Depositions in international arbitration are rare but do occur. A deposition is defined as “[a] witness’s out-of-court testimony that is reduced to writing (usually by a court reporter) for later use in court or for discovery purposes”.[1] While depositions are generally associated with American pre-trial discovery, they are called for in a surprising number of arbitration agreements.
The majority of international arbitration rules do not provide for depositions. Moreover, the International Bar Association Rules on the taking of evidence in international arbitration, the most commonly-used procedural framework for disclosure in international arbitration, are entirely silent on depositions.[2]
However, nothing prevents a party who is familiar with depositions to provide for depositions in the event of a dispute, for instance by adding a provision in an arbitration agreement stating that “discovery will include depositions of up to five party witnesses per side“. This may, indeed, provide a procedural advantage to parties who are familiar with depositions and their use as a discovery tool.
That being said, depositions are often absent in international arbitration for four reasons:
- First, other tools exist for a party to obtain information, namely witness statements and cross-examination of witnesses at the hearing.[3] The fact that a witness is being cross-examined for the first time by opposing counsel and members of the arbitral tribunal is said to allow arbitral tribunal to obtain more frank answers;
- Second, depositions constitute a relatively expensive discovery tool. Court reporter fees, transcript fees and other expenses must be taken into account by the parties;
- Third, depositions can be time-consuming and are not always limited only to issues in dispute. The cross-examination of a witness, to the contrary, will often focus on the statement given by the witness only;[4]
- Fourth, certain jurisdictions do not in principle allow the taking of depositions. Brazil, Russia and Austria, for instance, do not in principle allow the taking of depositions. Thus, a deponent may be required to change jurisdictions in order to have his or her deposition taken.
In international arbitration, efficiency is of course a key concern.[5] To ensure the conduct of proceedings in an efficient manner, discovery will differ from one case to another. In some arbitrations where there is no factual complexity to the case, it would be reasonable for discovery to be limited. To the contrary, in arbitrations involving very high stakes or high levels of factual complexity, discovery may be extended and the inclusion of depositions may be a useful evidential tool.
Not all arbitration rules are silent on the issue of depositions. In this regard, under Rule L-3(f) of the Commercial Arbitration Rules of the American Arbitration Association, which may be agreed by the parties to apply even to an international dispute, the arbitrator may order depositions in large, complex commercial disputes, but only exceptionally: [6]
In exceptional cases, at the discretion of the arbitrator, upon good cause shown and consistent with the expedited nature of arbitration, the arbitrator may order depositions to obtain the testimony of a person who may possess information determined by the arbitrator to be relevant and material to the outcome of the case. The arbitrator may allocate the cost of taking such a deposition.
The American Arbitration Association Rules are silent on the conduct of depositions in arbitration, however.
Similarly, the JAMS arbitration rules provide for depositions in domestic arbitration but limit them to only one for each party:[7]
“Each Party may take one deposition of an opposing Party or of one individual under the control of the opposing Party.”
Due to the lack of guidelines on the conduct of depositions under international arbitration rules, it is generally the arbitrator or the arbitral tribunal who will decide upon the time and location of depositions, as may be appropriate, in order to avoid excessively wasteful and time-consuming depositions.[8]
In summary, even if depositions are rare in international arbitration, they may be relevant in complex cases and are encountered. The parties shall meet and confer regarding the conduct of document production phase with the help of the arbitrator (or the arbitral tribunal) in order to ensure efficiency of the proceedings.
[1] Black’s Law Dictionary (11th ed. 2019), Deposition (emphasis added).
[2] IBA Rules on the Taking of Evidence in International Arbitration adopted by a resolution of the IBA Council – 29 May 2010.
[3] See e.g., IBA rules, Article 4; Article 25(1) of the ICC Rules.
[4] See e.g., IBA Rules, Article 8(2): “The Arbitral Tribunal shall at all times have complete control over the Evidentiary Hearing. The Arbitral Tribunal may limit or exclude any question to, answer by or appearance of a witness, if it considers such question, answer or appearance to be irrelevant, immaterial, unreasonably burdensome, duplicative or otherwise covered by a reason for objection set forth in Article 9.2. Questions to a witness during direct and re-direct testimony may not be unreasonably leading.”
[5] See e.g. ICC rules, Preamble: “Each set of Rules defines a structured, institutional framework intended to ensure transparency, efficiency and fairness in the dispute resolution process while allowing parties to exercise their choice over many aspects of procedure”; AAA Arbitration Rules, Rule R-21(b): “At the preliminary hearing, the parties and the arbitrator should be prepared to discuss and establish a procedure for the conduct of the arbitration that is appropriate to achieve a fair, efficient, and economical resolution of the dispute.”; JAMS Comprehensive Arbitration Rules & Procedure, Preamble: “JAMS offers efficiency, speed, and results.”
[6] Rule L-3(f) of the Commercial Arbitration Rules and Mediation Procedures of the American Arbitration Association (emphasis added).
[7] JAMS Comprehensive Arbitration Rules & Procedures, Rule 17(b) – Exchange of Information.
[8] See e.g. JAMS Comprehensive Arbitration Rules & Procedures, Rule 17(b) – Exchange of Information: “The Parties shall attempt to agree on the time, location and duration of the deposition. If the Parties do not agree, these issues shall be determined by the Arbitrator. The necessity of additional depositions shall be determined by the Arbitrator based upon the reasonable need for the requested information, the availability of other discovery options and the burdensomeness of the request on the opposing Parties and the witness”
