23 October 2017

Evidence

"US Spotlight" blog series: demystifying Swiss arbitration for the US litigator (Volume 4 of 10)

This blog series provides the US litigator with a practical understanding of Swiss arbitration. It compares a Swiss arbitral proceeding under the Swiss Rules of International Arbitration ("Swiss Rules"), though other rules, e.g., the International Chamber of Commerce ("ICC") Rules, are often used, with a dispute in US Federal District Court ("USDC").

Evidence
The rules of evidence in Swiss arbitration are less exacting than the US Federal Rules of Evidence. The IBA Rules of the Taking of Evidence in International Arbitration are often used as a guideline with a determination of the admissibility, relevance, materiality, and weight of the evidence subject to the discretion of the tribunal. Art. 24(2) Swiss Rules.
    
Documents are the main form of evidence in Swiss arbitral proceedings but there are no day-long examinations whereby an attorney requests that a witness testify that he did in fact send or receive an e-mail in order to establish foundation. Rather, the parties submit documents in support of their substantive pleading and those "exhibits" will presumptively be "in" evidence to be relied upon as either party sees fit in any submission. Procedural flexibility as to whether or not to admit evidence is purposefully built into the system, and a tribunal will ordinarily opt to admit evidence, even if its relevance, materiality, and weight remain open questions, to ensure that a parties' right to be heard is not violated. Art. 15(1) Swiss Rules.
   
Written witness statements are the other main form of evidence relied on by the parties. Art. 25(3) Swiss Rules. These witness statements serve a dual purpose: they introduce facts at the same time as substantive pleadings and also provide a road map for oral testimony at the hearing. Each such witness statement may be drafted in collaboration with party counsel, and it is not improper to interview witnesses, potential witnesses, or expert witnesses, though contact with witnesses is qualitatively different from what is found in US litigation. Art. 25(2) Swiss Rules. Witness declarations filed in USDC can be highly legalistic or technical, designed to establish specific, narrow points, and often unapologetically drafted almost entirely by a group of attorneys. In contrast, more care is taken in Swiss arbitration to ensure that each witness statement reflects the witness's own words. Any witness who submits a witness statement must avail himself to cross-examination at the hearing, and credibility is paramount. Art. 25(4) Swiss Rules. Nothing will jeopardize the credibility of a witness at a Swiss arbitral hearing faster than if his witness statement contains words that he does not understand.
   
While the witness submitting a witness statement will be cross-examined at the hearing, unlike a declaration submitted in USDC, witness statements submitted in Swiss arbitral proceedings are not subject to FRCP 30 styled pre-trial depositions. This is a fundamental difference between the systems, not least because US deposition practice can be more ruthless toward a witness than cross-examination at a Swiss arbitration hearing. The presumption with US deposition practice is that the witness will be examined for an entire day (FRCP 30(d)(1)), whereas witness testimony at Swiss arbitration hearings is often limited to a few hours or even less. Moreover, the tribunal has control over the cross-examination at a hearing, can ask its own questions, sustain objections from the other side, or step in if an examining attorney is being too aggressive. Art. 25(4). No such safeguards exist during day-long US styled depositions, which regularly turn contentious. The reason why witnesses who submit witness statements in Swiss arbitration are not subject to deposition may be shocking to US practitioners: there are no depositions in Swiss arbitration. This leads to the element of Swiss arbitration that American practitioners are likely to find most surprising: discovery, viz., the lack thereof.

Our Dispute Resolution Team would be happy to discuss any further questions you may have.

Author: Jim Nickovich

Prior volumes: Volume 1, Why Swiss Arbitration? Getting started; Volume 2, The organizational conference; Volume 3, Substantive pleadings

What's up next: Volume 5: Discovery (viz., the lack thereof), publication date, 13 November 2017.

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