Forgot your password?
Please enter your email & we will send your password to you:
Copyright © International Chamber of Commerce (ICC). All rights reserved.
( Source of the document: ICC Digital Library )
1. This was not an arbitration with bubbles. Champagne is a plain in Mauritius where a dam was built which, like many construction projects, gave rise to an arbitration. However, the singularity of the Champagne arbitration was not just its name. It was a case that brought together at the start of the 1980s two future presidents of the ICC International Court of Arbitration.
2. At that time, neither Robert Briner nor John Beechey had the remotest idea of their future with the ICC. The former was the chairman of the arbitral tribunal in the Champagne arbitration; the latter was counsel for one of the parties - I do not remember which. As one of the members of the tribunal - the other being a talented Scottish engineer, Douglas Craig - I became better acquainted with John and, obviously, Robert Briner thanks to this arbitration. Yet, this is of little interest to John, as he knows the story already. If I now wish to offer him some late reflections on the Champagne arbitration, it is because the case gave rise to thoughts which have been evolving in my mind ever since. They concern two aspects of international arbitration: one is what I will call arbitral tourism (I) and the other the use of experts (II).
I. Arbitral tourism
3. In the Champagne case, the place of arbitration was Geneva. However, the hearing, which lasted one week, took place in Mauritius, home of the respondent. There were two good objective reasons for that: the dam at the heart of the dispute had been built in Mauritius and most of the witnesses were there. However, convincing the taxi driver taking me to the airport on the way to the hearing that I was travelling to a place called Champagne in Mauritius not for leisure but for work was a lost cause and it was only because there were supporting documents that convincing the tax inspector was any easier. Yet, doubts inevitably lingered as to the real necessity of such an expensive trip to what is a prime tourist destination.
4. Arbitration circles are not immune to such incredulity either and rightly so. Is it really necessary to travel to paradisiac places in order to deliver good arbitral justice when experts' reports are often sufficient to provide the arbitrators with the information they need on the characteristics of the site and the technical problems that have caused the dispute? I remain to be convinced that statistics would not show arbitrators to be more inclined to hold meetings at a place other than the seat of the arbitration when that place offers tourist and/or cultural attractions.
5. Of course, there are times when the arbitrators' decision to hold a hearing and/or to inspect a plant, goods or even documents at a place other than the place of arbitration is fully justified. The ICC Rules of Arbitration recognizes this fact:
The Arbitral Tribunal may, after consultation with the parties, conduct hearings and meetings at any location it considers appropriate, unless otherwise agreed by the parties.2
However, the ICC Rules say nothing about the circumstances that may persuade an arbitral tribunal to hold a meeting in Puerto Vallarta rather than a rainy European capital.
6. The UNCITRAL Model Law on International Commercial Arbitration, which forms the basis of much modern arbitration legislation, embodies the same principle but seems to give more information on the reasons why the arbitrators could meet in a place other than the seat of the arbitration. However, this is but an impression. Article 20 reads:
The parties are free to agree on the place of arbitration. Failing such agreement, the place of arbitration shall be determined by the arbitral tribunal having regard to the circumstances of the case, including the convenience of the parties.
Notwithstanding the provisions of paragraph (1) of this article, the arbitral tribunal may, unless otherwise agreed by the parties, meet at any place it considers appropriate for consultation among its members, for hearing witnesses, experts or the parties, or for inspection of goods, other property or documents.
This provision is clear over the purposes of holding a meeting at a place other the seat of the arbitration. They include performing evidentiary tasks normally performed by the arbitrators at the seat of the arbitration save when those tasks involve the inspection of goods, property or documents. For goods and property that goes without saying as they can rarely travel to the seat of the arbitration. As far as documents are concerned, while most of them are submitted to the arbitrators at their place of business, there are times when originals in the possession of third parties must be inspected where they are. However, like the ICC Rules and others, the Model Law says only that the arbitrators are [Page129:] not obliged to perform their tasks at the seat of the arbitration when another place is more appropriate, not what would make that place more appropriate.
7. Whether chosen by the parties, the institution administering the arbitration, or even the arbitrators, the seat of an arbitration is often fixed at a neutral location outside the countries from which the parties originate. Various factors impact on the choice of the place of arbitration, such as whether there are mandatory provisions in the local arbitration law; whether or not the country in question has ratified international conventions on arbitration; whether there are adequate communications, transport and other facilities; visa requirements; and security. Neutrality, too, is an important factor and parties with equal bargaining power rightly will not allow the seat of the arbitration to be fixed in the other side's country. Apart from the possibility that the judiciary will be biased in favour of the local party, the advantages of arbitrating at home are very similar to those of a home game in football. There are obvious practical advantages such as being able to sleep in your own bed at the end of a difficult day, as well as psychological advantages such as not having to read in the local press over breakfast how unfair your client is and how poor your case.
8. However, opting for a neutral place of arbitration to which none of the parties is connected necessarily generates expenses. It requires both parties and counsel to spend money on air travel and hotel accommodation, but also consumes time and upsets other work. Although counsel are used to that and are generally reimbursed, the same cannot be said of their clients. For them an arbitration is usually the result of a bad business experience and they prefer to devote their time to more productive activities. This partly explains why case management conferences are taking place less often in person and increasingly via tele- and videoconferencing.
9. It may well be justified for an arbitral tribunal to spend time and money travelling to the place where most of the witnesses are situated even though that place is not the seat of the arbitration. This was the case in the Champagne arbitration. Indeed, several of the claimant's engineers who were called to testify were still working on the site and most of the respondent's witnesses lived in Mauritius. Unless there had been special difficulties in organizing a meeting in Mauritius, it would have been unreasonable to require all the participants to travel to Geneva and certainly more costly than taking the three arbitrators to Mauritius.
10. The presence of many witnesses in Mauritius and the fact that both parties wanted to explain technical aspects of their respective claims during a visit of the dam led the parties jointly to request that the hearing take place in Mauritius. The visit to that dam and subsequent visits I have made to inspect plants and equipment as a member of other arbitral tribunals have led me to draw some conclusions as to their usefulness as a means of establishing the facts of a case. One [Page130:] thing is clear: unless carefully planned and organized in advance, they can be a complete waste of time and money and can even breach the right to due process.
11. My international arbitration practice has taken me, among other travels, to a power station in Chile, a dam in Argentina, hotels in Cuba and in the Dominican Republic, a ceramic factory in Tunisia, and a fishery factory in the south of Morocco. Without careful prior preparation, such visits could have easily degenerated into arbitral tourism. That would have been a pity because, when truly required and well organized, visits can be a priceless tool for understanding a case. Particularly in the field of construction, it is not always possible to grasp all aspects of a dispute involving technical issues without direct knowledge of the subject of the dispute.
12. Some basic rules must be respected, however. The first is to ascertain that the visit will help to resolve the issues in dispute. It is not just because a dispute relates to the construction of a plant that a visit to the site will be necessary to resolve it. For instance, when the constructor is claiming compensation for an increase in the price of concrete and the owner denies the claim as having no contractual basis, there is absolutely no need to see the place where the concrete has been placed. In such circumstances, arbitrators must resist any request to travel to the site, whatever the charms of the environment. Such requests are nonetheless received, often because the constructor wants to show what a good job it achieved, even if the quality of the work is irrelevant to the solution of the case. Parties often make the mistake of thinking they must show that they are the good guys in the story. Unfortunately, arbitrators are required to decide a particular dispute rather than express a moral judgment on each of the litigants, and good guys may lose their case when the law is against them.
13. When a visit is found to be useful, it must be carefully prepared in advance to ensure that due process is respected when it takes place and that the evidence it produces goes beyond mere general impressions. Article 7 of the IBA Rules on the Taking of Evidence in International Arbitration requires that the arbitral tribunal 'in consultation with the parties, determine the timing and arrangement for the inspection'. This is a minimum and is not sufficient in itself. Due process may be undermined if the conduct of the visit is dominated by one of the parties. That party is often the owner of the site and in control of access to it. Without efficient guidance from the arbitral tribunal, it can easily bring in as many people as it wishes during the visit. I remember poorly prepared site visits during which, at each part of the plant, a member of the owner's staff would appear like a genie from Aladdin's lamp, drawing the arbitrators' attention to supposed defects or faulty work. This was clearly unfair to the constructor's representatives, who were far fewer in number and were unprepared for those unexpected critics, and of no help to the tribunal as the alleged defects could not be dated and related to a specific claim. A similarly damaging breach of due process will also occur when a developer of technology, facing [Page131:] accusations of inadequate results from the equipment it has developed, explains to the arbitrators and an owner unable to argue for want of technical knowledge that the poor results were due to low-skilled machine operators. If no practical demonstration has been planned in advance, this will violate the principle of equal treatment of the parties and leave the arbitrators no better informed than before the visit.
14. Good practice requires that the parts of the site or the equipment that are to be inspected be carefully selected in advance, with a clear agreement on the order in which this is to be done. It is also important to explain in advance the relation between what is supposed to be seen and the respective claims of the parties. The arbitral tribunal must limit the number of representatives of each party during the visit and the time allocated to each of them for making comments at each stage of the visit. It is advisable to record the statements of each participant during the inspection and forbid the taking of photos unless authorized or requested by the arbitrators. The tribunal secretary can play a useful role here, provided he or she has the necessary skills. Only official photographs will be included in the file (with an exhibit number), plus recordings of oral interventions. The parties should be given a short period of time to comment on this material. Such organization may transform an initiative wrongly perceived as arbitral tourism when it takes places in a tourist resort into a very important phase of the proceedings. It can even prove exhausting for the participants, including the arbitrators. I will never forget finishing a day-long visit of a site in North Africa with a walk along a road at night to inspect alleged defects in the pavement under electric lighting. How frustrating it was to hear the sound of the waves lapping on the nearby beach!
15. Abuses by arbitrators cannot be completely ruled out, but rules such as those mentioned above should be sufficient to protect the parties if necessary. The requirement for the parties to be consulted before the arbitral tribunal decides to hold a hearing or a meeting at a location other than the seat of the arbitration gives parties an opportunity to object. Usually, the arbitral tribunal or one of the parties proposes a venue and an agenda, the proposal is discussed, and the tribunal then makes its decision in full awareness of the parties' views. This obliges the arbitrators to explain to the parties why they consider their decision appropriate and should generally suffice to discourage flagrant abuses. It would be difficult to imagine an arbitral tribunal explaining to the parties that it intends fixing a hearing in Bali, although the place of the arbitration is London, simply because its members are planning to holiday in Indonesia. In addition - and perhaps even more importantly - the obligation to consult the parties before deciding to hold a hearing or a meeting at a location other than the place of the arbitration should prompt discussions between the parties and the arbitral tribunal on the usefulness of such a decision.
16. There is always the risk that one of the parties will accept a foolish suggestion from the arbitrators simply because it wishes to please them. The decision will then be up to the arbitrators. Unfortunately, the risk is [Page132:] not limited to arbitral tourism. Another example, even worse, is when arbitrators are allowed to fix their own fees in ad hoc arbitrations. The best way of avoiding such a risk is to choose experienced arbitrators eager to protect their reputations. Also, supervision by a serious arbitral institution will offer additional protection to the parties.
17. John Beechey helped to contribute to the fight against arbitral tourism when he became President of the ICC International Court of Arbitration by ending the practice of reimbursing arbitrators for flights exceeding six hours on the basis of first-class fares. The immediate result was disconcerting as arbitrators would arrive at the airport to find senior counsel in the case flying first class when they were flying business class. However, in time law firms too changed their practices, making the prospect of a 12-hour flight to visit a factory in a tourist destination less exiting than before. There must always be objective reasons for such visits. At the time of the Champagne arbitration the former practice was in place. Although this may have made travel to Mauritius more enjoyable, I should insist that the trip was above all necessary and justified by objective reasons.
II. The use of experts
18. The Champagne arbitration involved many technical issues. After so many years I do not remember exactly what they were, except for one, to which I will return later because it showed the limits of the common law approach to expert evidence. It also allowed me to assess the benefit to the arbitral tribunal and the parties of having a skilled engineer as one of the arbitrators in appropriate cases.
19. One of the advantages of both domestic and international arbitration is that the parties can themselves choose the arbitrators or at least have a say in the constitution of the arbitral tribunal. In cases with a three-member tribunal, each party chooses one arbitrator and the third, who acts as president of the tribunal, is normally selected by the two co-arbitrators or appointed by an arbitral institution or another appointing authority. This allows the parties to pick as arbitrators individuals who have experience in the subject matter of the dispute:
When you have an arbitration in corporate matters, the parties have the privilege of choosing a lawyer skilled in that area, when it comes to a matter of construction, it can be chosen, not only an attorney experienced in that area, but also an engineer accustomed to the dynamic of the construction works, or even a geologist specialized in geological phenomenon at the centre of the dispute. When discussing accountability in partnership, we can appoint an accountant or an economist with decades of experience in administration and management companies.3
20. In the Champagne arbitration, one of the arbitrators was an engineer and his presence was most helpful. Let there be no misunderstanding: an arbitrator cannot decide a case on the basis of knowledge he or she possesses without first sharing it with the parties and giving them an opportunity to exchange views on it. This is sometimes contested when it comes to the content of the law - by virtue of the principle of iura novit curia, which in some jurisdictions is also applied to arbitration proceedings4 ( but it is not controversial when it comes to the facts. I must admit that, maybe due to my French legal education, I would be reluctant to accept that arbitrators could decide a case by applying legal solutions that the parties were not able to discuss. So, a fortiori, I would consider it a breach of due process for the arbitral tribunal to decide a case using technical information provided by one of its members during the tribunal's deliberations. Yet this is not to deny the advantage of having a good engineer as a member of the arbitral tribunal when difficult technical issues are at stake. Such an arbitrator may usefully draw the attention of the other members of the tribunal to certain technical issues not raised by the parties and overlooked by the lawyers. It will be the tribunal's duty to invite the parties to comment on those issues if it considers they should be taken into consideration, just as arbitrators with legal skills would invite comments from the parties on any issues of law not raised by the parties themselves.
21. The possibility of nominating arbitrators with technical experience in a given field does not remove the need for experts in arbitration, particularly international arbitration. The conduct of an international arbitration calls for extensive knowledge of, and specific skills in, international procedure. Parties are loath to nominate as arbitrators experts who may be well placed to grasp the technical matters at issue but may not have the ability to issue an award that is enforceable at law. They prefer to choose a lawyer experienced in arbitral procedure, at least as president of the tribunal. In three-member tribunals, if only one of the arbitrators has technical knowledge or experience, the other two members may be unwilling blindly to follow that arbitrator's advice if they are not completely sure of his or her competence or independence. Although it might help to invite comments from the parties, this may be a waste of time if the issue raised by the technical arbitrator turns out to be irrelevant.
22. The Champagne arbitration gave experts a prominent role and was a mix of common law and civil law approaches to expert evidence.
23. In common law countries, the arbitrator's main task is to make sure the parties have an equal opportunity to present their cases. Under the adversary system, both parties establish the facts of the case and the arbitrator is not supposed to take any initiative in this respect. It is for the parties to explain the technical aspects of the case and, for this purpose, they rely on experts. Referred to as 'expert witnesses', the [Page134:] experts are treated like witnesses and subjected to direct examination, cross-examination and redirect examination by the parties' counsel. Under this system, the party-appointed expert appears like a member of a parties' team rather than an impartial and independent aide to the tribunal, and the tribunal's task will be to decide which expert evidence is the most solid and convincing.
24. Civil law courts follow the so-called inquisitorial system, where the judge conducts the procedure with a view to determining the factual and legal truth himself or herself. The judge may limit the discussion to those facts and/or legal issues he or she deems relevant to solve the legal point at issue and, to this end, may refuse evidence that he or she considers useless, directly interrogate witnesses or indicate which questions counsel are authorized to ask, order the disclosure of documents that none of the parties has requested, and raise points of law not dealt with by the parties. Judges in civil law countries attach little evidentiary weight to the testimony of party-appointed experts and may, and in practice often do, appoint experts whenever they consider it to be the best means of establishing certain facts. Such experts are not witnesses chosen by the parties, are not subjected to cross-examination, and report to the judge conducting the proceedings, with whom the expert shares the attributes of independence and impartiality.
25. In civil law countries, arbitrators have never completely followed the rules applicable to courts, so the way the courts deal with expert evidence has never been directly transposed to arbitration. However, it has had some general influence on arbitration practice and the use of experts by arbitral tribunals in domestic cases is not at all unusual. Like a judge, the arbitrator appoints an expert and defines his or her mission after consulting the parties. The expert is in charge of the conduct of the expert proceedings and has wide inquisitorial powers. For instance, the expert may access documents that are not on the record. Indeed, in legal systems where discovery or disclosure proceedings are not available, the expert is often a substitute for such proceedings.
26. International arbitration is receptive to both the common law and the civil law approaches to the use of experts. The choice between one or other system will depend more on the nature of the technical problems to be solved than on the origins of the parties. Many international arbitrators are capable of understanding the decisive technical issues if they are correctly explained by well-prepared experts in adversarial proceedings. Here, the common law tradition has shown its superiority and the appointment of experts by arbitral tribunals in international proceedings is rare. During my thirty years as an international arbitrator, I have appointed an expert in only three cases. However, when arbitrators are faced with a battle between two or more brilliant party-appointed experts who have incompatible views on issues that go beyond the arbitrators' understanding, it would be unfair for the arbitrators to be guided only by the experts' respective powers of persuasion. In such cases it is preferable to follow the civil law tradition, [Page135:] provided the parties play an active role in defining the mission of the tribunal-appointed expert and are given the opportunity to comment on the expert's report and even to cross-examine its author with the help of their own experts.
27. The Champagne arbitration was a good illustration of the limits of the common law adversarial system and of the necessity of resorting to a tribunal-appointed expert in certain extreme cases. It also showed that combining the two traditions is not necessarily a satisfactory approach.
28. It is not unusual for the construction of a dam to give rise to technical disputes with legal consequences that the arbitrators are asked to resolve. The Champagne dam was no exception and our arbitral tribunal had the privilege of reading several reports prepared by experts appointed by the parties. Those reports and the examination of the experts were highly enlightening and helped the arbitrators to understand and resolve many issues. Unfortunately, the parties were in complete disagreement over the nature of the soil supporting the dam. Depending on the nature of the soil, the legal conclusions were very different and had serious financial consequences. One of the parties' experts described the soil as silty clay while the expert appointed by the other party defined it as clayish silt. Both experts were very distinguished geologists and provided highly convincing explanations which so impressed the arbitral tribunal that it was unable to decide for one or the other.
29. In the circumstances the arbitral tribunal decided to appoint its own expert. I am not sure that John was very happy but as arbitrators we had no other choice. Finding the expert was not easy but, with the help of the parties, a very experienced geologist was eventually engaged. He was subjected to cross-examination and defended his findings very well. Following proceedings in which the parties were given a full opportunity to present their respective cases, the tribunal could have been expected to have all the information necessary to decide the matter. The problem was that the expert appointed by the arbitral tribunal disagreed in part with both his eminent colleagues. Were his findings more accurate? The arbitrators could not know. Between three eminent experts, the only advantage of the third was his absolute neutrality. But did that mean that he was right?
30. In the light of that experience, one may think that it would have been more efficient for the arbitral tribunal to have appointed an expert from the outset and that the practice of party-appointed experts should be abandoned. I do not share that view. Cases in which the parties' experts are not sufficient to allow the arbitrators to decide a matter are rare, and rules should not be made for exceptions. Bringing a tribunal-appointed expert into the proceedings inevitably causes delays. It takes time for the expert to become familiar with the technical issues of the case, to make educated findings and then to write a report. With party-appointed experts, all this work is done before the hearing. When the arbitral tribunal appoints an expert, this generally occurs after an [Page136:] initial hearing that has revealed a need for expert evidence. If no expert has been heard before, the expert must start almost from scratch and even the most diligent of experts may take several months to produce a report. In the rare cases where an arbitral tribunal is obliged to appoint an expert because the findings of the parties' experts are inconclusive, a lot of preparatory work will already have been done. As in the Champagne arbitration, the input of an expert appointed by the tribunal is generally required only for discrete issues, as the parties' experts will have provided the arbitrators with sufficient evidence to resolve the others. Moreover, the input of the parties' experts, including their reports, any Scott Schedule they may have been requested to produce and their answers during cross-examination, will be useful to the tribunal's expert. Lastly, preferring the report of an expert because he or she was appointed by the arbitrators and not because he or she appears to be more technically competent than the parties' experts is a decision of pure procedure that nonetheless goes to the merits. Such a decision is sometimes necessary but never satisfactory.
31. Since the Champagne arbitration, the world of international arbitration has experienced great changes: there are more cases, more experienced and independent arbitrators, more arbitral institutions and fewer national laws hostile to arbitration. At the same time, the problems to be resolved by institutions and arbitrators are rendered more and more complicated by the unending creativity of the parties. The Champagne arbitration was a splendid training ground for facing these challenges.
Founding partner, Derains & Gharavi International, Paris; Chairman, ICC Institute of World Business Law; firstname.lastname@example.org.
ICC Arbitration Rules, Article 18(2). Other rules contain identical or similar provisions, e.g. Article 18(2) of the UNCITRAL Arbitration Rules.
M. Fernando, 'Analysis of the Development of the Expert Phase in Arbitration' (2012) 15 Spain Arbitration Review | Revista del Club Español del Arbitraje 57 at 60.
See e.g. G. Kaufmann-Kohler, 'The Globalization of Arbitral Procedure' (2003) 36 Vanderbilt Journal of Transnational Law 1313 at 1331(33.