Rules of Evidence in International Arbitration

Nathan D; O'Malley; LLM

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CHAPTER 2 Depositions, interrogatories and judicial notice

Introduction

2.01 The IBA Rules of Evidence consider those modes of taking evidence that are generally used and accepted in modern practice. Falling outside the standard practices covered by the Rules are other procedures that may be less frequently used, but are still known to have been applied in the context of international arbitration. 2.02 It should be noted at the outset that the inclusion of a chapter in this book covering these procedures in no way implies an endorsement of their use. Indeed, it is arguably for good reason that, for example, the practice of taking of pre-hearing depositions does not enjoy wide acceptance in international arbitration. Nevertheless, it is not unheard of for parties to request the use of evidence taking techniques that fall outside the IBA Rules and for Tribunals to acquiesce. The opening sections of this chapter consider evidentiary procedures derived from common law jurisdictions which have, at times, found application in international arbitration. The first, is the witness deposition, which involves interviews conducted by legal counsel of witnesses prior to trial or hearing, for the purpose of creating a written transcript that is submitted as evidence. The second, is the use of written interrogatories, which are in essence questions posed by one side directly to another side’s witnesses. Such questions are often a means of narrowing down factual issues within a case so as to clarify the key matters in dispute. 2.03 The practice of taking judicial notice is also considered in this section, as it relates to the acceptance of facts by a tribunal for which no evidence has been formally introduced into the procedure. While also being a means of establishing facts that is not considered by the IBA Rules, judicial notice may be regarded differently than the other two procedures considered in this chapter. The reason is that there seems to be general acceptance of this practice within international arbitration, as many tribunals have regarded themselves as inherently endowed with the power to take judicial notice of certain known facts.

Depositions

Sample Clause:	At the request of any party, the arbitral tribunal shall [have the discretion to] order the examination by deposition of any witness to the extent the arbitral tribunal deems such examination appropriate or necessary. Depositions shall be limited to a maximum of [number] per party.1
ICDR Rules 21(10)	Depositions, interrogatories, and requests to admit as developed for use in US court procedures generally are not appropriate procedures for obtaining information in an arbitration under these Rules

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2.04 Broadly defined, the word deposition may be understood as simply the “written record of a witness’s out-of-court testimony.”2 The general definition notwithstanding, the word deposition has come to be closely identified with pre-trial discovery in the United States. In the American context, deposition generally refers to an oral examination of a witness conducted by the legal counsel to the parties. The testimony is usually recorded in some manner for later use at trial. The IBA Rules do not contemplate the use of pre-hearing depositions. Most often a deposition will be conducted outside the view of the court, with a judge’s subsequent involvement only becoming necessary if a dispute arises over the conduct of the questioning. The transcript of the deposition may be used for the purpose of impeaching a witness, introducing testimony of a witness unable to attend the trial or for other reasons specified under the applicable rules of procedure.3 It is rare in American practice for litigation to take place without the conduct of depositions, as it is, along with interrogatories and document production, one of the most common aspects of US discovery practice. 2.05 As depositions are often used to prepare for US trial proceedings subject to extensive rules governing the admissibility of witness testimony, their utility in the context of a traditional international arbitration hearing, where such rules do not apply, is questionable.4 As ICDR Rules article 21(10) confirms, the widely held belief of international arbitrators is that depositions are generally inappropriate for international arbitration proceedings. Nevertheless, it is not unheard of for parties to agree on occasion to their use. Moreover, there is arbitral precedent supporting the view that the organisation of a deposition may be appropriate in the limited circumstance that a key witness is unable to attend an oral hearing. Such a possibility may be raised via a petition under article 4.9 of the IBA Rules. Finally, it has also been the case that where a witness freely wishes to meet with opposing legal counsel, a tribunal will permit a witness interview, which may be loosely similar to a deposition. These issues are further considered below.

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Arbitration agreements permitting depositions in international arbitration generally

2.06 In principle, parties to an arbitration may agree to engage depositions at any stage, though it is more likely that the provision for depositions would be found in an arbitration agreement.5 The inclusion of a reference to depositions often comes about where one or more parties is based in the United States. 2.07 That being said, the first issue confronting a tribunal when considering a reference to depositions in an arbitration agreement is to identify the intent behind the reference. As noted above, there are many reasons why a tribunal may not wish to import the American practice into an international procedure. Therefore, tribunals may wish to confirm that a reference to a “deposition” is truly intended to reference a US-style procedures. 2.08 In this regard, the experience of one ICC tribunal confronted with an arbitration clause that called for the parties to be permitted to take depositions is instructive.6 Here, the tribunal, which was comprised of non-American arbitrators of mixed civil and common-law background, advised the parties in an initial communication that, “it does not believe that American style depositions would be a useful exercise.”7 In this instance, the tribunal hoped to avoid engaging in US-style procedures by either disregarding the reference to depositions or by interpreting it as simply referring to the obtaining of witness testimony at the hearing.8 Nonetheless, following exchanges between the parties and the tribunal it became evident that the clause was incapable of holding any meaning other than a reference to American deposition practice. The tribunal thus acceded to their inclusion in the proceedings. 2.09 Given that “deposition” is a term closely associated with American litigation, in most cases it would seem that an agreement permitting “depositions” should be interpreted taking account of this common usage.9 This does not mean, however, that American proc

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edural rules must be applied to this process. As is widely accepted, domestic procedures do not have automatic application to international arbitration, and this would also be true in regard to conducting a deposition.10 Thus a tribunal may determine the manner and procedure to be applied to a deposition conducted under its aegis. 2.10 As the IBA Rules do not contain a direct reference to depositions, rules governing the practice in a truly international setting may be gleaned from the experience of past tribunals. The general practice regarding the conduct of a deposition in the domestic US context and in international arbitration is that counsel for both parties will be permitted to attend, and the final transcript deposited as part of the evidentiary record.11 The American system presupposes that a witness who is deposed will potentially be called to appear in court to be examined at trial. In international arbitration, however, this may not be necessary. It is conceivable that the tribunal will regard the written transcript as sufficient for its considerations, and determine that hearing the witness again, in its presence, is redundant. Such a procedural determination would be generally consistent with the case management authority which is granted to the tribunal in article 8 of the IBA Rules.12 2.11 As for the deposition itself, only witnesses presented in support of a party’s case would be made available for deposition although this may depend on the wording of the arbitration agreement. It is possible that by analogy, under IBA Rules article 4.9, a witness who is clearly under the control of a party, such as an employee with knowledge of the particular dispute, but who has not been otherwise listed by that party as a witness in the case, could be requested to attend a deposition.13 In that instance, the purpose of the deposition would be to permit a party to obtain evidence from a potentially adverse witness who has not been presented by either party. 2.12 Regarding the conduct of the deposition, the method of questioning may be taken, by analogy, from the rules regarding the conduct of an oral hearing generally set forth in article 8 of the IBA Rules. Thus, the order of questioning would begin with the party who has listed the witness in support of its case. If a witness statement has been submitted by the witness, then it would be consistent with the IBA Rules for the party, on whose behalf the witness is offering testimony, to waive a direct examination or restrict their questions to a short opening examination of approximately 10 minutes.14 The examination by the adverse party may then commence with follow-up questions by counsel for the party presenting the

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witness. Permissible objections to questions may be, again by analogy, taken from the list set forth in article 9 of the IBA Rules of Evidence.15 In some instances, the tribunal may wish to ask the parties to meet and confer with it concerning the rules of the deposition. 2.13 The parties and the tribunal would need to ensure that a faithful record of the witness’ testimony is taken.16 In this respect, it is generally the case that the hearing should be transcribed or recorded by video, with interpreters present if necessary.17 In some instances, the tribunal may request the deposition to take place before a notary public or other witness, however, this may not be considered a general requirement.18 As witnesses are often located in diverse locations parties and tribunals may consider organising depositions via video conference.19 2.14 A tribunal’s role in such an exercise may be minimal. As tribunals are limited in their procedural powers, lacking direct means of compelling a witness to attend or answer questions at a deposition, arbitrators should in most instances not become embroiled in disputes over whether a witness is to be made available for the deposition or should answer a particular question. Nevertheless, in most instances a tribunal will retain the authority to resolve any disputes over objections and questions generally,20 which may mean that a negative inference is drawn against the party who is withholding cooperation.

The use of depositions to obtain testimony from witnesses unable to attend a hearing

2.15 The principal rule regarding written witness testimony in international arbitration is that save for exceptional circumstances, in order for written testimony to be accepted into a proceeding the witness is generally required to be available to attend the oral hearing to be examined by the adverse party and/or the tribunal.21 While this rule

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establishes the widely observed approach to questions of admitting written witness testimony, some arbitrators have permitted the use of depositions as a third way of resolving problems over the non-attendance of witnesses in the hearing. In this instance, a deposition may be organised along the following lines set forth by an UNCITRAL tribunal seated in Zurich, Switzerland:

Both Parties agree that witnesses who are unable to attend the hearing of the Arbitral Tribunal may give testimony at a time and a place other than that of the hearing and their written testimony may be used in the proceedings, provided Counsel of both Parties are present when the witness is heard and have adequate opportunity to question the witness.22

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