Calling Uncooperative Witnesses With or Without the Arbitral Tribunal’s Assistance

Abstract

Matthias Scherer touches on a problem frequently encountered in international arbitration, that of recalcitrant or otherwise unavailable witnesses and their forced production. His chapter illustrates practical and legal issues and how an arbitral tribunal might determine them. The chapter reports orders issued in international arbitration proceedings as well as a recent decision of the Swiss Federal Supreme Court (4A_36/2020) reviewing an arbitral award rendered in Switzerland under the SCC Rules. Production of witnesses is ordered only exceptionally, in particular if it involves request to state courts to compel a witness.

A 2020 decision of the Swiss Federal Supreme Court (the ‘Federal Tribunal’) brought to light a matter that could not be more suited for a Swiss author’s publication in the Stockholm Arbitration Yearbook: An arbitration with its seat in Switzerland, but governed by the Stockholm Chamber of Commerce (SCC) Rules.
The case touched on a problem frequently encountered in international arbitration, that of recalcitrant or otherwise unavailable witnesses. This chapter illustrates, through the ‘Swiss SCC’ case and a few other examples, how an arbitral tribunal might determine such issues. 
The plaintiff in Federal Tribunal case no. 4A_36/2020, a German pasta manufacturer, had been the unsuccessful respondent in the underlying arbitration initiated by its former United States (US) distributor. The arbitral tribunal had granted damages to the distributor (claimant in the arbitration) among others based on a sales contract between the distributor and a US customer which the distributor was unable to perform as a result of the German company’s termination of the exclusive importation and sales agreement.