California’s Global Rise: Insights From International Arbitration Week

During California International Arbitration Week (CIAW), JAMS and other leading arbitration institutions from around the world participated in a weeklong series about multijurisdictional arbitration. Among other things, the speakers focused on the emergence of California as a major player on the global stage, as well as solutions to bridge gaps between countries with different legal traditions regarding the role of the arbitrator, attorney-client privilege, document production and the presentation of evidence. This article discusses some of the issues to consider when dealing with multijurisdictional arbitrations.

Bridging Legal Traditions in Multijurisdictional Disputes

Regardless of which set of rules is in effect, to some extent, the parties and the tribunals bring their legal traditions to the proceedings. It is important to understand potential misunderstandings that might arise if one of the parties is operating under one set of assumptions while the other has different expectations. Here are some of the areas where a failure to recognize may affect the process and outcome.

Jura Novit Curia (The Court Knows the Law)

Some jurisdictions empower the arbitral tribunal to apply legal principles not pleaded or relied on by the parties if the tribunal considers it is necessary to do so. Where the tribunal intends to do so, however, the parties must have an opportunity to express their views regarding those legal principles. The role of the arbitrator in these jurisdictions is summed up by Latin phrase jura novit curia. This advances the concept that the arbitrator is presumed to know the law and therefore may apply it as they see fit provided the parties have an opportunity to argue for or against the application of those principles. The failure to recognize this principle may result in a party neglecting to deal with unpled principles and theories that might ultimately be relied upon by the tribunal to a party’s detriment. Panelist Dr. Ileana Smeureanu (Paris), who has participated in multijurisdictional arbitrations in France, Switzerland, Sweden, Finland, Germany and Eastern Europe, and panelist Dan Perera (Singapore), who has done so in the diverse Asia-Pacific jurisdictions, provided examples of how this type of misunderstanding can affect the outcome. Panelist Carolina Nunez (California) cautions that when drafting an arbitration clause, parties should think about these differences to make certain that they include the procedures they want to govern their arbitrations.

Evidence

The presentation of evidence in some systems (usually those based upon a civil law system) is based upon a belief that documents are the best source of evidence. These systems allow limited oral testimony, give the tribunal broad discretion regarding witness participation and empower the tribunal to control the examination. Instead of presuming the centrality of oral testimony, the expectation is that the tribunal and the parties will seek to resolve the dispute on the documents alone.

On the other hand, other jurisdictions (usually those based upon a common-law system) tend to be skeptical of any fact, unless a witness has testified under oath as to its truth. Unlike most civil-law systems, where witness preparation is often viewed as a form of manipulation, pre-arbitration preparation of a witness is considered essential to effective advocacy, and cross-examination is important in the common-law tradition.

Document Production

The rationale for discovery in common law is that justice can be achieved only if both parties have access to the same materials. Thus, a party must produce not only documents it intends to rely upon, but also those that might have an adverse effect on its case.

On the other hand, in civil-law countries, the parties present only the documents upon which they intend to rely—a concept foreign to, though not always voluntarily honored by, lawyers trained under the common-law system. The failure to clarify these different approaches at the front end of the proceedings may result in an uneven and potentially unfair document production. Modern arbitration statutes and rules typically allow the parties to agree on the procedures and evidentiary rules that will be applicable to their dispute. In the absence of such an agreement, however, the arbitral tribunal may have wide discretion to determine many important procedural matters. Panelist Dr. Kabir Duggal (New York) discussed that a failure to understand the assumptions underlying document production and evidence presentation in different systems can be detrimental to the preparation and presentation of a party’s case.

Attorney-Client Privilege

In France, in-house counsel’s communications with other employees (nonlawyers) are not protected by the attorney-client privilege, except for internal communications “referring to” or restating the strategy developed by outside counsel. The concept that these communications are not privileged would astonish lawyers from most jurisdictions. As a practical matter, Article 22 of the International Centre for Dispute Resolution’s (ICDR) International Dispute Resolution Procedures provides that when different privilege rules apply to different parties—i.e., American and French parties—the tribunal should give “preference to the rule that provides the highest level of protection.”

Other issues arising in multijurisdictional arbitrations include the selection of counsel and arbitrators depending on whether the applicable rules lean toward a civil-law versus a common-law system, as well as different expectations in the allocation of legal costs. Panelist Sofia Gomez Ruano (Mexico City) highlighted the fact that in the absence of an agreement, arbitration rules often grant tribunals wide discretion in determining the allocation of costs. As a result, there is no uniform approach, because arbitrators, in the exercise of their discretion, are often influenced by the laws of their own or a party’s country of origin or the seat of the arbitration. Therefore, it is crucial that the arbitration agreement expressly specify whether the prevailing party is entitled to an award of costs.

Both the formal presentations and networking that occurred at the California International Arbitration Conference demonstrated the importance of sharing ideas, not only through written materials, but also through meeting and interacting with arbitrators, attorneys and providers of ADR services across the world.

Hon. Glenda Sanders (Ret.), a retired California Superior Court Judge, Orange County, is now an arbitrator and mediator with JAMS. She has practiced and trained under both civil and common law systems.

Laura Abrahamson, Esq., FCIArb, is an arbitrator, mediator and court-appointed neutral with JAMS. She also serves as president of California Arbitration, Inc. (CalArb) and was co-chair of the 2025 California International Arbitration Week.