The device of taking the oath in itself introduces an obligation to tell the truth. And, precisely, the very danger of this device is that the witness is expected to have complied with such obligation19. Certainly, it is not because international arbitrators do not care about the truth that in practice they do not require witnesses to take the oath, and prefer to ask them to simply state, without any formality, that they will tell the truth20. In general, arbitrators, as private individuals, do not feel qualified to administer the oath. This is also the position adopted in the national laws of several countries, including Germany, France, Sweden, Italy and Greece. However, the UK (Sect. 38(5) of the Arbitration Act 1996), Belgium (Art. 1696(3) of the Belgian Judicial Code[Page17:] (CJB)) and the Netherlands (Art. 1041(1) of the Netherlands Code of Civil Procedure (WBR)) expressly confer this power on arbitrators. In Switzerland, there seems to be some debate over this issue.
In any event, when witnesses give oral evidence they are required by the arbitral tribunal to tell the truth and are at the same time informed of the possible consequences of false testimony under the law of the place of arbitration. As regards taking the oath before the arbitrators, or before a national judge within the context of court assistance, this would matter only if it was a condition of penalising false testimony (Germany, UK, France, Italy) or a cause for a harsher sentence (see, for example, Articles 224-225 of the Greek Penal Code and, in particular, Art. 307 of the Swiss Penal Code).
It could thus be argued that although a witness has an obligation to tell the truth, he does not have an obligation to take the oath in international arbitration proceedings; on the contrary, he has a right to refuse to take the oath without necessarily having to justify his refusal on religious grounds. Taking the oath does not fit the private, multicultural, autonomous and secular nature of arbitration.
2.Sanctions in case of non-compliance with duties of a witness
The arbitral tribunal may order at any time the appearance of a witness identified by the parties, but also order any party to provide the appearance of any other person to testify (Art. 20(5) ICC Rules of Arbitration, Art. 4(11) IBA Rules). If a witness who has submitted a witness statement does not appear to an evidentiary hearing without valid reason, the arbitral tribunal may decide to disregard his written statement or infer that such evidence would be adverse to the interests of the party that offered the witness. If, on the other hand, a party is ordered to provide the appearance of a person as a witness and such person refuses to appear, it is difficult to see any consequences, unless the witness is a party or a party's representative.
Arbitrators cannot compel a person to appear and testify. However, if they consider it extremely important to hear a person who has refused to appear, they can apply to a national court21 (as a case of generally accepted court assistance - more expressly provided under Art. 184(2), of the Swiss PIL Statute and Sect. 43 of the Arbitration Act 1996), and even use the procedure of international rogatory letters22.[Page18:]
The question of sanctions for refusal to appear and testify can only arise when an arbitral tribunal has asked a national court to compel a witness to appear. In such a case, the sanctions will obviously depend on the common procedural law in the country of the court; they will most often take the form of a fine.
We need to differentiate between sanctions stricto sensu under common criminal law, which are applied against the witness himself, and sanctions lato sensu or rather "arbitral" remedies for the effects of false testimony.
The sanctions stricto sensu for false testimony are sanctions of criminal law. With the exception of Swiss law, the national provisions of criminal law on false testimony - whether or not an oath was taken - are based on the notion of public service of the national judicial system and do not refer to arbitration. In consideration of the private nature of arbitration, and the autonomy which characterises the arbitration proceedings, one might say that their application by analogy is by no means evident and even add that such an application does not seem advisable: to moralise arbitration, yes, but not through its judiciarization. In any event, it would be easier to conceive the application by analogy of such sanctions, if the testimony was given with the assistance of a court.
Swiss law expressly provides (Art. 309 of the Swiss Penal Code) that the provisions concerning false representations by a party (Art. 306) or false testimony by a third-party (Art. 307) apply also to arbitration proceedings. However, this provision has been criticised by some authors23, who consider that there is not a sufficiently precise legal basis for indictment of a witness for false testimony or, even more so, against a party for false representations, because the evidentiary process in arbitration is not set in law but is left, to a large extent, to the discretion of the parties. Yet, this unique and actually very harsh24 provision does not seem to be applied in practice.
Generally speaking, criminal proceedings initiated exclusively for false testimony before an arbitral tribunal, if they exist, must be very rare and there are no examples of any published case law. We can only stop at some questions which may arise and need to be clarified if an action for false testimony is to be brought before a national court: [Page19:]
The actual possibility of initiating criminal proceedings before the national courts of a given country (would this be the country of nationality of the witness or of the place of arbitration?); applicability of national criminal law to international arbitration; immunity of the witness (USA); only sworn false testimony is punishable (Germany, UK, France);
Applicable law: normally this would be the law of the place of arbitration as lex loci delicti commissi and not the law that applies to the merits of the dispute;
The necessary elements to establish the crime or offence of false testimony in accordance with the applicable law: is the witness's deliberate distortion of the truth sufficient, or must it be established that the untruthful statements have influenced - or could have influenced - the outcome of arbitration and caused - or could have caused - prejudice? Should the untruthful statements have been made with malicious intent?
The accused witness's personal lines of defence (such as, he could not have told the truth without seriously and unavoidably jeopardising his freedom or integrity);
The possibility of filing a criminal complaint accompanied by a civil suit for damages on the basis of other criminal provisions, if the elements establishing other offences or crimes actually exist, such as - and in particular - fraud, deceit, defamation. The clarification of this point is important, because the real interest and objective of the injured party initiating criminal proceedings will normally be to obtain recovery and not to see a witness fined or given a prison sentence.
The answers to all these questions will depend on the applicable criminal law and the solutions in comparative law vary25.
As regards sanctions lato sensu or rather "arbitral" remedies for the effects of false testimony, first and foremost we should not forget that any false testimony may be disregarded by the arbitral tribunal and may even have the opposite to the desired consequences in the award, that is against the party it aimed to favour. This implies, of course, that the untruth is discovered during the arbitration proceedings. In practice, this often happens as a result of effective cross-examination and/or following thorough study of the file and, in particular, following the comparison of oral evidence with documentary evidence by the arbitrators. Needless to say, the arbitrators' qualities, among which their vigilance, will play a very important role. [Page20:]
However, we cannot exclude the possibility that a false testimony may, on the contrary, have served as the basis for an award. In this type of situation, it is the award that will be prejudicial to one of the parties and said party will seek "remedy" for the award.
We know that as a general rule the court which sets aside or enforces an arbitral award does not scrutinise the reasons on which the tribunal based its decision. Accordingly, an award based on false testimony is not, in principle, subject to any remedy. However, in exceptional and extreme cases where false testimony constitutes fraud, the award ceases to be immune. Comparative law has identified four solutions26 to this type of problem: the award is set aside on the grounds that it is contrary to public policy27, the award is reconsidered by the judicial authority28, the award is reconsidered by the arbitrators29, the award is reconsidered by the arbitrators if leave is given to this effect by the judicial authority30.
The few existing examples show that for the award to be set aside or reconsidered new and material facts, which the applicant was not in the position to invoke previously, must establish that there was a genuine procedural fraud on which the award was based31. It is only in such cases that the national court, and/or the arbitral tribunal if it is still constituted or can meet again, will preclude in one way or another the "unfair" effects of the award. It is finally noted that the advisability de lege ferenda of a special procedure for the revision of international arbitration awards is a present-day issue at least in France32.[Page21:]
1 Berthold Goldman, "Instance judiciaire et instance arbitrale internationale" in Etudes offertes à Pierre Bellet, Litec 1991, p. 219 et seq.
2 If there is such a divide it would rather refer to the United States legal system; because with respect to Great Britain, Canada, Australia and New Zealand, one may seriously wonder whether their systems are closer to the "European civil law" or the "US common law".
3 "Mais il ne faut pas se faire d'illusion: nul n'aborde une procédure,[…], avec un esprit entièrement libéré de ses habitudes de pensée et de sa conception des exigences de la justice", "Taking of evidence in international arbitral proceedings", in The Dossiers of the Institute of International Business Law and Practice, No. 8/1989, ICC Publishing No. 440/8 1990, Conclusions, p. 165 et seq.
4 "La preuve écrite est le moyen de preuve le plus précis et celui dont l'authenticité est la moins sujette à caution: un fait constaté dans un titre peut - en règle générale - être considéré comme certain, sous la réserve de la fausseté du titre", Walter J. Habscheid, Droit Judiciaire Privé Suisse, second edition, Librairie de l'Université Georg et Cie S.A., Geneva 1981, p. 446.
5 Or discovery, which has a limited meaning in international arbitration, namely the production of documents that are limited, identifiable, relevant and material to the outcome of the case (see Art. 3 - IBA Rules of Evidence).
6 Here, we will use the term oral evidence to cover testimonies of any kind, including testimonies by the parties' representatives and their employees, with the sole exception of testimonies by expert-witnesses, who form a separate category of witness.
7 [Le témoignage] "est la plus ancienne des preuves, la plus nécessaire et la plus répandue. Dès que deux hommes se sont affrontés dans un litige, on a dû faire appel aux témoins du fait pour les départager",J. Graven in "Droit et vérité", publication of the Faculty of Law of the University of Geneva - 1946, p. 127.
8 "The 'truth' found in both judicial and arbitral proceedings is relative rather than absolute. It is derived from the evidence presented by the parties and is dependent upon the standard of proof applied to the evidence. Thus, the same evidence could produce one result in a criminal case in a common law country where the standard of proof is 'beyond a reasonable doubt' and a different result in a civil case where the standard is the 'preponderance of the evidence'". See Robert von Mehren, "The Burden of Proof in International Arbitration" in Planning Efficient Arbitration Proceedings, The Law Applicable in Inter national Arbitration, ICCA Congr ess Series No. 7 (1994), p. 123, note 3. Compar e with Br uno Oppetit: "the civil process is based on the discovery of a truth, albeit a relative truth, that the judge must try to get to by adopting an approach based as closely as possible on the realities of the case, as is shown by recent legislation on the manifestation of the truth in legal proceedings", ["le procès civil est ordonné à la découverte d'une vérité, relative certes, mais que le juge doit tenter d'atteindre par une approche aussi exacte que possible de la réalité, comme en témoignent les dispositions législatives récentes relatives à la manifestation de la vérité en justice"], "Les rôles r espectifs du juge et du technicien dans l'administration de la pr euve en dr oit privé", PUF 1976, p. 54.
9 O n such an obligation under Fr ench law see Ar t. 11(1) NCPC, which also applies to arbitration (Ar t. 1460(2) NCPC): "The parties are required to cooperate in view of the establishment of the facts of the case, and the judge will draw his conclusions from any failure or refusal to co-operate" ["Les parties sont tenues d'apporter leur concours aux mesures d'instruction sauf au juge à tirer toute conséquence d'une abstention ou d'un refus"].
10 A distinguished Fr ench author has str essed r egar ding tr ust in inter national arbitration: "A decisive factor in the success of arbitration ... it is because this element is at the very heart of the concept of arbitration and also the basis of business relations, especially international business relations, where international commercial arbitration has taken off so dramatically, to the extent that it now plays a preponderant role in the legal and economic life of societies" ["Facteur décisif de la réussite de l'arbitrage... c'est parce que cet élément [la confiance] se trouve à la fois au cœur du concept même de l'arbitrage et à la base des relations commerciales, surtout internationales, où l'arbitrage commercial international a pris cet essor irrésistible qui lui confère aujourd'hui un rôle de premier plan dans la vie juridique et économique des peuples"], Henri Motulsky , "Ecrits, Etudes et notes sur l'arbitrage", Dalloz 1974, p. 510.
11 See Y ves Derains, "Les tendances de la jurispr udence arbitrale inter nationale" , J.D.I. 4, 1993, p. 829, especially p. 847 et seq.
12 This concept of civil law means a periodic fine for delay in per for mance, in the pr esent context for delay in compliance with the summons.
13 See Charles Jar r osson, "Réflexions sur l'imperium" in Etudes Pier r e Bellet, p. 245, especially p. 272-273.
14 A r t. 10 of the Fr ench Civil Code: "Everyone is bound to cooperate with the courts for the emergence of the truth. Anyone who, without any legitimate reason, evades such an obligation imposed upon him by law, may be compelled to comply, if necessary on astreinte or a civil fine, without prejudice to any damages that may be awarded". ["Chacun est tenu d'apporter son concours à la justice en vue de la manifestation de la vérité. Celui qui, sans motif légitime, se soustrait à cette obligation lorsqu'il en a été légalement requis, peut être contraint d'y satisfaire, au besoin à peine d'astreinte ou d'amende civile, sans préjudice de dommages et intérêts"].
15 The Greek word for "witness" is , that is "martyr"; in modern Greek the same word is used for the witness and the martyr. In ancient Greek, signified the person who was declaring/confirming the truth he knew. Influenced by Christianism, acquired the additional meaning of the person who declares the truth of the Gospel and is ready to sacrifice himself for it.
16 Meaning all witnesses, parties and third-parties. Because in civil proceedings, according to many national laws, parties are not required to testify on facts that undermine their own interests ("nemo tenetur edere contra se", right to silence).
17 See on this question the remarkable article of V.V. Veeder "The 2001 Goff Lecture. The Lawyer's duty to Arbitrate in Good Faith", in Arbitration International, Vol.18, No. 4, (2002), p. 431.
18 See Art. 4(4) of the Code of Conduct for Lawyers in the European Community (CCBE) which also applies to relations between lawyers and arbitrators (Art. 4(5)).
19 Henri Batiffol, "Observations sur la preuve des faits", in La preuve en droit, Travaux centre de logique de Bruxelles, 1981, p. 308.
20 Just the truth, and not "the truth, the whole truth and nothing but the truth" (Art. 35(2) of the ICSID Arbitration Rules). Is there another example of the pragmatism of international arbitration?
21 See the order issued by the arbitral tribunal in the case ICC 6401, 1 October 1990, points 1 and 2, J.D.I. 4, 1998, p. 1067, obs. Dominique Hascher; Order issued by the Geneva First Instance Court (Tribunal de première instance de Genève), 15 October 1990, Bull. ASA 1994, p. 307.
22 See order issued by the arbitral tribunal in case ICC 6401, 1 October 1990, op. cit., supra note 21, point 5; Order issued by the Geneva First Instance Court, 31 January 1991, addressing rogatory letters to the authorities of Vaduz (Liechtenstein) and Paris (France), Bull. ASA 1994, p. 310; Order issued by the Geneva First Instance Court, 16 February 1993 addressing rogatory letters to the competent authorities in Aix-en-Provence (France), Heidelberg (Germany) and Solama Beach (California-USA), Bull. ASA 1994, p. 314; Order issued by the Geneva First Instance Court, 5 January 1993, addressing rogatory letters to the competent authorities in Boston (USA), Bull. ASA 1994, p. 316.
23 See Martin Schubarth - Ursula Cassani, Commentaire du droit pénal suisse, Code pénal suisse - special section, Volume 9: "Crimes ou délits contre l'administration de la justice", Articles 303-311 CP, Staempfli and Cie SA Berne, 1996, p. 139 et seq.
24 The testimony does not need to be significant for the decision. Nor does Art. 307 of the Swiss Penal Code assume that the witness is aware of the significance of his testimony and that he deliberately seeks to influence the decision. The witness must, however, be aware that his testimony is false.
25 See, on the diversity of solutions in comparative law: Marianne Roth, "False Testimony at International Arbitration Hearings Conducted in England and Switzerland, A Comparative View", Journal of International Arbitration, Vol. 11, No. 1, March 1994, p. 5 et seq.; Christoph Liebscher, "The Challenge of Awards on the Basis of Criminal Acts", in ICCA Congress Series No.11, International Commercial Arbitration: Important Contemporary Questions, ICCA International Arbitration Congress London 2002, p. 300 et seq.
26 See Yves Derains, "La révision des sentences dans l'arbitrage international" in Law of International Business and Dispute Settlement in the 21st Century, Liber Amicorum Karl-Heinz Böckstiegel, 2001, p. 165, especially p. 169.
27 UNCITRAL Model Law (preparatory work) and French law, which expressly rules out the possibility of a revision of international arbitration awards (Art. 1507 NCPC); see in particular Paris Court of Appeal, 10 September 1998, SA Thomson CSF vs Société Brunner Sociedade Civil de Administracao Limitada and Société Frontier AG Bern, Rev. arb. 2001, p. 583, obs. Jean-Baptiste Racine. This solution has been criticised by some authors: see Yves Derains, op. cit., supra note 26, and Ibrahim Fadlallah "Nouveau recul de la révision au fond: motivation et fraude dans le contrôle des sentences arbitrales internationales", Gazette du Palais, Les cahiers de l'arbitrage (No. 2), December 2000, p. 5 et seq. See also other national laws with specific mention of fraud as ground for annulment: Art. 595 Austrian Code of Civil Procedure; Art. 857 (8) and 544 (6) Greek Code of Civil Procedure; Art. 801 Japanese Code of Civil Procedure; Sect. 10 (a) of the US FAA.
28 Art. 1068 Netherlands Code of Civil Procedure; Art. 43 of the Spanish law 60/2003 on arbitration of 23 December 2003.
29 Revision of an award by arbitration is explicitly provided in Art. 51 (3) of the ICSID Convention. In case law, see the French Cour de Cassation in Fougerolle vs Procofrance, 25 May 1992, Rev. arb. 1993, p. 91: "it results from the general principles of law on fraud that, notwithstanding Art. 1507 of the New Code of Civil Procedure which prohibits any application for revision of an award, an international arbitration award made in France may, exceptionally in case of fraud, be retracted if the arbitral tribunal is still constituted after the award has been made (or can meet again)" ["il résulte des principes généraux du droit en matière de fraude que, nonobstant l'exclusion du recours en révision par l'art. 1507 NCPC, la rétractation d'une sentence rendue en France en matière d'arbitrage international doit être, exceptionnellement, admise en cas de fraude lorsque le tribunal arbitral demeure constitué après le prononcé de la sentence (ou peut à nouveau être réuni)."]. See also on an application to reconsider a partial award filed directly during the proceedings with the arbitral tribunal sitting in Washington in the ad hocarbitration Antoine Biloune (Syria) and Marine Drive Complex Ltd. (Ghana) vs Ghana Investments Centre and the Government of Ghana, Y. B. Com. Arb. XIX (1994), p. 11 et seq. After noting that Articles 35, 36 and 37 of the UNCITRAL Arbitration Rules do not allow the possibility of challenging awards, the tribunal ruled: "[33] Nevertheless, a court or Tribunal, including this international arbitral Tribunal, has an inherent power to take cognisance of credible evidence, timely placed before it, that its previous determinations were the product of false testimony, forged documents or other egregious 'fraud on the Tribunal' […] Certainly if such corruption or fraud in the evidence would justify an international or a national court in voiding or refusing to enforce the award, this Tribunal also, so long as it still has jurisdiction over the dispute, can take necessary corrective action. […] [34] The present Tribunal would not hesitate to reconsider and modify its earlier award were it shown by credible evidence that it had been the victim of fraud and that its determinations in the previous award were the product of false testimony. However, no such evidence has been adduced ". See also for the same views and on the "inherent authority" of the tribunal to reconsider awards in exceptional circumstances, the awards Dames and Moore and Ram Industries of the Iran-United States Claims Tribunal, Charles N. Brower, Jason D. Brueschke "The Iran - United States Claims Tribunal", Martinus Nijhof Publishers 1998, Chapter 7 (Reconsideration and Reopening of Awards), p. 242-260.
30 As is the case in England and Wales, see Sect. 68(2)(g) and (3) of the Arbitration Act 1996; see also on Swiss law, Swiss Tribunal Fédéral, 11 March 1992, Rev. arb. 1993, p. 115 et seq., obs. P.Y. Tschanz, the grounds listed in Art. 137 of the Federal Law on the Organisation of the Judicial System (OJF).
31 See High Court, Queen's Bench Division (Commercial Court), 19 December 1997, Westacre Investments Inc. (Panama) vs (1) Judoimport-SDPR Holdings Co. Ltd. (F.R. Yugo); (2) Beogradska Banka (F.R. Yugo); (3) The Federal Directorate of Supply and Procurement of the Federal Republic of Yugoslavia (F.R. Yugo); (4) Beogradska Banka DD (F.R. Yugo), Y.B. Com. Arb. XXIII (1998), p. 836 et seq., concerning enforcement proceedings of an ICC award rendered in Switzerland during which defendants argued, inter alia, that the award was made as a result of false testimony given under oath: "Where a party to a foreign New York Convention arbitration award alleges at the enforcement stage that it has been obtained by perjured evidence that party will not normally be permitted to adduce in the English courts additional evidence to make good that allegation unless it is established that: (i) the evidence sought to be adduced is of sufficient cogency and weight to be likely to have materially influenced the arbitrators' conclusion had it been advanced at the hearing; and (ii) the evidence was not available or reasonably obtainable either (a) at the time of the hearing of the arbitration; or (b)at such time as would have enabled the party concerned to have adduced it in the court of supervisory jurisdiction to support an application to reverse the arbitrators' award if such procedure were available". Precisely, the interested party could have filed an application for revision of the award in Switzerland, but did not do so. See also for the same views, Swiss Tribunal Fédéral 11 May 1999, Bull. ASA 2000, p. 323 et seq. and the award Ram Industries (on the allegation of forged documents and false testimony), The Iran-United States Claims Tribunal, op.cit, supra note 29.
32 See Yves Derains, op. cit., supra note 26; Ibrahim Fadlallah, op. cit., supra note 27; Dominique Hascher, "La révision en arbitrage international", in Liber Amicorum Claude Reymond, Litec 2004, p. 111.