Judicial Assistance in the Taking of Evidence Abroad in Aid of Arbitration: A German Perspective

Abstract

Today, recourse to international judicial assistance in aid of arbitration seems not to be very frequent, since most often the parties to the arbitration are the ones who arrange for the necessary proof in support of their arguments to be presented to the arbitration tribunal. What seems to happen most often is that, when a person refuses to testify, the party who has an interest in having her heard does not insist on obtaining her statement at any cost, but rather prefers to do without testimony that might be unfavourable. However, there are cases in which a procedure for the cross-border taking of evidence may prove useful. Focusing on the issue of whether states' courts have a legal duty to support not only domestic arbitration, but also foreign arbitral tribunals, the judicial divide is deep. The majority view, based upon the general theory that arbitration is a private matter for contracting parties, as is the taking of evidence from a common law point of view, holds that it would be excessive to oblige a state to lend assistance to arbitral proceedings held outside its own territory. This paper opposes the traditionalist approach, in order to pave the way to a more liberal and effective system of international judicial assistance. The plan is to begin by exploring the legal avenues by which arbitral panels can obtain evidence abroad and seek judicial assistance of foreign states' courts de lege lata. Then the impact of the newly established, arbitration-friendly US case-law on judicial assistance as granted under 28 USC section 1782 will be studied. Finally, the new US jurisprudence will be used as the basis to argue for a different attitude towards arbitration proceedings than that now prevailing under the Hague Evidence Convention of 1970 and under the European Evidence Regulation of 2001. Both instruments should be interpreted to encompass international arbitral tribunals.