FINLAND Law and Practice Contributed by: Julia Pekkala, Mikko Leppä, Risto Sandvik and Nuutti Kortelainen, HPP Attorneys Ltd
ceedings. In cross-border activities within the EU and the EEA, attorneys-at-law shall primarily observe the Code of Conduct for European attorneys-at-law to the extent the Delegation of the Bar Association has established it to be binding on Finnish attorneys-at- law, and secondarily the domestic Code of Conduct. 8. Evidence 8.1 Collection and Submission of Evidence General In accordance with the overarching principle of party autonomy under Finnish arbitration law, it is for the parties to supply the evidence required to present their case as they see fit. As a starting point, the initiative in respect of evidence is therefore exclusively in the hands of the parties, not the arbitral tribunal. However, the arbitral tribunal has considerable powers – at the request of a party or on its own motion – to request a party to produce documents or any person to appear as a witness (see 8.3 Powers of Compulsion ). Written Evidence and Witness Statements At the outset, the parties are allowed to rely on virtually all kinds of documents to prove their respective cases. As a main rule, there are no limitations as to who can be heard as a witness; for example, employee witness testimony is allowed. The Arbitration Act remains silent on how the exami - nation of witnesses and experts should be conducted. Unlike in Finnish court litigation, written witness state - ments are frequently used in international arbitration proceedings. If the parties agree on using witness statements, the witness statements will usually be used in place of direct examination. However, it is general practice that the witness who has submitted a witness statement shall, upon request of the opposing counsel, appear at the hearing for cross-examination. Disclosure Arbitrators may request parties to disclose documents that may be relevant as evidence. This request may be initiated either by the arbitral tribunal on its own initia- tive or at a party’s request. Should a party make such a request, the documents must be identified with suf - ficient detail, and Finnish arbitration law is unfamiliar
with common law type discovery. In practice, arbitral tribunals readily issue requests for disclosure if the identification requirement is fulfilled and the requested documents are not clearly irrelevant. So-called fishing expeditions (a speculative search for evidence without a concrete factual basis) are not allowed under Finn - ish law. Privilege Rules The Arbitration Act does not contain specific provi - sions on privilege, but it is generally held that rules of privilege apply in arbitration. Legal privilege does not, at the outset, apply to in-house legal counsel, but any attorney-client exchange of information or documents is covered by legal privilege. 8.2 Rules of Evidence In Finland, arbitrators – like judges – may freely evalu - ate the evidence presented by the parties. No formal rules of evidence exist. The parties are free to agree on the applicable rules of evidence as well as the type of evidence admissible. In the absence of such agreement, the arbitral tribunal may decide on the conduct of the proceedings as it sees fit, taking the provisions of the Arbitration Act and the requirements of impartiality and speed into consideration. The same rules of evidence apply in both international and domestic arbitration, without distinction. The IBA Rules on the Taking of Evidence in Interna - tional Arbitration are broadly used as reference or directly applied in arbitrations seated in Finland. 8.3 Powers of Compulsion An arbitral tribunal may order a party or any other per - son in possession of a document or other object that may have relevance for the outcome of the dispute to produce the document or object in question, either at the request of a party or on its own motion. The arbi - tral tribunal may also request that a party or any other person appears to be heard in the matter. The arbitral tribunal does not, however, have the power to impose fines or order other coercive measures, nor administer an affirmation. The arbitral tribunal may instead attach evidentiary weight to the fact that a party disregards the arbitral tribunal’s request to produce documents.
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