7.1  Article 4 of the IBA Rules, supplemented by Article 8 dealing with procedural aspects of oral testimony at the evidentiary hearing, provides a comprehensive framework for use and management of witness evidence.

7.2  This chapter deals primarily with Article 4. Related provisions found in Article 8 are referenced where appropriate, but will be dealt with in more detail in Chapter 11, which considers the text of Article 8. Other provisions relevant to the use of witness evidence include the duty to consult set out in Article 2,¹ the obligation of good faith contained in the Preamble 3,² and the tribunal’s power to determine the admissibility, relevance, materiality, and weight of evidence found in Article 9.³

7.3  The importance that a party’s legal team attaches to presentation of witness evidence may be influenced by the legal tradition of the jurisdiction with which those representatives are most familiar. It is dangerous to generalize, since practice varies considerably even among jurisdictions within each of the common law and civil law traditions. However, the differences that exist may colour the perspective that a party, its legal advisers, and each member of the tribunal may bring to an arbitration.

7.4  In the common law tradition, significant emphasis is placed on the use of witness evidence. Common law court proceedings will typically include oral witness testimony with cross-examination by counsel for the opposing party. In many civil law procedures, greater weight will be given to documentary evidence. There may be no or little oral evidence and, if there is, questioning of the witness may be undertaken by the court, rather than by counsel.⁴ In international arbitration, civilian lawyers often prefer to deliver witness statements with written submissions⁵ as part of a complete presentation of the case (the ‘memorial’ style approach), whereas common law (p. 217) lawyers may wish to have delivery of pleadings/written submissions first in order to carry out a forensic examination of those documents before submitting witness evidence.⁶ An appreciation of those differences will be useful to the parties, their legal counsel, and the tribunal when consulting about the procedure to be adopted for the taking of evidence.

7.5  The use of witness evidence may require direction and management by the tribunal in a number of areas. These include decisions about the identity and number of witnesses, the scope and content of the statements, a timetable for delivery of evidence, requests for oral examination and directions for attendance, and the management of questions put during oral evidence. The IBA Rules provide a useful set of provisions that can be adopted, or can guide, the parties’ discussions as they search for common ground on the procedure to be adopted both on matters of detail and questions of principle.⁷

7.6  Although many institutional rules make provision for the use of witness statements, and some include express reference to matters such as the manner of questioning of witnesses during oral testimony⁸ or party contact with witnesses,⁹ there is generally very little provision on matters of detail such as the required content of a witness statement or delivery of reply evidence.¹⁰ Absent a reference to the IBA Rules, the parties to arbitration proceedings will generally not have agreed anything about these matters in their arbitration agreement.

7.7  In practice, and in keeping with the principle of party autonomy, the procedure and timetable for presentation of witness evidence will very often be negotiated between the parties early in the arbitration process, with guidance and/or intervention from the tribunal as necessary, consistent with the consultation process provided for in Article 2 of the IBA Rules.¹¹

(p. 218) 7.8  Article 4.1 stipulates the first step in the procedure for presentation of witness evidence. It requires each party to the arbitration to identify:

1. (a)  the witnesses on whose testimony it relies;¹² and

2. (b)  the subject matter of that testimony.

7.9  In practice, consultation on the procedure by which the admission and presentation of witness evidence is to be managed may already have taken place. Article 2 (Consultation on Evidentiary Issues) includes reference to ‘the preparation and submission of Witness Statements . . . ’ and ‘the taking of oral testimony at any Evidentiary Hearing’ as being appropriate topics on which the tribunal may consult the parties at an early stage in the proceedings with the objective of agreeing an efficient, economical, and fair process.¹³

7.10  Article 4.1 implements the second principle set out in Preamble 3 to the IBA Rules—ensuring that no party is taken by surprise by its opponent’s introduction of evidence on a particular topic. It reduces the scope for tactical games designed to keep details of witnesses hidden until the last possible moment. Article 4.1 also enables each party to collect evidence on the same subject matter as its opponent well in advance of the evidentiary hearing. These safeguards will contribute to the efficiency of the arbitration and assist the parties in preparing their case.

7.11  Article 4.1 may also facilitate direct examination or interrogation by a tribunal in cases where the tribunal has not made an order for the delivery of witness statements. These cases are likely to be rare, but they may occur—for example, where the parties wish to keep down costs or where the tribunal was appointed under terms of special expedition.¹⁴ It may also happen that a witness not connected to either party is prepared to give oral testimony but has neither the time nor the inclination to produce a statement. The information provided under Article 4.1 will at least provide an outline of the likely evidence against which preparation for the evidentiary hearing may be undertaken by the non-presenting party, and by the tribunal.

7.12  Provisions similar to Article 4.1 encouraging advance notification of the identity of witnesses appear in a number of institutional rules.¹⁵ Even where such provisions are absent, it is reasonable to expect a tribunal to issue a similar direction as part of its general case management of the arbitration.¹⁶

(p. 219) 7.13  The parties must provide the information described in Article 4.1 ‘within the time ordered by the Arbitral Tribunal’.¹⁷ That deadline is likely to be decided upon during or after consultation with the parties and will very often be recorded in the first procedural order. The tribunal may stipulate that the information specified in Article 4.1 be provided with pleadings/written submissions or at some other time prior to the date for delivery of witness statements. The appropriate procedural timing will vary from case to case.

7.14  There may be legitimate reasons for having a deferred date for notification of witness information. Until submissions have closed, it may not be possible to establish the scope of the matters in issue between the parties so as to identify what witness testimony is necessary. In other cases, the issues of fact between the parties may be clear early on from the face of the Request for Arbitration and the answer or response to that request. If Party A’s claim is for the price of goods sold and delivered to Party B, and Party B’s defence is that the price has already been paid, it ought to be possible to identify relatively quickly which witnesses are able to offer evidence regarding payment having been received/not received. In other, more complex, cases the subject matter and factual issues in dispute between the parties may not emerge or crystallize until a much later stage. For example, in a complex construction dispute, all of the potential causes of a delay in completion for which witness evidence will be required may not be capable of being identified until a detailed examination of relevant documents has taken place.

7.15  Selection of individual witnesses may also take place at different stages. In many cases, counsel for the parties will have had some contact with potential witnesses as part of their initial investigation of the dispute or in order to gather information for written submissions. Where a memorial approach is adopted, witness statements may already have been taken. However, there will be other cases where fact-finding is ongoing during the early stages of the procedure, or situations in which the parties and their legal counsel have not yet identified the best or only witness on a particular subject.

7.16  If the parties are able to agree a date for notification of the required information this is likely to be adopted by the tribunal.

7.17  Having considered the parties’ written submissions, it is possible that a tribunal will indicate to the parties issues of fact that the tribunal has identified, and it may request details of the witnesses who will address those facts. As with any communication prior to the award by which the tribunal provides insight into its thinking on the issues between the parties, the tribunal will need to be careful not to give an impression of bias—for example, by formulating an issue in a way that carries an underlying assumption in favour of one of the parties. A common way of avoiding this problem is for the tribunal to ask the parties to agree a list of the issues to be addressed by the fact witnesses.

7.18  Article 4.2 addresses the important question of whether an individual with a connection to one of the parties to the arbitration may offer evidence as a witness or must tender information in a different capacity. This provision provides that ‘any person’ may present evidence as a witness. As a result, a party-related witness is treated in the same way as any other witness. For example, under Article 8.4 of the IBA Rules, the tribunal may order a party-related witness to affirm ‘in a manner determined by the Arbitral Tribunal to be appropriate’¹⁸ that s/he commits to tell the truth, just as it would with a witness having no connection to a party.

7.19  The Commentary on the IBA Rules¹⁹ points out that differences exist between legal systems on the question of whether an executive employee, agent, or other person affiliated with one of the parties to a dispute can be heard as a witness. In common law systems, any person (including the parties themselves), their employees, or their representatives may generally present evidence as a witness. In contrast, many civil law systems do not permit a party to be a witness in its own case. For example, many Swiss Cantonal civil procedure rules traditionally had a relatively narrow definition of a witness: a witness can only be a person who is independent of the parties and has no interest in the outcome of the proceedings. German law distinguishes between the examination of witnesses and the examination of a party—technically, a party and certain directors and officers of a party cannot serve as witnesses.²⁰

7.20  That is not to say that a related party cannot be heard. Very often, applicable restrictions simply mean that the connected individual will not be categorized as a witness and that certain consequences may follow from that position.²¹ For example, as mentioned in the Commentary, the information they give will not be provided under oath or a similar commitment to tell the truth.²² For these and other reasons, in some jurisdictions the evidence of a connected party may be treated as having less weight. In one case, the French Court of Appeal considered an ICC award in which the Egyptian Government was found to be a party to an arbitration agreement with Southern Pacific Properties (p. 221) (SPP). The tribunal had relied on the testimony of SPP’s chairman, in which he explained that he had refused to sign the agreement unless the Egyptian Government was added. The French Court was dismissive of the testimony of the SPP chairman, who it regarded as an interested party. The award was set aside.²³

7.21  Despite some civil law scepticism, in international arbitration it is now accepted that a party may be heard as a witness, and tribunals will generally listen to that evidence with an open mind. There are many good reasons for this, not least that such witnesses may have the best knowledge of the facts underlying the dispute. In some cases, there may be no other witnesses who can speak to the relevant events. To deny a party the right to rely on evidence from its directors and employees might also be viewed by practitioners from the common law tradition as frustrating that party’s right to present its case in the way it wishes. Acceptance of this position is reflected in the terms of Article 4.2 of the IBA Rules, which expressly state that ‘a Party or a Party’s officer, employee or other representative’ may present evidence ‘as a witness’.

7.22  Notwithstanding the terms of Article 4.2, parties may find it helpful to be alive to cultural differences and perceptions during discussions around arrangements for witness testimony. This may aid understanding of a position taken by an opponent or, where there is a choice of possible witnesses, inform a decision about which of them is likely to have most credibility with the tribunal.

7.23  Similar express provisions permitting party witnesses can be found in some institutional rules.²⁴ Other rules are silent on the issue.²⁵ In our view, the latter position should not be taken to exclude the right to admit party witnesses. In most cases, the general discretion afforded to a tribunal to conduct proceedings as it thinks fit will enable admission of related-party evidence. International practice also supports the view that, even where the position on party witnesses is unclear under the applicable arbitration rules, a tribunal is entitled to permit a party representative to appear as a witness.²⁶

(p. 222) 7.24  If the IBA Rules are being used as guidance only (and the applicable institutional rules do not deal with this issue in terms acceptable to the parties), the parties may wish to make an agreement in the terms of Article 4.2, or the tribunal may wish to incorporate such a provision in the first procedural order.

7.25  Acceptance of a party representative as a witness under Article 4.2 of the IBA Rules does not mean that the weight given to that evidence by the tribunal will necessarily be unaffected by the relationship between the witness and a party to the dispute. Article 9.1 of the IBA Rules, reflecting modern practice in international arbitration, provides that the tribunal ‘shall determine the admissibility, relevance, materiality and weight of evidence’ presented to it’. In consequence, the tribunal is still free to consider the identity of a witness, and his or her connection or affiliation to a party, as one of the factors to be taken into account in assessing the weight to be attributed to the evidence offered by that witness.²⁷

7.26  This position is confirmed in the Commentary on the IBA Rules²⁸ and is unsurprising. For example, just as a tribunal may consider it appropriate to give less weight to the evidence of a hostile witness whose employment has been terminated by one of the parties to the arbitration, the tribunal may take into account a sympathetic relationship between the witness and a party. As is always the case, this will be subject to the tribunal’s overall assessment of the quality and truth of the evidence presented by an individual witness during oral testimony.

7.27  A further factor to note is the potential for challenge to the award if the place of enforcement takes a hard line in relation to reliance on party-witness testimony. For example, not only are many Arab countries influenced by civil law scepticism associated with party witnesses, but Islamic Sharia law does not accept the testimony of a witness (p. 223) with a vested interest in the evidence that they give, because it is regarded as untrustworthy. Such distrust extends to evidence given by an employee of that party. It has been argued that Article 4.2 of the IBA Rules is in direct conflict with this principle of Islamic jurisprudence. This situation poses potential problems with respect to the enforceability of arbitration awards in certain jurisdictions. For example, in Saudi Arabia, where the principles of Sharia law are recognized and where the relevant arbitration legislation states in terms that the rules of procedure adopted in an arbitration must not conflict with Sharia law.²⁹ The potential for tension is recognized in some institutional rules where express provision is made for mandatory provisions of national law to be accommodated. For example, the issue is acknowledged in the Cairo Rules, which provide that:

Witnesses, including expert witnesses, who are presented by the parties to testify to the arbitral tribunal on any issue of fact or expertise may be any individual, notwithstanding that the individual is a party to the arbitration or in any way related to a party, to the extent permitted under the law governing the relevant issues . . .³⁰

7.28  Article 4.3 deals with interaction between a party/party representative and a witness/potential witness for that party. It makes clear that it is not improper for a party (or its representative) to meet with and discuss the evidence that an individual witness is able to give.

7.29  As mentioned, witness testimony, both written and oral, is now an accepted part of international arbitration. However, as pointed out in the Commentary on the IBA Rules, there are important differences between legal systems concerning the permitted nature and extent of the contact parties may have with witnesses whose testimony they offer (p. 224) in support of their case.³¹ Even where the formal restrictions that apply are not significantly different, cultural variances in approach may exist. In particular, there is a range of opinion on the nature of the support that it is appropriate to offer a witness in preparation for giving oral evidence at an evidentiary hearing. In light of these matters, and in the absence of an express agreement or other applicable provision, parties may find themselves operating on an uneven playing field. Thus, although Article 4.3 confirms that witness contact is acceptable in arbitration proceedings conducted under the IBA Rules, in implementing or considering that provision, it is necessary to bear in mind the differences in practice that exist at an international level.

7.30  The rules and practice prevailing in a particular counsel’s home jurisdiction may influence how s/he interacts with witnesses in the arbitration. Different national codes of conduct applying to counsel on each side of a case may require different standards of conduct in connection with witness contact.

7.31  Professional rules in some civil law countries prohibit or restrict contact between counsel and potential witnesses in litigation. Such limitations may arise in relation to both litigation and arbitration, although in recent years, in a number of jurisdictions, there has been a softening of approach in connection with the conduct of international arbitration. For example, both the Dutch-speaking and French-speaking Brussels Bar have adopted exemptions to their professional rules allowing counsel to have prior contact with witnesses in the conduct of international arbitration.³²

7.32  In England, in line with common law practice, solicitors are permitted to interview witnesses. However, they cannot do anything during the interview that may result in the court being misled.³³ Indicative behaviours demonstrating that this rule has been (p. 225) breached include attempting to influence the witness with regard to the content of their witness statement and seeking to persuade a witness to change their evidence.³⁴ The English Bar Standards Board’s Code of Conduct prohibits the drafting of a witness statement that contains any statement of fact other than the evidence it is reasonably believed the witness would give if giving evidence orally.³⁵ It also prohibits counsel from encouraging a witness to give misleading or untruthful evidence.³⁶ The code of conduct states expressly that counsel must not ‘rehearse, practice with or coach a witness in respect of their evidence’.³⁷

7.33  Compliance with applicable professional rules is a matter for individual legal counsel.³⁸ In theory, if counsel on the same case are operating to different rules or codes of practice, the ‘disadvantaged’ party and its legal team may consider enlisting the assistance of co-counsel not bound by the same restrictions. However, this may not always be a convenient or practical solution. Depending on the precise terms of the applicable professional rules, the risk remains that counsel is culpable in respect of conduct by co-counsel working as part of the same legal team.

7.34  Questions have been raised as to whether, if necessary, an arbitral tribunal should determine and apply an applicable law on witness preparation and, if so, what the law should be. While the idea that determining a single applicable set of professional conduct rules to remove potential inequality between the parties appears superficially attractive, in practice, attaining such an objective is illusory. For example, in applying a ‘closest connection’ test, the applicable law might be found to be that of the law of the seat. Such a finding necessarily assumes that local rules intended for local counsel are appropriate to apply in an international arbitration with a seat in the jurisdiction. Even if this assumption were correct, application of the law of the seat would not automatically exempt individual counsel from more onerous requirements of other professional conduct rules that are also applicable to them. An alternative finding that the applicable law was the law of the jurisdiction of admission to practise as counsel would simply reinforce any potential inequality that might otherwise exist.³⁹

(p. 226) 7.35  As mentioned, in addition to differences in the codes of conduct applicable to individual counsel, international arbitration practitioners will have different cultural approaches to preparation of witness evidence. This may also inform the nature of their interaction with witnesses. For example, in contrast to much civil law practice, common law counsel view it as an essential part of case preparation to be able to conduct interviews with potential witnesses and, if testimony is to be used, to support that witness in the drafting of a witness statement and preparation for the evidentiary hearing. Even within that tradition practice may differ. For example, English lawyers often view with suspicion the intensive witness preparation in the form of ‘mock’ cross-examinations undertaken by some US counsel. Those US counsel may feel that they are doing no more than assisting their client’s witnesses to recall key events as part of proper and professional preparation of the case for hearing. US counsel may, in turn, take a sceptical view of the direct testimony in written witness statements that has been carefully crafted by English lawyers.

7.36  The nature of desirable limits around witness preparation for an evidentiary hearing is a topic that generates considerable debate. At one end of the spectrum is a meeting with the witness to explain the procedure that will be followed at the evidentiary hearing. At the other extreme is a full-scale rehearsal or mock cross-examination on the facts of the case. In the latter situation some counsel may suggest or indicate to the witness how they should respond to particular questions—so-called ‘coaching’.

7.37  There are a number of recognized advantages of witness contact in preparation for an evidentiary hearing. It clearly makes sense that a lawyer should be permitted to explain the order of events and conventions to be adopted at the hearing so that the witness knows what to expect. A witness who feels relatively comfortable with his surroundings and what is expected of him is much more likely to present credible and useful evidence.⁴⁰ In nearly all cases it will be useful for witnesses to review the relevant documents in order to refresh their memory of events and to collect their thoughts on a particular point. This may reduce the time taken for reading documents during cross-examination and may avoid the witness either contradicting themselves as events come back to them, or being unable to produce any helpful evidence because they are taken by surprise on a topic they have not considered for many months or years.⁴¹

(p. 227) 7.38  On the other hand, over-preparation can undermine the credibility of a witness. The most important thing for a party tendering a witness is that the tribunal believes the witness to be honest. If this is the case, the tribunal will not expect the witness to remember accurately every detail of events that may have occurred some time ago, and minor inconsistencies with other evidence may be forgiven. However, if the tribunal believes that the evidence given by a witness has been coached or rehearsed, it may be less inclined to accept that evidence as genuine and may give it less (or no) weight. It is also possible that the view the tribunal takes of that witness may contaminate its assessment of other witnesses tendered by the same party. Many experienced arbitrators express confidence that they can tell when a witness has been coached and will adjust their assessment of that evidence accordingly.

7.39  The following extract from the judgment of Mr Justice Fraser in a commercial dispute in the English Technology and Construction Court,⁴² although addressing evidence given in Court rather than arbitration, illustrates the sorts of dangers inherent in over-preparation:

Mr Colwill adopted a style of giving evidence that became increasingly common throughout the trial for the majority of the witnesses for Energy Solutions. [ . . . ] it appears that witness training was provided . . . Whether that training was responsible for the style of giving evidence, I do not know. [ . . . ] This was, at times, to avoid the question and embark upon something of a corporate presentation. The linguistic device adopted for this approach was, usually, to state that it was necessary to put a question ‘in context’ and then embark upon an exposition that was essentially sketching out the Claimant’s case, and avoiding giving a clear answer to sensible questions.⁴³

7.40  It appears that some form of mock questioning between counsel and witness is relatively common practice in international arbitration. In a Queen Mary survey of international practitioners conducted in 2012,⁴⁴ 55 per cent of respondents said that mock cross-examination had taken place in their arbitrations at some stage. In addition, 62 per cent of all respondents, and 81 per cent of North American respondents, considered mock cross-examination of witnesses appropriate. Only a small minority (24 per cent) considered it inappropriate.

7.41  The real issue may lie in the extent to which counsel seek to influence what the witness will say in response to questions from opposing counsel or the tribunal. There is a divergence of opinion on this issue. Some practitioners take the view that there is nothing wrong in suggesting an answer that witnesses may use, as long as it is not a false answer.⁴⁵ For example, one US bar opinion states in the following terms the view that it (p. 228) is wholly irrelevant that a lawyer has suggested the response a witness give in evidence if the evidence itself is true:

[T]he governing consideration for ethical purposes is whether the substance of the testimony is something the witness can truthfully and properly testify to. If he or she is willing and (as respects his or her state of knowledge) able honestly so to testify, the fact that the inclusion of a particular point of substance was initially suggested by the lawyer rather than the witness seems to us wholly without significance . . . The mere fact of a lawyer having prepared the witness for presentation of testimony is simply irrelevant, indeed a lawyer who did not prepare his or her witness for testimony, having had an opportunity to do so, would not be doing his or her professional job properly.⁴⁶

7.42  The subject of witness ‘coaching’ has received attention before the courts of a number of jurisdictions. The English court has given some guidance as to where the line is to be drawn between what is acceptable and what is not. Those guidelines adopt a more restrictive approach than the North American example given, and suggest that any discussion on the evidence to be given may influence its delivery and is to be discouraged. In R v Momodou Lord Justice Judge commented that:

[T]he witness should give his or her own evidence, so far as practicable uninfluenced by what anyone else has said, whether in formal discussions or informal conversations. The rule reduces, indeed hopefully avoids any possibility, that one witness may tailor his evidence in the light of what anyone else said, and equally, avoids any unfounded perception that he may have done so. These risks are inherent in witness training. Even if the training takes place one-to-one with someone completely remote from the facts of the case itself, the witness may come, even unconsciously, to appreciate which aspects of his evidence are perhaps not quite consistent with what others are saying, or indeed not quite what is required of him. An honest witness may alter the emphasis of his evidence to accommodate what he thinks may be a different, more accurate, or simply better remembered perception of events. A dishonest witness will very rapidly calculate how his testimony may be ‘improved’.⁴⁷

7.43  In a case before the Singapore High Court,⁴⁸ the Judge took the decision to give ‘negligible weight’ to the evidence of one of the witnesses of fact in the case. During the course of the trial it became apparent that the witness had participated in group training (p. 229) sessions where, in effect, the witnesses had ‘practised’ their evidence. In addition, the witness had been provided with a document containing a series of questions that he might be asked in cross-examination and including a set of answers in the nature of a script—a document that was described by the Judge as going ‘to the very veracity of [the party’s] witnesses and the evidential value of [the party’s] evidence’. The Judge concluded that ‘the credibility and accuracy of the important and relevant parts of . . . the evidence on the issues before me has been severely compromised’.⁴⁹

7.44  Responses to a survey on the IBA Rules containing questions on the issue of preparation and ‘coaching’ of a witness for an evidentiary hearing were varied. Respondents from Argentina and Italy said that this was not permitted, while respondents from China, Canada, and the United States said that it was. The experience of many practitioners appeared to be that there is a boundary beyond which it is improper and imprudent to go. There was consistency around the idea that counsel could assist and support witnesses to express their testimony fully and effectively, but that they must not do anything to distort the witness’s version of events. For example, the position in Australia was described as being that it is possible to direct the witness’s attention to points in his/her evidence that may arise in cross-examination. It is also possible to direct a witness to points in his/her evidence that appear contradictory. However, coaching a witness so that the witness’s live recollection of events is supplanted by another version suggested by the interviewer is not possible. In Ireland, directing a witness to answer a question in a particular way would be impermissible. The position in Nigeria was reported to be that interviewing a witness is permissible, but that the counsel interviewing must avoid any suggestion calculated to result in the witness supressing evidence or deviating from the truth.⁵⁰

7.45  As described, there exists a wide spectrum of practice around witness contact in international arbitration. However, as has occurred in relation to other aspects of the arbitration process, international guidelines are emerging that seek to articulate a common understanding of what constitutes accepted best practice.

7.46  For example, as noted in the Commentary on the IBA Rules, ‘in transnational arbitration, it is now generally well established “that a party and its counsel are, as a general rule, permitted to contact a potential witness on its behalf and question him or her about the facts in dispute” ’.⁵¹ However, the IBA Guidelines on Party Representation in International Arbitration,⁵² drafted by an IBA Task Force on Counsel Conduct, (p. 230) emphasize the need to protect and preserve the authenticity of the evidence to be given by a witness.

7.47  Guidelines 18–25 concern the interaction between party representatives and witnesses. Guideline 24 provides that a party representative may meet or interact with witnesses and experts in order to discuss and prepare their prospective testimony. Guidelines 20 and 21 provide that counsel may ‘assist Witnesses in the preparation of Witness Statements’ while always ‘seek[ing] to ensure that a Witness Statement reflects the Witness’s own account of relevant facts, events and circumstances’.⁵³ These provisions are mirrored in the Comments to the Guidelines 18–25 which emphasize the need to preserve the authenticity of the evidence.⁵⁴ We suggest that the Guidelines represent best practice in international arbitration.

7.48  In practice, witness contact takes two main forms: interviewing a witness to take a witness statement, and preparation for an evidentiary hearing. Practical issues around both forms of witness contact may arise in any arbitration. The IBA Rules contain useful provisions for the parties, and for the tribunal, in relation to each aspect.

7.49  Article 4.3 of the IBA Rules makes clear that it is not improper for ‘a Party, its officers, employees, legal advisors or other representatives to interview its witnesses or potential witnesses’.⁵⁵ This reflects current practice in international arbitration. It is not uncommon to find express provision for such contact in the first procedural order, even when the situation is already covered by application of the IBA Rules or other similar institutional rule.⁵⁶

7.50  A number of institutional rules contain provisions reflecting the acceptance of such contact between witness and a party’s lawyer,⁵⁷ although the LCIA Rules make the position subject to the mandatory provisions of any applicable law.⁵⁸

(p. 231) 7.51  The majority of respondents to a survey on this point confirmed that it was considered permissible in their jurisdiction for a party/counsel to interview a witness and to prepare a witness statement for use in international arbitration.⁵⁹

7.52  Article 4.3 of the IBA Rules also makes clear that, in addition to interviewing witnesses or potential witnesses, it is not improper for ‘a Party, its officers, employees, legal advisors or other representatives . . . to discuss their prospective testimony with them’.⁶⁰ This wording did not appear in the 1999 IBA Rules and the Commentary on the current rules suggest that the additional wording is intended to clarify that an interview with a witness need not remain general, but may relate to the subject matter of the testimony that the witness will give. In our view, this area of practice will continue to generate debate. When asked about possible areas for improvement to the IBA Rules, respondents to an IBA Survey ‘called for greater clarity on the boundaries between fact witness interviews and preparation’.⁶¹

7.53  In practice, there is unlikely to be a fundamental conflict between the IBA Rules and applicable institutional rules.⁶² Most institutional rules provide little guidance on preparation for the evidentiary hearing. They either refer only to interviewing a witness or are silent on the matter.⁶³ Thus, to the extent that a tribunal takes the view that the IBA Rules reflect current best practice in international arbitration, a similar approach may be followed even when the IBA Rules have not been formally adopted in the arbitration.

7.54  Policing the proper observance of boundaries set by Article 4.3 of the IBA Rules may be problematic. It is difficult for another party or the tribunal to know what goes on behind the scenes in relation to witness preparation. While counsel subject to local bar restrictions on witness contact may advocate transparency, the same may not be true of counsel who intend to push the boundaries of what is deemed acceptable. Complaints about witness preparation made to the tribunal by the other party’s counsel may not always result in sanctions, or removal of the witness testimony from the (p. 232) record.⁶⁴ Opposing parties may have to place their trust in the ability of the tribunal to identify a witness who has been coached beyond acceptable boundaries and to take this into account when weighing the evidence of that witness. Many experienced arbitrators will be adept at doing this.

7.55  As a result of the differing approaches to witness contact it may be desirable for the parties to an arbitration to agree—or the tribunal to lay down—some ground rules to ensure, as far as possible, that the parties are operating on a level playing field, whether by reference to particular rules or guidelines or to a discrete agreement. Ideally, there should be openness and transparency around what each party may be expected to do and what the tribunal will find acceptable.

7.56  The UNCITRAL Notes on Organizing Arbitral Proceedings⁶⁵ suggest that a tribunal may wish to address such matters at the outset of arbitral proceedings; paragraph 90 states:

The arbitral tribunal may consider clarifying at the outset of the arbitral proceedings the nature of the contact a party or its representative is permitted to have with its witnesses, when inquiring about the facts of the case, when preparing written witness statements and when a witness is preparing to give oral testimony.⁶⁶

7.57  It is not wholly clear whether this approach is intended to foster transparency about restrictions contained in professional conduct rules applicable to individual counsel, or to encourage the tribunal to indicate the nature of contact with witnesses that the tribunal would find appropriate, subject always to any applicable conduct or local rules.⁶⁷ Both objectives have merit.

7.58  Article 4.4 of the IBA Rules gives the tribunal express power to order the submission of witness statements from witnesses upon whose testimony a party intends to rely, and to determine the time period for doing so.

7.59  In the majority of cases, the tribunal will already have power under the applicable institutional rules to direct the use of witness statements. In such cases, the IBA Rules contain helpful provisions providing detail of how the presentation of that evidence should be managed, with a focus on transparency.

7.60  Article 8.4 of the IBA Rules 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. In practice, the submission of witness statements, and their standing as direct testimony, is what happens in most international arbitrations.⁶⁸ This was not always the case. The use of witness statements in which the witness sets out, in written form, the substance of his or her evidence, is a relatively new practice. Even in the English Court, where the presentation and testing of witness evidence is considered to be a critical part of the litigation process, the use of witness statements in substitution for oral direct testimony did not become commonplace until the 1990s.

7.61  Article 4.5 (see 7.82– 7.126) sets out details of the required content of a witness statement served under the IBA Rules.

7.62  As mentioned, Article 4.4 does not require the tribunal to order the submission of witness statements; rather, the article states that the tribunal ‘may order’ (emphasis added). There may still be occasions in international arbitration where the parties and the tribunal are content that witness statements should not be served, perhaps for reasons of economy. However, in the majority of cases, witness statements will be used.

(p. 234) 7.63  The Commentary on the IBA Rules suggests that the use of witness statements is desirable in the interests of procedural efficiency. As the Commentary points out, if witness statements are used, the evidence that a witness plans to give orally at the hearing is known in advance. The other party can better prepare its examination of the witness and select the witnesses that it will present on the same issues of fact. The tribunal is also better placed to understand the evidence and formulate its own questions to the witness. Because in most cases the witness statement will stand as the direct evidence of the witness, the examination can move straight to cross-examination by the other party.⁶⁹

7.64  The use of witness statements contributes to a fair process by ensuring that parties are not taken by surprise, thereby meeting the objective referred to in the Preamble to the IBA Rules that each party should be given reasonable advance notice of the evidence relied on by its opponent.⁷⁰ The following remarks capture the problems inherent in not using witness statements:

Fairness is the overriding objective in arbitration. The party offering the witness has ample time to put together the direct testimony. Without witness statements the opposing party would be confronted with direct testimony for the first time during the hearing. Preparation time would be reduced to zero. The opposing counsel would have to prepare the cross examination while listening to the direct testimony. Accordingly, the playing field would not be level.⁷¹

7.65  There are other possible advantages. The use of witness statements may assist the parties in identifying areas of agreement and narrowing the scope of disputed facts. The ‘cards on the table’ approach to witness evidence may also assist in facilitating settlement of the dispute.

7.66  Of course, if witness statements are not used, the attendant difficulties of anticipating and cross-examining witnesses, as well as the inability to narrow factual issues, would apply to all parties. However, this might still work to the ‘net disadvantage’ of one party if, for example, the bulk of the available witness evidence on disputed facts came from one side only.

7.67  On the other hand, there are a number of criticisms of witness statements. Some critics say that such statements are little more than a vehicle by which counsel make further submissions⁷² and that they have little evidential value. In addition, the practice of having the witness statement stand as direct testimony means that the direct testimony (p. 235) given orally at an evidentiary hearing is, at best, often limited to answering a few questions directed at correction or clarification of a written statement before the witness is plunged into a challenging cross-examination.⁷³ The tribunal does not have the benefit of seeing and listening to the witness give his recollection of events. This may be seen by some as unfair, as well as not always getting the best out of the witness. There is also debate around whether the use of witness statements necessarily results in savings in time and costs, as is often claimed.⁷⁴

7.68  In the absence of agreement between the parties, it is for the tribunal to decide when the witness evidence is to be submitted. The IBA Rules merely provide that the tribunal may order the submission of witness statements to the tribunal and to the other parties ‘within a specified time’. The date for delivery of statements is likely to be one that has been discussed and agreed during consultation on the procedural timetable for the arbitration.⁷⁵

7.69  In addition to determining a date for delivery, the tribunal will need to consider whether the parties should deliver witness statements simultaneously or consecutively. There are advantages and disadvantages to both approaches. The Commentary on the IBA Rules suggests that simultaneous exchange causes less delay, leads to more disclosure and equality between the parties, and results in less tailoring of statements to neutralize witness evidence received from the other party.⁷⁶ Conversely, consecutive statements may allow parties to focus on the relevant points that arise out of the statements received from the other party, thus potentially making the process more efficient.⁷⁷ The Commentary goes on to suggest that a combination of the advantages of both simultaneous and consecutive delivery may be achieved if the tribunal directs two rounds of simultaneous exchange, with the second round being limited to matters raised in the other party’s first-round statements.⁷⁸

7.70  To an extent, the choice of one approach over the other may depend upon whether a memorial style⁷⁹ of submissions is being used in the arbitration. If it is, the parties’ (p. 236) written submissions will generally be accompanied by supporting witness statements and documents, and sometimes expert evidence as well. Some counsel (often common law lawyers) prefer that witness statements follow as a separate step after the process of pleading has been completed. By way of example, witness statements in LCIA arbitrations are said to be generally exchanged after the parties’ written statements of case.⁸⁰

7.71  If witness evidence is delivered after the pleadings have been delivered, the witness statements can be more focused, with emphasis on the issues that have crystallized on the earlier pleadings or written submissions.

7.72  On the other hand, where a pleading or memorial is accompanied by witness statements, the submissions and evidence are generally more closely aligned, ie the evidence supports the factual matters relied on in the pleadings. This approach may avoid the embarrassment of a party arguing a point in submissions and only later finding out that it cannot be made good in witness evidence.

7.73  The practice of serving witness evidence with a memorial/pleading may also avoid additional procedural steps. In practice, witness statements served after an exchange of pleadings sometimes go far beyond a party’s case as stated in its prior written submissions. In addition, Article 4.5(b) of the IBA Rules permits a witness statement to be accompanied by additional documents not already submitted. As a result, a witness statement delivered after pleadings have closed may serve as a trigger for a further round of submissions,⁸¹ at the risk of further responsive steps and consequential delay.

7.74  Issues also sometimes arise about whether the witness statements (or at the very least, second-round statements), should be served after document production. In cases where the bulk of the relevant documents are in one party’s possession (for example, in a construction dispute where only the contractor holds a complete set of documents relating to project performance, or in a dispute following the sale of a company where the relevant documents have all remained within the company, which has been sold) the other party may want to have access to relevant categories of documents when preparing its evidence. The first party may say this is unnecessary as the witnesses should speak only to matters within their own knowledge. In truth, when taking witness statements, most counsel will want the comfort of access to all contemporaneous documents in order to raise with the witness any factual issues arising out of those documents. It is sensible and appropriate to raise these matters with the tribunal during the consultation process contemplated by Article 2 of the IBA Rules.

7.75  In a survey on this issue,⁸² a number of respondents from civil law jurisdictions reported that, in their experience, witness statements are generally served with written submissions. These respondents included law firms in France, Germany, Spain, Portugal and (p. 237) Sweden. The experience of respondent practitioners in China, Nigeria, Ireland, Italy, Australia and Canada was more mixed, with delivery of witness statements reported as sometimes taking place at the same time as written submissions, and sometimes subsequently. In the latter case, there was a mix of simultaneous and consecutive exchange.⁸³

7.76  Consultation on the preparation and submission of witness statements is expressly referred to as a topic on which early consultation may be desirable under Article 2 of the IBA Rules.⁸⁴ During discussions between the parties, and in consultation with the tribunal, it will be appropriate to consider and discuss all of the various factors relating to process and timing that may be relevant in the particular circumstances of the case. One of those factors will be the desirability of organizing witness evidence appropriately according to the agreed phases of the arbitration.

7.77  Article 4.4 of the IBA Rules provides that the tribunal may order, or the parties may agree, that the timetable for delivery of witness evidence should reflect the fact that evidentiary hearings have been organized by reference to separate issues or phases and thus permit witness evidence on different issues at different times. It states:

If Evidentiary Hearings are organised into separate issues or phases (such as jurisdiction, preliminary determinations, liability or damages), the Arbitral Tribunal or the Parties by agreement may schedule the submissions of Witness Statements separately for each issue or phase.⁸⁵

7.78  This provision should encourage parties and the tribunal to think about what ‘tailoring’ of the witness evidence is possible in the interests of efficiency. For example, where it has been decided that a challenge to the jurisdiction of the tribunal will be dealt with as a preliminary step, there may be a direction for witness evidence to be limited to matters relevant to that challenge. If there is a possibility that the proceedings will fall away as a result of a successful challenge, there is little point in the parties incurring time and costs in preparation of evidence of a wider scope. Similar considerations may apply where it has been decided that there should be a bifurcation of the arbitration to deal with liability and quantum, or another determinative preliminary issue.

7.79  Although the particular situations mentioned here are expressly highlighted in Article 4.4, in our view the flexibility inherent in the opening line of Article 4.4 means that it is possible to tailor the timing of witness evidence to other circumstances. For (p. 238) example, if a party’s expert witnesses are not all available to work on expert evidence during the same time period, or the preparation of evidence by one expert is dependent on the conclusions of another expert, it may make sense to expedite or defer a particular strand of expert evidence and the witness evidence on which it depends. Of course, the parties will need to be wary of proposals that, although superficially attractive, may in practice introduce an unwarranted degree of procedural complexity or simply increase costs.

7.80  A tribunal may not wish to receive a copy of the witness statements when served by the parties but may prefer to wait until it receives bundles containing a complete set of witness evidence in preparation for the evidentiary hearing. It is sensible to clarify this point with the tribunal during discussions on the procedural timetable. A tribunal-expressed wish to defer delivery may indicate that a tribunal does not intend to look at the evidence before the hearing. This is an approach that many parties may dislike but which is relatively common in arbitration and elsewhere.⁸⁶

7.81  The fact that a party has provided a witness statement does not always mean that the witness will be required to attend an oral hearing. Article 8.1 of the IBA Rules provides that witnesses need attend only if their presence is requested by any party to the proceedings, or by the tribunal. It is possible that the parties may reach a position where the written evidence of a particular witness is not contested or, as issues and evidence develop, the witness evidence is not considered material to the outcome of the case.⁸⁷ Where attendance at the evidentiary hearing is requested by the other party, in the absence of good cause, the witness must attend the hearing or the tribunal may disregard the witness statement.⁸⁸

7.82  Article 4.5 of the IBA Rules lays down a number of requirements concerning the content of a witness statement submitted under the IBA Rules.

7.83  The opening line of Article 4.5 includes the words ‘shall contain’. As a result, where the IBA Rules have been formally adopted, in the absence of agreement between the parties or an order of the tribunal to the contrary, these requirements must be met in relation to any witness statements submitted. In light of this, it seems to us that the tribunal is entitled to order that any formal defect in a delivered statement should be corrected, either at the request of another party or on its own initiative.

7.84  In any event, Article 4.5 is useful in providing a form of checklist for the content of a witness statement. In broad terms, the requirements described in Article 4.5 reflect good practice as to the form and content of written witness testimony.

7.85  A witness is required to state his or her full name and address.

7.86  In practice, the address provided will very often be a business or professional address, but it need not be. As long as some form of contact address is provided this is unlikely to present a problem. If a witness has no business address and, for some reason, the witness does not wish to give a personal residential address, it may be possible for the witness’s personal address to be provided confidentially to the tribunal only, without objection being taken by other parties.

7.87  Any relationship between the witness and any of the parties must be disclosed. The existence of such a relationship, and its nature, may be relevant to the tribunal’s assessment of the weight it should attribute to the evidence presented by the witness. (p. 240) In practice, the tribunal’s assessment of the quality of evidence given by a witness will be heavily influenced by the tribunal’s judgment on the credibility of that witness after hearing him or her give oral evidence. However, in circumstances where a tribunal relies on written witness testimony only, the existence of a relationship between that witness and one or more of the parties may assume greater significance. It may be one of a number of factors the tribunal will take into account in weighing the evidence.

7.88  Article 4.5(a) requires the disclosure of present and past relationships. A witness should think very carefully about the existence of any prior relationships. Clearly, the fact that a witness is or has been an employee of one of the parties, or has provided business or professional services to them, or has some other professional or personal connection must be disclosed. Even where the relationship is from a considerable time ago, or appears insignificant, the prudent course is to mention it in the opening paragraphs of the statement. This will protect the witness (and the party tendering that witness) from criticism or tactical challenge by the other party. There may also be situations where a witness is known to a member of the tribunal and disclosure of that relationship may assist the tribunal. In all of these cases transparency will enhance the credibility of the witness.

7.89  The witness statement must include a description of the witness’s background, qualifications, training, and experience if such description ‘may be relevant to the dispute or to the contents of the statement’.

7.90  In many cases, such a description will be relevant. A witness tendered by a party will very often be an employee whose role in the organization is the reason the witness has relevant evidence to offer. Similar considerations will apply to outside contractors and agents retained by that party. For example, a head of finance may have noticed that funds are being diverted away from the company’s accounts, or an IT consultant may have been given project management for an outsourced software development project and can speak to the failures in performance by the party to whom the work was outsourced. In such cases, the status and role of the witness within or in relation to the organization, as well as their professional qualifications and experience in the relevant professional or industry discipline, add context and possibly weight to the evidence they offer.

7.91  Some tribunals may ask that witness statements include photographs of the witnesses so that there is no doubt about the identity of the person submitting the statement. It may also help the tribunal to recollect ‘who testified to what’ when it revisits the evidence after the evidentiary hearing.⁸⁹

7.92  The witness statement must contain a complete statement of the facts intended to be relied upon. It must also indicate the source of the witness’ information about those facts.

7.93  Article 4.5(b) of the current IBA Rules provides that the witness statement must contain a ‘full and detailed description of the facts . . . sufficient to serve as that witness’s evidence . . . ’. This requirement makes sense when viewed in the context of the current general practice in international arbitration (provision for which is made at Article 8.4 of the IBA Rules)⁹⁰ that witness statements stand as direct testimony. The requirement of a ‘full’ and detailed description of the facts also reduces the risk that, as the dispute develops, the scope of the available direct testimony is found to be too narrow.

7.94  The statement should explain the facts from the perspective of the witness. Although not expressly referred to in the IBA Rules, adoption of the words actually used by the witness is generally the best practice.

7.95  The word-for-word repetition by lawyers of precisely the same description of a meeting in the statements of two separate witnesses is unlikely to enhance their credibility. Allowing the witness to tell the story in his or her own words will not only maintain the integrity of the evidence but, under cross-examination, the witness is more likely to tell the same narrative and, as a result, contribute to his or her credibility before the tribunal. Finessing evidence to express it in terms that fit neatly with a legal argument or concept is likely to be quickly identified by the tribunal as lawyers’ drafting, with a possible adverse effect on the weight that the tribunal will attach to it.

7.96  In the witness evidence it produces, a party should focus on the evidence necessary to prove the facts underpinning its case. We agree with the suggestion that it is helpful (at least internally) for counsel to mark up a copy of the written submissions with details of those witness who can prove the facts relied upon in order to ensure that there are no gaps.⁹¹

7.97  There is no guidance given as to the form that the required description of the facts must take. This matter is left to the witness and assisting counsel. As a matter of convention, (p. 242) and in order to provide a coherent account that the tribunal can follow, the narrative provided in a witness statement is generally chronological or issue-based, and is set out in numbered paragraphs that facilitate ease of review and cross-referencing in any later supplemental or reply witness statements, or during cross-examination and in the award itself.

7.98  Preferences as to the general content and structure of a witness statement may be influenced by cultural background and individual experiences. However, in general, it is sensible to confine the statement to events of which the witness has direct knowledge. To expand the statement beyond these events may result in cross-examination of the witness on matters about which s/he has no knowledge and, depending on how the witness copes with questioning on those points, may adversely affect the credibility of that witness. Restricting the content to matters on which the witness has direct knowledge will also minimize the use of hearsay (see further at 7.104– 7.106).

7.99  A further common (but unhelpful) practice is to have a witness comment on or explain each and every document in the case. This is wasteful of both time and costs. Other categories of content that will offer little assistance to the tribunal, and which may detract from the substance of the evidence of value that the witness can offer, include statements of opinion and speculation.

7.100  Given the extensive use of witness statements in the English Courts, some useful observations may be gleaned from published reports considering (and criticizing) the significant cost and length of witness statements filed in that forum. Those reports note that court time has not been saved by the introduction of witness statements—rather than listening to the examination-in-chief, the Judge simply spends time reading a very lengthy witness statement, and loses the opportunity to observe the witness’s demeanour during direct examination as well as cross-examination.⁹² Many of the adverse factors identified in those reports are equally applicable in international arbitration. Those factors include counsel’s perception that witness statements have to be drafted as precisely as pleadings, leading to many rounds of drafts before the finished (often lengthy) statement is produced and, in some cases, attempts to ‘bury’ certain key facts among many pages of minor detail.

7.101  However, the reports on court practice mentioned⁹³ also note a number of mechanisms that may reduce the length and cost of witness statements. In appropriate cases, and bearing in mind that considerations of due process, efficiency, and economy are an express objective under the IBA Rules,⁹⁴ these approaches may be considered for use in (p. 243) international arbitration. Suggested possibilities include a requirement for a one-page summary of the witness evidence, stipulating a maximum length for the statements, as well as (in appropriate cases) early identification (by argument if necessary) as to the facts that need to be proved by witness evidence, and the imposition of costs sanctions where directions as to the scope or form of witness statements have been flouted.

7.102  The lack of express provision in the IBA Rules on the format in which the evidence is to be drafted provides scope for innovation or tailoring of the statement to suit the needs of the case, should the parties agree, or the tribunal guide them towards, a variation on the conventional. For example, ‘bullet points’ or ‘telegraphic style’⁹⁵ or a statement in question-and-answer format could be used.⁹⁶ Another helpful approach requested by some tribunals is a requirement that the witness statement identify the factual issue to which each part of the witness statement is relevant.⁹⁷

7.103  If parties are concerned that their opponent may take a very different approach from them in preparing witness evidence (for example, in relation to the level of detail), the best way to tackle this concern is to clarify the matter early in the process, either by discussion with the other party or as part of the consultation with the tribunal provided for in Article 2 of the IBA Rules.

7.104  Article 4.5(b) states that the witness statement shall contain details of the source of the information for the facts described in the witness statement. As a result, in addition to expressly indicating the matters that are based on the witness’ own knowledge, the witness should identify any parts of the statement based on what is referred to in the common law tradition as hearsay—namely, something that the witness has learned ‘second-hand’, generally through something said by someone other than the person testifying, or as reported in a document issued or prepared by someone else. Under many institutional rules, and under the arbitration laws of most arbitration-friendly seats, it is up to the tribunal to decide on the admissibility of evidence, and thus there is no rule against the admission of hearsay evidence.⁹⁸ However, the requirement to state (p. 244) the source of knowledge will assist the tribunal in assessing the weight to be accorded to that evidence.⁹⁹ Witness statements sometimes contain an introductory paragraph confirming that the facts stated are based on the personal knowledge of the witness unless otherwise stated. In that case, the witness need refer specifically to a source of knowledge only if a particular piece of evidence is based on hearsay or other ‘second-hand’ knowledge.

7.105  In principle, the other party might raise an objection to hearsay evidence under mechanisms available in the IBA Rules. For example, Article 9.2 of the IBA Rules states that the tribunal shall, ‘at the request of a Party, or on its own motion’ exclude from evidence any statement on grounds that it lacks ‘sufficient relevance to the case or materiality as to its outcome’ or for considerations of ‘ . . . fairness or equality of the Parties that the Arbitral Tribunal considers to be compelling’.¹⁰⁰ It is possible to see how such provisions might be used to argue that all or a portion of a witness statement based on the knowledge or statements of a third party, to whom one of the parties does not have access, is unfair, or that hearsay testimony gleaned from a third party not offering oral testimony can have such little weight that it has no evidential value and cannot therefore be considered material to outcome.

7.106  If the party asserting the facts supported by the hearsay statements has better evidence to support its position, there is little point in including the hearsay statements, which may serve only to detract from the more valuable evidence. However, if hearsay evidence is included it is likely to be admitted. Even in the face of objection from one of the parties, unless the statement made is clearly irrelevant (in which case one wonders why it has been included at all), or the subject of the statement is addressed adequately elsewhere in the evidence, a tribunal is likely to permit its admission and address any shortcomings by means of the weight it attributes to the hearsay evidence. There are reported cases where a tribunal has made an express finding that the IBA Rules do not, per se, require the exclusion of evidence by reason of its hearsay nature.¹⁰¹ While we agree with that view, it seems to us that the strict application of the specific provisions of the IBA Rules mentioned may nonetheless, in some cases, provide a mechanism for the exclusion of hearsay evidence, should that be considered appropriate.

(p. 245) 7.107  Issues of a similar nature arose on interesting facts in an arbitration conducted under the NAFTA/UNCITRAL Arbitration Rules. In that case, one of the parties had obtained witness testimony by means of an application to the US court under Section 1782 28 U.S.C. Exhibits to written submissions filed by the claimant in the arbitration contained reference to the testimony obtained. The respondent objected to the introduction of this evidence on grounds that the claimant was relying on witness testimony without submitting witness statements and the respondent (and subsequently the tribunal) would be unable to examine the witnesses and assess their credibility. The respondent contended that this would be contrary to the IBA Rules. In response, among other arguments, the claimant submitted that the exhibits objected to were documents and there was no reason why this documentary evidence—which the claimant submitted was clearly and directly relevant to the dispute—should be inadmissible. The tribunal found that the witness evidence should be treated like any other document and that there was no prohibition on it being presented. However, the tribunal went on to say that it would ‘assess the weight of that evidence taking into account other elements on the record as well as the fact that the persons making the statements had not appeared as witnesses and thus had neither been cross-examined nor questioned by the tribunal. In addition, the tribunal could always request that these persons be produced as witnesses’.¹⁰²

7.108  Assessment of the weight of evidence by a tribunal is discussed in more detail in Chapter 12 in relation to Article 9.1.¹⁰³

7.109  The rules of most arbitral institutions require parties to file with the Request for Arbitration a copy of the arbitration agreement and any underlying contract. After the Response/Answer to the Request for Arbitration has been served, there will then follow one or more rounds of formal submissions in which each party’s case will be set out in more detail. Those submissions are likely to be accompanied by an additional set of documents upon which that party relies in support of its case and many institutional rules (and some arbitrators) will require this.¹⁰⁴ In addition, the parties will generally engage in one or more rounds of document production requests that will generate yet further documents on which the parties may wish to rely. Depending on whether the memorial or common law pleading approach is adopted, this may be before or after first-round witness statements. Delivery of documents on which a party wishes to rely (p. 246) are addressed in Article 3.1 and Article 3.11 of the IBA Rules, and are discussed in Chapter 6.¹⁰⁵

7.110  Article 4.5(b) contains express provision that a witness statement must be accompanied by any documents on which the witness relies that are not already on the record. For this purpose, new documents obtained by means of document production will not generally, absent a specific order to this effect, be regarded as being ‘on the record’ or as having been ‘filed’ or ‘submitted’ unless and until they are produced with a submission or pleading, or with witness evidence.¹⁰⁶ Thus, if a witness wishes to rely on it the document should be provided with the witness statement. Although the parties will have access to a document obtained by means of document production (as either the producing or receiving party), the tribunal will not.¹⁰⁷

7.111  It follows from the closing text of Article 4.5(b) that if the document on which the witness relies has already been filed—for example, with an earlier submission—then it does not need to accompany the witness statement. The witness may simply refer to the document by the exhibit number that document was allocated when it was previously introduced.

7.112  If more than one document is being served (for example, as is likely to be the case when a memorial-style submission is delivered), the documents will generally be delivered as a single set of uniquely numbered exhibits to which reference can be made both in the submissions and/or in any accompanying witness and expert evidence. If reference is made to exhibits already in the record, then the original exhibit number should be used. There is no need to deliver a further copy of the document. To have duplicate exhibits with different exhibit numbers will only lead to complications when it comes to preparing the hearing bundles.

7.113  At some point either before or early in the life of an arbitration a decision will be made as to the language or languages in which the arbitration proceedings will be conducted (‘the language of the arbitration’). A well-drafted arbitration agreement will make express provision for this.

(p. 247) 7.114  Absent such provision, the applicable institutional rules will generally provide a mechanism and/or criteria by which the language of the arbitration is to be determined.¹⁰⁸ The chosen language of the arbitration will be the language in which submissions, witness statements, and expert evidence are filed, and the language in which any oral hearings will be conducted.¹⁰⁹ Any documentary exhibits filed in the arbitration, or at least the relevant parts, will generally have to be translated into the language of the arbitration if the original document is in a different language.¹¹⁰

7.115  Where a witness is not fluent in the language of the arbitration, s/he may elect to prepare a witness statement in their native language. This will then need to be translated into the language of the arbitration for filing in the proceedings. Article 4.5(c) of the IBA Rules requires that, in such circumstances, the witness evidence contain a declaration indicating the language in which the witness evidence was originally prepared. In many cases, both the originally prepared witness statement and the translation into the language of the arbitration will be submitted. It is good practice to do so as the opposing party will not otherwise have a proper opportunity to verify or test the accuracy of the translation. It will assist to have both documents in the record in case of a later dispute as to the correctness of the translation. The IBA Rules do not require a translation to be certified by the translator, although some parties may wish to arrange for this to be done.

7.116  Article 4.5(c) of the IBA Rules also requires that, where a witness has made a statement in a language other than the language of the arbitration, the statement should indicate the language in which the witness anticipates giving evidence at the evidentiary hearing.¹¹¹ It is sensible for this to be made known in advance so that appropriate arrangements can be made for the attendance at the evidentiary hearing of an independent interpreter. This can sometimes take time to organize as the parties may wish to conduct a joint interview so that both sides are happy about the expertise of the interpreter. It may also have an impact on the anticipated length of the evidentiary hearing. Several witnesses giving evidence through an interpreter can significantly slow down progress in the taking of evidence, although this can be ameliorated by the use of simultaneous translation where appropriate.¹¹²

(p. 248) 7.117  Although the tactic is frowned upon by tribunals, a witness will sometimes be advised by counsel to give oral testimony through an interpreter; it is thought that the intervening interpretation period will give them additional time to consider their response to the question being asked. This can raise issues around fair allocation of time at the evidentiary hearing, particularly if the tribunal is operating a ‘chess clock’ arrangement, although some tribunals may allocate any extended translation time against the party who produced the witness.¹¹³ These and other matters related to the language in which evidence is presented are dealt in more detail in Chapter 11 on Article 8 of the IBA Rules.¹¹⁴

7.118  The IBA Rules do not require the witness statement to be made under oath. As the Commentary on the IBA Rules notes,¹¹⁵ arbitration practice and domestic legal systems differ too much on this point for such a requirement to be appropriate.¹¹⁶

7.119  Where express provision on the point is included in institutional rules, such provision generally permits delivery of a statement that is merely signed (although not excluding other forms of confirmation) sometimes coupled with a requirement that the testimony contain a statement as to the truth of the matters stated.¹¹⁷

7.120  The IBA Rules adopt a requirement that the witness simply confirm that her or his witness statement is true.¹¹⁸ One much-used approach is for the witness to state at the end of the witness statement immediately above their signature the phrase ‘This statement is true to the best of my knowledge, information and belief’. We agree with the view that something short and simple like this is likely to be the most prudent course. An over-elaborate affirmation that later turns out to be inaccurate may lead to embarrassment under cross-examination.¹¹⁹

(p. 249) 7.121  A number of commentators quote the suggestion by VV Veeder QC that counsel who assisted in preparation of the witness statement should append to it a declaration as to when and where the statement was prepared, and the amount of time that was spent on it by the witness and the lawyer, respectively. This suggestion contains an implied and wide-spread concern about the ‘over-lawyering’ of witness statements. As far as we are aware, the suggestion has not been implemented in practice.

7.122  The witness will generally be asked to re-affirm the truth of the statement at the evidentiary hearing immediately prior to being examined by counsel.¹²⁰ If not already corrected in advance of the hearing, it is customary for the witness at that stage to identify for the tribunal any inaccuracies in the statement they have identified since the date of its preparation.¹²¹

7.123  Article 4.5(e) of the IBA Rules requires that the witness statement be signed. This is consistent with the giving of an affirmation of truth as required by Article 4.5(d).

7.124  If a witness is unavailable to sign a statement by the date due for service, it is usually possible to agree with the opposing party that an approved unsigned statement may be served with a signed version following as soon as the signature can be obtained.

7.125  In addition, under Article 4.5(e) the witness statement should set out the date and place of its signature.

7.126  It is universal practice to include a date on any document to be filed in court or arbitration, although lay witnesses may forget to do so if not prompted by counsel. The addition of the place of signature is more unusual and does not appear in institutional arbitration rules. This requirement has appeared in all iterations of the rules since their introduction in 1983, but the provenance and basis for it is not clear. It may be that the requirement for a place of signature is simply something that was considered appropriate by reason of the combined legal backgrounds of the members of the committee responsible for drafting the original rules. One of the authors of the Commentary on the IBA Rules mentions elsewhere that practice varies between jurisdictions and the requirement of the place of signature may simply reflect this.

7.127  Article 4.6 deals with delivery of a second round of written witness evidence. This provision permits submission of ‘revised or additional Witness Statements’ responsive to matters contained in another party’s witness statements, expert evidence, or submissions not yet filed when the witness statement was prepared (referred to in this text as ‘responsive witness evidence’).

7.128  It is not unusual in international arbitration for there to be two (or more) rounds of witness statements. This reflects the general principle that, in order to have a fair hearing, a party should have the opportunity to present its case.¹²² This will include the opportunity to respond to allegations or evidence filed by the party’s opponent in which new issues are raised.¹²³

7.129  Article 4.6 provides for delivery of responsive witness evidence ‘within the time ordered by the Arbitral Tribunal’. It may follow from this wording that, even where the IBA Rules have been formally adopted as binding in the arbitration, absent direction from the tribunal or agreement between the parties,¹²⁴ the terms of Article 4.6 will not confer a right to serve responsive witness statements.¹²⁵ If there is no pre-existing direction permitting further witness statements, a party wishing to serve such evidence must make application to the tribunal explaining why the introduction of that additional evidence is justified. An alternative view is that the use of the word ‘may’ in the (p. 251) statement ‘any Party may, within the time ordered by the Arbitral Tribunal, submit to the Arbitral Tribunal . . . revised or additional witness statements’¹²⁶ creates an implied duty on the tribunal to set a date.¹²⁷ However, this latter reading might be thought inconsistent with the tribunal’s general discretion not to admit evidence at all.¹²⁸

7.130  In practice, delivery of responsive witness evidence is a common practice in international arbitration and express provision for it is often included in the first procedural order.¹²⁹ However, if the tribunal takes the view that the other party’s evidence to which a party wishes to serve responsive evidence does not have an impact on the case, responsive evidence may not always be permitted. This was the view taken in Malaysian Historical Salvors SDN v The Government of Malaysia,¹³⁰ in which the respondent objected to the late introduction of evidence by the claimant. The tribunal decided that it was not necessary to give the respondent an opportunity to submit responsive evidence because, even on the claimant’s best case, its claim on the particular point was not made out. Such circumstances will not arise very often as a tribunal is unlikely to be in a position to assess, at the stage of responsive witness evidence, that further evidence is not required. The tribunal may also be wary of giving the impression of having prejudged any part of the case.

7.131  If first-round witness statements have been served simultaneously, a further round of responsive statements will almost certainly be necessary. The parties may have focused on different topics in the first-round statements, and responsive statements are likely to be necessary in order to achieve clarity on what the factual issues are between the parties.

7.132  As noted, the IBA Rules provide that, where there is a second round of evidence, it should be limited to matters raised in the other party’s witness statements, expert report/s, or submissions that were not available when the first round of witness evidence was delivered. However, very often there will be ‘evidence creep’ in the content (p. 252) of responsive witness statements. Parties may decide that they would like to introduce new material (both witness testimony and documents) not directly relevant to what is said by their opponent’s witnesses. They may have taken an earlier tactical decision to hold back some evidence until responsive statements are delivered.

7.133  As mentioned, a responsive statement that attempts to introduce a new version of events may fall outside of what is permitted by Article 4.6 of the IBA Rules. Furthermore, it may raise questions about (a) the reliability of the earlier statement and (b) whether the opponent will have a fair opportunity to deal with the new evidence in the time available prior to the evidentiary hearing.¹³¹

7.134  Each situation has to be considered on the facts of the particular case, but where possible the tribunal should try to prevent abuse under Article 4.6.¹³² There may be circumstances where even the very late delivery of new evidence may be considered justified in order to ensure that a party has a proper opportunity to present its case. However, there will also be situations where the late delivery of evidence under cover of a ‘responsive’ statement is simply a tactic by the introducing party—for example, it may follow a pattern of conduct by that party designed to delay and disrupt the proceedings. Where a party or counsel has demonstrated a track record of abusive or bullying tactics in the arbitration, a tribunal should consider adopting a robust approach,¹³³ although it will naturally be concerned not to provide the introducing party with a ground for challenge to the award by excluding material evidence. Even where part of the statement is properly responsive, a tribunal should consider declaring inadmissible those parts of the statement that are unresponsive to the other party’s last round of evidence.¹³⁴

7.135  Article 4.6 makes clear that responsive witness evidence may come from a new witness who has not previously submitted a witness statement. It may be that the evidence of that witness had not previously been considered as relevant to the issues in dispute but, because of something said in the other party’s evidence, it has become so. For example, the other party may make reference to an event not addressed in a party’s first-round witness evidence, but in which the new witness had a key role. Or perhaps, in relation to a conversation not previously thought to be controversial, a party may deny that it took (p. 253) place, and the other party may wish to put in a statement from a second witness who was also at the meeting.

7.136  The use of the phrase ‘revised or additional’ in Rule 4.6 is interesting. In practice, most ‘second-round’ evidence is delivered by means of new witness statements. However, where the witness providing the new evidence has already submitted a witness statement, there is no reason—in principle—why the new evidence should not be introduced by way of revisions (whether corrections or additions) to the existing statement. In many ways, this method of dealing with the matter has much to recommend it. The tribunal will have only one statement to read, rather than two. The changes can be made in a differently coloured font to maintain full transparency about the date at which the new evidence was introduced. It also makes it easier for the tribunal to identify changes in position. This may be why, in practice, this approach is rarely used by parties.

7.137  Article 4.7 sets out the consequences of a witness failing to comply, without a valid reason, with a request made under Article 8.1 to attend an evidentiary hearing. Save in exceptional circumstances, in the event of such failure the witness statements of that witness are to be disregarded. Article 4.7 thereby addresses a number of issues relating to a party’s ‘right’ to conduct an oral examination of an opponent’s witness.

7.138  Article 8.1 of the IBA Rules provides that each party shall inform the tribunal, and other parties to the arbitration, of the fact (and expert)¹³⁵ witnesses whose appearance it requests at the evidentiary hearing. The notice required by the IBA Rules must be given ‘within the time’ ordered by the tribunal. This will generally be after all written (p. 254) evidence has been delivered and the parties have had an opportunity to consider what evidence of the other parties they accept, and what they do not. It may be possible for the parties to agree that witnesses whose evidence is not contested do not have to attend the hearing.¹³⁶