[AMICUS CURIAE] During the Paris Arbitration Week events, a lot of interesting issues were raised. Although the format of the blog does not allow us to get into the details, here are the most recent arbitration problems all over the world.
Different approaches to witness evidence in international arbitration
One of the most debatable topics is the attitude to the preparation of witnesses before the hearings. Such witness coaching is widespread in the American legal culture. Lawyer is expected to prepare witnesses and can even rephrase what they say. The only limit is that an attorney can’t make his witness to say something which he knows is false. In the Switzerland, such approach is unacceptable. In France preparing of witnesses is usually seen as a part of a mission of international commercial lawyer. However, it should be noted that there is a clear line between witness-coaching and witness familiarisation. Such diversity in the approaches may create a problem in cross-border proceedings involving lawyers from different legal cultures. If one witness was coached by his lawyers and the other was not, it creates imbalance. Another problem is that lawyers in international firms usually come from various jurisdictions with different ethical rules.
When arbitration and criminal law collide: common law and civil law questions and answers
This topic is difficult to generalize and it is important to analyze it on case-by-case basis. As a rule, in such cases French courts do not go into the details of the case, they just review the award. In English law, there is no restriction on arbitrability of allegation in illegality in civil disputes. Issue of corruption does not affect validity of arbitration clause. Another topic discussed was the approach of the courts towards processing illegally obtained evidence. There is no rule in English law that such evidence must be excluded unless it is a confession obtained through the torture. The only requirement is that the evidence must be relevant to the case. This is completely opposite to the civil law approach.
Annulment and enforcement of arbitral awards against the States
In France, the overall risk of annulment is higher compared to Sweden or Switzerland, especially in general commercial arbitration. In the Netherlands, the Arbitration Act 2015 confirms restrictive attitude to the annulment. The Swiss courts have a clear hand-off approach and usually rule in favor of the winner of the award.
