The papers collected in this volume are an illustration of the freedom the arbitrators enjoy in shaping "their" procedure, subject to other arrangements between the parties. There is no international code of arbitration procedure to limit the discretion of the arbitrators:

"It should be underlined that procedural public policy will constitute only a simple exclusion provision, namely that it will merely have a protective function and will not generate any positive rules. This is because the legislature did not desire that procedural public policy should be extensively interpreted and that there should arise a code of arbitral procedure to which the procedure, as freely selected by the parties, should be subjected" 1.

Besides the parties' consent, there is only one mandatory limit to the arbitrators' discretion in procedural matters, namely the hard core of procedural public policy restricted to the "equal treatment of the parties" and "due process". As Article 18 of UNCITRAL Model Law expresses it:

"The parties shall be treated with equality and each party shall be given a full opportunity of presenting its case"2.

Beyond the requirements of procedural public policy, where do the arbitrators find their guidelines to establish their procedural rules?

The contributions to this volume show that two principles are generally accepted, although not necessarily resulting from the procedural ordre public.

First, the arbitrators should have a personal knowledge of the evidence. Subject to an agreement of the parties to the contrary (for instance for the deposition of a witness), the arbitrators should attend the taking of oral evidence. Otherwise, the arbitrators would not fully discharge their duties and possibly commit a serious irregularity. However, the discretion of the arbitrators in the taking of evidence is such that courts will not necessarily quash an award because a truncated tribunal or the chairman alone presided over the taking of oral evidence3.

Second, the arbitrators have full power to assess evidence adduced before them and, in principle no court will review the weighing of evidence, be it upon a challenge or the enforcement of the award. There are no strict rules of evidence limiting the admissibility of any oral evidence. Anyone can be a witness, including a party in its own case. Any form of oral evidence is permitted, whether in the form of a deposition, a testimony, a video conference, witness conferencing, a telephone conference or any other. The arbitrators will simply weigh the evidence in question.

Beyond the rules of procedural public policy and these two generally accepted principles, the reports in this volume show that arbitrators will avoid any references to national laws of procedure, including the procedural laws in use before the courts at the seat of arbitration, and will primarily seek efficiency, predictability and transparency.

Efficiency means reaching as early as possible an enforceable and satisfactory determination of the case, saving as much as possible on the unavoidable expenses.

Predictability requires the arbitrators to evaluate the expectations of the parties and to address as soon as possible the procedural issues likely to arise during the course of the arbitration and no others: the ICC system offers an opportunity to determine at the outset such procedural issues in a meeting with the parties on the occasion of the execution of the terms of reference.

Transparency is also well served by this early discussion of the procedural rules and the arbitrators may want to take advantage of the adoption of the provisional timetable to convey their messages to the parties and sense their reactions to their various proposals.

It is thus for the arbitrators to decide how they will let each party fully exercise its right to put its case. Guided by considerations of time efficiency, limitation of costs and otherwise available evidence, the arbitrators will decide whether to order, refuse or restrict oral evidence and how to organise it.

It seems that the arbitration community does recognise these principles and, one way or another, the papers in this volume do refer to them.

One corollary is that there is no real procedural custom: each arbitrator will tailor the individual arbitration proceedings to his liking, taking into consideration the peculiarities of the case. Each practised arbitrator possesses a standard form of "constitution order and applicable procedural rules" which he will adjust to the needs of the specific proceedings.

The flexibility of arbitration explains why detailed procedural rules and guidelines failed to obtain great success4. This also explains why the IBA Rules of Evidence seem most successful as guidelines and less frequently govern per se an arbitration.

Four examples will evidence this flexibility in international practice:

Is an oral hearing compulsory?

Is it mandatory for the arbitrators to hear witnesses?

What about witness statements? Is there a tendency to consider the witness statements as the direct examination of the witness? What is the value of the witness statement if the witness fails to appear for oral examination?

Is there a general usage as to expert oral evidence?

There is no general answer. This apparent lack of uniformity will of course not mean that some principles should not be generally accepted.

For instance, there is consensus in the arbitration world that counsel may "prepare" the witnesses for a hearing and assist them in preparing their witness statements: everyone seems to agree that witness statements will be a factor of efficiency (especially if counsel see to it that such documents focus on facts relevant and material to the issues at bar) and may reduce the length and costs of the evidentiary hearing. The parties should be aware of the "rules of the game" and not expect a witness to come unprepared to a hearing. Nevertheless, faced with parties from different parts of the world, especially if counsel appear somewhat inexperienced, the arbitrators may feel the need to make their own requirements more specific, for instance in letting the parties know how much coaching they would consider acceptable. They will be "in full charge of the hearings" (Article 21.3 ICC Rules) and should thus leave as little ambiguities as possible about their expectations. It is telling that, in his paper, an experienced arbitration practitioner as Robert Rifkind referred to the preparation of witnesses by counsel "in America" 5.

It thus appears that oral evidence in arbitration is both particular and common. It is particular because it is different from the taking of evidence in front of any State jurisdiction: the arbitrators can (in principle) not order the hearing of witnesses under penalties of law, will (in principle) not swear in witnesses. False testimonies in front of arbitrators are normally not an offence6. It is admissible to hear any witnesses: as arbitration disputes arise most of the times out of the performance of a contract, there are few truly independent witnesses. In other words, there are no standard rules as to how to weigh the evidence. The arbitrators will have to rely on their own experience and wisdom to forge their conviction.

Oral evidence in arbitration is, however, common because the same principles will apply to documentary evidence.Truly, the arbitral tribunal could not decide to conduct the proceedings on the basis of oral evidence and exclude documentary evidence. This is a difference between oral and documentary evidence as to their admissibility. However, beyond this issue of admissibility, there is no real difference between oral and documentary evidence.

In both instances, there are no limitations to the power of the arbitrators to assess the evidence. There is no peculiar sanctity of some documents (deeds, notarized documents, affidavits under oath) and there is no rule restricting evidence to the use of documentary evidence.

As a practical matter, the use of a forged document in an arbitration will have the same consequences as the use of a false testimony. The arbitrators will not report the occurrence to the criminal justice. They will disregard the tainted evidence and probably draw some inference as to the credibility of the party.

There seem to be two reasons to this fading of the dividing line between evidence in writing and oral evidence in arbitration.

Due to the evolution of the technology, the differences between documents and testimonies tend to disappear. The proverb "verba volant scripta manent" is losing most of its significance. DVDs, CDs and magnetic tapes will keep oral statements. A voice recognition device will make an oral statement look like a typed document. Moreover, e-mail and SMS messages are drafted as they would be spoken rather than as a formal document. There is an overlap of the two types of evidence, namely witness statements which are a document but part of oral evidence.

Arbitration practice shows the emergence of another distinction, namely between contemporaneous evidence and evidence prepared with a view to the arbitration. The arbitrators have a tendency to rely more confidently on the former, especially on the contractual documentation, the correspondence between the parties and, to a certain extent, internal memoranda and site visits (precisely if the site still permits to ascertain its original condition).

This volume is a tribute to the trust in international arbitrators: party autonomy will vest them with the widest discretion to hear oral evidence, subject always to keeping the parties equal and hearing their respective cases. The parties entrust the arbitrators with resolving their dispute for them because they are unable to find a solution on their own: they thus agree that the arbitrators will be made privy to the history of the case, as they know it themselves, and that the arbitrators have all the necessary powers, for instance the discretion to hear any witness "they control" and, possibly, others. They expect to remain active in this process, so that the arbitrators should always endeavour to seek their (or their counsel's) full joint cooperation in the procedural matters in spite of their confrontation on the merits. The savvy arbitrator will use sparingly of his power, keep the parties informed of his policies, in a word will remember that "On gouverne mal quand on gouverne trop. Un homme qui traite avec un autre homme, doit être attentif et sage; il doit veiller à son intérêt, prendre les informations convenables, et ne pas négliger ce qui est utile" 7. The necessary, all the necessary but not more than the necessary and always with the full knowledge of the parties.

1
Swiss Federal Tribunal, 30 December 1994, F. and U. v. W., Bulletin ASA 1994, 217, 221.Comp. A. Baum in Liber Amicorum, K.H. Böckstiegel (C. Heymanns, 2001), p. 21 passim.

2
Cf. Art. 33 (1996) English Arbitration Act. Compare with Article 33 1996 English Arbitration Act, Article 182.3 Swiss PILA.

3
See Paris Court of Appeal 12.87, 13 March 1987, cited by Sophie Crépin, Les sentences arbitrales devant le juge français, LGDJ, Paris 1995, fn. 4 ad. No. 419 p. 261.

4
For instance, the UNCITRAL "Guidelines for preparatory conferences in arbitral proceedings"; see P. Lalive, De la fureur réglementaire, 1994, Bulletin ASA, p. 213.

5
If this hint is not sufficiently clear, the reader may want to refer to the first paragraph of Mr Rifkind's presentation.

6
For the exceptions to such principles, see above A. Dimolita, ad. pp. 24-36.

7
Discours préliminaire du premier projet de code civil français in Conférence du code civil, Firmin Didot, Paris, An XII 1805, p.lxviii.