【正文】 他是這樣說：“One wonders whether inherent in the right and process of calling arbitrators as witnesses, there is a tendency to involve the parties or their counsel in sharp practices, to sully those that have acted as thirdparty neutral arbitrators and to cast doubt on the very fairness of the judicial review process. There is little hyperbole in those suggestions when one considers that, in the case being discussed, the review/appeal process was started based on the written record available to all parties and that at the eleventh hour, just before the award was to be judicially considered, recollections of the arbitrator were obtained to challenge the legitimate grounds that had originally presented themselves and which had been put forward in good faith as appropriate to support a judicial review.”。s recollections were forwarded to me on the same day the Arbitrator responded, the objection not to have been made aware of your contact with the Arbitrator in advance and not to have had an opportunity to respond to your request to the Arbitrator before the Arbitrator responded remains.”。但申請人/原告代表律師表示反對，在給被告律師的信函中說：“(1) Expanding on what we stated earlier [指昨天的信函], we believe the continued involvement of the Arbitrator is improper. The Arbitrator rendered [在裁決書作出了她的決定] and reasons for decision as set out in the Arbitration Award. The appeal and review are based on that Award and the record. It is inappropriate to further attempt to involve the Arbitrator as this could lead to the perception that the Arbitrator...is intent on upholding that particular Award or is now part of the respondent39。申請人/原告的代表律師對延誤收到被告律師給仲裁員的信函很不滿，因為這是剝奪了他可以跟進的機會，讓仲裁員聽了雙方意見/看法才作出回應。而在同一天，仲裁員就已經針對被告律師的信函作出了回復，說：“My recollection is that the question of whether the hearing would be for a final or interim decision was discussed at the outset of the hearing, when I asked for clarification about the issues that were before me. At the beginning of the hearing, I expressed my uncertainty as to the issues that were actually before me。在開庭前的幾天即10月14日，被告的代表律師寫了一封信函給受到攻擊的仲裁員，向他查問有關的記憶。注意是該次開庭并沒有安排開庭記錄。但結果是在開庭后獨任仲裁員把2個爭議/爭端都作出了最后的裁決。案件涉及了敗訴的一方向法院申請要求把該裁決書撤銷，理由之一是裁決書對一個雙方從來沒有要求去處理的一個爭議/爭端作出了裁決?，F(xiàn)在也可以去看看其他重要普通法國家在這一方面的地位，這就是加拿大。畢竟，在很多這種申請中，仲裁員會提供給法院宣誓書或證人證言解釋有關的事實?？上У氖牵蟹阶詈筮€是敗訴，而且就是在這一點。至于買方仲裁員，由于他是一位著名的律師，恐怕去盤問也不大可能問得出什么，反而會得罪了他。但這里最大的考慮就是證據十分有問題，估計成功機會很低。但中方委任的買方仲裁員很快就表明他聽到的也好像是賣方律師所聽到的一句。這一來，雙方的法律代表就只能要求仲裁庭表態(tài)，畢竟賣方仲裁員有可能會有風度的承認他講錯話而答應辭職或者保證自己并沒有在開庭審理前就作出預先的決定。于是筆者立刻就要求暫停預先會議，在與當事人私下討論后決定要當場對該仲裁員的言論提出抗議，并要求他辭職。當時筆者代表的一方大吃一驚，因為雙方只是剛開始文書請求，什么證據也沒有提供，他憑什么能夠得出這樣的結論？至于爭議是有關鍍鋅鐵生銹以及航次時間比較長，這有可能只是賣方律師在委任他的時候所作的簡單案情介紹。由于只是討論程序上的問題，所以在該預先會議上并沒有安排現(xiàn)場的錄音以及開庭記錄。為了節(jié)省時間與費用，雙方也同意不需要去委任第三位仲裁員，而僅僅由該2位仲裁員去處理程序上的問題就已經足夠。于是中國買方根據買賣合約開始了香港仲裁，筆者代表中國買方并且很快雙方都委任了各自的仲裁員。案情是該批貨物在到達中國卸港后，根據商檢結果，被發(fā)現(xiàn)大量生銹而且被商檢認為生銹是由于已經生產后很久才會發(fā)生。但沒有開庭記錄的情況在現(xiàn)在也不是沒有，筆者（楊良宜）在以前處理案件時就有相關的經驗。如果是有清清楚楚的開庭記錄而且通常在開庭完畢的一天就已經可以把開庭記錄提供給雙方當事人與仲裁庭，雙方還是對某一項事實的開庭記錄有爭議，也沒有必要再去傳召仲裁員讓他根據記憶來對某些事實舉證，大可以在第二天的開庭把這一點搞清楚。首先就是現(xiàn)在的仲裁中所有程序都是盡量以文書的方式進行，例如是開庭陳詞或是結案陳詞，開庭也在國際仲裁中幾乎一定有開庭記錄，把開庭過程中大家所講的每一句話都記錄下來。在上述已經介紹過的蘇格蘭案件Cooperative Wholesale Society Ltd v. Ravenseft Properties Ltd ()中，Hope勛爵也說：“Where an action for the reduction of an award depends on facts which are not agreed, a proof will be required. The normal rule apply in such cases in order to determine what evidence is admissible and by what method disputed facts may be proved. The arbiter himself, however, is in a special position, because once he has issued his award it is not petent for him to modify or explain it in any way. He may be examined as a witness for certain purposes, particularly as to his actings in the course of the submission where it is suggested that some irregularity has occurred. It has also been held to be petent to examine him as to what matters he took into account in arriving at his award when it was alleged that he had proceeded ultra fines promissi in a way which was not apparent from the face of the award. An arbiter should be allowed the opportunity to protect himself against an allegation of misconduct, such as that he failed to determine a matter which was properly before him, by giving evidence as to what he did decide. …”。 so that we might be put in possession of the history of the litigation before the umpire up to the time when he proceeded to make his award. But there it appears to me the right of asking questions of the umpire ceased….”。顯然，這一個階段也包括了開庭。 or he might prove that claim B. was objected to and rejected, or that it was after objection received. He might, in short, give any evidence for the purpose of shewing (showing) what was the subjectmatter into which he was inquiring, and upon which his judgment therefore was to be founded. This would enable us to judge whether he was acting within his jurisdiction or not, for a person exceeds his jurisdiction by prosecuting a judicial inquiry in a matter over which he has no jurisdiction, quite independent of the judgment eventually given. And it deserves notice, that as to this evidence the umpire would be no better witness than any other person, and would not have it in his power afterwards, by his own evidence, to sustain or destroy the award. He could be corrected by any other person present at the proceedings, including the shorthand writer, if there was one.”。這帶來一種情況就是雙方當事人如果對仲裁程序中，特別在仲裁員面前開庭的某一個事實有爭議，會是仲裁員可以去作為一個最理想的事實證人。通常只是由雙方代表律師與仲裁員自己去盡量針對大家都說過些什么把每一個字記錄下來，也不會在每一天開庭后互相核對與糾正自己的記錄，故此這種記錄有錯誤或者遺漏是完全有可能的。這種爭議會在以前的仲裁出現(xiàn)比較多，因為沒有太多太好的文書記錄。例如，在裁決書漏掉的一個爭議/爭端，當事人有否在開庭的時候提出過或是同意過。仲裁員也不會涉及“訴訟特權”（litigation privilege），這種特權主要也就是當事人與律師之間的特權。很多事實證人也會涉及了享有特權的證據可以拒絕提供或回應盤問，但針對仲裁員作為證人就好像不大會涉及這一方面。 仲裁員作為證人可以提供給法院的證據如果可以傳召仲裁員作為證人，就涉及了可去向他盤問或能去要求他提供證據的范圍。第一個是Leiserach v. Schalit (1934) 2 KB 353，Humphreys大法官在處理一個想去把裁決書撤銷的申請時發(fā)覺有一個仲裁中的事實無法去認定，他同意一方當事人的申請去傳召仲裁員作為事實證人，說：“This is a case in which the Court has listened to numerous affidavits, statements in some of which directly contradict the statements in others. It is also a case in which i