1 IBA Rules on the Taking of Evidence in International Arbitration 2010, Articles 2.2(a), 2.2(b) (hereafter ‘IBA Rules’). See Chapter 5.
2 See Chapter 2 paras 2.43–2.99.
3 IBA Rules (n 1) Article 9.1 says ‘The Arbitral Tribunal shall determine the admissibility, relevance, materiality and weight of evidence’. See also Chapter 12.
4 An examination of the use of witness testimony in different legal traditions appears in Peter Spuijbroek, Witness Evidence in International Commercial Arbitration (University of Amsterdam 2013) (hereafter ‘Spuijbroek’). See also Roland Ziade and Charles-Henri De Taffin, ‘Fact Witnesses in International Arbitration’ (2010) International Business Law Journal 115.
5 Written submissions in international arbitration proceedings (whether served with or without witness evidence) will generally contain a much fuller exposition of a party’s case than would be the case with pleadings before a court in a number of (principally) common law jurisdictions such as England, Singapore, Australia, Ghana, Malaysia, Nigeria, and the United States. In international arbitration, issues of fact and law will generally be addressed in a more narrative style of drafting.
7 Article 4 is a development and refinement of provisions first found in the IBA Supplementary Rules Governing the Presentation and Reception of Evidence in International Commercial Arbitration 1983 (hereafter ‘1983 IBA Rules’). The framework for management of witness evidence introduced by those rules was intended to be a bridge between the different practices found in common law and civil law systems.
8 For example, see DIAC 2007, Article 29.3.
9 For example, see SIAC Rules, Rule 25.5. This topic is also sometimes addressed by a tribunal in the first procedural order.
10 See, for example, the brief provision contained in ICC Rules, Article 25(3) and the lack of any clear provision in ADCCAC Rules and CIETAC Rules.
12 Each party to an arbitration must prove the facts upon which it relies. It will do this by means of documentary evidence, factual witness testimony, and expert witness opinion. IBA Rules (n 1) Article 2 provides for early consultation on how this evidence is to be presented.
13 IBA Rules (n 1) Articles 2.1, 2.2(a), and 2.2(b).
14 For example, under the SCC Rules for Expedited Arbitration.
15 For example, see SCC 2017, Article 33(1): ‘In advance of any hearing, the Arbitral Tribunal may order the parties to identify each witness or expert they intend to call and specify the circumstances intended to be proved by each testimony’; and SIAC Rules, Rule 25.1: ‘Before any hearing, the Tribunal may require the parties to give notice of the identity of witnesses, including expert witnesses, whom the parties intend to produce, the subject matter of their testimony and its relevance to the issues’.
16 Michael Bühler and Carroll Dorgan, ‘Witness Testimony Pursuant to the 1999 IBA Rules of Evidence in International Commercial Arbitration: Novel or Tested Standards?’ (2000) Journal of International Arbitration 3 (hereafter ‘Bühler and Dorgan’).
17 IBA Rules (n 1) Article 4.1.
18 IBA Rules (n 1) Article 8.4.
20 See Christian Oetiker, ‘Witnesses Before the International Arbitral Tribunal’ (2007) ASA Bulletin 253.
21 Nigel Blackaby and others, Redfern and Hunter on International Arbitration (6th edn, OUP 2015) para 6.125.
22 Commentary on the IBA Rules (n 19).
23 See République Arabe d’Egypte v Southern Pacific Properties Limited 23 ILM 1048 (1984) (Paris Court of Appeal, 12 July 1984); See Alan Redfern, ‘International Commercial Arbitration. Jurisdiction Denied: The Pyramid Collapses’ (1986) Journal of Business Law 15, 20–21. In Siegfried H Elsing and John M Townsend, ‘Bridging the Common Law–Civil Law Divide in Arbitration’ (2002) Arbitration International 59, the authors make the point that ‘[t]he civil law believes that the best evidence comes from documents. While witness testimony can be crucial to a civil law case, the civil law generally gives far less weight to live testimony than the common law, and treats the testimony of witnesses affiliated with or employed by a party with considerable scepticism’.
24 For example, see the LCIA Rules, Article 20.6: ‘Subject to any order by the Arbitral Tribunal otherwise . . . ’; International Arbitration Rules of Zurich Chamber of Commerce, Article 37; and SCAI Rules, Article 25.2.
25 Institutional rules not containing an express provision on this point include the SCC Rules (n 15) and SIAC Rules (n 9).
26 This view is supported by a number of commentaries, eg Emmanuel Gaillard and John Savage (eds), Fouchard Gaillard Goldman on International Commercial Arbitration (Kluwer Law International 1999) para 1280, which states: ‘In an international arbitration, in the absence of an agreement between the parties to the contrary, the arbitral tribunal can allow the parties to appear as witnesses. It is up to the arbitral tribunal to decide whether it is appropriate to hear them in the circumstances, and to assess the evidentiary weight of their testimony . . . Others draw a distinction between the parties’ officers, who can only be heard as parties, and their employees, who can be heard as witnesses. In fact, these distinctions are of little significance, as the witnesses themselves generally do not testify under oath and the arbitrators always have the power to assess the weight to be given to their testimony’. In relation to arbitration in Sweden, see Stefan Brocker and Kristoffer Löf, ‘Chapter 8: The Proceedings’ in Ulf Franke and others (eds), International Arbitration in Sweden: A Practitioner’s Guide (Kluwer Law International 2013) 153, 193, where it is said that: ‘There are no restrictions [in the Swedish Arbitration Act] as to who may testify in arbitral proceedings. Consequently, party representatives may appear to give testimony in the same way as witnesses not formally affiliated with a party’.
28 Commentary on the IBA Rules (n 19) 15.
29 See further William Kirtley, ‘Do the IBA Rules on the Taking of Evidence in International Arbitration Conflict with Islamic Sharia?’ (International Arbitration Information, 30 November 2018) <https://international-arbitration-attorney.com/international-arbitration-conflict/> accessed 28 November 2018 in which reference is made to Royal Decree No. M/34 Dated 24/5/1433H (16 April 2012) approving the Saudi Arabia Arbitration Law 2012 which, at Article 25, states: ‘1. The two parties to arbitration may agree on procedures to be followed by the arbitration tribunal in conducting the proceedings, including their right to subject such proceedings to effective rules of any organization, agency or arbitration center within the Kingdom or abroad, provided said rules are not in conflict with the provisions of Sharia; 2. In the absence of such an agreement, the arbitration tribunal may, subject to the provisions of Sharia and this Law, decide the arbitration proceedings it deems fit’.
30 Cairo Regional Centre for International Commercial Arbitration Rules 2011, Article 27.2 (emphasis added).
31 Commentary on the IBA Rules (n 19) 15.
32 On 12 October 2010, the Council of the French Speaking Bar of Brussels introduced a new section 462-2 in its Rules of Conduct. The rule explicitly permits attorneys to have preparatory contact with witnesses, both for the purpose of written statements and oral hearings within the framework of arbitration and other alternative dispute resolution methods (such as mediation or conciliation). The rule explicitly applies to both international and domestic proceedings. The rule nonetheless emphasizes that in contact with witnesses, an attorney’s general obligations of loyalty, consideration, and dignity remain unaffected. In particular, the attorney must, at all times, observe the perception of truth of the witness and may not influence, or even appear to have influenced, the witness. Following that decision, the Council of the Dutch Speaking Bar of Brussels extended on 11 January 2011 its existing exemption to domestic arbitration as well. See Pascal Hollander and Maarten Draye, ‘Belgium: Brussels Bar Lifts the Traditional Prohibition on Preparatory Contacts Between Attorneys and Witnesses in Arbitration’ (2011) ASA Bulletin 496. The Council of the Paris Bar adopted a similar rule on 26 February 2008, although applicable only to international arbitration. The rule provides that, within the scope of international arbitration proceedings before tribunals situated in France or in other countries, a lawyer shall evaluate the appropriateness and trustworthiness of the testimony given in order to support his client’s action by observing all applicable rules of procedure. In the same context, the manner in which a lawyer prepares a witness for a hearing shall not be contrary to the code of conduct of the legal profession and shall be in line with established and accepted practice in proceedings in which a lawyer acts in this capacity as a defence counsel. The Swiss Bar Association has for many years had in place professional rules providing that arbitral proceedings are excluded from the general prohibition of contact between lawyers and witnesses. See Swiss Bar Association Rules of Professional Conduct for Barristers, Article 7(2).
33 Solicitors Regulation Authority’s Code of Conduct 2011, Chapter 5 (Version 21, Solicitors Regulation Authority, 6 December 2018).
35 ‘Code of Conduct’, The Bar Standards Board Handbook (3rd edn, Bar Standards Board 2018) rC9.2.d (hereafter ‘BSB Code of Conduct’).
38 Born has written on the possible professional conduct rules applicable to a lawyer’s actions in an international arbitration. They include the national rules of the bar to which the lawyer is admitted, professional conduct rules at the seat of arbitration, and standards of professional conduct for counsel in International Arbitration (eg IBA Guidelines on Party Representation in International Arbitration (International Bar Association 2013; hereafter ‘IBA Guidelines on Party Representation’). See Gary B Born, International Commercial Arbitration (2nd edn, Kluwer Law Arbitration 2014) 2872–75 (hereafter ‘Born’).
39 See further Fabian von Schlabrendorff, ‘Interviewing and Preparing Witnesses for Testimony in International Arbitration Proceedings: The Quest for Developing Transnational Standards of Lawyers’ Conduct’ in Miguel Angel Fernandez-Ballester and David Arias (eds), Liber Amicorum Bernardo Cremades (La Ley 2010) (hereafter ‘von Schlabrendorff’).
40 Even in the English case of R v Momodou  EWCA Crim 177  and  (hereafter ‘Momodou’), in which the court was critical of some forms of witness preparation, it was accepted that some form of witness familiarization was perfectly proper. In paragraph 62, the judge said that ‘[The principle stated] does not preclude pre-trial arrangements to familiarise witness with the layout of the court, the likely sequence of events when the witness is giving evidence, and a balanced appraisal of the different responsibilities of the various participants’. In Momodou the court went on to indicate the procedure that should be followed if witness familiarization takes place: the process should normally be supervised or conducted by a qualified lawyer suitably accredited by the appropriate bar rules; none of those involved should have any personal knowledge of the matters in issue; records should be maintained of all those present and the identity of those responsible for the familiarization process; the programme should be retained, together with all the written material (or appropriate copies) used during the familiarization sessions; none of the material should bear any similarity whatever to the issues in the proceedings to be attended by the witnesses; and nothing in it should play on or trigger the witness’s recollection of events.
41 See further Bühler and Dorgan (n 16) 20–21.
42 EnergySolutions EU Limited v Nuclear Decommissioning Authority  EWHC 1988 (TCC) –.
45 Shai Wade and others, A Commentary on the LCIA Arbitration Rules 2014 (Sweet & Maxwell 2015) para 20-016 (hereafter ‘Wade’), confirms this to be the position.
46 ‘D.C. Bar Opinion 79: Limitations on a Lawyer’s Participation in the Preparation of a Witness’s Testimony’ in, D.C. Bar, Code of Professional Responsibility and Opinions of the D.C. Bar Legal Ethics Committee (D.C. Bar 1991) 138–39. See also Born (n 38) 2859. For an interesting exposition of the US perspective, see von Schlabrendorff (n 39).
47 Momodou (n 40) 61. The guidelines in Momodou were applied by the English Court of Appeal in R v Salisbury  EWCA Crim 3107  (hereafter ‘Salisbury’) where a description of the relevant boundary in the following succinct terms by Mr Justice Pitchford in the lower Court was approved by the Court of Appeal: ‘27. There is, in my view, a difference of substance between the process of familiarisation with the task of giving evidence coherently and the orchestration of evidence to be given. The second is objectionable and the first is not’. Momodou and Salisbury were also cited with apparent approval in a civil context in Ultraframe (UK) Limited v Fielding and others  EWHC 1638 (Ch) –.
48 Compania de Navegacion Palomar, S.A. v Ernest Ferdinand Perez De La Sala  SGHC 14 –.
49 In the course of the judgment reference was also made to a decision of the Hong Kong Court of Appeal, HKSAR v Tse Tat Fung  HKCA 156, approving the principles set out in the Momodou (n 40) case; see ibid 280.
50 BCLP Survey on use of the IBA Rules.
51 Commentary on the IBA Rules (n 19) quoting M Schneider, ‘Witnesses in International Arbitration’ (1993) ASA Bulletin 302, 306.
52 IBA Guidelines on Party Representation (n 38).
53 IBA Guidelines on Party Representation (n 38) 13.
54 ibid 15 (emphasis added).
55 IBA Rules (n 1) Article 4.3 (emphasis added). The 1983 IBA Rules (n 7) were silent on the issue of contact between a party and a witness, although the rules clearly contemplated that witness statements would be prepared. See 1983 IBA Rules (n 7) Article 5. The IBA Rules on the Taking of Evidence in International Commercial Arbitration 1999 (hereafter ‘1999 IBA Rules’) clarified the position and introduced the current provision.
56 One example of an order known to the authors simply states that ‘Counsel may discuss with the witnesses . . . , in accordance with normal international practice, the content of their statements . . . prior to their submissions’. The order stopped short of reference to witness contact after submissions of witness statement and pre-evidentiary hearing, perhaps because of the difficulty in formulating a non-contentious form of wording.
57 See, for example, the SIAC Rules, Rule 25.5, and the Swiss Rules, Article 25.2.
58 LCIA Rules, Article 20.5. Application of IBA Rules (n 1) Article 1.1 may provide a similar outcome. At the time of writing the authors could not find any other major institutional rule with the same provisions.
59 This was the reported position across a range of common law and civil law systems that included France, Germany, Spain, Portugal, Sweden, Australia, USA, China, Nigeria, and Canada in the responses to the BCLP Survey on use of the IBA Rules.
60 IBA Rules (n 1) Article 4.3 (emphasis added).
62 Under IBA Rules (n 1) Article 1.3, in the event of conflict between those rules and the institutional rules, the Arbitral Tribunal is to apply the provision so as to accomplish the purposes of both sets of rules and, by reference to Commentary on the IBA Rules (n 19) 5, to ‘try to harmonise the two sets of rules to the greatest extent possible’. The objectives underlying the IBA Rules are set out in the Preamble. In relation to witness contact, the most relevant objectives are likely to be ensuring a fair process, as well as upholding the obligation to act in good faith. See the IBA Rules (n 1) Preambles 1 and 3.
63 The LCIA Rules refer only to interviewing the witness, as do the Swiss Rules. LCIA Rules, Article 20.5: ‘it shall not be improper for any party or its legal representatives to interview any potential witness for the purpose of presenting his or her testimony in written form to the Arbitral Tribunal or producing such person as an oral witness at any hearing’. See also the Swiss Rules, Article 25.2. Both the SIAC Rules and ACICA Rules say nothing on the matter.
64 See Born (n 38) 2863, where the point is also made that improper conduct is also unlikely to be a proper basis for annulment or non-recognition of the award, on that basis alone.
65 UNCITRAL Notes on Organizing Arbitral Proceedings (United Nations Commission on International Trade Law 2016).
67 See UNCITRAL Working Group II, ‘Report of Working Group II (Arbitration and Conciliation) on the Work of its Sixty-First Session’ (A/CN.9/826) para 148 <http://daccess-ods.un.org/access.nsf/Get?OpenAgent&DS=A/CN.9/826&Lang=E> accessed 28 November 2018 and UNCITRAL Working Group II, ‘Settlement of Commercial Disputes: Revision of the UNCITRAL Notes on Organizing Arbitral Proceedings’ (A/CN.9/WG.II/WP.183) para 107 <http://www.uncitral.org/uncitral/en/commission/working_groups/2Arbitration.html> accessed 28 November 2018. The first document noted that it had been said that the ‘language set out at paragraph 107 of document A/CN.9/WG.II/WP.183 provided a good basis for making clear that all parties should have the same information in relation to the possibility of contact between a party and a witness while a witness was giving evidence, but that it should be clear . . . that the arbitral tribunal should clarify at the outset of proceedings whether any contact would be appropriate prior to testimony being given . . . ’.
68 All respondents to the BCLP survey on use of the IBA Rules on this issue confirmed the widespread use of witness statements in arbitration, although a Swedish respondent reported that counsel will sometimes argue that witness statements should not be produced unless all parties agree. Portuguese respondents indicated that practice in domestic arbitrations has seen a recent trend towards the use of witness statements. The conventional practice in those arbitrations had traditionally been the presentation of direct evidence orally at the evidentiary hearing.
70 IBA Rules (n 1) Preambles 1 and 3.
71 Ragnar Harbst, A Counsel’s Guide to Examining and Preparing Witnesses in International Arbitration (Kluwer Law International 2015) 68 (hereafter ‘Harbst’).
72 Michael Hwang and Andrew Chin, ‘The Role of Witness Statements in International Arbitration’ in Albert Jan van den Berg (ed), International Arbitration 2006: Back to Basics? (Kluwer Law International 2007) 650–51. See also Andrea Menaker and Noor Davies, ‘The Direct Examination of Witnesses and Experts Not Called for Cross-Examination: Balancing Efficiency and Fairness’ (2015) BCDR International Arbitration Review 135 (hereafter ‘Menaker and Davies’).
73 In some cases, a tribunal may agree to a short period of direct examination, but this is generally very limited. For example, in a case known to the authors the relevant procedural order provided that: ‘Each witness giving oral evidence shall first be briefly examined in direct examination (up to 15 minutes of direct examination per witness), followed by the examination by the other side (“cross-examination”) . . . The scope of direct examination shall be limited to matters covered in the Parties’ written submissions and new matters that have arisen since the witness submitted his/her last witness statement . . . or had an opportunity to do so.’
76 IBA Working Party, ‘Commentary on the New IBA Rules of Evidence in International Commercial Arbitration’ (2000) 2 Business Law International 16, 28 (hereafter ‘Commentary on the 1999 IBA Rules’).
79 This is where witness statements (and sometimes expert reports) are served together with written submissions/pleadings. For more detail, see Chapter 5 paras 5.74–5.76.
81 These points are made in Markus Wirth, ‘Fact Witnesses’ (2010) International Arbitration Law Review 207, 208 (hereafter ‘Wirth’).
82 BCLP Survey on the use of the IBA Rules.
83 Reported general practice was as follows: China—delivery with written submissions or separately by simultaneous exchange; Nigeria—with written submissions in sequential exchange; Ireland, Italy and Australia—separate sequential or simultaneous exchange; Canada—separate sequential exchange other than in arbitrations subject to the IBA Rules where delivery with written submission or simultaneous delivery is also used. BCLP Survey on use of the IBA Rules.
85 IBA Rules (n 1) Article 4.4 (emphasis added).
86 For example, this is the approach adopted in English litigation where the Judge will not look at witness evidence until shortly before the evidentiary hearing. There is always the possibility that the parties may settle their dispute and court/tribunal time/legal fees will be wasted if the evidence is reviewed earlier than necessary.
87 See Bühler and Dorgan (n 16) 16–17.
88 See discussion on Article 4.7 at 7.137– 7.167.
90 IBA Rules (n 1) Article 8.4 provides that a witness attending an evidentiary hearing who has submitted a witness statement shall confirm that statement and the parties may agree, or the tribunal may order, that the witness statement shall serve as that witness’s direct testimony.
91 Peter Ashford, The IBA Rules on the Taking of Evidence in International Arbitration: A Guide (CUP 2013) 101 (hereafter ‘Ashford’).
92 Rupert Jackson, Review of Civil Litigation Costs: Preliminary Report Volume 2 (The Stationary Office 2009) Ch 42 para 1.3, which says that in substantial cases the use of written witness statements, instead of saving costs and promoting fairness, had the opposite effect. See also James Hope, ‘Witness Statements: The Cost of Gilding the Lily’ (Commercial Dispute Resolution, 17 June 2014) <www.cdr-news.com/categories/arbitration-and-adr/5071-witness-statements> accessed 28 November 2018, where the author draws attention to these matters and their relevance to the use of witness statements in international arbitration. There also appears to be some dissatisfaction with the use of witness statements among some arbitration practitioners.
94 IBA Rules (n 1) Preamble 1.
95 See, Bühler and Dorgan (n 16) 13. Telegraphic style is a technique of eliminating a word or words necessary for complete grammatical construction, but understood in context.
96 Laurence Shore, ‘Chapter 3: Document Production, Witness Statements, and Cross-Examination: The Enduring Tensions in International Arbitration’ in Stavros Brekoulakis and others (eds), The Evolution and Future of International Arbitration (Kluwer Law International 2016) para 3.14 and fn 16 (hereafter ‘Shore’).
97 ‘Procedural Order of 19 May 2004 in ICC Case 13046 (extract)’ in Special Supplement 2010: Decisions on ICC Arbitration Procedure: A Selection of Procedural Orders issued by Arbitral Tribunals acting under the ICC Rules of Arbitration (2003-2004) (International Chamber of Commerce 2010) para 5.4(c) is an example of such an order where the tribunal directed that each witness statement should contain ‘appropriate captions or internal references indicating with reasonable specificity the factual and legal issues to which it is relevant’.
98 The majority of institutional rules make clear that the admissibility, relevance, and materiality of evidence, and the weight to be attributed to it, are all matters to be determined by the arbitral tribunal. See, for example, SCC Rules, Article 31; Swiss Rules, Article 24.2; SIAC Rules, Rule 19.2; HKIAC Rules, Article 22.2; and UNCITRAL Rules, Article 27.4. The ICC Rules do not contain a specific provision to this effect. ICC Rules, Article 25(1) simply provides that the ‘arbitral tribunal shall proceed within as short a time as possible to establish the facts of the case by all appropriate means’. A similar position may be found under the arbitration laws of many seats of arbitration. See, for example English Arbitration Act 1996, s 34(1); German Code of Civil Procedure (Zivilprozessordnung ‘ZPO’), s 1042(4); Belgian Judicial Code, Article 1700(3); and Dutch Code of Civil Procedure, Article 1039-5.
99 For a discussion of the tribunal’s power to assess the weight of evidence, see Chapter 12 paras 12.31–12.42 relating to IBA Rules (n 1) Article 9.1. See also SI Strong and James Dries, ‘Witness Statements under the IBA Rules of Evidence: What to Do about Hearsay?’ (2005) Arbitration International 301 (hereafter ‘Strong and Dries’).
100 IBA Rules (n 1) Articles 9.2(a) and 9.2(g). The nature and application of these grounds are dealt with in more detail in Chapter 12. Application of the grounds mentioned are dealt with in Strong and Dries (n 99) 309–12. In theory, an objecting Party might also make use of IBA Rules (n 1) Article 4.10 to ask the Arbitral Tribunal to order the other Party to require the author of the hearsay to appear at the Evidentiary Hearing to give first-hand evidence, a course of action that may not be straightforward.
101 ICC Partial Award dated November 2012 cited in ‘Extracts from ICC Case Materials on the Taking of Evidence with References to the IBA Rules’ (2016) 1 ICC Dispute Resolution Bulletin 127 7 (hereafter ‘ICC Partial Award dated November 2012’).
102 Mesa Power Group LLC v Government of Canada (Procedural Order No. 6) PCA Case No. 2012-17 –.
104 For example, see the LCIA Rules, Articles 15.2–15.5: written Statements are required to include ‘all essential documents’; SIAC Rules, Rule 20.7: ‘All submissions referred to in this Rule shall be accompanied by copies of all supporting documents which have not previously been submitted by any party.’ Also see the 2018 HKIAC Rules, Articles 16.3 and 17.4; SCC Rules, Article 29; and UNCITRAL Rules, Articles 20.4 and 21.2.
106 This is standard practice, but for an express direction in these terms, see Mesa Power Group LLC v Government of Canada (Procedural Order No. 4) PCA Case No. 2012-17 [67.ii.d], a case conducted under the NAFTA, the 1976 UNCITRAL Rules, and the IBA Rules, where the direction stated that: ‘The documents produced shall not be considered part of the record unless and until one of the Parties submits them as exhibits with their forthcoming submissions’. See also IBA Rules (n 1) Article 3.1 and Article 3.11.
107 See also the terms of IBA Rules (n 1) Article 3.11, and the discussion of that article at Chapter 6 paras 6.341–6.349.
108 For example, Article 20 of the ICC Rules: ‘In the absence of an agreement by the parties, the arbitral tribunal shall determine the language or languages of the arbitration, due regard being given to all relevant circumstances, including the language of the contract’. Also, LCIA Rules, Article 17.4: ‘Following the formation of the arbitral tribunal, unless the parties have agreed upon the language or languages of the arbitration, the arbitral tribunal shall decide upon the language(s) of the arbitration after giving the parties a reasonable opportunity to make written comments and taking into account the initial language(s) of the arbitration and any other matter it may consider appropriate in the circumstances’.
109 Although it is possible to have more than one language of the arbitration, the use of multiple languages can bring problems (eg translation and interpretation costs, as well as difficulty in finding suitable arbitrators sufficiently fluent in all of the relevant languages) and is relatively rare.
111 Where no witness statement is prepared for a witness, but where the witness intends to testify in a language other than the language of the arbitration, this should be notified to the tribunal and to other participants in the arbitration. See Commentary on the IBA Rules (n 19).
113 Such an approach was adopted in an ICC case known to the authors. In that case the tribunal decided to use a chess clock at the evidentiary hearing. A prior procedural order stated that ‘ . . . in the case where consecutive translation from Turkish to English is used for any particular witness, half the time used for cross-examination of that witness will be counted against the time available to the Party producing that witness’. It is assumed that simultaneous translation would not have incurred the same penalty (emphasis added).
115 Commentary on the IBA Rules (n 19) 28.
116 For example, as noted in the Commentary on the IBA Rules, in many civil law systems, a sworn declaration can only be made before the state court authorities, or a ‘notaire’, making them too cumbersome. In English Court proceedings a simple statement of truth is generally sufficient.
117 LCIA Rules, Article 20.2 states that ‘Subject to any order otherwise by the Arbitral Tribunal, the testimony of a witness may be presented by a party in written form, either as a signed statement or like document’ (emphasis added). The SIAC Rules, Rule 25.4 says that ‘the Tribunal may direct the testimony of witnesses to be presented in written form, either as signed statements or sworn affidavits or any other form of recording’ (emphasis added). SCC Rules, Article 33(2) provides that ‘The testimony of witnesses or party-appointed experts may be submitted in the form of signed statements’ (emphasis added).
118 IBA Rules (n 1) Article 4.5(d), which mirrors the requirement in Article 8.4 in relation to oral testimony.
119 See further Harbst (n 71) 71.
120 IBA Rules (n 1) Article 8.4 requires this. This is often done by simple oral confirmation of the statement, although certain witnesses may elect to take an oath. See Chapter 4 paras 4.36–4.37 where the possible implications of mandatory provisions of law in this respect are discussed.
122 The requirement of a fair hearing is a fundamental requirement in international arbitration. It is often expressly embedded in national arbitration laws (see, for example, the English Arbitration Act 1996, s 33) but, even without this, the non-observance of this requirement will give rise to grounds for challenge. See, for example, the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958, Article V1(b), which sets out that recognition and enforcement of an award may be refused by the courts of the jurisdiction where recognition and enforcement of the award is sought if the ‘party against whom the award is invoked . . . was . . . unable to present his case’.
123 See, for example, Fraport AG Frankfurt Airport Services Worldwide v The Republic of the Philippines (Decision on the Application for Annulment of Fraport AG Frankfurt Airport Services Worldwide, 23 December 2010) ICSID Case No. ARB/03/25 . See also Nathan O’Malley, Rules of Evidence in International Arbitration: An Annotated Guide (Informa Law 2012) 124–25.
124 An agreement between the parties to the arbitration that responsive evidence should be filed will prevail over the terms of IBA Rules (n 1) Article 4.6. See further Harbst (n 71) 87.
125 See Harbst (n 71) 86.
126 IBA Rules (n 1) Article 4.6 (emphasis added).
127 As already noted, there exists a reasonable argument that a right to deliver responsive evidence flows from the parties’ right to be heard so that the parties are entitled to deliver responsive evidence even without authorization from the tribunal. See Tobias Zuberbühler and others, IBA Rules of Evidence: Commentary on the IBA Rules on the Taking of Evidence in International Arbitration (Schulthess 2012) 98.
128 See, in particular, IBA Rules (n 1) Articles 9.1 and 9.2.
129 For an example, see Sigvard Jarvin and Corinne Nguyen, Compendium of International Commercial Arbitration Forms: Letters, Procedural Instructions, Briefs and Other Documents (Kluwer Law International 2017) 161–70.
130 Malaysian Historical Salvors, SDN, BHD v The Government of Malaysia (Award on Jurisdiction, 17 May 2007) ICSID Case No. ARB/05/10 .
131 See further Philip Yang, ‘Procedural Issues at the Interlocutory and Hearing Stages: Part 2’ (2013) Asian Dispute Review 138.
133 See Lucy Reed, ‘Chapter 2, §2.04: Sanctions Available for Arbitrators to Curtail Guerrilla Tactics’ in Günther Horvath and Stephan Wilske (eds), Guerrilla Tactics in International Arbitration (Kluwer Law International 2013) 99; the author makes the point that tribunals too rarely exclude ‘a suddenly available rebuttal statement’.
134 For an example of a case where witness evidence determined not to be responsive was declared inadmissible, see William J. Levitt v The Islamic Republic of Iran (Award No. 297-209-1 of 22 April 1987) (2013) 14 Iran–U.S. Cl. Trib. Rep. 191 –.
135 IBA Rules (n 1) Article 8.1 states expressly that the term ‘witness’ for the purposes of that article includes both witnesses of fact and any experts.
136 Some institutional rules make express provision for this situation. The SCC Rules, Article 33(3) states ‘any witness . . . on whose testimony a party seeks to rely shall attend a hearing for examination, unless otherwise agreed by the parties’.
137 For example, see LCIA Rules, Article 20.4; ICDR Rules, Article 23.4; SCC Rules, Article 33(3); and SIAC Rules, Rule 25.4.
138 Bayindir Insaat Turizm Ticaret Ve Sanayi A.S. v Islamic Republic of Pakistan (Award, 27 August 2009) ICSID Case No. ARB/03/29  (hereafter ‘Bayindir’). See also Generica Limited v Pharmaceutical Basics Inc 125 F3d 1123 (7th Cir. 1997) (hereafter ‘Generica’), in which the tribunal would not permit cross-examination of a third-party witness because it did not regard the proposed subject matter of the examination as being germane to its award. Despite this, when the tribunal came to assess the evidence, it acknowledged the restrictions that had been placed upon the respondent’s cross-examination of the witness. The award made in favour of the claimant expressly noted that, for that reason, the tribunal placed diminished reliance on the direct testimony of the witness.
139 Spuijbroek (n 4) para 9.
140 There is research to suggest that individuals can inadvertently—sometimes influenced by how questions are framed—create false memories. This may undermine the value of oral evidence given under pressure in response to carefully constructed questions put by examining counsel. For example, see Daniel Kahneman, ‘What You See Is All There Is (WYSIATI)’ in Thinking, Fast and Slow (Reprint edn, Penguin 2012).
141 We have also seen an interesting public exchange of views between arbitration practitioners on the additional point that it is sometimes difficult to assess the veracity of witnesses under cross-examination where—as has become more common—the examination takes place by means of video conference and that such difficulties may increase as other technological advances become adopted—for example, three-dimensional holographic projection. It is suggested that it may be possible to address such difficulties by harnessing other technological developments such as improved (non-invasive) lie-detection methods.
143 Shore (n 96) para 3.15 and fn 18.
144 In one example known to the authors the relevant procedural order stated in terms that ‘All factual witness statements shall contain . . . confirmation that the witness is able and willing to attend the hearing in London, if so required’. It also went on to direct that ‘The parties shall inform their potential witnesses of the hearing dates to ensure their availability to attend the hearing, and to enable the witness to obtain in good time the necessary visa to attend the hearing in London if required’.
145 This view is shared by other commentators. See Spuijbroek (n 4) paras 43, 48, and 52–53, as well as para 55 and fn 182 for an example in Generica (n 138) of a challenge being brought where one party had not been allowed to complete its cross-examination of the other party’s witness, and Spuijbroek (n 4) para 56 for another example in Paklito Investment Ltd. v Klockner East Asia Ltd.  HKLR 39, where one party had had no opportunity to question a witness, even though cross-examination had been requested. In the first case, the challenge was dismissed because the tribunal had attached ‘little or no weight’ to the witness statement. In the second case, enforcement of the award was denied. In Bayindir (n 138), after reviewing all of the circumstances, the tribunal concluded that, because the Claimant had no opportunity to cross-examine a witness, the latter’s written evidence could only be considered if corroborated by other evidence in the record.
146 Where the IBA Rules do not apply, some tribunals may wish to make provision for such a power where express provision does not otherwise exist under the applicable institutional rules. Respondents to the BCLP Survey on use of the IBA Rules based in France and Sweden told us that they had experience of tribunals incorporating express reference to such a power when drawing up a first procedural order.
147 In addition to incidents of serious illness or infirmity the authors are aware of one case where the witness sought to be excused because she was having a course of IVF treatment that required the procedure to be carried out on particular dates.
148 By way of example, in an ICC case known to the authors the procedural order dealing with such a situation provided that: ‘Subject to the submission of medical evidence before the beginning of the hearing, the First Witness statement of [redacted] shall remain on the evidentiary record, on the basis that there is a valid reason for his non-attendance’ (emphasis added). In that case, the tribunal also went on to note that the weight to be attached to the witness statement might nonetheless be affected by the other party’s loss of opportunity to cross-examine: ‘In weighing the value to attach to his evidence, the tribunal will take into account the fact that the [ . . . ] Respondents will not have had an opportunity to cross-examine Mr [redacted]’.
149 See also Harbst (n 71) 91–93. An example of threats made to witnesses can be found in Caratube International Oil Company LLP v The Republic of Kazakhstan (Award, 5 June 2012) ICSID Case No. ARB/08/12 69-77.
150 For example, as may be the case where the witness simply fails to turn up at that hearing.
151 ICC Partial Award dated November 2012 (n 101) 6.
152 It should be noted that IBA Rules (n 1) Article 8.3(b) (describing the procedure to be adopted at the Evidentiary Hearing) does not use the phrase ‘cross-examination’ but, in essence, this is the process provided for in that rule: ‘ . . . following direct testimony, any other Party may question such witness in an order to be determined by the Arbitral Tribunal. The Party who initially presented the witness shall subsequently have the opportunity to ask additional questions on the matters raised in the other Parties’ questioning.’
153 As described at 7.142– 7.143, not everyone agrees that cross-examination actually has the value often attributed to it.
156 ‘Procedural Order of 20 September 2004 in ICC Case 13054 (extract)’ in ibid 10 (emphasis added).
157 For example, the UNCITRAL Rules, Article 17.3; and the ICC Rules, Articles 25.2 and 25.3.
158 LCIA Rules, Article 20.4.
159 SIAC Rules, Rule 25.4: ‘If the witness fails to attend for oral examination, the Tribunal may place such weight on the written testimony as it thinks fit, disregard such written testimony, or exclude such written testimony altogether’. The WIPO Arbitration Rules adopt a softer line than the IBA Rules in providing that the tribunal may make the admissibility of witness statements conditional upon the witness being made available for oral testimony; see the WIPO Arbitration Rules, Article 56(d).
160 Or where an agreed adjustment to the rules has been made.
161 Orders we have seen include: ‘Should a witness who has submitted a written statement not appear at the witness hearing, the Sole Arbitrator shall at its discretion assess his written statement, taking into account all relevant circumstances’; ‘If a witness does not appear at the hearing without a valid reason, the Tribunal may use its discretion to limit the evidentiary weight to be given to the witness statement’; ‘If a witness is required to attend for cross-examination but fails to do so, the arbitral tribunal may in its discretion receive the statement, disregard the statement, or accept it but attach less weight to it, to be determined in the Arbitral Tribunal’s discretion’; ‘Should a witness who has submitted a written statement not appear at the witness hearing, the Sole arbitrator shall at its discretion assess his written statement, taking into account all relevant circumstances’; ‘Where a witness should ultimately not be able to attend for a valid reason, the Arbitral Tribunal shall in principle not be entitled to consider his written statement, except if extraordinary circumstances so warrant. In such event the Arbitral Tribunal shall hear the parties and decide by taking, however, into account all relevant circumstances, including the parties’ legitimate interests’ (emphasis added).
162 Under IBA Rules (n 1) Article 9.1, the weighing of evidence is left entirely to the tribunal.
164 Commentary on the 1999 IBA Rules (n 76) where the substance of the current provision was first introduced. In the section dealing with 1999 IBA Rules (n 55) Article 5, where 1999 IBA Rules (n 55) Article 5.6 is in similar terms to IBA Rules (n 1) Article 4.8, Commentary on the 1999 IBA Rules (n 76) 31 states: ‘Article 5.6, like Article 4.9 [now 4.8] was added . . . mostly for the sake of efficiency and completeness. If the parties can agree that an expert witness or fact witness need not appear . . . the progress of the arbitration may be enhanced. To encourage such agreements where the content of the expert report or witness statement may not be material to the outcome, Articles 4.9 [now 4.8] and 5.6 state that such an agreement does not reflect agreement on the content of the expert report or witness statement’.
165 For example, in a dispute where there are two or more respondents (or claimants) and one calls a witness for cross-examination while the others do not, is it only the party that does call for cross-examination (the ‘other’ party) that it is intended should have the protection offered by IBA Rules (n 1) Article 4.8.
166 This rule is so-called because the first reported judgment dealing with it appears in the English case of Browne v Dunn (1893) 6 R 67, HL (hereafter ‘Browne’) 70–71. In that case, heard before the then-House of Lords, it was said by Lord Herschell that: ‘ . . . I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a case, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such question had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him the opportunity of making any explanation which is open to him; as it seems to me, that is not only a rule of professional practice in the conduct of a case, but it is essential to fair play and fair dealing with witnesses’. See also Colin Tapper, Cross & Tapper on Evidence (12th edn, OUP 2010) 314, fn 446 (hereafter ‘Tapper’). The rule appears to be recognized in a number of other jurisdictions, including South Africa, Canada, Ireland, and Australia, where it is said to be ‘taken very seriously’; and Markem Corp v Zipher Ltd  EWCA Civ 267 ). See also Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation  1 NSWLR 1; Bulstrode v Trimble  VR 840 (hereafter ‘Bulstrode’); and Chen v NG (British Virgin Islands)  UKPC 27 (hereafter ‘Chen’). There is debate on the precise scope and application of the rule across jurisdictions but it appears to be widely accepted that (a) in practice, it may be unrealistic in light of restrictions on allocated court hearing time for cross-examination to extend to each and every statement made by the witness with which issue is taken, although the substance of any evidence that it is intended to challenge should be raised; and (b) where the witness (and the party presenting that witness) are already on clear notice (for example, by means of pleadings or written evidence) that the evidence is challenged, cross-examination may not be required under the rule. Note the comments of the Privy Council in the judgement delivered by Lord Neuberger and Lord Mance in Chen, 52 that: ‘In a perfect world, any ground for doubting the evidence of a witness ought to be put to him, and a judge should only rely on a ground for disbelieving a witness which that witness has had the opportunity to explain. However, the world is not perfect, and, while both points remain ideals which should always be in the minds of cross-examiners and trial judges, they cannot be absolute requirements in every case. Even in a very full trial, it may often be disproportionate and unrealistic to expect a cross-examiner to put every possible reason for disbelieving a witness to that witness, especially in a complex case, and it may be particularly difficult to do so in a case such as this where the Judge sensibly rationed the time for cross examination . . . ’. See also Browne, 70–72, and White Industries (Qld) Pty Ltd v Flower & Hart  FCA 806. In P v D, E and F  EWHC 1277 a failure to cross-examine a witness on a core issue led to the award being successfully challenged under Section 68 of the English Arbitration Act 1996. The judgment contains a useful review of the English authorities.
167 See the Judgment of Lord Herschell in Browne (n 166). The substance of the rule may also be found in professional conduct rules. For example, see BSB Code of Conduct (n 35) r C7 states that: ‘You must not make a serious allegation against a witness whom you have had an opportunity to cross-examine unless you have given that witness a chance to answer the allegation in cross-examination’.
168 See Tapper (n 166) 314.
169 Bulstrode (n 166) 840.
170 See Hugh Kennedy, ‘Putting the Case Against the Rule in Browne v Dunn’ (2006) The Bar Review: Journal of the Bar of Ireland 39.
171 For example, it does not appear to extend to the US.
172 2016 IBA Report (n 61) para 98.
173 The cases falling into this category appear to have been investment arbitrations conducted under the ICSID Convention Arbitration Rules or the UNCITRAL Rules.
174 The cases falling into this category are said to have been conducted under various arbitration rules.
175 Menaker and Davies (n 72) 139–47.
176 IBA Rules (n 1) Article 8.2.
177 ibid Article 8.1 (emphasis added).
178 Commentary on the IBA Rules (n 19) 17 makes the point that Article 8.1 aligns the IBA Rules to current best practice ‘according to which witnesses appear only if cross-examination has been requested or the party presenting the testimony wishes to do so by means of live testimony rather than written statements alone’ (emphasis added). Even against this background, we suggest that if the live evidence of the witness concerns only peripheral matters not material to outcome of the case, then the opponent party may wish to make submissions on costs should the attendance of the witness add significantly to hearing time or other costs (eg interpreters).
179 In principle, a witness should not be allowed to supplement its evidence during oral examination.
181 See further Judith Levine, ‘Can Arbitrators Choose Who to Call as Witnesses? (and What Can Be Done if They Don’t Show Up?)’ in Albert Jan Van den Berg (ed), Legitimacy: Myths, Realities, Challenges (Kluwer Law International 2015) 346 (hereafter ‘Levine’). Levine includes reference to national law provisions that may mitigate this position. For example, she cites the example of US Federal Arbitration Act 9 USC, s 7 (hereafter ‘US FAA’), which provides that arbitrators may ‘summon in writing any person to attend before them as a witness’.
182 The terms of some institutional rules will nonetheless provide for discretionary or inherent powers sufficiently wide to cover such a situation should the tribunal wish to exercise them. See, for example, ICC Rules, Article 25.1: ‘The arbitral tribunal shall proceed within as short a time as possible to establish the facts of the case by all appropriate means’. See also ICC Rules, Article 25.5; Swiss Rules, Article 24(3); HKIAC Rules, Article 22.3; UNCITRAL Rules, Article 27.3.
183 Bühler and Dorgan (n 16) 18.
184 See IBA Rules (n 1) Article 9.2(a).
187 In contrast to the steps that will follow a successful application under the English Arbitration Act 1996, s 44 in relation to a witness overseas, the process under English Arbitration Act 1996, s 43 will be relatively straightforward because an order of the English Court should be relatively easy to enforce against a witness within the jurisdiction.
188 Stemcor (S.E.A.) Pte Limited v Mideast Integrated Steels Limited, Arbitration Petition No. 332 of 2018 (Bombay High Court).
190 See, for example, England: English Arbitration Act, s 43(2), where application may only be made with the permission of the tribunal or the agreement of the other parties, and s 44(4), where the court shall act only on the application of a party or proposed party to the arbitral proceedings (upon notice to the other parties and the tribunal made with the permission of the tribunal or the agreement in writing of the other parties; Hong Kong, in Vibroflotation AG v Express Builders Co. Ltd  1 HKLR 239 (Hong Kong Court of First Instance), the Court held that the arbitral tribunal’s approval (under UNCITRAL Model Law on International Commercial Arbitration (as adopted by UNCITRAL on 21 June 1985), Article 27) might be inferred, but added that the better course was to obtain the express approval of the arbitrator. In Switzerland, PILS, Article 184 parallels the UNCITRAL Model Law on International Commercial Arbitration (as adopted by UNCITRAL on 21 June 1985 and as amended by UNCITRAL on 7 July 2006)—(hereafter ‘UNCITRAL Model Law’), providing the possibility for parties to an arbitration seated in Switzerland, ‘with the consent of the Arbitral Tribunal,’ to seek judicial assistance in the ‘taking of evidence’; in Sweden, Swedish Arbitration Act, s 26 provides that parties to an arbitration seated in Sweden have the right, with the approval of the arbitrators, to seek the assistance of local courts in taking sworn witness testimony or the production of documents. For an interesting discussion on the ability of a party to an arbitration to obtain assistance from the US courts, see John Fellas, ‘Using Section 1782 to Obtain Evidence for International arbitration Proceedings’ (New York Law Journal, 30 March 2017) <www.law.com/newyorklawjournal/almID/1202782394403/Using-Section-1782-to-Obtain-Evidence-for-International-Arbitration-Proceedings/> accessed 29 November 2018.
191 1999 IBA Rules (n 55) Article 4.9.
193 Commentary on the IBA Rules (n 19) 18. See discussion at 6.319-6.322 on possible exception to such a requirement.
194 ALC v ALF  SGHC 231 (hereafter ‘ALC’).
195 Procedural Order No. 1 in the arbitration also contained express provision that the arbitrator had power to order a party to use its best efforts to provide the appearance for testimony at a hearing of any person, including one whose testimony has not been offered.
196 ALC (n 194) , , –, –, and .
197 ibid , , and –.
198 IBA Rules (n 1) Article 4.9.
199 Commentary on the IBA Rules (n 19) 18.
201 See also Article 4.10 and the commentary on that article that follows.
202 UNCITRAL Model Law (n 190) Article 27 (emphasis added).
203 A v B  ASA Bulletin 2015 919 (Court of First Instance of the Canton of Geneva, 9 February 2015) is an example of a recalcitrant witness being summoned by the state court at the seat of arbitration to attend an arbitration hearing.
205 Marc D Veit, ‘Chapter 2, Part II: Commentary on Chapter 12 PILS, Article 184 [Procedure: taking of evidence]’ in Manuel Arroyo (ed), Arbitration in Switzerland: The Practitioner’s Guide (2nd edn, Kluwer Law International 2018) para 68.
206 IBA Rules (n 1) Article 8.5 states that ‘ . . . the Arbitral Tribunal may request any person to give oral or written evidence on any issue that the Arbitral Tribunal considers to be relevant to the case and material to its outcome’. The circumstances and manner in which the tribunal may exercise its powers under IBA Rules (n 1) Article 8.5 are dealt with later in this commentary. See Chapter 11 paras 11.86–11.92.
207 German Arbitration Law, s 1042(4) (emphasis added). See also the Arbitration Law of the People’s Republic of China, Article 43: ‘The parties concerned shall provide evidence to support their respective claims. Where an arbitration tribunal deems it necessary to collect evidence, it may collect it on its own initiative.’; and the Brazilian Arbitration Act 1996 (as revised in 2015), Article 22: ‘A tribunal has the power to compel the production of evidence (documentary or testimonial), which it deems necessary for resolving a dispute’.
208 English Arbitration Act 1996, s 34 (emphasis added).
209 Jason Fry, Simon Greenberg, and Francesca Mazza, The Secretariat’s Guide to ICC Arbitration (International Chamber of Commerce 2012) para 3-977 (emphasis added).
211 Gary Born notes that the ‘classic examples of such witnesses are corporate officers, directors or senior employees of a party to the arbitration’. See Gary B Born, International Commercial Arbitration (Kluwer Law International 2009) 1900–02. In the current (2014) edition of that text, Born puts it this way: ‘ . . . where a party fails to offer evidence from an apparently important witness, particularly its own officer or director, tribunals will request or, occasionally, order attendance of the individual(s) at a hearing’, see Born (n 38) 2284.
212 Guaracachi America, Inc. and Rurelec PLC v The Plurinational State of Bolivia (Procedural Order No. 16, 21 March 2013) PCA Case No. 2011-17.
213 This example is cited in Levine (n 181) 327–28.
214 The procedural order included the following provision: ‘The Tribunal may, after consulting with the Parties at a reasonable time in advance of the hearing, request a Party to make available for testimony at the hearing a witness whose appearance has not been requested by the other Party. The Tribunal may also request the Parties to provide for, or to use their best efforts to provide for, the appearance for testimony of a person for whom no witness statement has been submitted’.
215 The same caveat appears in IBA Rules (n 1) Article 8.5.