1.

Freedom seldom comes without responsibility. This paper accordingly deals with the question of how an arbitral tribunal should use its freedom to achieve its goal, a speedy and fair resolution of the dispute.

1.1.

In legal theory, matters seem extremely simple: No matter which arbitration law applies, as the law applicable to the arbitration, the lex arbitri (and we will limit ourselves to the UNCITRAL Model Law, the English Arbitration Act 1996, and the Swiss PIL Statute), party autonomy reigns supreme.

1.1.1.

The various arbitration statutes put it differently, but they mean much the same. Art. 182(1) Swiss PIL Statute provides that primarily the parties are free to determine the procedure to be followed in the arbitration.

1.1.2.

Art. 19 of the Model Law says the same.

1.1.3.

Section 34 (1) English Arbitration Act 1996 puts this the other way round.

(1) It shall be for the tribunal to decide all procedural and evidential matters, subject to the right of the parties to agree any matter.

It makes no difference in law, but by mentioning the arbitral tribunal first the English Arbitration Act perhaps tries to convey to the parties that it does not necessarily believe that they should agree on too much.

1.2.1.

Back to the Swiss PIL Statute. The parties can exercise their power, as Art. 182 (2) Swiss PIL Statute puts it, either directly, that is in their own arbitration agreement, or by a reference to arbitration rules or state rules of civil procedure. When the parties make such a reference to other rules, this is an exercise of their party autonomy. The rules chosen become, then, so to speak part of the arbitration clause, and that is all there is to it.

1.2.2.

Similarly, sec. 4 (3) of the English Arbitration Act 1996 provides:

The parties may make such arrangements by agreeing to the application of institutional rules or providing any other means by which a matter may be decided. [Page15:]

1.3.

Only to the extent that the parties have not determined the procedure to be followed, is the arbitral tribunal subsidiarily free to determine procedure to the extent necessary, subject to some limitations.

1.3.1.

Art. 182 (3) Swiss PIL Statute provides:

Regardless of the procedure chosen, the arbitral tribunal shall guarantee equal treatment of the parties and their right to be heard in contradictory proceedings.

This is picked up by Art. 190 (2)(d) PIL Statute, but the Swiss Federal Supreme Court somewhat nebulously also reserves in dicta what it calls "procedural public policy."

1.3.2.

Under English Arbitration Act 1996, sec. 33 (1)(a) the principles are the same, but they appear to be mitigated by the idea of reasonableness: Each party must be given a reasonable opportunity of putting its case and dealing with that of this opponent.

1.3.3.

By contrast, Art. 18 UNCITRAL Model Law says that each party shall be given a "full" opportunity of presenting its case.

1.4.

On the face of things, our subject is simply how the freedom of an arbitral tribunal is limited. One may also ask what is mandated by the arbitral tribunal's responsibility to act fairly and expeditiously.

2.

Several questions must be answered:

• What is the scope of procedure, what are the intrinsic limitations of procedure? See below, points 3 and 4.

• What limitations follow from the agreement of the parties where the parties have decided there is nothing left for the arbitral tribunal? See below, points 5 to 9.

• Do third parties, particularly witnesses, have rights or privileges of their own? And the parties themselves? Such privileges must be respected in any event. See below, points 16 to 19.

• In practice, how may an arbitral tribunal, in view of its overall responsibility, balance all these rights at the various stages of an arbitration?

3.

The parties can agree on both substance and procedure, but they often agree on the law applicable to the merits only, or agree that different laws apply to the merits and to procedure. In any event, the law applicable to procedure may not be ascertained as fully as the law applicable to the merits. Thus, the question arises, what is procedural, what is substantive?

4.

This characterization question is for the lex arbitri to decide, and the arbitral tribunal [Page16:] does not have discretion about this and cannot characterize questions as procedural or substantive at will.

Yet most arbitration laws remain silent with respect to characterization as procedural or substantive. Section 34 (2) English Arbitration Act 1996 provides as follows:

(2) Procedural and evidential matters include

(a) when and where any part of the proceedings is to be held;

(b) the language or languages to be used in the proceedings and whether translations of any relevant documents are to be supplied;

(c) whether any and if so what form of written statements of claim and defense are to be used, when these should be supplied and the extent to which such statements can be later amended;

(d) whether any and if so which documents or classes of documents should be disclosed between and produced by the parties and at what stage;

(e) whether any and if so what questions should be put to and answered by the respective parties and when and in what form this should be done;

(f) whether to apply strict rules of evidence (or any other rules) as to the admissibility, relevance or weight of any material (oral, written or other) sought to be tendered on any matters of fact or opinion, and the time, manner and form in which such material should be exchanged and presented;

(g) whether and to what extent the tribunal should itself take the initiative in ascertaining the facts and the law;

(h) whether and to what extent there should be oral or written evidence or submissions.

I would submit that the English got it right, and their example should be followed. The criterion should be functional and should not draw too closely on the substance vs. procedure distinction made by legal systems for internal purposes. One should characterize as procedural what is merely a way to organize the procedure which might be done in different ways (depending on tradition, habit and inclination) without affecting the inherent fairness of the process. In the narrow area of procedure, discretion should be wide.

By contrast, one should characterize as substantive what influences the outcome of the case directly. The scope of substantive questions thus should be wide, and should include burden of proof, interest, currency. In the core area of substantive questions the choice of laws by the parties, or failing them, the arbitral tribunal, should be followed, but probably not in the peripheral area where other laws may well apply.

5.1.

Are there limitations on the freedom of the parties to determine procedure? This is also not quite as simple as it seems. Under Art. 183 (3) PIL Statute, already quoted, the limitations of equality and the right to be heard must be guaranteed by the arbitral tribunal regardless of the procedure chosen by the parties. [Page17:]

5.2.

Sec. 33 English Arbitration Act 1996 speaks only of the arbitral tribunal, but it is listed as mandatory, which means that it binds the parties also, essentially to the same principles.

5.3.

The same effect is achieved by Art. 19 UNCITRAL Model Law, which reserves Art. 18 amongst the "provision of this law."

5.4.

All these provisions mean that the parties and the arbitral tribunal are subject to the same limitations.

But are equality of the parties, their right to be heard, and perhaps efficiency, really the only considerations that limit the freedom of the parties and the arbitral tribunal to conduct proceedings?

6.

The rules chosen by the parties or the arbitral tribunal may be of different levels of abstraction, and may be established at different stages of an arbitration. We will therefore examine the position at the various stages of an arbitration.

7.

At the stage of the making of the arbitration agreement the parties may try to determine the procedure for the entire arbitration as Art. 183 (1) PIL Statute almost suggests it. Some parties or rather their lawyers often wish to be precise from the very start. Many are prompted by an instinctive need to regulate. Some have had an unhappy experience that they do not wish to repeat.

7.1.

It is rare that the parties design their own arbitral procedure in their arbitration agreement in full detail. Not an easy task since the procedure should be adjusted to the dispute and the disputants, neither of which are known at the time of the making of the arbitration agreement.

7.2.

When the parties refer to arbitration rules, they may think that they have said something about the procedure. This is often an illusion because arbitration rules typically do little more than repeat what the lex arbitri has already said, namely that the parties may set the procedure, and if they have not set the procedure, then the arbitral tribunal may set it. The scope left to the arbitral tribunal is then just as wide as if the parties had said nothing. This may surprise and frustrate the parties, but is no disaster.

The ICC Rules, Art. 20 (2) give the parties the right to have a meeting, and Art. 20 (4) gives the arbitral tribunal the right to appoint an expert. These are elements of a balanced approach.

7.3.

Rules that are well adjusted to the needs of international commercial arbitration are the IBA Supplementary Rules of Evidence, presently under revision. [Page18:]

7.4.

Difficult problems necessarily arise if the parties refer to state rules of civil procedure. Party representatives who all come from the same jurisdiction and have little experience of international commercial arbitration often back the idea. They believe that they will be on safe and familiar ground.

The wisdom of this approach must be questioned. It leads to too much regulation too early.

The procedure will become cumbersome and ill-adjusted to the needs of international commercial arbitration, and puzzling to other lawyers involved in the arbitration such as possibly the members of the arbitral tribunal, but certainly correspondent lawyers also involved in representing the parties. Sooner or later, one of the parties will be far happier with the reference to state court procedure than the other and the arbitral tribunal. The question will then arise whether the reference is absolute, or whether the state court rules should apply only by analogy.

In the latter case, one will have to ask how rules not designed for arbitration should be applied in arbitration, and how rules not designed primarily for international cases should apply in cases that are typically more international in nature than most cases before state courts.

Such an adaptation must be done with no guidelines, and it may well lead to problems if at least one party claims that certain features of local state court procedure (such as "Referentenaudienz" under Zurich cantonal state court procedure) were consciously agreed by the parties and therefore binding on the arbitral tribunal.

First, one will have to weed out provisions tied to local conditions of the state court system, for instance the official language, court holidays, special rules designed to work with unassisted lay parties (Referentenaudienz is an example), rules on proof of foreign law, and rules on routing of copies.

Second, what remains should then be adjusted to international arbitration, but how much of the customary hybrid procedure can be introduced without betraying the will of the parties? Can a court reporter be brought in to prepare a verbatim transcript? Will it for instance be possible to use written witness statements? May witnesses be prepared? The arbitral tribunal will have to persuade the parties that it is in their interest to agree to certain methods used in international arbitration in order to avoid direct costs to the parties.

It is therefore far better to stay away from a general incorporation of a set of state court rules and to work out procedure incrementally. To put it simply: work with clay, not in stone. And try to work step by step.

8.

It is probably a mistake to regulate too much at the outset of an arbitration. In practice, parties sometimes try to exercise what they view as their prerogative in the early stages of an arbitration. Without involving the arbitral tribunal at all, telling it on the contrary to hold off the preparation of terms of reference, the parties seek to reach agreement on detailed terms of reference and other subjects while the arbitrators tap their feet, but not so loudly that the parties might hear it. While the parties believe that they will soon reach agreement, time and money is wasted, and their attempts not surprisingly come to nothing. [Page19:]

Worse, when the arbitral tribunal finally is allowed by the parties to take matters into its hands, an elaborate complaint with numerous exhibits and perhaps even an answer with equally numerous exhibits has already been prepared, all of it poorly structured and already difficult to work with. Why is this? Many party representatives have less experience of international arbitration than of domestic arbitration or litigation where for obvious reasons it is easier to reach procedural agreement with opposite counsel. While some large law firms have internal directives about the way written submissions should be structured and exhibits should be presented and numbered, the reality is that in many large firms much of the early work is done by people who still make their first mistakes. Few know how hard it will become to work with overloaded binders with no tabs and no dividers, just occasionally an exhibit number, organizing the exhibits according to the sequence in which they are mentioned in the written submission.

9.

What can an arbitral tribunal do in the face of an unreasonable agreement between the parties on procedure? Very little, or too much.

9.1.

While there are no legal limits on the power of the parties to agree on unreasonable procedures, some point out that the arbitral tribunal has the power to police the parties by the allegedly powerful means of allocating costs. This may be true in domestic arbitration in some traditions where elaborate rules where developed for the allocation of costs. Yet it is a blunt tool where arbitration costs are determined ad valorem by a relatively sluggish administrated body. Moreover, the arbitration costs are usually only a fraction of the overall costs of an arbitration, of which the bulk is formed by the party representation costs. The costs argument is accordingly more effective when it concerns party representation costs. This is a point that will have to be brought home to the clients themselves.

An arbitral tribunal will therefore do well to take preventive action and institute a dialogue on procedural points as soon as possible. The terms of reference in process in ICC arbitration or the American Arbitration Association prehearing telephone conference provide an excellent opportunity for this sometimes necessary injection of realism and practicality.

Unfortunately, even this does not solve the problem of eternal (or so it seems) settlement negotiations: At some stage in the arbitration, normally at the outset or after a first exchange of briefs, the parties go into settlement negotiations, which is laudable, but hard on the arbitral tribunal: For a long time, the arbitral tribunal remains unpaid for its efforts and collects no interest. Interest on advances goes to others. Above all, the members of the arbitral tribunal have a conflict of interest with two parties for much longer than anticipated.

9.2.

Since the arbitral tribunal has hardly any tool to defend itself, the only possibility that remains is for the members of the arbitral tribunal to tender their resignation. This is extreme and unsatisfactory.

10.

Ideally, the arbitral tribunal should exercise its freedom step by step after having sought the views of the parties on procedural matters.

Just the views, not the agreement. Why? [Page20:]

Time is limited. It is probably more important to use the time that the arbitral tribunal has to deal with procedural matters ahead of a hearing to lay down the ground rules in writing rather than using the time to seek to obtain an often elusive agreement of the parties on such matters, which requires even more time.

Some of the procedural disputes will in the end turn out to have very little impact on the outcome of the arbitration. The arbitral tribunal is more detached and probably will have more experience of arbitral procedure than the party representatives.

There are far more important tasks that the party representatives should tackle at this stage: e.g., to identify which issues of fact are relevant; how certain facts essential to the client's case could be proved; which are the witnesses, preferably called by one's own side, which will be used to make that case; and generally, whether the case is of a factual or a technical nature, that is, whether it is based on what happened in the instant case or whether it is based on what usually happens. If the use of party-appointed experts is anticipated, the parties should start on the long journey of identifying them, of preparing the allegations and expert witness reports supporting them. Not everybody should do everything; everybody should do what he or she does best.

11.

Having taken the views of the parties, what should the arbitral tribunal do?

Most laws simply say that the arbitral tribunal must treat the parties equally and should grant them the right to be heard in a contradictory way or "in adversarial proceedings." In practice, many arbitrations can indeed be conducted quite satisfactorily if the arbitral tribunal does not worry too much, keeps these two demands constantly on its mind, and forgets about civil procedure.1

If one looks a bit deeper, though, the implementation of these principles is not as quite as simple, and there are other considerations not even mentioned in the arbitration statutes. The remainder of this paper will be devoted to these hidden difficulties, few of which can be satisfactorily resolved by applying just one law of state court civil procedure.

12.1.

In many respects, at the early stages of an arbitration the task to treat the parties equally is quite straightforward.

It is not particularly difficult to lay down rules in advance and then apply them evenhandedly. In fact, equality (and efficiency) mandates the setting down of rules somewhat in advance. If an arbitral tribunal is too open-ended about procedure, keeps its options open too long and "plays it by ear," solving problems if and when they arise, it will pay a price at the end. It may have sweeping powers but the party against whom they are exercised will cry foul, and one of the co-arbitrators may well become difficult.

12.2.

But equality may become more elusive at the later stages, particularly at the evidentiary hearing. We all know from experience that it is not always by treating people the same that you will treat them equally, because people are different. This is the old problem already identified by Aristotle. In order to treat the parties equally you must first identify in which respect it is important that they be treated equally. [Page21:]

12.3.

In many cases, it will be right to treat the parties equally with respect to time by applying a chess clock system. But that system is more appropriate in sport than in arbitration - after all, in arbitration the playing field is not as narrow as the four corners of a chessboard, and the rules of the game cannot be stated as simply as in chess. It may be that one party intends to field more witnesses than the other, or that the witnesses of one party must testify with the help of interpreters, or that one party's case is of a different nature than the other party's. Typically, a claimant will say that the case is quite straightforward, and the respondent will say that the case is far more complicated and many additional aspects should be considered. So the chessclock should be used, but to promote efficiency more than equality.

12.4.

Another field where the equality problem may be observed is the language problem. It may well be that the parties used one language when they communicated. There is the party that wants the arbitration to be conducted in another language, say the language of the contract, which is its own. Has it a legitimate point if it claims that resolving a dispute is trickier than dealing with day-to-day business? Or is the other party well taken when it says that a party that knew a language well as long as the contract performance went smoothly should be estopped from suddenly alleging that it does not know that language now that there is a dispute? Fortunately, language equality problems can be solved with a bit of money and time. In reality, language problems are not as difficult as they sometimes appear.

12.5.

A more difficult aspect of equal treatment is this: To what extent should an arbitral tribunal take into account the situation of the parties with respect to their legal background? With respect to legal background one cannot simply apply its own law to each party. The same law, or perhaps rules of law, should be applied to all parties. Equality may well lead to apply autonomous rules of law.

12.6.

The most difficult problem with equality arises when one of the parties is inadequately represented. I believe that it is legitimate for an arbitral tribunal to suggest to a party that it should be represented by lawyers familiar with international commercial arbitration. However, the arbitral tribunal must decide the case on the basis of what the parties submitted, not on what they might have submitted had they had better advisors.

13.

It is somewhat more difficult to apply the rule that the parties have the right to be heard in adversarial procedure, and again, it becomes harder as you go. Typically, right to be heard problems arise at the evidentiary hearing toward the end of an arbitration.

13.1.

First, however, there is the fundamental question whether, as a matter of principle, each party should have the right to be heard twice or whether there should just be a right to reply, giving the party making an allegation, normally the claimant, two bites at the cherry, and the other party only one, which some people believe to be contrary to equality. [Page22:]

In international arbitration, one will usually opt for a full double exchange unless both parties are comfortable with the Anglo-American system of having a rejoinder only under exceptional circumstances.

All this of course applies not only to written submissions but also to the questioning of witnesses and tribunal-appointed experts, in other words, to the issue whether there should be a routine right to cross-examine twice.

13.2.

A less lavish right to be heard usually is granted to deal with issues on which the arbitral tribunal is considered to have the right to rule sua sponte, but what are these?

A first one is the question of the arbitral tribunal's proper constitution.

A second is the question of the arbitral tribunal's jurisdiction.

What is less clear is whether the arbitral tribunal should also have the right to rule sua sponte on questions of law, that is first the conflict of laws question of the applicable law, and then the application of the applicable substantive law. It is surely reasonable for the arbitral tribunal to hear the parties' opinion on this, but is the right to be heard violated if the case is decided on a point of law on which the parties were not heard or heard only in part?

A further area where the arbitral tribunal probably has the right to decide sua sponte is the assessment of the evidence, but again it is wise to hear the parties' opinion.

13.3.

Arbitral tribunals often reserve the right to limit the number of witnesses that will be heard or to exclude or cut short the testimony of any witness. While this is again a sweeping right, in practice it is wise to exercise it early, after having heard the parties. They can often be persuaded to reduce the number of witnesses that they will present, or to let written statements of certain witnesses stand in lieu of oral testimony altogether, or to have some witnesses, at least to start with, questioned in writing. By all these methods it becomes possible to have shorter and more efficient hearings.

13.4.

Some arbitration laws grant parties only a "reasonable" opportunity to present their case, not a "full" opportunity. This must be understood with reference to the overall goal of arbitral proceedings.

13.4.1.

It is of course not sufficient to point out that there is no obligation for the arbitral tribunal to hear evidence on matters that are irrelevant to its decision. There could be no right to present irrelevant facts.

13.4.2.

As of the time of presentation of evidence, efficiency mandates that there be certain rules of the game, particularly deadlines. Usually, there is a first cut-off date after which new allegations and new officers of proof may be presented only if conditions for belated presentations are met (the right to present nova). This usually occurs at the close of the written submissions. [Page23:]

It is surprising to see that in many arbitrations the circumstances under which nova may be presented remain unclear. Few arbitration rules or terms of reference deal with this important question, and, as a result, many arbitral tribunals experience some difficulty in "closing the lid" at the end of an arbitration, especially if one of the parties senses that it is about to lose. To be sure, the arbitral tribunal may provide that it will exercise discretion in such matters, but at a late stage of the arbitration, when it may no longer be easy to secure the cooperation of the co-arbitrator nominated by the party that is trying to shore up its case, a rule that has been in place for some time might be simpler to apply. In an arbitration, there should not be too many surprises, just enough to make it exciting.

13.4.3.

There is a second deadline when the case is taken under advisement (clôture des débats) at the close of the oral hearings or after the presentation of post hearing briefs. From that time onwards, no new allegations and no new documents may be presented at all.

14.1.

While the right of the parties to shape the proceedings in their main features is generally recognized, it is far more doubtful whether they should be encouraged to manage every detail of the hearing. For instance, Art. 8 of the IBA Supplementary Rules of Evidence, draft of September 1998, deals with many details, but specifically reserves the right of the arbitral tribunal to determine the order in which witnesses are to be heard, e.g., according to issues, or in conjunction with each other to operate a confrontation, or alternating rather than the most traditional way which is first the claimant's then the respondent's witnesses. It does not at all cover the question of whether witnesses should be allowed to hear the testimony of other witnesses.

14.2.

It is the arbitral tribunal's task, in particular the chairman's, to create a particular atmosphere in the hearing room to determine the way the arbitration hearing will be conducted every day. The parties are well advised not to interfere with this freedom.

15.

The principle of equality between the parties with respect to the hearing of witnesses means that it is often better to alternate between witnesses of the parties, rather than hearing all of claimant's witnesses before all of respondent's witnesses are heard. It is desirable that witnesses who have testified may attend the hearing because arbitral proceedings often arouse substantial curiosity. Some witnesses are the very persons who instruct the party representatives. It would seem odd to exclude them from the hearing room, at least once they have testified.

The various rules of state court procedure which limit the right of the parties to invoke the testimony of particular types of witnesses, such as officers of a company or parties (if an individual is a party), conflict with the right to equality if different standards apply to different parties. Arbitration rules are surprisingly silent on who may be a witness. Art. 37 (1) Zurich Rules and Art. 34 (3) Basel Rules say expressly that anybody can be a witness, and the new IBA Supplementary Rules of Evidence will say the same. Similarly, the question of privilege with respect to testimony and to discovery of documents should be governed by the same law regardless of the origin of the parties to make for a level playing field. [Page24:]

16.

The position of a witness in an arbitration highlights that in an arbitration, intrinsic rights or privileges may be involved. This is recognized in sec. 1(b) English Arbitration Act 1996:

The parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest.

The fact that in international arbitration the testimony of witnesses takes on an importance that it often does not have in state court procedure is something of a miracle:

The arbitral tribunal has no imperium over third parties, no power to compel witnesses to appear before it. Neither do many parties. Even though in some systems the juge d'appui has the right to compel the appearance of reluctant witnesses (see Art. 184 PIL Statute), in practice this rarely is needed. One suspects that the juge d'appui may be sometimes used to give comfort to a witness not adamantly opposed to testifying but eager to benefit from the protection of having had to obey a court order.

Witnesses have the right to choose the language of their testimony no matter what the language of the arbitration is. They also have the right to remain silent and even to leave the room if they so wish. This was highlighted in a badly managed arbitration that I remember. A witness quite understandably pointed out that he had waited for days but now had to go and catch his plane, and walked out in the middle of his testimony, never to be seen again! Everybody gasped, but of course he was a free man.

17.

The question nevertheless is, which standard should be applied by the arbitral tribunal in order to assess whether a witness refuses to testify properly or capriciously? The weight to be given to the evidence or to the absence of it will depend on this.

Arbitration rules are surprisingly silent on this. Only Art. 38 Zurich Rules deals with witnesses privilege:

Art. 38 Right to Refuse Testimony

Testimony may be refused by a party's spouse, and the party's grandparents, parents, children, grandchildren, brothers and sisters, uncles, aunts, and cousins and the spouses of these relatives.

Moreover, a witness may refuse to testify against himself and refuse testimony which would infringe official or professional secrecy protected by criminal law, unless the witness has been freed of its secrecy obligation.

If the arbitration rules are silent, which law applies to deal with the witnesses' right to refuse testimony?

18.

In fact, this is a more general problem which also arises with respect to the privilege of the parties themselves to withhold information from the arbitral tribunal and opposing party. [Page25:]

18.1.

In many cases solutions can be found which will accommodate the need of the arbitral tribunal to establish the truth and yet safeguard the wishes of the parties to keep their own business secrets.

18.2.

Difficult questions arise when parties conducted settlement discussions which one party claims are relevant to the issue of mitigation of damages but which the other party claims are privileged. In some jurisdictions privileged communications by lawyers are traditionally earmarked by inserting a traditional phrase such as "sous les réserves d'usage," or "privileged." The parties themselves are usually less formalistic.

The same rules should apply to all parties. These rules can hardly be simply those at the seat of the arbitration. These rules are usually designed to deal with local conditions, particularly where they apply to members of the local bar. Moreover, it appears quite artificial to apply the law of the seat of an arbitration that has not yet even started and that the parties in any event are trying to avoid.

An arbitral tribunal might therefore consider privileged those statements that were made in the interest of reaching a settlement and which would not have been made had the party or party representative in question known that they might be disclosed to the arbitral tribunal, thereby applying an autonomous standard.

18.3.

Which is the law that should generally apply to the privilege of third parties such as witnesses and of the parties to withhold information? One should not forget criminal law in this connection. There are criminal sanctions for perjury before an arbitral tribunal also.

18.3.1.

In order to have identical rules all around only three solutions come to mind. The first one consists in applying the laws of all parties cumulatively.2 This is foreseen in Art. 11 Hague Convention which, in typical judicial assistance fashion, requires cumulative application. This has the disadvantage of being overly restrictive. There is also no particular justification in applying (cumulatively) the law of one particular witness to all the other witnesses. Privilege would then depend on who the other witnesses are, a matter on which no individual witness has influence.

18.3.2.

A second possibility is to apply the law of the place of arbitration.

18.3.2.1.

But are we talking about the seat or about the place? Are we talking about the parties or the witnesses? For the witnesses the concept of the legal seat of the arbitration as agreed by the parties to the arbitration can hardly be relevant. The criminal sanctions that apply to the testimony of witnesses can hardly depend on the agreement of the parties to the arbitration. So for witnesses, the actual place of the hearing may well be relevant. Yet one hesitates: even though the witnesses may have traveled to the place of arbitration, they probably just wished to accommodate the parties' wishes.

18.3.2.2.

By contrast, there may be some justification for applying the law of the seat of the arbitration with respect to the privilege of the parties since they chose that law or [Page26:] chose arbitration rules that empowered some institution to choose that law. Still, the law that the parties must be deemed to have chosen when they made an arbitration agreement is not the procedural law at the seat of the arbitration. Rather, it is the arbitration law at the seat which, as already explained, leaves procedural matters to the discretion of the parties or the arbitral tribunal.

18.3.3.

The third possibility is the application of autonomous, supranational standards, based on a comparative law analysis. What could such supranational standards be?

We have already encountered the first one, the suggestion that no matter what the various procedural laws before the state courts say, everybody should have the capacity to testify and it must be left to the arbitral tribunal's discretion how to assess the weight and materiality of all evidence presented. This is mandated by the principle of equality.

Other aspects are mandated by supranational law, either directly or by the fact that that law has been inserted into all national procedural laws possibly applicable. I am thinking of Article 8 of the European Convention on Human Rights of 1950, which guarantees a right of privacy; Article 10 of the UN Covenant on economic, social and cultural rights of 1976, which protects families, mothers and children; and Article 17 of the UN Convention on civil and political rights of 1966, which protects privacy.

By contrast, Article 11 of the Hague Convention of 18 March 1987 (in force in Switzerland since 1 January 1995) does not apply to establish a right of witnesses to remain silent in an arbitration. It deals with letters rogatory. It is at best indicative of an internationally recognized standard.

19.

Are there supranational procedural rights of parties? The answer must be yes. Article 6 of European Convention on Human Rights is applicable in civil cases, including arbitration. The right to cross-examine or at least to suggest questions to the arbitral tribunal, which then asks questions, may well be granted by Article 6 (3) in civil matters even though that subsection was drafted with criminal cases in mind.

1
See Karrer, "Don't be afraid," Arbitration, Vol. 65, No. 1, February 1999.

2
In this sense Walder in ICCA (Mélanges Recueil de Travaux Suisses) 1984, pp. 213, 216.