Consequences and Prevention of False Evidence Under the English Arbitration Act 1996: A Comparative Perspective

Abstract

Keeping up the common law traditions, section 38(5) of the English Arbitration Act 1996 empowers the arbitral tribunal to administer any necessary oath or to take any necessary affirmation.1 In contrast, prevailing opinion in continental Europe considers swearing before an arbitral tribunal to be inconsistent with the nature of an oath.2 This point of view, however, does not rule out the possibility of taking sworn testimony in the course of an arbitration. If the arbitral tribunal deems it necessary for deciding the case, it may invoke court assistance for the purpose of having witnesses and/or parties examined under oath.3 In an international commercial setting, however, such a formal taking of evidence is most unusual.4 The conduct of international commercial arbitration tends to be quite informal. Thus the standard form of oral evidence is the unsworn statement, as in continental European court proceedings. In addition, international commercial arbitration usually lacks the adversarial truth-finding devices of extensive discovery and cross-examination.5 In such a situation, other tools must be found which effectively deter a party or witness from giving false evidence. Hence, the question arises whether the existing sanctions of false testimony suffice in order to provide fairness and justice in international commercial arbitration. The possible consequences of false testimony consist of criminal and civil liability,6 as well as judicial control in the form of remitting or setting aside the arbitral decision.7 These control mechanisms are primarily exercised by the state where the arbitration takes place. Even when jurisdiction for civil or criminal liability is established abroad, choice of law rules most often lead to the law of the country where the wrongful act occurred,8 which often is the place of arbitration.9 In comparing different legal systems, one observes that the extent of state …