On 12 February 2015, the New Zealand High Court upheld jurisdiction to order witnesses to appear before foreign and domestic tribunals.
This decision seems to imply that the New Zealand High Court agrees to give assistance to an arbitral tribunal, which can now request an order for evidence, including notably the examination of witnesses or the production of documents.
On 5 September 2013, Dalian Deep Water Developper, Claimant, submitted a Request for arbitration against Cosco, Respondent, before the London Court of International Arbitration (LCIA) for the alleged repudiatory breach of the contract entered into between those parties for the construction of a drilling ship.
During the arbitral proceedings, Respondent submitted a written witness statement from Sveinung Dybdahl, one of its former employee, who lived in New Zealand. However, Mr. Dybdahl subsequently refused to appear as a witness before the arbitral tribunal.
In these circumstances, Claimant, upon leave of the arbitral tribunal, filed a lawsuit before the New Zealand High Court to obtain an order compelling Respondent’s former employee to attend the arbitral hearing and to be heard as a witness.
The application before the New Zealand High Court was made under Section 184 of the Evidence Act of 2006 entitled “Application to High Court of assistance in obtaining evidence for civil proceedings in another court”, pursuant to which:
“The High Court or a Judge may exercise the powers conferred by section 185(1) if an application is made to the High Court or a Judge for an order for evidence to be obtained in New Zealand and the court or Judge is satisfied
(a) that the application is made to implement a request issued by or on behalf of a requesting court; and
(b) that any requirements prescribed in rules or regulations made under section 200 as to the form of the application and the manner in which it must be made are satisfied; and
(c) that the evidence to which the application relates is to be obtained for the purposes of civil proceedings which either have been instituted before the requesting court or whose institution before that court is contemplated”.
According to Section 185 of the Evidence Act, the High Court or a Judge may notably order “the examination of witnesses, either orally or in writing at any agreed time or at any specified time and place” or “for the production of documents”.
For the purpose of these provisions, Section 182 of the Evidence Act of 2006 states that “requesting court means any court or tribunal exercising jurisdiction in a country or a territory outside New Zealand”.
The issue raised by the proceedings before the High Court was whether a party involved in an arbitral proceeding could, upon leave of the tribunal, request a Court to issue an order for evidence on the basis of the Evidence Act of 2006. In a nutshell, the New Zealand High Court considered that “the task is to ascertain the meaning of “tribunal” in the definition of requesting court in s 182 of the Evidence Act” (§ 26 of the judgement of the New Zealand High Court).
The applicant stated that “the widely definition of “tribunal” includes arbitral bodies” (§13 of the judgement of the New Zealand High Court) so that the Court make orders applying to arbitration proceedings.
To the contrary, Respondent’s former employee contended before the New Zealand High Court that the provisions of Section 182 of the Evidence Act of 2006 should be given a restrictive meaning, excluding arbitral tribunals from the definition of the “tribunal”. He argued that “the plain meaning of the definition was to tribunals “exercising public judicial authority over a geographic aera” (§20). Moreover, “the defendant states that “the meaning of “tribunal” is coloured by the use of the word “court”” and should only apply to judicial bodies (§22 of the judgement of the New Zealand High Court). Therefore, rules of evidence could not apply to arbitration proceedings but only to judicial bodies.
On 12 February 2015, the New Zealand High Court applied an extensive definition of a “requesting court” by holding that “the definition of requesting court in s182 includes an arbitral tribunal such as the LCIA tribunal which [the judge] consider[s] is exercising jurisdiction in England, that being a country outside New Zealand. Consequently [the judge] accept[s] that the High Court has jurisdiction to entertain the current application” (§41 of the judgement of the New Zealand High Court).
It is the first time that the New Zealand High Court has ruled on this particular issue, stating that an arbitral tribunal can be considered as “a requesting court” and, as a consequence, may file an application for evidence orders pursuant to the Evidence Act.
By deciding that an arbitral tribunal is a requesting court, this judgment will be a considerable help for arbitral tribunals to obtain evidence under Sections 184 and 185, notably to compel an unwilling witness in New Zealand to testify.
Of course, the Court has overriding discretion to accept or reject any request for evidence, according to the circumstances. The Tribunal will control that the required criteria, such as the necessity of the evidence for the purpose of the proceedings, are fulfilled.
It also remains to be seen whether this quite unexpected solution will be confirmed in the coming years as it deviates from other decisions, held notably by Canada regarding the Ontario Evidence Act (BF Jones Logistics v Rolko – 2004).
The New Zealand High Court’s decision can be quite surprising because the provisions of the New Zealand Evidence Act were indented to reflect the Hague Convention, to which France is a party, that provides for assistance to foreign courts but not to foreign arbitral tribunals. Indeed, although it would be legitimate to wonder whether the provisions of the Hague Convention could apply to an arbitral tribunal, the drafters of the Convention clearly excluded in the Explanatory Report arbitral tribunals from the definition of a “judicial authority”. This is confirmed by Article 736 of the French Code of Civil Procedure, which refers to “foreign states” (cf. draft practical handbook on the operation of the evidence convention of March 2014).
This major issue regarding access to evidence has been debated in France mainly when the reform of the French Arbitration Law was adopted on 13 January 2011 (n°2011-48). This reform gave rise notably to a new version of the article 1467 of the Code of Civil Procedure, which now states that:
“The arbitral tribunal shall take all necessary steps concerning evidentiary and procedural matters, unless the parties authorize it to delegate such tasks to one of its members.
The arbitral tribunal may call upon any person to provide testimony. Witnesses shall not be sworn in.
If a party is in possession of an item of evidence, the arbitral tribunal may enjoin that party to produce it, determine the manner in which it is to be produced and, if necessary, attach penalties to such injunction.”
This article must be read in conjunction with the article 1469 of the same Code, according to which:
“If one of the parties to arbitral proceedings intends to rely on an official (acte authentique) or private (acte sous seing privé) deed to which it was not a party, or on evidence held by a third party, it may, upon leave of the arbitral tribunal, have that third party summoned before the President of the Tribunal de grande instance for the purpose of obtaining a copy thereof (expédition) or the production of the deed or item of evidence.
Articles 42 through 48 shall determine which Tribunal de grande instance has territorial jurisdiction in this regard.
Application shall be made, heard and decided as for expedited proceedings (référé).
If the president considers the application well-founded, he or she shall order that the relevant original, copy or extract of the deed or item of evidence be issued or produced, under such conditions and guarant […]”.
This debate provided the French practitioners an opportunity to examine what an arbitral tribunal could do when faced with an unwilling witness.
The French applicable provisions are different when dealing with a production of documents or a witness statement.
The use of the article 1469 of the Code of Civil Procedure allows a party, upon leave of the arbitral tribunal, to summon a third party before the judge to obtain the production of documents. On the contrary, the Code of Civil Procedure does not give the arbitral tribunal the power to compel a witness to testify. The applicable law is related to the fact that an arbitral tribunal has no imperium. However, the arbitral tribunal will nevertheless draw the consequences of such a refusal and may refuse to take into account the written statement given by a witness who refuses to be heard (Comité Français de l’Arbitrage 2011, Volume 2011 Issue 3 pp. 864 – 870).
The decision of the New Zealand High Court is welcomed has it provides an arbitral tribunal with the opportunity to seek help from a New Zealand judicial authority in order to compel a witness to testify under the New Zealand Evidence Act, unlike what is provided in the French Arbitration Law.
The decision is available here.