Seminar on the Swiss Rules of International Arbitration Evidence & Hearings under the Swiss Rules Belgrade, 9 December 2015 University of Belgrade, Faculty of law Dr. Christian Oetiker LL.M., VISCHER AG, Zurich/Basel Member of the Court of the Swiss Chambers' Arbitration Institution

The Swiss Rules' Approach as to Evidence –No comprehensive rules on the taking of evidence. –The Swiss Rules set a few cornerstones. –Basic principles: Burden of proof (Art. 24(1) Swiss Rules). The arbitral tribunal determines the admissibility, relevance, materiality, and weight of the evidence (Art. 24(2) Swiss Rules). Explicit power to request the production of evidence (Art. 24(3) Swiss Rules).

Admissible Types of Evidence –Documentary evidence (wide notion of documents). –Witness evidence. –Expert evidence (party-appointed and tribunal- appointed). –Inspections (Art.16(3) Swiss Rules). –No numerus clausus.

Documentary Evidence –Cornerstones set out in the Swiss Rules: As a rule, submission of documentary evidence with that Statement of Claim and the Statement of Defence (Art.18(3) and Art.19(2) Swiss Rules). Translation of documents in a language other than the agreed language(s) (Art. 17(2) Swiss Rules). Explicit power to order the production of documents (Art. 24(3) Swiss Rules). After consulting with the parties, the arbitral tribunal may decide to conduct the proceedings on the basis of documents and other materials (Art. 15(2) Swiss Rules).

Production of Documents –Cornerstones set out in the Swiss Rules: Explicit power to order the production of documents (Art. 24(3) Swiss Rules). Default rule (Art. 28(3) Swiss Rules). –No inherent discretion to order US-style discovery or UK- style disclosure. –Application of the IBA Rules on the Taking of Evidence in International Arbitration?

Production of Documents –Other issues to be considered: Time when the requests for the production of documents need to be filed. Prerequisites which the requesting party needs to show. Time-limit for voluntarily compliance. Process for decisions to be taken by the arbitral tribunal. Time-limit for the submission of documents (as ordered). Consequences of non-compliance (negative inference). Production of documents in the possession of third parties and the consequences of non-compliance.

Production of Documents –Commonly used criteria (in the absence of a specific agreement): i.documents or category of documents are identified with a reasonable degree of specificity; ii.the documents are relevant and material to the determination of the issues in dispute; iii.the other party is in possession of the documents or can obtain them without undue inconvenience;

Production of Documents –Commonly used criteria (in the absence of a specific agreement): iv.no compelling grounds of commercial or technical confidentiality or of political or institutional sensitivity; v.no legal impediment or privilege; vi.compelling considerations of fairness and equality of the parties require the request to be granted.

Witness Evidence –Cornerstones set out in the Swiss Rules: Any person may be a witness in the arbitration (Art. 25(2) Swiss Rules). It is not improper for a party, its officers, employees, legal advisors, or counsel to interview witnesses or potential witnesses (Art. 25(2) Swiss Rules). The evidence of witnesses may be presented in the form of written statements or reports (Art. 25(3) Swiss Rules). Examination in the manner set by the arbitral tribunal, including means that do not require physical presence (Art. 25(4) Swiss Rules).

Witness Evidence –Preparation of Witnesses: Accepted practice in Switzerland in international arbitration. The witness must not be influenced. Explain the procedure to the witness and acquaint him or her to the kind of questions that will be asked. The "ten commandments" to be followed by the witness at his or her examination. Instruct the witness which are the pertinent issues. Ask the witness to review the documents.

Party-Appointed Experts –Cornerstones set out in the Swiss Rules: Any person may be an expert witness in the arbitration (Art. 25(2) Swiss Rules). It is not improper for a party, its officers, employees, legal advisors, or counsel to interview expert witnesses (Art. 25(2) Swiss Rules). Treated in the same manner as fact witnesses (Art. 25 Swiss Rules).

Tribunal-Appointed Experts –Cornerstones set out in the Swiss Rules: Explicit power of the arbitral tribunal to appoint experts to report to it on specific issues to be determined by the arbitral tribunal (Art. 27(1) Swiss Rules). Expert's terms of reference (Art. 27(1) Swiss Rules). Parties' duty to provide information and produce documents to the expert (Art. 27(2) Swiss Rules). Written report (Art. 27(1) and (3) Swiss Rules). Parties' right to comment on report in writing (Art. 27(3) Swiss Rules). Examination at the hearing (Art. 27(4) Swiss Rules).

Hearing –Cornerstones set out in the Swiss Rules: At any stage of the proceedings, the arbitral tribunal may hold hearings for the presentation of evidence by witnesses, including expert witnesses, or for oral argument (Art. 15(2) Swiss Rules). The arbitral tribunal shall give the parties adequate advance notice of the date, time, and place of any oral hearing (Art. 25(1) Swiss Rules). Without prejudice to the determination of the seat of the arbitration, the arbitral tribunal may decide where the proceedings shall be conducted (Art. 16(2) Swiss Rules).

Presentation of Oral Evidence –No specific provisions in the Swiss Rules. –Concerns evidence from fact witnesses, expert witnesses and tribunal-appointed experts.

Presentation of Oral Evidence –Witness evidence at the hearing: Prior submission of written witness statements (together with the written submissions or on one determined date). Counterparty and arbitral tribunal have the right to call for the appearance of a witness. (Usually, the party presenting a witness cannot request that the witness is examined.) Scope of the examination: –Direct examination (usually limited scope and time). –Cross examination, re-direct examination, re-cross examination. The arbitral tribunal keeps control over the process and may ask questions at any time.

Presentation of Oral Evidence –Expert witness at the hearing: Analogous to fact witnesses. –Tribunal-appointed experts: Written report as starting point. Examination by the parties. The parties may present expert witnesses at the hearing in order to testify on the points at issue (Art. 27(4) Swiss Rules).

Thank you! Contact: Dr. Christian Oetiker LL.M. VISCHER AG Schützengasse 1 CH-8021 Zurich Aeschenvorstadt 4, CH-4010 Basel