By harnessing the powers of the English courts, we were recently able to arrange for overseas witnesses to be summonsed to provide evidence for use in a London arbitration.
London arbitration is rightly a popular and effective choice for international commercial shipping parties to resolve their disputes. But the international nature of arbitration disputes poses challenges. What happens if you need witness evidence to prove your case, and the witness is outside the UK and will not assist voluntarily?
This can easily happen. It can be a particular problem for intermediate charterers in a chain of disputes in arbitration which are not being dealt with concurrently or as a consolidated reference. In that situation, an intermediate party may not have access to, and therefore will not be able to rely on, witness evidence adduced in another arbitration reference in the chain.
Arbitrators have no power to compel witnesses to give evidence, wherever those witnesses may be.
The English High Court has power under s.43 Arbitration Act 1996 to compel witnesses who are within England and Wales to attend to give evidence at an arbitration hearing.
The High Court is not able to summons witnesses outside England and Wales but can, at its discretion, issue a letter of request to the court of the country in which the witness is based, for that foreign court to assist in compelling the witness to provide evidence. However, the 1970 Hague Convention on the Taking of Evidence Abroad does not cover arbitrations, and there is no express power in s.44(2) Arbitration Act 1996 to compel overseas witnesses to give evidence.
At this point, many parties to an arbitration faced with a reluctant witness overseas might give up. However, there is a way forward in these circumstances.
Recently, we successfully applied to the Commercial Court for an order under s.44(2)(a) Arbitration Act 1996 for the issue of a letter of request under Part 34 of the Civil Procedure Rules seeking evidence from witnesses abroad in connection with an unsafe port/dangerous cargo claim involving a chemical tanker. The High Court subsequently issued the letter of request.
This procedure can be of assistance to owners, charterers and others who arbitrate in London but whose trade involves other jurisdictions. Due to the discretionary nature of the High Court’s power to issue letters of request, the necessary application to the High Court must be supported by carefully prepared evidence.
The letter of request process can be protracted if judicial or diplomatic channels have to be used. The delay which this would cause to the underlying arbitration may discourage use of the process, unless the arbitrators will allow that delay. But again there may be alternatives: some countries will permit local lawyers to transmit the letter of request to the receiving judicial authority and to effect service of the local summons on the witness. Using this procedure, we were able to obtain evidence within five weeks of the issue of the letter of request.