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Young ICCA - CICA (AMCHAM) Skills Training Workshop

Procedural Aspects of Evidence Taking in International Arbitration

San José, Costa Rica

December 5, 2017

Prepared by: Andrea Zumbado, Associate at Dechert LLP, Paris.

On December 5th, 2017, Young ICCA and the International Center for Conciliation and Arbitration of Costa Rica (CICA) organized the first Young ICCA event held in Central America. The topic addressed was “Procedural Aspects of Evidence Taking in International Arbitration”.

The event was divided into two panels, both of which were composed by highly experienced practitioners from the Latin and North American regions. 

Karima Sauma, Executive Director of CICA, moderated the first panel on “Document Production”. The speakers Ricardo Chirinos, Freshfields Bruckhaus Deringer LLP, Nueva York, René Irra, Cuatrecasas, México D.F., Ari D. MacKinnon, Cleary Gottlieb Steel & Hamilton LLP, New York and Mauricio Salas, BLP, San José, contributed with their remarks on the importance of documents and document production to the arbitration process.

During this panel, Ricardo Chirinos shared his experience on the importance of examining the documents throughout the different phases of the arbitral process. He pointed out the relevance of analyzing the quantity and content of most of the documents in order to pitch for the case, formulate a RFA, and negotiate the terms of the procedural order. Mr. Chirinos also explained in a broad manner the purpose and applicability of the IBA Rules on the Taking of Evidence in International Arbitration.

Ari D. MacKinnon discussed the production of documents in the United States and the United Kingdom. He acknowledged that the document production process is long, expensive and highly criticized due to its contribution to the increase of costs in the arbitral process. To the question of what should counsel do when presented with “bad documents”, he replied that it is important to perform a comprehensive analysis of all the documents shortly after or even before the Request for Arbitration. Most “bad documents” can be explained, thus in his opinion the best strategy is often to file them beforehand, assuming that the other party will eventually find them. This will allow presenting a credible explanation in the context of other documents.

Mauricio Salas commented on the evolution of the document production in Costa Rica, which has been gradually accepted by some tribunals on the basis of general principles of law, as good faith. He explained that the new Civil Procedure Code would enhance the applicable legal framework, by including similar rules to those in international arbitration. Those new rules are related to the collaboration between the parties and the negative inferences that a tribunal may draw if the parties fail to produce a document. In order to advance in the document production locally, he recommended to improve education at law schools, to enforce the sanctions for concealing documents and using the Redfern Schedule in order to discuss the relevance of each document and avoid fishing expeditions.

René Irra explained the negative inferences in international arbitration. He pointed out that a negative inference is the discretionary authority of an arbitral tribunal to force a party to produce the documents on its possession. If the party does not produce them, then the tribunal may sanction it by drawing negative inferences. He clarified that the negative inference does not substitute the parties’ duty to comply with their burden of proof. It is rather an additional element to bring efficacy to the document production process. He also explained that the arbitral tribunal does not have the authority to force third parties to produce documents. In some jurisdictions, the parties can request local courts to force a party to produce certain documents.

Andrea Sesin-Tabarelli, international trainee at Lalive, Geneva, moderated the second panel on “Witnesses and Experts”. The speakers Dyalá Jiménez, DJ Arbitraje, San José and Richard C. Lorenzo, Hogan Lovells LLP, Miami, held a lively discussion on the purpose of the hearing, cross-examination of witnesses and experts, and the contribution of technology to international arbitration.

Richard Lorenzo noted that hearings are an important part of arbitration. They allow attorneys to present their case to the tribunal in a creative way.  Lawyers should aim at convincing the arbitrators that their case theory is the right one. They should also make sure that the tribunal focuses on the relevant documents of the case. He pointed out that during cross-examination, the purpose is to discredit the witness statement and emphasize certain documents to the tribunal. When explaining the different types of cross-examiners, he noted the importance of practice, flexibility and framing effective questions in order to achieve the purpose of the interrogation. Finally, he highlighted the role of technology in international arbitration. Nowadays, a hearing room is filled with technology, from ELMO Projection Devices to computers.

Dyalá Jiménez shared her experiences both as an arbitrator and as counsel. She shared her insights on the importance of the hearing to the decision making of the tribunal. In her opinion, when the cross-examination is held, the tribunal wants to understand what happened. If the person doing the cross-examination is attacking the witness and the opposing counsel is constantly raising objections, this distracts the tribunal. Every question should have a purpose and should be concise. She also added that the tribunal has the responsibility to ask questions to have a clear knowledge of the situation.  Finally, among other remarks, she emphasized that arbitrators should prepare ahead some questions to the experts. She explained other ways to cross-examine experts, for instance witness or expert conferencing or so-called  hot-tubbing them.

The event was closed by Herman M. Duarte, founding partner of Hduarte-LEX, talking about the importance of the promotion of arbitration and celebrating the first Young ICCA event in the Central American region, making it clear that Central America is a region to keep an eye on.