LEBANON Law and Practice Contributed by: Mohamed Alem, Mazen Ghosn and Rana Kahwagi, Alem & Associates
8.3 Powers of Compulsion Arbitrators in Lebanon do not have coercive powers and therefore have very limited powers of compulsion. The NCPC is silent on the power of arbitrators to com - pel parties to produce documents. While Article 780 of the NCPC refers to the arbitrators’ power to order the production of documents, it does not mention the measures available to the arbitrators in the event that the requested evidence is not produced. This does not mean, however, that arbitrators cannot draw nega - tive inferences from a party’s refusal to produce the requested evidence. With respect to the attendance of witnesses, while arbitrators do not have the power to order a witness to attend a hearing, they may rely on the assistance of state courts to impose penalties on recalcitrant wit - nesses (Article 779 (3) of the NCPC). Similarly, arbitra - tors may request the competent state courts to issue a letter rogatory for the purpose of hearing the case (Article 779 (3) of the NCPC). The Lebanese Arbitration Law does not expressly confirm the obligation of confidentiality in arbitral proceedings. However, it is well established in Lebanese case law that Article 553 of the NCPC, which governs the issu - ance of awards, does not require arbitral awards to be made public, as is the case with state court judg - ments, given the private and inherently confidential nature of arbitration (Court of Appeal of Beirut, 9 Octo - ber 2003, Decision 1404/2003). 9. Confidentiality 9.1 Extent of Confidentiality Moreover, according to Article 788 of the NCPC, the deliberations of the arbitrators must remain secret. There is no corresponding provision in the section of the NCPC governing international arbitration.
role of investigating rather than delegating the control of the adversarial process to the parties. The NCPC provides a wide range of evidence that may be used, such as the production of documents, the use of testimony (whether oral or in writing) and the use of experts. In commercial disputes, evidence can be brought by any means. However, Lebanese procedural rules are based on the principle that no one can produce evidence for themselves. As a result, documentary evidence pre - vails over witness testimonies, which in any case is often produced by third parties unconnected to the party that collected it. Moreover, due to the inquisi - torial nature of the Lebanese system, witnesses are usually questioned only by the judge and very rarely by the lawyers. Furthermore, discovery procedures are not permitted under Lebanese law, as the parties’ request for dis - covery must be specific and subject to restrictive con - ditions, while the judge has wide discretion to grant or deny the request. In the context of international arbitration, arbitration practitioners have generally embraced the balance between the procedural rules of the civil law tradition and those of common law systems. It is therefore not uncommon for parties to international arbitrations to refer to the IBA Guidelines on the Taking of Evidence in International Arbitration in the terms of reference. 8.2 Rules of Evidence Arbitrators can use a wide range of measures to gath - er evidence in Lebanese-seated arbitrations. They can order the parties to disclose any evidence in their possession (Article 780 of the NCPC) and also have the power to hear witnesses without putting them under oath (Article 779 (2) of the NCPC). Arbitra - tors also have the power to rule on allegations of the inauthenticity of signed (or handwritten) documents (Article 783 (1) of the NCPC). More generally, arbitra - tors are expected to investigate the case (Article 779 (1) of the NCPC), which includes taking all necessary steps, including the appointment of experts, unless their mandate does not allow for it.
425 CHAMBERS.COM
Powered by FlippingBook