Dr Alfredo L. Rovira features in the IR Global Disputes Virtual Series – Fairness & Impartiality: Are witnesses truly independent in your jurisdiction?
Foreword by Andrew Chilvers
Global commerce is by its nature a complex beast and it is inevitable that sometimes disputes arise between companies doing business across the world.
As more international deals are signed off – often in greater degrees of complexity than will have been done in the past – it has also led to a rise in the number of disputes that end in arbitration.
Indeed, international arbitration was the preferred method of dispute resolution for 97% of respondents in the 2018 International Arbitration Survey, conducted by the School of International Arbitration at the Queen Mary University of London, in association with White & Case LLP.
Moreover, 99% of respondents said they would recommend international arbitration to resolve cross-border disputes in the future – which shows the strength of the system across the world.
An important aspect of the arbitration process is the use of expert witnesses. There are few cases where an expert witness is not called on to give evidence on a range of technical, financial, legal and, on occasion, scientific issues to help the arbitration tribunal to understand the evidence on complex matters and help them form a decision.
Those involved in disputes must be aware of how expert – and also the fact – witnesses are used in different jurisdictions, as this can vary markedly between territories.
The independence of witnesses is a subject that crops up repeatedly – especially around who they serve, their effectiveness and how they are viewed by judges in arbitration tribunal panels.
Another factor that must be considered is the different rules between jurisdictions and the impact that can have on proceedings. Many jurisdictions have their own arbitration rules, and there are also the international ICC and IBA rules to consider, among others. Often, the litigant will try to steer proceedings to use their home rules – and if they are unfamiliar to the other party, they will need to engage experts in the local laws.
How important are cross-cultural issues regarding arbitration rules and witnesses in your jurisdiction?
From an Argentine law perspective, it’s important to distinguish between types of witnesses. First, a witness of fact will declare he or she participated or made a declaration based on something that has been learned not because somebody else has told him or her, which would not be taken as a valid testament.
On the other hand, a witness expert is somebody who is called on to testify on technical issues that he or she should be an expert in, and they should be able to prove sufficient qualification to do so. Myself, I am an expert witness in Argentine law, in international litigation, and the fact that I am a professor of law qualifies me to do that kind of job.
Qualifications for acting as an expert witness would depend not necessarily on the fact that you are a professor of law. But if you can prove to an Argentine court or an arbitration being held in Argentina that you have enough expertise supported by evidence that can illustrate that.
The Argentine legal system is similar to the Dominican Republic system. If you’re talking about a judicial proceeding, the judge appoints the expert. The parties do have the chance to appoint a party expert. But, in reality, the judge only relies on the opinion of the expert appointed by the court, who is deemed to be neutral and independent, and who must make a declaration of independence upon accepting the office that has been appointed. The Supreme Court of Justice of Argentina, the chambers of a few different jurisdictions, do have a roster that is updated on a yearly basis, which comprises experts on different areas such as engineering and architecture.
We need to make a distinction between arbitration and judicial proceedings in arbitration. Normally, you provide statements in writing from the expert witness. Later in the tribunal, the positions put in writing by the expert witness may be challenged by the opposing party and conduct a kind of cross-examination. The witness of fact doesn’t make any declaration in writing, they have to appear at the court. There is a hearing where the party testifies in front of the court or sometimes the court clerk if the judge is unavailable. In some courts now they film the witness testimony so that the judge may see their face and their reaction to the cross-examination and determine the independence of the witness.
How important is witness independence when attempting to solve complex, transnational disputes? What roles can practitioners play to test for independence?
Basically, we are dealing with the same issues. The rules for arbitration are critical in determining the procedures to be followed. And normally if you go into international arbitration, the proceeding you use most often is the ICC.
ICC arbitrators, at least in this jurisdiction, are inclined to use the IBA rules on producing evidence, which is something which generally has been accepted by our community and considered to be a good guideline for arbitrators to follow as well as to counsel to the parties so that everybody knows what is going on.
The cultural difference may have a heavy impact in the testimony, knowing the individuals, knowing the social profile of the individual is something important in order to also determine how he could react in a cross-examination process.
Normally, you have an interview prior to the hearing to understand how the guy will react to different questions he might be posed. Not to induce him to tell a lie, but to make sure that he understands the process, that he doesn’t get surprised, that he doesn’t get into a situation where he feels nervous and forgets to testify on the relevant issues of the case.
In Argentina, we don’t have the discovery process that they have in the US. So one of the difficulties you have when you are entering into litigation, either in judicial courts or arbitration, is that you need to know the evidence you are going to be using in court or the arbitration tribunal from day one because you cannot do what we would call a ‘fishing expedition’ in trying to find out which evidence you can find useful in defending your case. That on one side gives you a limitation but on the other side prevents surprises that sometimes happen when you go through a full discovery process.
Although IBA rules are not binding internationally, how important are they for arbitration rules in your jurisdiction?
That’s an issue that normally is presented in cases where Latin American parties go into AAA. They think they have to make that choice in the contract whether to submit to AAA or not. Most people tried to go through ICC proceedings because they believe that the ICC would be more welcoming. The IBA rules as opposed to going into the AAA, which they are scared of because of the cost of the proceedings. Even though AAA is less expensive, the proceedings themselves look to be more expensive under the AAA rules than under the ICC.
ICC arbitrators, at least in this jurisdiction, are inclined to use the IBA rules on producing evidence, which is something that generally has been accepted by our community and considered to be a good guideline for arbitrators to follow as well as to counsel to the parties so that everybody is knowing what is going on.
I believe the IBA rules have been a wonderful attempt to narrow the bridge between the Anglo-Saxon system and the civil law system, particularly in terms of how to approach the basics of producing evidence. Defining what impartiality means when it clearly sets the principle that independence means not only that the work has to be alien to the parties, but also to the legal advisers intervening in the case as well as the members of the tribunal. So there is no possible bias that may affect the neutrality and independence of the witness testimony. That would apply not only for expert witnesses, but it is also helpful for a witness of fact.