Roger Canals 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?

Economic globalisation has brought along the globalisation of litigation. Therefore, it is becoming difficult to come across a court procedure or an arbitration procedure whereby there is not a witness who comes from a different legal culture and must speak in a different language than the one used by the Tribunal. Furthermore, it is well known that between civil and common law jurisdictions there are remarkable differences in the way of examining either a factual witness and/or an expert witness. Just to give some examples, pursuant to Spanish rules of civil procedure:

  • witnesses’ written statements are not admitted, as they have to personally appear before the Court to declare
  • witnesses have to be announced by the parties sufficient at an early stage of the procedure; beyond this point, the parties will not be entitled to propose further witnesses
  • there is no rule in Spain preventing the previous preparation of witnesses by lawyers (and, thus, it is very likely to face witnesses in Court who have been previously prepared by lawyers of the party which has proposed the witness
  • there is no rule in Spain preventing that any employee of an any given company acts as a witness in support of his/her employer company (only officers with binding faculties are prevented to act as witnesses in support of their company).

These general principles of the Spanish civil procedure statute are not always in line with those principles generally accepted in other jurisdictions or by an international organisation (such, for instance, IBA rules on taking of evidence in international arbitration).

It is thus increasingly important in Spain to adequately prepare the witnesses prior to the declaration before a Spanish state court or arbitral Tribunal, especially those witnesses coming from other legal cultures than Civil Law.

How important is witness independence when attempting to solve complex, transnational disputes? What roles can practitioners play to test for independence?

It is obvious that the credibility of witnesses is intimately linked to their independence and lack of interest in the outcome of any given court and/or arbitral procedure. This rule applies either in domestic or in international disputes. However, in Court cases in civil law countries, witness statements are not as important as they are in common law Jurisdictions (as in civil law countries, documents submitted by the parties have a key role amongst the evidence provided).

Nevertheless, as most international arbitration rules are in between civil law and common law systems, for civil law practitioners to ensure witnesses independence within an international arbitration procedure is of greater importance than in a domestic procedure (where documented evidence prevails).

In Spain, witnesses are requested by state courts (and, increasingly, by arbitral tribunals) to render its statements/declarations under oath. Thus, perhaps the most efficient way to ensure witnesses’ independence is by considering a false statement of a witness rendered before a court as a criminal offence (in Spain, perjury is punished with imprisonment that, depending on the circumstances, may reach up to two years). It is common among Spanish practitioners to warn the witnesses of the severity of committing perjury in Spain. It is uncommon to carry out any other specific tests to ensure witness’s independence (apart from those reasonable investigations to find out their connections or links with the parties of the dispute).

Although IBA rules are not binding internationally, how important are they for arbitration rules in your jurisdiction?

Neither the Spanish Arbitration Act (Ley 60/2003, de 23 de diciembre, de arbitraje), nor the arbitration rules of the main arbitral institutions in Spain, does not provide any single provision on witnesses’ examination. To fill these gaps, it is increasingly common in Spain to apply accepted international rules providing guidance on witnesses’ examination procedures, such as IBA rules on taking evidence in international arbitration (Article 4 of the last version of IBA rules passed in 2010, provides several relevant provisions on witnesses’ examination). As in Spain, the parties have absolute flexibility and freedom to decide on the rules and procedures of witnesses’ examination in any given domestic or international arbitration procedure. IBA rules are commonly accepted by the parties as a sort of guidance to design examination procedures in the procedure statements (nevertheless, other international rules are, from time to time, invoked, such as Prague Rules on efficiency in international arbitration – its Article 5 provides several provisions on witnesses’ examination procedures).

Based on the international rules mentioned, it is common within the international arbitration procedures conducted in Spain to agree by the parties that written statements of witnesses must be submitted. Only those who are requested by the parties must appear before the tribunal to declare that the tribunal or the arbitrator is entitled to refuse the statement of any given witness as evidence.