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?
After hearing Alfredo, I feel like we are talking about similar issues because what happens in the Dominican Republic is very similar to Argentina. We have a very clear distinction between witness of facts and technical witness.
Dominican law follows the civil code system in arbitration, which are commercial and civil matters and, in these issues, the documents are the evidence for action.
You only call witnesses in commercial and civil cases when there are facts that cannot be proven by document.
As for the expert, in the Dominican Republic you appoint three different experts – everybody’s entitled to one expert and then the court appoints its own expert. It’s a way of one party says, the other party says, and then there is the expert for the court. There is the possibility of having a sole expert that the parties agree to and are confident that that expert is independent and will provide the expertise in accordance with his best knowledge. But that is very rare. Usually every party will look for their own expert and allow the court to have a star expert who’s like the casting vote in the case
The judge or arbitrator is smart enough to realise by the line of questioning and the way that they respond to these questions, whether the witnesses are reliable or not.
How important is witness independence when attempting to solve complex, transnational disputes? What roles can practitioners play to test for independence?
With the Dominican Republic being always the smaller country when dealing with international investors, when we go to arbitration one of the parties, usually the foreign one, will impose an international arbitration usually because of their reluctance to be submitted to local arbitration and potentially be subject to bias.
Going through an international arbitration, on the Dominican side, you always need to be concerned that the arbitrator appointed – especially if Dominican law is going to rule – is knowledgeable of Dominican law, which is not usually the case.
Also, as in Argentina, we are fond of ICC. The typical Dominican negotiation of an international arbitration would be either ICC in Paris or ICC in Miami for the locality and the possibility of finding a lawyer who also speaks Spanish and can discuss the case with a client in Spanish.
There’s a larger situation here, which is about appointing arbitrators who might know Dominican law. With ICC we could find that the arbiter panel would be composed of perhaps a Dominican lawyer or a Dominican law expert. And that would be fine, but that would create some sort of advantages. Then we might see the possibility that the arbitrators have to appoint a local expert in the law, that it would be like a consultant for the job to understand the minutiae of local law that might be involved in the case. That for me is the more challenging part; to make sure that the lawyers of that practice in the country where the arbitration is taking place get familiarised with the law and also offer arbitrators who could understand the law and what is in play in the conflict ahead.
Although IBA rules are not binding internationally, how important are they for arbitration rules in your jurisdiction?
We don’t usually follow the IBA rules in the Dominican Republic. In my experience, the only aspect of the rules that I see arbitrators using in many cases are on conflict of interest.
That’s basically the only reference they do to the guidelines, which is in order for the arbitrator to disclose different levels of potential conflict of interest in their being appointed as arbitrators in the matter. Other than those guidelines I’m not familiar of any other of the aspects of the rules that are implemented in the Dominican Republic.