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12 Witness subpoenas

206 THE BASIC ISSUE is whether parties to an arbitration should be permitted direct access to a court to obtain a subpoena (as was the position under the 1908 Arbitration Act) or whether the request should be made through, or with the consent, of the arbitral tribunal (as is the present position). In paragraphs 61 and 62 of our preliminary paper we said:

61 Article 27 of the Act provides:

27. Court assistance in taking evidence

(1) The arbitral tribunal or a party with the approval of the arbitral tribunal may request from the court assistance in taking evidence. The court may execute the request within its competence and according to its rules on taking evidence.

(2) For the purposes of paragraph (1),

(a) The High Court may make an order of subpoena or a District Court may issue a witness summons to compel the attendance of a witness before an arbitral tribunal to give evidence or produce documents:

(b) The High Court or a District Court may order any witness to submit to examination on oath or affirmation before the arbitral tribunal, or before an officer of the court, or any other person for the use of the arbitral tribunal:

62 Compared with procedures in the High Court and the District Court, the procedure under the Act has significant disadvantages. It requires two applications: first from a party to the arbitrator and then from the arbitrator (or a party with the consent of the arbitrator) to the court. It is also unclear whether the arbitral tribunal should deal ex parte with an application for consent or whether the application should be on notice to other parties. That lack of clarity is also undesirable. Under the Arbitration Act 1908 it was possible to obtain subpoenas from the High Court as of right upon the filing of a praecipe.

207 The competing contentions on this issue can be summarised as follows:

• The view that the arbitral tribunal should retain its role in screening applications for witness subpoenas is based on a perceived need for arbitrators to control the arbitral proceedings. The AMINZ submits that the arbitral tribunal, rather than the parties, should control proceedings subject only to the equal treatment provisions of Article 18 of the First Schedule. The AMINZ says:

In relation to witnesses who will not appear voluntarily, the arbitral tribunal presently acts as a useful filter. Experience has shown that an approach to the tribunal may reveal that there is no need for the proposed evidence. In addition, the tribunal and/or the opposing party may be able together to facilitate the voluntary attendance of the witness, or it may be possible to reach an agreement under which the relevant facts to be adduced by the witness can be provided in another way.
Furthermore, it may be disruptive and inefficient for a party to be able to go to court to obtain a subpoena without any reference to the tribunal.

• Direct access to the court to issue a subpoena should be permitted because it is a matter for the party calling the witness to decide which witnesses it wishes to call. In that regard, we also note that no specific problems have been identified to us which suggest any problem with the direct access approach evidence under the 1908 Act.

208 Article 19 of the First Schedule to the Act makes it clear that the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings.²¹⁴ Only if there is no such agreement is the arbitral tribunal entitled to conduct the arbitration in such a manner as it considers appropriate.²¹⁵ Read as a whole, it seems to us that the thrust of Article 19 is to put the control of the proceedings in the hands of the parties in the first instance with the arbitral tribunal having power to impose procedural rules on the parties if they fail to agree.

209 Article 27 is arguably inconsistent with the broad theme of the 1996 Act of party autonomy. In this regard, however, we note that Article 27 is derived from the UNCITRAL Model Law. Two points are, we think, relevant in that regard:

• In determining the form of Article 27 it was necessary to balance competing interests of common law and civil law countries. Judges in civil law countries exercise greater power over who may be called as a witness than those exercising similar jurisdiction in common law countries.²¹⁶
• The Model Law is a model law on international commercial arbitration and is therefore designed to take account of international issues. In that context it may be seen as appropriate for an arbitral tribunal to screen requests for the issue of a subpoena²¹⁷ which may require witnesses to travel from another jurisdiction.

210 In a domestic context, it is usual for an arbitral tribunal to direct, as a matter of procedure, that briefs of evidence be exchanged in advance of the arbitration. But, the arbitral tribunal seldom, if ever, directs whom a party may call. Why, then, should an arbitral tribunal have power to refuse a request from a party to call a witness who will not co-operate in providing a brief of evidence? It seems to us that power should properly reside with the parties, with the intended witness then having the right to apply to set aside the subpoena in the High Court or a District Court.

211 The view that we take is consistent also with our recommendations with regard to confidentiality and the administration of justice exception. We think it is preferable for any challenge to the issue of a witness subpoena to be made to a court rather than be dealt with privately by an arbitral tribunal.

212 We recommend that Article 27 be amended so that the prior approval of the arbitral tribunal is not required before court assistance is sought to take evidence.