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( Source of the document: ICC Digital Library )
It is a privilege and a pleasure to contribute to this book in honour of my esteemed colleague John Beechey. I have known John in several capacities. I first made his acquaintance while serving at the International Centre for Settlement of Investment Disputes (ICSID) when he was sitting as an arbitrator on a case. After he became the President of the International Court of Arbitration of the International Chamber of Commerce (ICC), we continued our work together, including after my move to the Dubai International Arbitration Centre (DIAC) and the Bahrain Chamber for Dispute Resolution (BCDR-AAA). Although John may not be of the same mind, I most enjoyed interacting with him in public debates on the extent to which arbitration institutions should be involved in regulating the conduct of their arbitrators and counsel. I will not revisit this ever-vibrant topic on this happy occasion but, instead, will focus on a more neutral issue over which I doubt we would disagree.
This essay is based on a presentation I gave at the Arab Arbitration Forum in Tokyo in October 2014 as part of a panel chaired by Alexis Mourre, John's successor at the ICC. When I was invited to address the practical challenges posed by the taking of evidence in arbitrations conducted in the Arab world, my immediate reaction was one of disbelief. Having spent my career working in international and arbitration institutions and on arbitral assignments, I did not have the practical experience of a civil law advocate or of a common law expert. When I delved deeper into the topic, however, I realized, much to my great astonishment, that I was in a similar situation to Molière's Monsieur Jourdain, who learned at a rather late age from his professor of philosophy that, without knowing it, he had been speaking prose all his life.2 As to the other discoveries I made during my research, which are arguably of a less dramatic nature, I would like to submit a few for the purposes of this discussion.
Civil law tradition, common law tradition, and the IBA Rules
Leaving aside the many variations within each of the two traditions, there are striking differences between evidence procedures in the civil law tradition (to which most Arab countries belong) and the common law tradition. Features from both systems have been blended in international arbitration, and the International Bar Association's Rules on the Taking of Evidence in International Arbitration ('IBA Rules'), which were adopted in 2010, have borrowed from the procedural approaches of both regimes. Arab countries have followed this trend, with arbitral institutions adapting their rules to these developments. The IBA Rules are today referred to in numerous arbitrations conducted in Arab countries. Yet, parties and arbitral institutions in the region still show a natural reluctance to embrace procedural practices that may be found to contradict basic principles of Islamic law and could therefore jeopardize the validity of the eventual arbitration award.
The principal characteristic of the civil law system of evidence is its heavy reliance on written procedure. Oral testimony is given far less weight in civil law than in common law. Documents submitted by parties in advance of the oral hearing may include written witness statements. Oral hearings are of limited duration, and witnesses are questioned mainly by the arbitrators, with counsel taking a back seat.
In the common law system, counsel are in the driving seat when it comes to presenting evidence. Pre-trial discovery is used to compel parties to disclose all documents that relate to the case. Each party is entitled to ask the other party, before the evidentiary hearing, to provide it with documents in the other party's possession that the first party believes will be relevant to its case. The common law system gives considerable weight to witness testimony: witnesses are subject to cross-examination, and it is not uncommon for their lawyers to help them prepare their testimony and written statements before the hearing.
The IBA Rules make a compromise between the two systems. Prior to the hearing, the tribunal may order the parties to submit written witness statements,3 which is a concession to the civil law system. On the other hand, lawyers can liaise with witnesses and help them prepare for the hearing,4 which is a deviation from the civil law tradition.
Although the IBA Rules allow for the cross-examination of witnesses,5 which is a common law technique, the questioning of witnesses by the parties is placed under the control of the arbitral tribunal.6 Also, while allowing each party to request the other party to produce documents [Page437:] in its possession,7 the IBA Rules authorizes the arbitral tribunal to intervene in order to prevent this from turning into a fishing expedition for internal documents.8
A concern some Arab countries may have over the converging practices outlined above and embodied in the IBA Rules is that the use of written witness statements could conflict with the fact that Islamic law requires the tribunal, not a notary public, to administer the oath.9 A written witness statement in an arbitration conducted in an Arab country where the legislation is influenced by Islamic law would in that case be treated as a presumption (qarina) submitted to the tribunal for consideration.
Party-appointed experts and tribunal-appointed experts
In major cases involving issues of a technical or specialized nature, such as the assessment of construction, engineering or chemical processes, the determination of standard practice within a given industry, or the calculation of damages, expert evidence is often indispensable to the tribunal. Two approaches are possible in this respect.
The common law allows each party to select its own experts to provide evidence on technical questions on the party's behalf. Although the experts are paid by the appointing party and are generally chosen for their support of the appointing party's position on the technical issue, they are expected to be independent of the appointing party. The parties file the experts' reports with other written evidence in the case. [Page438:] When the parties' experts disagree, a battle of experts ensues. At an evidentiary hearing, the experts are subjected to detailed examination and cross-examination by counsel and questioning by the tribunal, and then the tribunal is left to decide which party's expert evidence is more accurate.
By contrast, under civil law, the arbitral tribunal appoints its own expert to conduct an independent inquiry into disputed technical issues. The inquiry will often give the parties an opportunity to present their views to the tribunal-appointed expert, and even to present their own experts on the disputed issues, whereby the inquiry turns into a technical arbitration within the larger arbitration.10 Despite the parties' involvement, the tribunal-appointed expert ultimately reports to the tribunal, which more often than not adopts the expert's report as its own.
The converging practice that is followed today in arbitrations in the West and in Arab countries is to allow the use of both party-appointed experts and tribunal-appointed experts in complex technical disputes, irrespective of whether the parties come from civil law or common law jurisdictions, thereby taking advantage of the flexibility of evidentiary rules in international arbitration.
The IBA Rules foresee both possibilities and provide detailed procedures for party-appointed experts in Article 5 and for tribunal-appointed experts in Article 6. The United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules of 2010 also allow both possibilities,11 as do the Arbitration Rules of the Cairo Regional Centre for International Commercial Arbitration (CRCICA) of 201112 and the Arbitration Rules of the Qatar International Center for Conciliation and Arbitration (QICCA) of 2012,13 both of which are based on the UNCITRAL Arbitration Rules of 2010. The same is true for the ICC Arbitration Rules of 2012,14 the London Court of International Arbitration (LCIA) Arbitration Rules of 2014,15 the Dubai International Financial Centre (DIFC)-LCIA Arbitration Rules of 2008,16 the BCDR-AAA Arbitration Rules of 201017 and the DIAC Arbitration Rules of 2007.18
Two developments concerning party-appointed experts and tribunal-appointed experts are worth mentioning.
A welcome practice has emerged in recent years with respect to party-appointed experts in international arbitration. It is referred to as 'expert conferencing', 'expert conclaving' and 'expert confrontation', as it encapsulates each of these elements, and it is envisaged in Article 8.3(f) of the IBA Rules. It is a process in which the arbitral tribunal hears the parties' experts together on the same issues, usually after all other evidence has been presented. It is not uncommon for arbitral tribunals to encourage the party-appointed experts to exchange draft reports, meet for discussion and produce a joint report outlining their areas of agreement and disagreement prior to being heard. At the hearing, the party-appointed experts are cross-examined by counsel on points of disagreement. The experts are then questioned together by the tribunal, with each party-appointed expert allowed to comment on the answers given by the expert appointed by the other party. This practice generally yields more positive results than the traditional handling of experts in common law court procedure.
As was mentioned above, the IBA Rules, the UNCITRAL Arbitration Rules and the rules of arbitral institutions in both the West and the Arab region allow recourse to tribunal-appointed experts. At the same time, these instruments provide safeguards designed to allay the concerns of parties from common law countries. Thus, the tribunal appoints the expert only after consultation with the parties,19 who also receive the expert's terms of reference and the expert's final report.20 After the tribunal-appointed expert has issued the report, all rules give the parties at the very least an opportunity to challenge the expert's views at a hearing where they are often allowed to introduce their own experts.21
There remains some unease over party-appointed experts in civil law countries (which, as mentioned earlier, include most Arab countries). Arbitrators from these countries often view the retention and payment of an expert by a party as tainting the evidentiary process and undermining the trustworthiness of the expert's testimony. This unease is exacerbated in Arab countries22 by the fact that remunerating experts [Page440:] appears to be at odds with, among other strictures, Article 1700 of the Majallat Al-Ahkam Al-'Adliyyah, the civil code of the Ottoman Empire, which is considered the first attempt to codify Islamic law and has influenced the laws of many Arab countries. In this respect, Article 80 of the Jordanian Civil Law of 1976 and Article 115 of the Code of Civil Transactions of the United Arab Emirates of 1985, which take inspiration from Article 1700 of the Majallat, provide that 'any testimony by which a witness gains an advantage or averts a detriment shall be rejected'. This provision has also influenced judicial practice in many other Arab countries. In Saudi Arabia, where neither the Arbitration Law of 2012 nor the statute governing civil procedure (Nizam Al-Murafa'at Al-Shar'iyyah) contains such a provision, it is customary for Shari'a courts in Saudi Arabia to rely on texts of Islamic law such as Al-Mughni lebn Qudama and Al-Iqna' lil Bahuti to adopt principles similar to those expressed in Majallat Al-Ahkam Al-'Adliyyah.
In these circumstances, the pragmatic and prudent approach is to consider the testimony of a party-appointed expert in an arbitration conducted in the Arab world as a mere presumption (qarina), which will need to be corroborated by other presumptions (qara'in). That said, it is worth observing that party-appointed experts, although paid for their services by the party appointing them, are more detached from the dispute than an employee of the party and thus do not have the same interest in the outcome of the arbitration.
Parties as witnesses
This brings us to the issue of the admissibility of, and certainly the weight to be given to, the testimony of witnesses having close ties to a party, such as its president or one of its employees. Common law systems do not seem to preclude such testimony, as is reflected in Article 20.6 of the LCIA Arbitration Rules of 2014, which provide that:
Subject to any order by the Arbitral Tribunal otherwise, any individual intending to testify to the Arbitral Tribunal may be treated as a witness notwithstanding that the individual is a party to the arbitration or was, remains or has become an officer, employee, owner or shareholder of any party or is otherwise identified with any party.
The IBA Rules accommodate the common law approach on this point as they provide at Article 4(2) that:
Any person may present evidence as a witness, including a Party or a Party's officer, employee or other representative.
By contrast, many civil law countries consider that a person should be prevented from being a witness for the person's own cause. They require that a witness be independent of the party and treat the testimony of witnesses affiliated with or employed by a party with considerable scepticism.23
The issue was raised in an ICC arbitration brought by Southern Pacific Properties (SPP), a Hong Kong company engaged in the development of tourist facilities, against the Arab Republic of Egypt and the Egyptian General Company for Tourism and Hotels (EGOTH).24 A Supplemental Agreement between SPP and EGOTH included an ICC arbitration clause. On the last page of the Agreement, underneath the parties' signatures, appeared the statement 'approved, agreed and ratified by the Minister of Tourism' accompanied by the Egyptian Minister's signature.25
In reaching its conclusion that the Egyptian Government was a contractual party to the Supplemental Agreement, the ICC arbitral tribunal relied on the testimony of SPP's Chairman in which he indicated that he had refused to sign the Supplemental Agreement until the Egyptian Government was added.26 When the Paris Court of Appeal set aside the award on the ground that Egypt was not a party to the arbitration clause on which the award was based,27 the Court noted that no decisive or even serious inference ('aucune déduction déterminante, voire sérieuse')28 could be drawn from the testimony of the SPP officer, which the Paris Court of Appeal must have regarded as self-serving.29
It may be submitted that most Arab jurisdictions would have come to the same conclusion. Not only are Arab countries influenced by the civil law tradition,30 but also Islamic law does not accept the testimony of witnesses who have a vested interest in the testimony they give. It may be noted that while Article 27(2) of the UNCITRAL Arbitration Rules of 2010 provides that a witness, including an expert witness, may be 'any individual, notwithstanding that the individual is a party to the arbitration or in any way related to a party', the corresponding provision of the CRCICA Arbitration Rules of 2011, which are based on the UNCITRAL Arbitration Rules of 2010, wisely adds the following qualification: 'to the extent permitted under the law governing the relevant issues'.31
Arbitration is reputed for its flexibility in allowing the procedures to be tailored to the particular needs of each case. In a case heard by a three-member tribunal, the arbitrators and counsel may represent five different legal systems32 and each of these participants may have different views on the most appropriate procedure to follow, including with respect to evidence. Consultation is crucial, as pointed out by Article 2.1 of the IBA Rules:
The Arbitral Tribunal shall consult the Parties at the earliest appropriate time in the proceedings and invite them to consult each other with a view to agreeing on an efficient, economical and fair process for the taking of evidence.
Given the importance of party autonomy as a fundamental principle of arbitration, the arbitral tribunal would do well to follow the parties' agreement on evidentiary issues unless it violates international public policy or mandatory provisions of the procedural law of the juridical seat of the arbitration (lex arbitri). In the end, irrespective of the evidentiary rules chosen by the parties, the tribunal retains full discretion to determine the relevance, materiality and weight of the evidence presented.
This being said, we should not miss the forest for the trees by focusing overmuch on details. Ultimately, what matters is not that counsel feel comfortable with evidentiary issues, but rather that arbitrators reach a fair disposition of the case. In this respect, it is worth recalling the admonition of the Prophet Muhammad who warned litigants against taking undue advantage of their eloquence to seek what was not rightfully theirs:
You bring to me, for (judgment) your disputes, some of you perhaps being more eloquent in their plea than others, so I give judgment on their behalf according to what I hear from them. (Bear in mind, in my judgment) if I slice off anything for him from the right of his brother, he should not accept that, for I sliced off for him a portion from hell.33
Chief Executive Officer of the Bahrain Chamber for Dispute Resolution (BCDR-AAA); visiting professor at the University of Miami School of Law, USA, and the Faculty of Law of Saint Joseph University, Beirut, Lebanon.
Molière, Le bourgeois gentilhomme, Act Two, Scene 4.
IBA Rules on the Taking of Evidence in International Arbitration of 2010 ('IBA Rules of 2010'), Art. 4.4-4.7.
Ibid., Art. 4.3.
Ibid., Art. 8.3.
Ibid., Art. 8.2.
Ibid., Art. 3.2-3.3.
Ibid., Art. 3.7.
In the United Arab Emirates, Article 211 of the 1992 Code of Civil Procedure provides that the witnesses shall take oath before the arbitral tribunal. (In the notorious case International Bechtel Company v. Department of Civil Aviation of the Government of Dubai, the Dubai Court of Cassation, in a judgment delivered on 15 May 2004, affirmed a decision of the Dubai Court of First Instance in which an award in favour of Bechtel was set aside because the arbitrator did not administer the oath to witnesses in the form prescribed by Dubai law. (Bechtel sought to enforce the award in France where the Paris Court of Appeal, in a decision dated 29 September 2005 (Direction générale de l'aviation civile de l'Émirat de Dubai v. Société International Bechtel, Revue de l'arbitrage 2006.695), affirmed the enforcement order issued by the Paris Tribunal of First Instance on the ground that annulment decisions apply solely in the countries where they are rendered and are without international effect.) By contrast, Article 779 of the 1983 Lebanese Code of Civil Procedure provides in relevant part that 'the arbitrators shall hear the statements of third parties without putting them on oath' and Article 33(4) of Egyptian Law No. 27 of 1994 Concerning Arbitration in Civil and Commercial Matters provides that 'witnesses and experts shall be heard without their taking oath'. In Jordan, the situation is more nuanced. While Article 32(d) of Jordanian Arbitration Law No. 31 of 14 June 2001 provides that 'witnesses and experts shall be heard under oath as determined by the arbitral tribunal', Article 32(e) provides that 'the arbitral tribunal may accept testimony in the form of an affidavit accompanied by a sworn statement made before any competent authority of the country in which the testimony has been made in accordance with the law of that country'.
M. McIlwrath & H. Alvarez, 'Common and Civil Law Approaches to Procedure: Party and Arbitrator Perspectives' in H.A. Grigera Naón & P.E. Mason, eds., International Commercial Arbitration Practice: 21st Century Perspectives (2014), c. 2, § 2.06 .
UNCITRAL Arbitration Rules of 2010, Arts. 27-29.
CRCICA Arbitration Rules of 2011, Arts. 27-29.
QICCA Arbitration Rules of 2012, Arts. 28-30.
ICC Arbitration Rules of 2012, Art. 25(3)-25(4).
LCIA Arbitration Rules of 2014, Arts. 20.3 and 21.
DIFC-LCIA Arbitration Rules of 2008, Arts. 20.2 and 21.
BCDR-AAA Arbitration Rules of 2010, Art. 22.
DIAC Arbitration Rules of 2007, Arts. 29.2 and 30.
IBA Rules of 2010, Art. 6.1; UNCITRAL Arbitration Rules of 2010, Art. 29(1); CRCICA Arbitration Rules of 2011, Art. 29(1); QICCA Arbitration Rules of 2012, Art. 30.1; DIAC Arbitration Rules of 2007, Art. 30.1; ICC Arbitration Rules of 2012, Art. 25(4); LCIA Arbitration Rules of 2014, Art. 21.1.
IBA Rules of 2010, Art. 6.1 and 6.5; UNCITRAL Arbitration Rules of 2010, Art. 29(1) and (4); CRCICA Arbitration Rules of 2011, Art. 29(1) and (4); QICCA Arbitration Rules of 2012, Art. 30.1 and 30.4; DIAC Arbitration Rules of 2007, Art. 30.1 and 30.3; BCDR-AAA Arbitration Rules of 2010, Art. 22.3; DIFC-LCIA Arbitration Rules of 2008, Art. 21.2; ICC Arbitration Rules of 2012, Art. 25(4); LCIA Arbitration Rules of 2014, Art. 21.1.
IBA Rules of 2010, Art. 6.6; UNCITRAL Arbitration Rules of 2010, Art. 29(5); CRCICA Arbitration Rules of 2011, Art. 29(5); QICCA Arbitration Rules of 2012, Art. 30.5; DIAC Arbitration Rules of 2007, Art. 30.4; BCDR-AAA Arbitration Rules of 2010, Art. 22.4; DIFC-LCIA Arbitration Rules of 2008, Art. 21.2; ICC Arbitration Rules of 2012, Art. 25(4); LCIA Arbitration Rules of 2014, Art. 21.4.
See S.A. Saleh, Commercial Arbitration in the Arab Middle East, 2d ed. (2006) at 49 (under Islamic law '[t]estimony is a gratuitous act, and the witness is reimbursed only with his travel expenses').
S.H. Elsing & J.M. Townsend, 'Bridging the Common Law Civil Law Divide in Arbitration' (2002) 18:1 Arbitration International 1 at 4.
SPP (Middle East) Ltd. and Southern Pacific Properties Ltd. v. The Arab Republic of Egypt and The Egyptian General Company for Tourism and Hotels (ICC Case No. 3493), Award of 16 Feb. 1983, (1983) 22 International Legal Materials 752.
Ibid., § 14.
Ibid., § 44.
Paris, 12 July 1984, République Arabe d'Égypte v. Southern Pacific Properties Limited et Southern Pacific Properties (Middle East), Journal du droit international 1985.129.
Ibid. at 139.
On the ICC award and the Paris Court of Appeal decision, see generally P. Leboulanger, 'État, politique et arbitrage - L'affaire du Plateau des Pyramides', Revue de l'arbitrage 1986.3; G.R. Delaume, 'The Pyramids Stand - The Pharaohs Can Rest in Peace' (1993) 8 ICSID Review-Foreign Investment Law Journal 231.
See M.S. El Sharkawy & M.S. Abdel Wahab, 'The Rules of Evidence in International Arbitration as Established by the International Bar Association', 15 Majallat Al-Tahkim Al-'Alamiyya 23, 33 (July 2012) (in Arabic).
CRCICA Arbitration Rules of 2011, Art. 27(2).
See J. Paulsson, 'The Rules of Evidence in the Arbitral Procedure: Comparative Study' in F. Kemicha, ed., Euro-Arab Arbitration II: Proceedings of the Second Euro-Arab Arbitration Congress (1989) 90 at 91.
Sahih Muslim, hadith 247, translated by Abd-Al-Hamid Siddiqui.