Burden and standard of proof in international arbitration and related proceedings

Anne Véronique Schlaepfer
White & Case SA, Geneva
anneveronique.schlaepfer@whitecase.com

Evidence and its use in international arbitration is as relevant today as it was at the 20th Annual IBA International Arbitration Day in Milan in 2017.  In this short article, I revisit the topics highlighted by the IBA Arbitration Committee and addressed by experienced and talented practitioners in our continued efforts for excellence in the practice of international arbitration. 

The 20th Annual IBA International Arbitration Day took place in Milan on 31 March 2017. It was devoted to evidence, namely access to evidence and its use in international arbitration. Within the frame of this vast topic a few key questions were singled out. 

The first panel addressed the communication of evidence in parallel proceedings. It is not rare in complex disputes to see more than one arbitration, or court and arbitration proceedings occurring in parallel or in short succession of one another. All parties may not be the same, but the subject matters of these proceedings are linked or represent various aspects of the same complex set of facts. There may thus be an interest for one party (at least) to take advantage of evidence gathered in one instance to support its case in another. 

The most obvious case, which immediately comes to mind concerns parallel arbitration proceedings. For instance, in large construction projects, several disputes may arise involving the EPC or main contractor, for example, with the owner on the one hand, and a subcontractor or multiple subcontractors on the other. A subcontractor may see an interest in having access to information relating to the EPC or main contract, while the owner may try to strengthen its case against the EPC or main contractor by obtaining evidence of difficulties affecting the latter’s contractual relationship with the subcontractor. To be given access to evidence pertaining to a different contractual relationship, even if the factual nexus is the same, is not easy in international arbitration, at least when arbitral tribunals apply a rather moderate approach to document production, in line with the IBA Guidelines on the Taking of Evidence.

The situation may be different when other types of proceedings are concerned. As we all know, the power of investigation of a prosecutor is very broad as he or she instructs a matter in rem and is not bound by the limits of a contractual relationship. What may be less clear is to what extent evidence gathered in criminal proceedings can be produced in arbitration proceedings. In some instances, the plaintiff may have broad access to the criminal file and may be authorized to use it in other court or arbitration proceedings.

The opposite may also happen: information disclosed in arbitration proceedings may be relevant in parallel criminal proceedings or before a regulatory authority.

The second panel dealt with document production. As I reflect on the discussions and the questions posed (e.g., have Redfern schedules got out of control? Are there ways to limit excesses effectively?), it seems to me that the issues have become even more crucial today than they were at the time. As a matter of fact, it is undisputable that document production has become more burdensome than it was some seven years ago. The principles defined by the IBA Guidelines on the Taking of Evidence, pursuant to which a request must be narrow and specific are often given a very broad interpretation, which, some would say, is inconsistent with the usual meaning of such words. This immediately raises the question whether such broad production is of any use, and not merely another source of significant costs for the parties. Of course, it is yet to be seen whether developments in technology simplify the process of document production or increase its scope by affording a means to review larger quantities of documents. 

The issue of privileges, which is inherently linked to document production, is, and probably will remain an important topic in the years to come. If there is one area of international arbitration where standardization is difficult, not to say impossible, it is that of privilege. Developed in common law jurisdictions where document production or discovery is an important feature of court proceedings, it is largely inexistant in civil law jurisdictions (except in respect of attorney-client privilege). The imbalance resulting therefrom may lead to various difficulties in practice, and arbitral tribunals have had to juggle between the need to level (to some extent) the playing field and a party’s perception that its opponent should not be given the benefit of privilege, which he or she does not have before his or her own courts.

The third panel addressed another unavoidable and recurrent question, namely the impact of witnesses in international arbitration. Put simply, does witness evidence really matter? Are arbitral tribunals truly making any use of witness evidence? Are witnesses’ memories trustworthy? Reflecting on the panel, one comment in particular struck my attention: one of the problems with witnesses is that the individuals testifying are not the ones who would have something interesting to say. Is this true? Maybe in some cases it is. However, the very fact of not having those who would know something of importance on the stand may be, in and of itself, revealing.  No means of evidence is perfect, and it is the duty of arbitral tribunals to assess what is offered by the parties in support of their case. 

This last comment leads us naturally to the last topic of the day, ie, the assessment of evidence by arbitral tribunals. The key question then was, to what extent arbitral tribunals should be proactive. What are arbitral tribunals looking for? The truth? Whether a party has satisfied its burden to prove its case? Obviously, there is not one single answer to such question, and more than the background of an arbitrator, the actual circumstances of a case will define his or her conduct.

To conclude, the 20th Arbitration Day was an opportunity to listen to, and discuss with, experienced and talented practitioners about key issues encountered in arbitration, which will remain the subject of other conferences in the future, as they remain a core aspect of our work as counsel and as arbitrator.