Arbitral proceedings

In a transnational arbitral proceeding, a party sought to hear a witness who had not submitted a written witness statement and the tribunal heard such oral testimony.

The set aside Court

A challenge to such award was made for violation of the right to be heard or the principle of equal treatment.

The Court rejected the application.

The petitioner applied to the Supreme Court to review such decision.

The final Court decision

In its Decision 4A-74/2019 the Swiss Supreme Court dealt inter alia with the petitioner’s argument that, because of the lack of a witness statement, he had been unable to adequately prepare his cross examination.

The Supreme Court in rejecting this application on various grounds, held that the petitioner had had the possibility to prepare for the cross examination during a short break.

Comments

The above judgment calls for two comments.

First it is submitted that – even if the practice of witness statement is nearly general – if a party advises that it has not obtained a witness statement from a witness, this does not indeed prevent it from calling such witness to render oral testimony.

If that would not be allowed, then a violation of due process would indeed be committed.

The second comment concerns the issue of the preparation of the cross examination.

It is not possible to make a deeper comment in the absence of specific information as to the hearing and its break.

While the length of time to properly prepare for a cross examination is indeed not standard and each time will depend on many factors, it seems important to register that a “short break” cannot be the general rule as to the length of a proper preparation for a cross examination.