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contacts of the party to the witness till the moment of carrying out of oral hearings

The admissibility of a testimony is closely connected with a question on possibility of preparation of witnesses to performance before arbitration structure, in particular within the limits of cross-examination.

According to item 4.3 Corrected to MAY interrogation of the witnesses or potential witnesses and discussion with them their future testimony the party, its officials, employees, legal advisers or other representatives is supposed.

Such approach besides is not absolutely traditional for the Russian sense of justice. In the theory Russian civil and arbitral procedure it is declared, that the witness should be originally independent [374], and, hence, its indications cannot be generated (even partly) under the influence of the representative of the party or the party.

The difference in an admissibility of preparation of witnesses to a summer residence of explanatories in court is caused by distinctions and in ethical rules of professional legal community in this or that state. For example, in Sweden interrogation and preparation of witnesses before they will give oral testimonies, are admissible. In some countries of a general law contacts between legal representatives and any potential witnesses having, according to the legal representative, own direct legal representatives in concrete trial [375] are still forbidden.

In the professional literature it is noticed, that the representatives of the party who do not have in the national law rigid restrictions on preparation of the witness, in the international arbitration, most likely, will take advantage of the right to preparation. While their more "ethic" colleagues become hostages of own national restrictions. For the decision of this problem some authors suggest to leave a question on possibility of interviewing and preparation of witnesses to the discretion of arbitrators, for its permission during preparation for oral hearing [376].

In our opinion to charge arbitrators each time to resolve a question on an admissibility of contacts of the party and its witness - means to abuse principles of remedial economy. That is why more correct are represented to regulate this general question in arbitration regulations as it is made, for example, in Regulations of the London international arbitration court [377], and also in the Swiss regulations of the international arbitration [378].

The international standard devoted to contacts of the representative of the party with witnesses, has been offered in new Supervising principles of the International association of lawyers concerning representation of the parties in the international arbitration [379]. So, according to principles 18-25, the representative of the party at contact to the witness or the expert:

1) should identify itself as the representative of the party;

2) it should inform the potential witness, that or it has the right to inform on contact of the own representative or to involve it for contact, and to cease to communicate with the representative of the party;

3) can help witnesses with preparation of a testimony and to experts in preparation of expert's statements;

4) should aspire to that a testimony reflected own understanding the witness of the corresponding facts, events and circumstances;

5) should not offer or push the witness to a summer residence of false testimonies;

6) according to that principle, that the given indications should reflect own understanding the witness of the corresponding facts, events or circumstances, either own analysis or the expert witness, the representative of the party can meet or co-operate with witnesses and experts to discuss and prepare their forthcoming indications.

The representative of the party can give the help to the witness in preparation of its indications in direct and cross-examination, having formulated answers to the put questions. Besides, according to Supervising principles preparation can include the review of procedures in which frameworks a testimony will be represented, and preparation for evidence both in direct, and in cross-examination without damage to authenticity of witness's testimonies.

It is represented, that the specified principles constitute universal enough and comprehensible to the majority of jurisdictions the arch corrected. On the one hand, they allow to keep certain freedom of the representative in dialogue with the potential witness, with another - do not allow to abuse this freedom. It is necessary to mean, however, that Supervising principles, as well as other documents to MAY in the field of arbitration, are not obligatory and can be applied or under the agreement of parties, or at the discretion of structure of arbitration taking into account any applicable obligatory rules.

In arbitration practice the party right to interrogate witnesses of the remedial opponent before carrying out of oral hearing in the absence of the consent of the opponent to it, but in the presence of the consent of the witness is established also.

2.3.5.

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A source: Grebelsky Alexander Vladimirovich. of the PROOF In the INTERNATIONAL COMMERCIAL ARBITRATION. The DISSERTATION on competition of a scientific degree of the master of laws. Moscow,. 2017

More on topic contacts of the party to the witness till the moment of carrying out of oral hearings:

  1. interrogation of the witness before carrying out of oral hearing (deposition)
  2. interrogation of the witness during oral hearing of business
  3. the Order of carrying out of public hearings.
  4. Conditions of carrying out of public hearings.
  5. 5.5. Working out of a technique of carrying out of public hearings
  6. the APPENDIX a terrorism Condition in served territory (at the moment of interrogation carrying out)
  7. CHAPTER 2. ORGANIZATIONAL PROBLEMS AT THE MOMENT OF DECISION-MAKING ON NECESSITY OF INVESTIGATORY EXPERIMENT AND DURING ITS CARRYING OUT; WAYS OF THEIR ELIMINATION
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