In order to understand the counsel-witness relations in civil law arbitrations one first needs to understand how civil law courts handle witnesses whereby the parties’ counsel is in a supporting role. Indeed, the arbitration statutes in civil law countries envisage that arbitrators will deal with witnesses in the same way as judges do, with counsel as mere "walk-ons". However, in practice – and under Anglo-American influence – counsel in civil law arbitrations play an active role in the presentation of witness evidence – an approach that stands at right angles to the civil law legal tradition. As this phenomenon is rather new, the civil lawyer’s code of ethics does not yet fully address misconduct in counsel-witness relations in the margin of arbitration proceedings. However, a few basic rules are surely relevant.

THE CIVIL LAW TRADITION

1. State courts

It is an essential feature of civil law proceedings that the courts assume the obligation to investigate the case themselves and to find the "truth".

In the past, civil law courts investigated a case without any contribution of counsel; not only in criminal matters, but also in civil and commercial matters.

A 19th century French avocat was for instance not allowed to interfere with the court’s "instruction de l’affaire" in a commercial dispute. When the court heard a witness, the avocat could thus not attend the hearing. A fortiori should he not visit prospective witnesses to learn what they had to say and – surely not – influence their statement¹. The rules, undoubtedly, have become less strict. Nevertheless, some of the underlying philosophy has somehow survived. Indeed, nowadays, civil law courts still see it as their task to lead the investigation of the case.

However in most continental European countries (e.g. Austria², Germany³, the Netherlands⁴ , Sweden⁵) counsel may approach and meet a prospective witness. In Belgium, France, Italy⁶ and Switzerland⁷, on the other hand, the Rules of Conduct of the Bar still forbid counsel to interview prospective witnesses⁸.

In fact, however, in civil and commercial court proceedings, witnesses are not much used. They are of secondary importance. For civil matters, the Code Napoleon Article 1341, for instance, has significantly curbed the possibility to use witness testimony to contradict written documents. Although the same strict rule does not exist for commercial matters, where witness evidence is more generally admitted⁹, in commercial matters also witness testimony is rarely submitted. For instance, in thirty years of commercial litigation, I have had only two instances where a Belgian court had heard witnesses.

Moreover, if a witness nonetheless has to be heard, in most civil law countries the courts have kept a preponderant – if not exclusive – role: it is the judge who examins the witness. Generally, neither the parties nor their counsel have the opportunity to question the witness directly. A party usually forwards its questions to the judge, who then has full discretion in deciding to put the question to the witness. In many jurisdictions, the parties and their counsel cannot even interrupt a witness¹⁰.

2. Arbitration

Traditionally witnesses had a similar minor role in civil law arbitration. Arbitrators restricted witness evidence in the same way as courts did. A Belgian arbitration treatise thus admonished arbitrators to admit witness evidence in civil and commercial matters only when the law allowed for such evidence¹¹. In fact, witnesses were only used in arbitration when there was no written evidence available¹². It is for instance also quite striking that a leading French treaty on arbitration, Jean Robert’s L’arbitrage, in its 1983 edition, did not discuss witness evidence at all.

Whenever arbitrators hear witnesses, they follow as much as possible the same modalities as a court would do. Depending on the applicable arbitration law, they administer an oath¹³; they exclude as witness persons with too close a link to the parties; they and not the parties question the witness and draft minutes of the hearing¹⁴. Arbitrators – or even only one of them – sometimes examine the witnesses in the absence of the parties and their counsel. (In that event, the arbitrators will submit a "procès-verbal" of the examination to the parties so that they are aware of its outcome)¹⁵. Whenever a witness would refuse to appear before the arbitrators, depending on the applicable law, the State court either can order the witness to appear before the arbitral tribunal, or can question the witness itself¹⁶.

PRESENT ARBITRATION PRACTICE

In their sociological exploration of the arbitration world, Dezelay and Garth described how Anglo-American lawyers, who play a preponderant role in present-day-arbitration, have modelled their international arbitration proceedings on their US court practice and have turned transnational arbitration into some offshore US-style litigation¹⁷. The intensive reliance on witnesses and their cross-examination by counsel is part of this change. At first some European arbitrators considered cross-examination of witnesses "barbaric" and "primitive". Others, however, soon "began to realize that parties seemed to like this crossexamination" and were open to this new approach¹⁸.

Consequently, in Europe also witnesses are now becoming a substantial element in arbitration proceedings; not only for transatlantic or cross-channel cases, but also for Continental European disputes and even for purely domestic disputes. Occasionally, a Continental European arbitrator may still insist that it will be him – and not counsel – who will put the questions to the witness; that implies that counsel does not question the witness in direct and cross-examination but can only prompt the Chairman of the Tribunal with the questions the latter will put to the witness – a rather boring, denigrating and time-consuming exercise. After a few questions, however, reasonableness generally prevails over formality and counsel addresses the witness directly.

For modern Continental European arbitrators, witness evidence, production of witness lists, submission of witness statements, examination in chief, cross-examination, re-examination and re-cross have become an inherent part of the arbitration proceedings. The IBA Rules on Evidence in International Commercial Arbitration, meant in the first instance to bridge procedural gaps between civil and common law i.e. on the presentation of evidence, are often also used for intra-continental European disputes – and even in purely domestic arbitrations.

In brief, Continental European arbitrators, rooted in the inquisitorial tradition, have discovered the benefits of adversarial questioning. That allows many of them to combine the best of the Continental European tradition with Anglo- American approaches. In a first stage they often will thus allow counsel to address the witnesses; at the end they may themselves question the witness directly. Some European arbitrators, not preconditioned by preconceived axioms, also embark on efficient "witness conferencing", where witnesses, counsel and parties are collectively confronted with the relevant issues¹⁹.

COUNSEL-WITNESS RELATIONSHIP IN TRANSNATIONAL ARBITRATION

Party-witnesses are a relatively recent phenomenon in Continental European arbitration. There is not yet an extensive Code of Ethics on the relationship between counsel and witness. Nevertheless a few salient issues have to be addressed.

• Is it permissible for European counsel to interview prospective witnesses?

The IBA Rules of Evidence, that aim to introduce worldwide arbitration standards, are not of much help. They do not forbid preliminary contacts when European counsel is involved in an international arbitration. However, neither do they endorse the practice. They merely state that "It shall not be improper for a Party, its officers, employees, legal advisors and other representatives to interview its witnesses or potential witnesses". These IBA Rules that set procedural rules, in fact are less relevant to determine standards for professional conduct. They have no bearing on the Code of Ethics to which counsel in their respective countries are subjected. More relevant therefore is what the local bar rules and standards of professional ethics allow for. Even in countries (e.g. in Belgium, France²⁰, Italy²¹ and Switzerland²² ) where counsel is not permitted to contact prospective witnesses in court litigation, he may contact witnesses for a transnational arbitration. For instance, the Deontologicial Code of the Brussels Bar provides that counsel should avoid all contact with witnesses. However, it explicitly provides that these rules do not apply to foreign or transnational arbitration whenever such contacts are permitted under the rules governing that arbitration²³.

• May a Continental European counsel also "coach" his witnesses?

Such practice seems to be accepted in some countries (e.g. the Netherlands), but not in others (e.g. Belgium). Nevertheless, many European arbitrators are reluctant and discourage such coaching. An experienced arbitrator like Piet Sanders for instance is very clear on this issue:

"Drawn up with the party or its legal advisors the witness may be influenced in formulating his or her Statement which has to be signed and affirmed by him or her as being the truth. In my opinion these Witness Statements, preceding the hearings of the witnesses in person, are not in accordance with the expectations of many parties in an international arbitration"²⁴.

However in all events equality between the parties requires that all the parties and their counsel apply the same standards. To that end arbitrators should for instance make clear in the Terms of Reference or in the pre-hearing conference whether counsel are allowed to contact – and even coach – the witnesses.

• May counsel contact the other party’s witness?

In the Continental Europe legal tradition it is already a daring step for counsel in arbitration to contact (and prepare) his own witnesses. The possibility that he could also contact the other party’s witness probably goes beyond counsel’s imagination. Therefore, not many Codes of Ethics address such flagrant misbehaviour. As far as I know only the Dutch Code of Ethics explicitly forbids counsel prior to the hearing to contact witnesses from the other side.

In fact, the same prohibition can be deducted from the so called "CCBE Code of Conduct", established by the Bars from the European Union²⁵ where it says:

"A lawyer shall not communicate about a particular case or matter directly with any person whom he knows to be represented or advised in the case or matter by another lawyer, without the consent of that other lawyer (and shall keep the other lawyer informed of any such communication)" (Art. 5.5).

If a counsel cannot communicate with the adverse party behind its counsel’s back, he by analogy is not entitled to do so with the witness put forward by that counsel.

Similarly, a prohibition to contact the other party’s witness follows from Art. 4.3 of the IBA Rules of Evidence: "It shall not be improper ... to interview its witnesses or potential witnesses". If the interview of one’s own witnesses has to allowed expressly, communications with the other party’s witnesses seem to be forbidden a contrario.

• What are the sanctions for attempting to influence witnesses?

Of course, arbitrators who are aware that a witness has been influenced, will attach less or no weight to his testimony. As the IBA Rules of Evidence (Article 9.1) confirm: "The arbitral tribunal shall determine the ... weight of the evidence".

Moreover, counsel who has tried to influence a witness may be subject to the disciplinary sanction of his own Bar Authorities²⁶. Furthermore, he may be subject to criminal prosecution because of fraud²⁷ or obstruction of justice²⁸. The award may be set aside because of a breach of public policy²⁹. Enforcement of the award may be refused for the same reason.

In transnational arbitrations counsel often come from different jurisdictions. Is each of them bound by his own rules so that their respective professional standards may be different? It is hereby suggested that, in transnational arbitration, counsel’s professional conduct has to conform to a double standard.

In all events, it has to comply with the standards of the country where the seat of the arbitration is located. Indeed, within the European Union, the professional standards of the place where proceedings are held apply also to attorneys coming from a different jurisdiction. The CCBE Code of Conduct (Art. 4.1) states this explicitly for court proceedings: "A lawyer who appears or takes part in a case before a court or tribunal in a Member State must comply with the rules of conduct applied before that court or tribunal". The same applies to arbitration proceedings: "The rules governing a lawyer’s relationship with the courts apply also to his relations with arbitrators ..." (Art. 5.4).

Consequently, whenever the seat of the arbitration is within the European Union, the standards of the seat of arbitration apply³⁰. Although the CCBE claims no authority to regulate counsel’s behaviour outside the European Union, one should assume that the principle it endorsed also applies whenever the seat of arbitration is outside the E.U.

In addition, a counsel cannot be exempted from his own professional standards. If those standards are different, they have to be attuned to come to a workable compromise. Arbitrators should be aware of the possible discrepancy between counsels’ professional standards and address this matter in a pre-hearing conference or in possible Terms of Reference.

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