7 Article 4: Witnesses of Fact
Roman Khodykin, Carol Mulcahy, Nicholas Fletcher
From: A Guide to the IBA Rules on the Taking of Evidence in International Arbitration
Roman Khodykin, Carol MulcahyEdited By: Nicholas Fletcher
- Good faith — Witnesses — Arbitral rules
(p. 214) 7 Article 4: Witnesses of Fact
A. Introduction 7.1
C. Witness Relationship with a Party to the Arbitration 7.18
F. Content of Witness Statements 7.82
1. Introduction 7.82
Article 4 Witnesses of Fact
1. Within the time ordered by the Arbitral Tribunal, each Party shall identify the witnesses on whose testimony it intends to rely and the subject matter of that testimony.
2. Any person may present evidence as a witness, including a Party or a Party’s officer, employee or other representative.
3. It shall not be improper for a Party, its officers, employees, legal advisors or other representatives to interview its witnesses or potential witnesses and to discuss their prospective testimony with them.
4. The Arbitral Tribunal may order each Party to submit within a specified time to the Arbitral Tribunal and to the other Parties Witness Statements by each witness on whose testimony it intends to rely, except for those witnesses whose testimony is sought pursuant to Articles 4.9 or 4.10. If Evidentiary Hearings are organised into separate issues or phases (such as jurisdiction, preliminary determinations, (p. 215) liability or damages), the Arbitral Tribunal or the Parties by agreement may schedule the submission of Witness Statements separately for each issue or phase.
5. Each Witness Statement shall contain:
(a) the full name and address of the witness, a statement regarding his or her present and past relationship (if any) with any of the Parties, and a description of his or her background, qualifications, training and experience, if such a description may be relevant to the dispute or to the contents of the statement;
(b) a full and detailed description of the facts, and the source of the witness’s information as to those facts, sufficient to serve as that witness’s evidence in the matter in dispute. Documents on which the witness relies that have not already been submitted shall be provided;
(c) a statement as to the language in which the Witness Statement was originally prepared and the language in which the witness anticipates giving testimony at the Evidentiary Hearing;
(d) an affirmation of the truth of the Witness Statement; and
(e) the signature of the witness and its date and place.
6. If Witness Statements are submitted, any Party may, within the time ordered by the Arbitral Tribunal, submit to the Arbitral Tribunal and to the other Parties revised or additional Witness Statements, including statements from persons not previously named as witnesses, so long as any such revisions or additions respond only to matters contained in another Party’s Witness Statements, Expert Reports or other submissions that have not been previously presented in the arbitration.
7. If a witness whose appearance has been requested pursuant to Article 8.1 fails without a valid reason to appear for testimony at an Evidentiary Hearing, the Arbitral Tribunal shall disregard any Witness Statement related to that Evidentiary Hearing by that witness unless, in exceptional circumstances, the Arbitral Tribunal decides otherwise.
8. If the appearance of a witness has not been requested pursuant to Article 8.1, none of the other Parties shall be deemed to have agreed to the correctness of the content of the Witness Statement.
9. If a Party wishes to present evidence from a person who will not appear voluntarily at its request, the Party may, within the time ordered by the Arbitral Tribunal, ask it to take whatever steps are legally available to obtain the testimony of that person, or seek leave from the Arbitral Tribunal to take such steps itself. In the case of a request to the Arbitral Tribunal, the Party shall identify the intended witness, shall describe the subjects on which the witness’s testimony is sought and shall state why such subjects are relevant to the case and material to its outcome. The Arbitral Tribunal shall decide on this request and shall take, authorize the requesting Party to take or order any other Party to take, such steps as the Arbitral Tribunal considers appropriate if, in its discretion, it determines that the testimony of that witness would be relevant to the case and material to its outcome.
10. At any time before the arbitration is concluded, the Arbitral Tribunal may order any Party to provide for, or to use its best efforts to provide for, the appearance for (p. 216) testimony at an Evidentiary Hearing of any person, including one whose testimony has not yet been offered. A Party to whom such a request is addressed may object for any of the reasons set forth in Article 9.2.
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
B. Witness Identification
4.1. Within the time ordered by the Arbitral Tribunal, each Party shall identify the witnesses on whose testimony it intends to rely and the subject matter of that testimony.
(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:
(a) the witnesses on whose testimony it relies;12 and
(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.
(p. 220) C. Witness Relationship with a Party to the Arbitration
4.2. Any person may present evidence as a witness, including a Party or a Party’s officer, employee or other representative.
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
2. Party Witnesses in International Arbitration: The IBA Rules
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.
3. Assessment of the Evidence
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
D. Contact with Witnesses
4.3. It shall not be improper for a Party, its officers, employees, legal advisors or other representatives to interview its witnesses or potential witnesses and to discuss their prospective testimony with them.
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.
a. Professional codes of conduct and cultural variances
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
b. Development of common standards in international arbitration
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.
2. Maintaining a Level Playing Field and Application of Article 4.3
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.
a. Witness interviews
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
b. Preparation for the evidentiary hearing
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.
E. Witness Statements
4.4. The Arbitral Tribunal may order each Party to submit within a specified time to the Arbitral Tribunal and to the other Parties Witness Statements by each witness on whose testimony it intends to rely, except for those witnesses whose testimony is (p. 233) sought pursuant to Articles 4.9 or 4.10. 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 submission of Witness Statements separately for each issue or phase.
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.
2. Advantages and Disadvantages of Witness Statements
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
4. Organizing Witness Statements by Reference to Issue or Phase
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.
5. Other Considerations
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
F. Content of Witness Statements
4.5. Each Witness Statement shall contain:
(a) the full name and address of the witness, a statement regarding his or her present and past relationship (if any) with any of the Parties, and a description of his or her background, qualifications, training and experience, if such a description may be relevant to the dispute or to the contents of the statement;
(p. 239) (b) a full and detailed description of the facts, and the source of the witness’s information as to those facts, sufficient to serve as that witness’s evidence in the matter in dispute. Documents on which the witness relies that have not already been submitted shall be provided;
(c) a statement as to the language in which the Witness Statement was originally prepared and the language in which the witness anticipates giving testimony at the Evidentiary Hearing;
(d) an affirmation of the truth of the Witness Statement; and
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.
2. Formal Details
(a) the full name and address; present and past relationship (if any) with any of the Parties; description of background, qualifications, training and experience
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
(p. 241) 3. Evidence
(b) a full and detailed description of the facts, and the source of the witness’s information as to those facts, sufficient to serve as that witness’s evidence in the matter in dispute.
a. Witness testimony
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.
b. Source of the information
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
7.109 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.
d. Language of testimony
(c) a statement as to the language in which the Witness Statement was originally prepared and the language in which the witness anticipates giving testimony at the Evidentiary Hearing.
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
e. Affirmation of truth
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
f. Signature and date
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.
(p. 250) G. Additional Witness Statements
4.6. If Witness Statements are submitted, any Party may, within the time ordered by the Arbitral Tribunal, submit to the Arbitral Tribunal and to the other Parties revised or additional Witness Statements, including statements from persons not previously named as witnesses, so long as any such revisions or additions respond only to matters contained in another Party’s Witness Statements, Expert Reports or other submissions that have not been previously presented in the arbitration.
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.
2. Timing of Responsive Statements
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.
3. Substance of Responsive Statements
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
4. New Witnesses
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.
5. ‘Revised or Additional’ Statements
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.
H. Non-Attendance at an Evidentiary Hearing
4.7. If a witness whose appearance has been requested pursuant to Article 8.1 fails without a valid reason to appear for testimony at an Evidentiary Hearing, the Arbitral Tribunal shall disregard any Witness Statement related to that Evidentiary Hearing by that witness unless, in exceptional circumstances, the Arbitral Tribunal decides otherwise.
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
2. A Party’s Right to Cross-Examine
7.139 In line with accepted practice in international arbitration, the effect of Article 8.1 of the IBA Rules is that where a party has tendered a witness statement in support of its case, that witness should be available for cross-examination at the evidentiary hearing. A number of institutional rules contain express provision adopting a similar position.137
7.140 In order to understand why Article 4.7 takes such a strict approach, it is necessary to consider the value that many practitioners and legal traditions place on the ability to question a witness. Cross-examination is regarded by some as an essential opportunity to challenge and test the evidence contained in a witness statement. Only by cross-examination can a proper assessment of the truth, or accuracy of recollection, of the evidence set out in the witness statement be carried out. Evidence that has not been tested by cross-examination may be given less, or no, weight by a tribunal.
7.141 A tribunal placed diminished weight on the evidence of a witness not available for cross-examination in Bayindir Insaat Turizm Ticaret Ve Sanayi A.S. v Islamic Republic of Pakistan, where the respondent relied on witness evidence from a witness who (for confidential reasons that the respondent was not prepared to disclose) was unable to attend the hearing to be cross-examined. In its award on the merits the tribunal stated that:
[T]he tribunal has carefully reviewed all circumstances and concluded that, because the Claimant had no opportunity to cross-examine Mr Mirza, the latter’s written evidence could only be considered if corroborated by other evidence in the record.138
7.142 Despite such acknowledgments as to the reduced value of witness evidence not tested by oral examination, there remains a wide spectrum of views as to the importance of cross-examination. Representative of one end of this spectrum is the view expressed (p. 255) by the United States Supreme Court that cross-examination is the ‘greatest legal engine ever invented for the discovery of truth’.139 At the other end of the scale is the view that documentary evidence is the most reliable form of evidence and that witness evidence, even when subject to cross-examination, is often unreliable140 and/or self-serving, and so should be given little weight.141
7.143 One author refers to the emergence of a ‘counter-movement’ against the idea of cross-examination as a state-of-the-art feature of international commercial arbitration.142 The process of cross-examination is criticized for being destructive and of low efficiency. It is said that the:
. . . approach seeks to destroy the credibility of the witness or simply get the witness to confirm the propositions of the cross-examiner, and it often achieves both. However, who cares about those achievements (apart from super-aggressive counsel), because they are of limited importance and often of little use to the arbitrator, who is the only objective player in the process. Accordingly, it is more productive if the process is geared to what the arbitrator needs.143
7.144 The truth as to the value of cross-examination is likely to lie somewhere in the middle. However, if one party has the opportunity to interview and take a statement from a witness for use in the arbitration, it is fair that the other party should also have the opportunity to question that witness on the evidence that has been submitted. Witness statements and cross-examination may be regarded as two sides of the same process of taking evidence.
7.145 Although not required under the IBA Rules, some tribunals may direct that a witness statement should contain a statement confirming that the witness is willing and able to attend the evidentiary hearing, if required.144 In certain circumstances, loss of the opportunity to cross-examine might be argued to be a denial of due process.145 (p. 256) Article 4.7 addresses the issue by providing—in substance—that witness statements will not be taken into account by a tribunal unless there has been a corresponding opportunity for the other parties to cross-examine the witness.146
3. Requirements to Be Satisfied before a Witness Statement Is Disregarded
7.146 Where a witness has failed to attend an evidentiary hearing when requested to do so by notice under Article 8.1, certain conditions must be satisfied before the statement of that witness is disregarded by a tribunal under Article 4.7. Those conditions are that:
(a) the witness must have failed to provide a valid reason for not attending the hearing; and
(b) there are no exceptional circumstances that cause the tribunal to decide that the statement should not be disregarded.
a. Valid reason
7.147 If the witness can provide a valid reason as to why they are not able to attend the evidentiary hearing the witness statement need not be disregarded.
7.148 It is for the tribunal to decide whether the reason given is ‘valid’. In practice, submissions on this issue are likely to be made by one party and responded to by the other parties in advance of the tribunal making a decision on the validity of the explanation. Reasons likely to be accepted as valid include physical incapacity by reason of serious illness or accident, or the need to undergo some form of medical procedure within a particular time frame,147 subject to provision of certification by a doctor.148 Other possibilities include an inability to travel to the hearing as a result of visa requirements, a compelling need to be somewhere else on the date of the hearing (for example, a court (p. 257) appearance under subpoena or where the witness is the accused in a criminal trial), and threats made to the witness that have been proven to the satisfaction of the tribunal.149
7.149 A further aspect to be considered when reasons for non-attendance at a hearing are proffered is whether some other means of facilitating the oral testimony of the witness can be arranged. For example, subject to considerations of procedural efficiency, if the unavailability of the witness is temporary, the hearing may be deferred. If a physical condition renders the witness immobile but capable of giving evidence, the witness could attend by video-conference. The tribunal may wish to explore all possible avenues for securing the attendance of the witness for cross-examination whether in person or remotely, even where (subject to procedural fairness and efficiency) this has to take place after the main evidentiary hearing.150 If the witness, through counsel, rejects reasonable ways of dealing with the problem, this may be taken into account by the tribunal when considering whether the reason given for non-attendance is valid.
b. Exceptional circumstances
7.150 Even where a witness is unable to provide an adequate reason to excuse his or her attendance, the tribunal may nonetheless determine that there are exceptional circumstances justifying the witness statement being taken into account. This approach is expressly permitted under Article 4.7.
7.151 As with consideration of a ‘valid reason’, if the party with the non-attending witness wishes to rely on the existence of exceptional circumstances (or the tribunal raises the issue) it is very likely that the parties to the arbitration will make submissions on those matters in advance of the tribunal making a decision on this point. In practice, it is hard to see what exceptional circumstances would justify the acceptance into evidence of a witness statement where a valid reason for the non-attendance cannot be provided.
c. Practical application
7.152 In our view, the tribunal should apply a high standard to the question of whether a ‘valid reason’ or ‘exceptional circumstances’ exist as this carve out from the consequences of Article 4.7 could otherwise be too easily abused by parties. Claims of a ‘family emergency’ or ‘urgent business needs’ without some further explanation should not be regarded as adequate. Of course, as a matter of practice, the approach taken by individual tribunals—and the stringency of the benchmark they apply—may vary considerably. A review of ICC decisions in arbitrations referencing the IBA Rules describes contrasting examples of the view taken by two ICC tribunals on the question of whether a ‘valid reason’ under Article 4.7 had been established.151 In the first case, the tribunal decided to admit the witness statement of the witness. The tribunal took account of (p. 258) the fact that (a) the witness was based in the United States (ie not in the jurisdiction in which the hearing took place); (b) that although no evidence to this effect was provided, the witness had limited means and might struggle to meet the costs of attendance; and (c) the statement did not go much, if at all, beyond confirming the content of another statement. Accordingly, the tribunal found that there was a valid reason for the non-attendance (and that the matters identified also constituted extraordinary circumstances justifying a refusal to disregard the statement). The tribunal therefore admitted the statement, but made clear that the weight to be attributed to it remained a matter for submissions. In a second case, where a witness (within the jurisdiction) failed to attend the evidentiary hearing, the tribunal found that:
[T]here was no valid reason for his non-attendance, for the purposes of Article 4.7 of the IBA Rules. Further there were no exceptional circumstances justifying the Tribunal nonetheless having regard to [the] statement. [The witness] was in the United Kingdom and could apparently have attended the hearing if he had so wished.
4. Disregarding the Witness Evidence
7.153 Subject to the two requirements just described (the absence of a valid reason, and/or no exceptional circumstances) being met, Article 4.7 of the IBA Rules provides that a tribunal ‘shall disregard’ a witness statement served by one of the parties if, after having been requested to make themselves available for questioning at an oral hearing, that witness fails to attend.
a. Application of the requirement to disregard witness evidence
7.154 The use of the word ‘shall’ in Article 4.7 indicates that, save in the excepted circumstances described, the tribunal must disregard the witness statement entirely if the witness fails to appear at the hearing. As mentioned, an important argument in support of this position is that, until tested by cross-examination, the witness statement has little or no value.152 In addition, if without further explanation, a witness is not prepared to attend and affirm a witness statement already filed, this may suggest that they are resiling from all or part of that evidence.
7.155 There are different points of view as to whether the position adopted under Article 4.7 is too inflexible and whether it attributes too much significance to oral examination of a witness.153
(p. 259) 7.156 The alternative approach of simply adjusting the weight to be attributed to the witness statement is regarded by some as a more flexible option.
7.157 Whatever the position taken, and depending on the facts of the case, there undoubtedly are risks attached to application of the requirement to disregard the evidence of a witness who fails to attend a hearing. For example, if the only evidence that a party has on a particular issue is the witness statement of a witness who is no longer under the control of that party (for example, because he has left their employment and now works for a competitor), is it fair to disregard that witness statement when the witness refuses to attend the evidentiary hearing? Could such a situation lead to a challenge to the award?
7.158 In practice, the tribunal’s power not to disregard a statement when a valid reason has been tendered by the party affected provides a mechanism for balancing the legitimate interests of the parties. In the example just mentioned, it may be open to the party relying on the witness statement to explain to the tribunal that—despite all reasonable efforts on its part, including an offer of reasonable time costs and expenses—the witness is not prepared to attend the hearing and has made clear that his refusal is the result of pressure being exerted on him by the new employer. A tribunal may regard such circumstances as constituting a ‘valid reason’ for the purposes of the Article 4.7 exception.
7.159 Conversely, in circumstances where no reason is given and no exceptional circumstances are identified, the tribunal may risk a challenge to the award if it admits the statement of the non-attending witness. As mentioned, in some circumstances, loss of the opportunity to cross-examination may be argued to be a denial of due process.154 Of course, if the IBA Rules are adopted as guidelines only, the tribunal may decide not to exclude the witness statement and instead adjust the weight attributed to it. If there is corroborative evidence, the tribunal may be prepared to take it into account.
b. Practice in international arbitration
7.160 Whatever reservations may exist about the strict application of Article 4.7, the requirement that a tribunal shall, in certain circumstances, disregard the statement of a witness who fails to attend an evidentiary hearing is not out of line with international arbitration practice. Provision for this step can be found in a number of published procedural orders. One example of this provides that:
The Arbitral Tribunal may consider the witness statement of a witness who provides a valid reason for failing to appear when summoned to a hearing, having regard to all the surrounding circumstances. The arbitral tribunal shall not consider the witness statement of a witness who fails to appear and does not provide a valid reason.155
(p. 260) 7.161 Another states that:
A witness duly summoned, who does not appear at the hearing of the Arbitral Tribunal scheduled to hear his testimony, shall, in principle, only be summoned a second time on timely presentation of a valid excuse.
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.156
7.162 The latter form of wording might be regarded as more draconian than the IBA Rules as the existence of a ‘valid reason’ does not of itself provide an exception to the witness statement being disregarded.
7.163 Some institutional rules take no position on the matter.157 Others provide some guidance as to the range of approaches open to the tribunal. For example, the LCIA Rules, while also acknowledging that the existence of circumstances justifying non-attendance (‘just cause’, rather than the IBA’s ‘valid reason’) provides an exception, state that:
If the Arbitral Tribunal orders that other party to secure the attendance of that witness and the witness refuses or fails to attend the hearing without good cause, the Arbitral Tribunal may place such weight on the written testimony or exclude all or any part thereof altogether as it considers appropriate in the circumstances.158
7.164 The SIAC Rules adopt a similar approach, but the relevant provision does not contain an express proviso for a situation where good reasons for the non-attendance have been provided.159 In the authors’ experience, absent mandatory application of the IBA Rules,160 it is relatively common for tribunals to include in the first procedural order express provision for the approach of adjusting the weight attributed to the statement.161
(p. 261) c. Other mechanisms under the IBA Rules
7.165 Other mechanisms exist under the IBA Rules to assist a tribunal in dealing with absent witnesses. These should be considered together with Article 4.7.
7.166 For example, as mentioned, a witness statement may be admitted under Article 4.7 on the basis that a valid reason for non-attendance has been tendered. However, the tribunal will still have the power to assess the weight of that evidence in accordance with Article 9.1 of the IBA Rules.162 The tribunal may take note of the fact that the witness was unwilling to attend to confirm the evidence and that the evidence of the witness was not challenged under cross-examination.
7.167 Under Article 9.6, where a party fails to make oral testimony available at an evidentiary hearing in circumstances where that testimony has been requested by another party, a tribunal may draw adverse inferences as to the nature of the evidence withheld. However, it should be borne in mind that, even in circumstances where the drawing of adverse inferences appears appropriate, it can problematic for a tribunal to identify the precise nature of the inference that it is appropriate to draw.163 In the context of Article 4.7, in the BCLP Survey on the use of the IBA Rules, one respondent in the United States reported the example of a case where a party had withdrawn a witness statement on the day of the hearing in order to avoid being under an obligation (and failing) to produce the witness at the evidentiary hearing. The tribunal accepted that the witness statement should be disregarded. However, the tribunal declined to draw adverse inferences from the fact that the testimony had been withdrawn.
I. No Acceptance of Content of the Witness Statement
4.8. If the appearance of a witness has not been requested pursuant to Article 8.1, none of the other Parties shall be deemed to have agreed to the correctness of the content of the Witness Statement.
7.168 Rule 4.8 of the IBA Rules provides that, where a witness has not received an Article 8.1 request to attend the evidentiary hearing, this is not taken to mean that the content of the witness statement submitted by that witness is agreed by opponent parties. The Commentary on the IBA Rules suggests that this provision was included for the sake of efficiency to encourage agreement between parties that a witness whose evidence may not be material to outcome need not attend the evidentiary hearing.164
(p. 262) 7.169 Given the apparent intention behind the provision, it appears likely that the phrase ‘other Parties’ is intended to refer to all parties other than the party that presented the witness statement. It can also reasonably be assumed that the party submitting and relying on the witness statement will accept the truth of the statement, and that there is therefore no need for application of the provision to extend to that party. However, the provision could have been more tightly drafted and other interpretations are possible.165
1. Not Calling a Witness for Cross-Examination
7.170 There are many reasons why a party may decide not to require the attendance for cross-examination of another party’s witness. Some of these may relate to efficiency. For example, with increasing use of a chess clock at evidentiary hearings, and as contemplated to some extent by the Commentary on the IBA Rules, where the evidence of a particular witness is only of marginal importance, counsel for the opposing party may prefer to use the hearing time on potentially more important and fertile cross-examination. Other reasons for not calling a witness may be more tactical. For example, the evidence of an individual witness may relate to a particular issue where the party’s case is weak and not calling the opposing key witness may form part of an effort to downgrade the importance of the issue. Another reason may be that a party recognizes that a witness for the opposing party will make a good witness, that under cross-examination they may offer additional testimony helpful to the other side, and that they are very unlikely to make any concessions when cross-examined.
7.171 Article 4.8 provides a measure of protection for the party not calling a witness for cross-examination. The provision confirms that a decision not to cross-examine a witness shall not constitute agreement to the correctness of the evidence contained in their witness statement. This is an important clarification, particularly if counsel for the opposing parties are from different legal traditions.
7.172 In some legal systems there are restrictions on the reliance that counsel may place on unchallenged evidence. For example, in a number of common law jurisdictions, it is a well-established principle that a party must challenge in cross-examination the witness evidence of the opposing party on a particular issue if they intend later—perhaps in closing submissions—to argue that the evidence on that point should not be believed. This is sometimes called the rule in Browne v Dunn.166
(p. 263) 7.173 It is said that the rule has two aspects. The first is procedural fairness. The witness must be given the opportunity to deal with the case that will be relied upon in contradiction of his or her evidence (including any inferences that it is said can be drawn from other evidence), and the party presenting the witness testimony must have the opportunity to call further evidence either to corroborate what the witness says or to contradict any inference relied upon by the other party. These requirements are said to be rules of conduct ‘which are essential to fair play at the trial’.167
7.174 The second aspect relates to weight and cogency of evidence. Although a failure to put points in cross-examination will not always be regarded as conceding the truth of the evidence presented,168 the weighing of the available evidence by the court on the relevant point may be affected. In Bulstrode, the point was made in these terms: ‘In this aspect the rule says no more than that if a witness is not cross-examined upon a particular matter, upon which he has given evidence, then that circumstance will often be very good reason for accepting the witness’s evidence upon that matter. If I may say so, this is little more than common sense’.169
7.175 Despite these factors, the rule has been criticized for the uncertainty around its application, the risk that cautious counsel will lengthen hearings unnecessarily by exhaustive (p. 264) cross-examination, and because the rule hinders the ability of counsel to control cross-examination and to make tactical decisions about how far to push a witness on a particular point.170
7.176 However, although the rule does not appear to be of universal application across common law systems,171 it may be that those tasked with drafting the IBA Rules—intended to be a set of rules on evidence that can be accepted by lawyers from both civil and common law traditions—had in mind that, in the interests of clarity, it might be prudent to include express provision in the terms of Article 4.8 (and its predecessor provisions). In relation to the first mentioned rationale for the rule—that a witness must be given the opportunity to address the case relied on in contradiction of the evidence given by that witness—a relevant factor may be that, in international arbitration, greater emphasis is placed on written submissions and that those submissions are generally more discursive and leave parties in little doubt about which parts of the factual case are challenged and on what basis.
7.177 An important point to note is that the wording of Article 8.4 makes no distinction between matters of minor or no importance to outcome, and evidence on which the outcome of the dispute might turn. It applies to all of the written evidence of a witness not called for cross-examination. An opponent party may still tender its own witness to give evidence contradicting that of the ‘opposing’ witness not called, or make submissions as to the unreliability or lack of weight to be attributed to the evidence of the absent witness, perhaps by reference to other witness or documentary evidence available to the tribunal. Some practitioners regard this as unfair. If an opponent party chooses not to cross-examine a witness, why should the written evidence of that witness not be deemed accepted? An IBA survey report on use of the IBA Rules notes this concern and a comment from one respondent that ‘parties engage in the “unfair practice” of not calling a witness while making attempts to undermine his or her credibility through their written submissions’.172
7.178 In our view, and notwithstanding the terms of Article 4.8, there are considerable dangers in a party not calling for cross-examination a witness whose evidence touches on important issues of fact potentially relevant to outcome (or, having called such a witness, not challenging by cross-examination that part of the witness evidence). Under Article 4.8, the evidence of that witness may not be deemed accepted by the non-calling party, but the tribunal may still regard it as credible. When the tribunal comes to assess the weight of evidence on either side of the dispute, it may well take into account the fact that the written evidence of the witness was not challenged by cross-examination. While there can be no certainty around whether this factor will influence the tribunal to attach less or more weight to the evidence, the tribunal may wonder why the (p. 265) opportunity to conduct cross-examination was not utilized. In some cases, on balance, the tribunal may still feel that the weight of evidence is with the opponent party, but that party may have done itself no favours by not calling the witness for cross-examination.
7.179 Even allowing for pressure of time, the prudent course for counsel will be to identify the best witness to challenge on each issue and to take the opportunity to cross-examine them on the points that matter to success of the case. To avoid any misunderstanding between the parties, and to avoid post-hearing arguments on an alleged failure to challenge evidence on the critical path to a determination, it is sensible for counsel for the parties to discuss such issues at an early stage in order to establish clear ground rules.
2. A Party’s Right to Call Its Own Witness
7.180 As mentioned, in circumstances where a party has elected not to call a witness for cross-examination, the statement at Article 4.8 that it should not, as a result, be deemed to accept the correctness of a witness statement, may in certain circumstances leave the other party feeling aggrieved. For example, it may feel that the witness would have stood up well to cross-examination, would have impressed the tribunal, and that the substance of the evidence contained in the statement would be accepted in its entirety. There may also have been matters raised by other witnesses upon which some short direct examination would be helpful. This raises the issue of whether a party should be entitled to call its own witness when the attendance of that witness has been waived by the other party/parties, possibly for tactical reasons
7.181 International arbitration tribunals do not appear to adopt a consistent approach on this issue. In a 2015 survey of publicly available decisions made by arbitral tribunals in investment treaty cases it was found that, in the cases surveyed, tribunals tended to adopt one of three approaches:
(a) only the tribunal or the party entitled to cross-examine the witness may request attendance;173
(b) a party submitting a witness statement may request the attendance of the witness at the hearing;174 and
(c) the parties may request permission from the tribunal to call their own witnesses when not required for cross-examination by another party.175
7.182 Article 8.1 of the IBA Rules gives each party an express right to request a witness to attend an evidentiary hearing and does not limit the category of witness to whom that provision applies. Subject to the tribunal’s overall control over who should appear,176 (p. 266) Article 8.1 says in terms that a witness shall appear at the hearing if the attendance of that witness ‘has been requested by any party’.177 Thus, in principle, Article 8.1 permits a party to give notice under Article 8.1 that it requires the attendance of its own witness, although it makes no special provision for how this is to be done. The Commentary on the IBA Rules supports this interpretation.178 However, in practice, and unless there are questions that the tribunal wishes to put to the particular witness, it is open to a tribunal to exclude such witness on the basis that the evidence that they can offer is already contained in the witness statements.179 These issues are discussed further at Chapter 11.180
J. The Unwilling Witness
4.9. If a Party wishes to present evidence from a person who will not appear voluntarily at its request, the Party may, within the time ordered by the Arbitral Tribunal, ask it to take whatever steps are legally available to obtain the testimony of that person, or seek leave from the Arbitral Tribunal to take such steps itself. In the case of a request to the Arbitral Tribunal, the Party shall identify the intended witness, shall describe the subjects on which the witness’s testimony is sought and shall state why such subjects are relevant to the case and material to its outcome. The Arbitral Tribunal shall decide on this request and shall take, authorize the requesting Party to take or order any other Party to take, such steps as the Arbitral Tribunal considers appropriate if, in its discretion, it determines that the testimony of that witness would be relevant to the case and material to its outcome.
7.183 A tribunal has jurisdiction only over the parties to the arbitration. Therefore, there may be limits to the steps that it can take to compel a witness to give evidence.181 Article 4.9 of the IBA Rules provides a practical mechanism by which a party desiring to call a reluctant witness can seek active engagement from the tribunal in the taking of available (p. 267) steps—including seeking the assistance of a national court—to make this possible. This is in contrast to most institutional rules, which contain little or no express provision for this situation.182
7.184 Each party is responsible for presenting at the hearing the witnesses upon whose evidence that party wishes to rely. This is a natural corollary of the obligation of a party to prove the facts underpinning its claim or defence. In practical terms, this means that the relevant party will organize the taking of a witness statement and underwrite any costs associated with the attendance of the witness at the evidentiary hearing.183
7.185 However, occasionally a witness may refuse to cooperate with a party that would like to present the evidence of that witness to the tribunal. For example, the witness may be a former employee who feels that they have been badly treated, they may feel a loyalty to the other party, or they may simply not wish to become embroiled in a dispute. If the dispute was before a state court the litigant party would almost certainly be able to ask the court to issue an order or subpoena requiring the witness to attend to give evidence. The legal landscape is more complex when the dispute is being heard before an arbitral tribunal because the tribunal’s jurisdiction extends only to the parties to the arbitration.
7.186 Article 4.9 makes provision for two types of application to the tribunal. The first is where a party wishes the tribunal to take active steps to compel the testimony of a witness. The second is where a party wishes to obtain the permission of the tribunal to take active steps itself—perhaps because this is a requirement of a national court from whom it intends to seek assistance, or for other reason—perhaps as a matter of courtesy.
2. Requirements for an Application and Order under Article 4.9
7.187 In order for a party to make an application to a tribunal under Article 4.9, and for the tribunal to grant relief in the terms provided for in that provision, the applicant must supply the tribunal with the following information:
(a) the identity of the intended witness;
(b) a description of the subjects on which the witness’s testimony is sought; and
(c) an explanation as to why such subjects are relevant to the case and material to its outcome.
7.188 A tribunal has a discretion, but no obligation, to grant an application under Article 4.9. The tribunal must be satisfied that the evidence of the potential witness is both relevant and material, and that there are steps available to facilitate the testimony of the (p. 268) witness that the tribunal considers to be appropriate to be taken in the circumstances of the particular arbitration. Article 4.9 thus provides for a two-pronged approach to the making of a decision by the tribunal to grant the application.
a. Relevant and material
7.189 The applicant must demonstrate to the tribunal that there are good reasons why it is appropriate for efforts to be made to obtain the testimony of the unwilling witness. The applicant should do this by reference to the value of the witness evidence to the tribunal’s determination of the issues in the case. As with other types of evidence, the key test will be whether the evidence the witness can offer is both relevant to the case and material to its outcome. As mentioned, this benchmark is used consistently within the IBA Rules and is also one of the yardsticks by which a tribunal may decide to exclude evidence (whether document, statement, oral testimony, or inspection) not considered appropriate for admission in the arbitration.184
7.190 If strictly interpreted, the requirement that evidence be both ‘relevant to the case and material to outcome’ is an onerous one. Parties should not assume that all evidence touching upon disputed events will meet the standard required. Parties should focus upon both elements of the requirement when preparing an application under Article 4.9. This may require careful analysis of the issues and evidence already on the record to assess whether the evidence is likely to impact the ultimate outcome of the case. Further guidance on the meaning of ‘relevant to the case and material to outcome’ can be found in Chapter 6.185
7.191 The requirement that the tribunal should be satisfied that the testimony of the witness would be relevant to the case and material to its outcome helps to avoid time and costs being wasted in efforts to bring an irrelevant witness before the tribunal.
7.192 Article 4.9 refers expressly to the tribunal’s discretion to determine whether the benchmark of relevance and materiality is met. The tribunal is the final arbiter on this matter. If the tribunal determines that the evidence sought to be obtained is not relevant to the case, or would not be material to its outcome, the tribunal should refuse to grant the relief sought.
b. Consideration of available steps
7.193 If the benchmark of relevance and materiality is met, the tribunal will have to assess what steps (if any) are available to persuade or compel the witness to provide testimony, and to decide whether the taking of any of those steps is desirable. The tribunal should authorize only ‘such steps as the tribunal considers appropriate’.
7.194 As mentioned, Article 4.9 covers two forms of application by a party seeking assistance in obtaining witness testimony—one in relation to action by the tribunal, and the other (p. 269) relating to proposed action by the applicant party. Importantly, when responding to such an application, a tribunal is not restricted to granting the precise relief sought by the applicant party. It may:
7.195 The steps taken in each case will differ according to the circumstances of the dispute and may involve the issue of proceedings in state courts. National arbitration laws will differ as to what assistance is available to compel the attendance of a witness, and whether the consent of the tribunal is required before such action may be taken.
i. Steps available to the applicant party
7.197 The applicant party may be able to enlist direct assistance from state courts. This will generally be the court at the seat of arbitration, or where the witness is resident. Various forms of assistance subject to differing requirements may be available.
7.198 Many national arbitration laws provide for local court assistance to a party to an arbitration having its seat in that jurisdiction. Article 184 of the Swiss Private International Law Statute (PILS) provides that a party to an arbitration seated in Switzerland may seek the assistance of Swiss courts in taking evidence:
If the assistance of state judiciary authorities is necessary for the taking of evidence, the Arbitral Tribunal or a party with the consent of the Arbitral Tribunal, may request the assistance of the state judge at the seat of the Arbitral Tribunal; the judge shall apply his own law.186
7.199 Section 26 of the Swedish Arbitration Act 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 ‘as evidence’.
7.200 Other courts may offer assistance where the hearing is to take place within the jurisdiction. In such circumstances, it is possible that a sympathetic tribunal may agree to hold a hearing in a particular place other than the seat in order to facilitate court-assisted compulsion of a witness. For example, Section 43 of the English Arbitration Act 1996 provides that:
A party to arbitral proceedings may use the same court procedures as are available in relation to legal proceedings to secure the attendance before the tribunal of a witness in order to give oral testimony . . .
7.201 The power under Section 43 may be exercised only if the witness is in the United Kingdom and the arbitral proceedings are being conducted in England, Wales, or Northern Ireland.187 This does not necessarily require the arbitration to be seated in those locations, just that the proceedings are conducted there.
7.202 Stemcor (S.E.A.) Pte Limited v Mideast Integrated Steels Limited was a case concerning an arbitration seated in Mumbai. In Stemcor, one of the parties wished to cross-examine a witness based in Singapore; that witness refused to come to India for the hearing due to concerns he might be prosecuted or have his passport confiscated. The requesting party obtained leave from the tribunal to seek assistance from the Bombay High Court under Section 27 of the Arbitration and Conciliation Act. The Bombay Court made an order appointing the arbitrator as a court commissioner and directed the team of lawyers, along with the commissioner, to travel to Singapore to record the evidence of the witness.188
7.203 Some national courts may offer assistance in the taking of evidence for use in arbitration proceedings taking place outside the jurisdiction. For example, in the United States, Section 1782 28 U.S.C. gives the court the power to order discovery from specified persons ‘for use in a proceeding in a foreign or international tribunal’. This provision has mainly been used for the purpose of obtaining documents, but it does extend to orders requiring a person to give evidence. Assistance is available at the request of either a ‘foreign or international tribunal’ or ‘any interested person’ in proceedings before the relevant tribunal.189
7.204 Under many laws, the consent of the tribunal is a pre-condition of an application by a party to the state court.190 Article 4.9 provides a mechanism by which a party may seek (p. 271) such permission. The 1999 IBA Rules made provision only for a party to request that the tribunal take action itself.191 We discuss at Chapter 6 whether the similar provision at Article 3.9 of the IBA Rules imposes an obligation on a party to obtain the permission of the tribunal before taking action itself, regardless of whether such prior permission is a requirement of the national law under which assistance is sought.192 Similar issues arise in relation to Article 4.9. The Commentary on the IBA Rules indicates that the tribunal is the proper arbiter of whether an application to a state court should be pursued. It refers to the right of the tribunal to exercise its discretion to ‘refuse the request if it does not consider the potential testimony to be relevant to the case or material to its outcome’, thus suggesting that, under Article 4.9, the tribunal’s permission is intended to be a pre-condition to the proposed action.193
7.205 ALC v ALF194 heard before the Singapore Court is an interesting example of where the relationship between the mechanisms provided for at Article 4.9 of the IBA Rules and the powers of a local court came under consideration. ALC concerned a domestic arbitration conducted under SIAC rules. By Procedural Order No. 1, the parties adopted the (2010) IBA Rules as guidance on procedural matters. The claimant to the arbitration was not satisfied with the adequacy of the document production given by the respondent and made an application to the arbitrator for an order directing that the respondent obtain sworn statements from two of its employees in relation to the disclosure that had been given. The arbitrator rejected this request because he did not consider it appropriate to require sworn testimony on that issue. Its request for witness statements having been denied, the claimant decided that the relevant employees should attend the evidentiary hearing. However, rather than making an application to the arbitrator for assistance195 or permission to apply to the court under Article 4.10 of the 1999 IBA Rules (the equivalent of Article 4.9 of the current IBA Rules), the claimant applied for and obtained direct from the Singapore Court a subpoena requiring the employees to attend the hearing to give evidence on matters relating to the respondent’s disclosure. The respondent applied to the Singapore Court for that subpoena to be set aside.
(p. 272) 7.206 In the course of its judgment setting aside the subpoena, the Singapore Court made two observations. First, that (among other matters) taking into account the terms of the IBA Rules, it was clear that the parties had contractually agreed on the procedure to be adopted in relation to the calling of witnesses (namely, that an application should first be made to the arbitrator) and the respondent should have followed that procedure.196 Secondly, that although the right of a litigant to bring all evidence relevant to its case before the court is immutable, in relation to arbitration proceedings, questions relating to the relevance and/or materiality of the evidence sought to be obtained from the recalcitrant witness fall to be decided not by the court, but by the arbitrator as the ‘trial judge’ with power to determine both the procedure and the substance of the arbitration.197 In an arbitration in which the IBA Rules have been adopted or applied, this will involve satisfying the tribunal as to the relevance and materiality to outcome of the witness testimony sought to be introduced.198 This decision is therefore broadly supportive of the regime set out in the IBA Rules by which, to the extent practicable and subject to considerations of due process, evidence put before the tribunal is limited to that which is relevant to the case and material to its outcome, and the tribunal is the final arbiter of whether those criteria have been met and whether steps to pursue the witness are merited.199
ii. Steps available to a non-applicant party
7.207 As mentioned, in response to an application under Article 4.9, the tribunal may require any other party to the arbitration to take such steps as the tribunal considers appropriate.
7.208 We think it unlikely in the majority of cases that a tribunal would order a party to the arbitration who is not also a party to the application made under Article 4.9 to issue legal proceedings to compel the testimony of a recalcitrant third-party witness. In the event that it was to do so, the same considerations in relation to available mechanisms would apply as in the case of the applicant party.200
7.209 However, legal process may not be the only option. It is possible that there may be more steps open to the non-applicant party than are available to the applicant party. For example, the reluctant witness may be a former employee or independent consultant retained by the non-applicant party over whom the latter has a degree of control or influence. In such circumstances, the tribunal may order the non-applicant party to make a formal request for testimony to the proposed witness, or direct that the non-applicant party use best efforts to obtain the agreement of the witness to offer evidence.201
(p. 273) iii. Steps available to the tribunal
7.211 Article 4.9 makes clear that the tribunal may only be asked ‘to take whatever steps are legally available to obtain the testimony . . . ’. In part, this provision acknowledges that the tribunal has no jurisdiction over an individual who is not a party to the arbitration.
7.212 The action that the tribunal proposes to take may include a direct application for assistance to a national court. The Commentary on the IBA Rules makes express reference to the taking of such action by a tribunal (although it notes that in some cases it may be more practical or efficient for the tribunal to instead authorize the applicant party to approach the court itself—for example, where ‘the party requesting the evidence was located in that country, spoke the local language or already had local legal counsel’). If assistance is to be sought from national courts, the nature and scope of any assistance that the tribunal can obtain from those courts will be determined by the particular terms of the relevant arbitration laws and/or the relevant court’s inherent jurisdiction.
7.213 Some national arbitration laws contain express provision permitting an arbitral tribunal to seek an order from the state court to compel a witness to appear before the tribunal, or for the court to examine the witness itself. In most cases, it will be appropriate to look first to the courts at the seat. If the parties have chosen an ‘arbitration-friendly’ jurisdiction as the seat of arbitration, the relevant arbitration laws should provide some measure of support and assistance for the arbitral process. For example, in states that have adopted the UNCITRAL Model Law, Article 27 provides that:
The arbitral tribunal or a party with the approval of the arbitral tribunal may request from a competent court of this State assistance in taking evidence. The court may execute the request within its competence and according to its rules on taking evidence.202
7.214 Article 1(2) of the Model Law provides that its provisions will apply only where the place of arbitration is in the territory of the state. Other examples of where national courts will assist where the arbitration is seated within that jurisdiction include Switzerland (Article 184 of the Swiss PILS)203 and the United States (Section 7 of the Federal Arbitration Act).204
7.215 However, as mentioned, potential witnesses in an international arbitration will frequently be domiciled in a different jurisdiction from that of the seat of arbitration. The courts of the seat may themselves have difficulty in compelling the witness to participate. In theory, a tribunal may therefore have to look to another national court to (p. 274) provide assistance. For example, as mentioned in 7.203, in the United States, Section 1782 28 U.S.C may provide some assistance.
7.216 Despite the express power granted to a tribunal to seek assistance from a state court, in our view a tribunal will be reluctant to make an application itself and will prefer that any application to the appropriate court is made by one of the parties. Support for this view may be found in commentary on the Swiss law provision (mentioned at 7.214) that says:
The practical relevance of Art. 184(2) PILS, however, has been limited so far. Arbitral tribunals generally are hesitant to apply to state courts for judicial assistance in connection with the taking of evidence and only revert to this possibility as a last resort.205
7.217 However, the action open to the tribunal need not be limited to the pursuit of proceedings in a national court. Even if not fully addressed in the applicant-party’s application, or any response delivered by the other party, the tribunal may wish to explore with the parties other possible steps available to secure the attendance of the witness on a voluntary basis, rather than by compulsion. Those steps will depend very much on the circumstances of the case and (if known) the reasons for the unwillingness of the witness to offer evidence. For example, in appropriate circumstances, the tribunal might consider simply writing to the potential witness to request their agreement to provide evidence. Although such power should be exercised cautiously, the tribunal has the ability to do so under Article 8.5 of the IBA Rules.206 Some witnesses may be more willing to cooperate if invited to do so by the tribunal—a neutral in the dispute—rather than one of the parties. Having received an invitation from the tribunal, they may feel more confident resisting an attempt by one of the parties to discourage them from offering evidence, or they may understand better that their evidence is important to the proceedings. They may be reassured by confirmation that any associated expenses they incur will be reimbursed or, if necessary, that the tribunal can provide a letter to their employer explaining why they may need to take time off to attend a hearing.
7.218 Before making any direct contact with a potential witness, it would be prudent for the tribunal to share a draft of the communication with the parties. The tribunal should also ensure that the parties are willing to put in place all necessary practical and logistical arrangements for the witness’s attendance, should that individual agree to give evidence.
(p. 275) K. Request for Witness Testimony by the Tribunal
4.10. At any time before the arbitration is concluded, the Arbitral Tribunal may order any Party to provide for, or to use its best efforts to provide for, the appearance for testimony at an Evidentiary Hearing of any person, including one whose testimony has not yet been offered. A Party to whom such a request is addressed may object for any of the reasons set forth in Article 9.2.
1. Power of the Tribunal to Call Witnesses
7.220 Unless the parties have agreed otherwise, Article 4.10 enables a tribunal to order a party to take steps (or use its best efforts) to secure the attendance of a witness at the evidentiary hearing.
7.221 Witnesses of fact are the responsibility of the parties. Based on an assessment of its own case and that of its opponent, as well as the evidential burden that it must discharge, each party will select its own witnesses and decide the issues on which those witnesses will give evidence. Tribunals will generally play no part in this process. However, occasions may arise when, following a reading of the submissions and/or written evidence, it appears to the tribunal that a witness who may have important evidence to offer has not provided a witness statement and/or is not being called to attend for examination at the evidentiary hearing.
7.222 An order by the tribunal for the attendance of a witness is more in the civil law tradition of inquisitorial procedures than in the common law tradition of an adversarial process. However, whatever distinctions may exist in relation to national courts, this is not necessarily so in the practice of international arbitration and relevant tribunal powers may be found in the national arbitration laws of both legal traditions.
7.223 For example, the German Arbitration Law states that the ‘arbitral tribunal is empowered to determine the admissibility of taking evidence, take evidence and assess freely such evidence’.207 The English Arbitration Act 1996 contains similar provision. It states at Section 34 that ‘the tribunal [shall] decide all procedural and evidential matters, subject to the right of the parties to agree any matter’ and that ‘procedural and (p. 276) evidential matters’ include ‘(g) whether and to what extent the tribunal should itself take the initiative in ascertaining the facts and the law’.208
7.224 A tribunal’s power to take the initiative is also reflected in a number of institutional rules. For example, Article 25(5) of the ICC Rules provides that ‘[a]t any time during the proceedings, the arbitral tribunal may summon any party to provide additional evidence’. The ICC Secretariat’s Guide to the 2012 ICC Rules notes that:
This provision is most commonly used to order the production of additional documents, but could potentially be used for any type of additional evidence. Article 25(5) can be applied at a party’s request or on the tribunal’s own initiative.209
7.225 The power available to the tribunal under Article 4.10 should be exercised cautiously. The tribunal must ensure that there is no perception of unfairness or bias in relation to the choice of witness. Prior consultation with the parties is a good idea, as it will reduce the risk of challenge to the award—for example, on grounds that the parties were deprived of the right to be heard in relation to the introduction of the evidence, or the opportunity to offer other evidence on the topic on which the tribunal wished to hear the witness.
7.226 In some limited circumstances, the tribunal may elect to contact the potential witness directly. As mentioned, Article 8.5 of the IBA Rules makes it clear that a tribunal has the power to do so.210 However, as with a decision to call the witness, the tribunal should first consult with the parties. If the tribunal does decide to make direct contact, it will need to ensure that the confidentiality of the arbitration process is not compromised, and any communication with a potential new witness will have to be drafted in neutral and circumspect terms.
7.227 In most cases, the tribunal will direct one of the parties to take steps to secure attendance of the witness. Article 4.10 is likely to be of most value where one of the parties has a degree of control or influence over the witness concerned. An obvious example of this is where the witness is an employee or officer of a corporate party.211 There also may be other situations, eg where the witness is a supplier or professional consultant to one of the parties. Provided the witness values that commercial relationship, it is likely to agree to a request for assistance.
7.228 Depending on the nature of the relationship (if any) between the relevant party and the proposed witness, the tribunal may prefer to direct a party to use ‘best efforts’ to secure (p. 277) the attendance of the witness rather than ordering it to provide for the witness to attend the evidentiary hearing. For example, where the witness is an employee of a party, the tribunal may be prepared to make an order. Where the witness is an independent third party with whom the party has only an intermittent professional relationship, the tribunal may prefer to direct that party to use ‘best efforts’ to secure the witness. Such ‘best efforts’ are likely to comprise practical steps, eg contacting the individual in positive terms, making financial and logistical arrangements for their travel to the hearing, and liaising with the other parties about the timetable for the hearing to ensure that any dates on which the witness is unavailable are accommodated.
7.229 The nature of these circumstances in which a tribunal may make an order under Article 4.10 will be fact specific, but publicly cited examples of where a tribunal has found it appropriate to direct the attendance of a witness include:
(a) the calling of consultants who, at the request of an expert witness, had created technical simulations forming part of and relied upon in the expert reports.
In this example, the parties were ordered to ‘take the measures necessary’ to ensure that two of the three consultants appear for cross-examination at the evidential hearing. (A third consultant had ceased providing services to an expert of one of the parties as a result of—it was alleged—pressure applied by one of the other parties to the arbitration. In relation to that individual, the tribunal decided to contact the dismissed consultant to request that he attend the hearing to answer questions the tribunal might consider relevant and that the expert might not be in a position to address).212
(b) the calling of individuals who had close involvement in events underlying the dispute, but who were not related to or within the control of the parties.213
In this case, after receiving the parties’ witness lists, the tribunal informed the parties that, in light of its review of the written submissions, the tribunal would benefit from the testimony of two individuals whom the parties had not presented as fact witnesses. The tribunal considered that testimony from those individuals would help shed further light on the facts of the case and the parties’ arguments. The tribunal stated the topics on which it would be interested in hearing the individuals’ accounts. Invoking the provisions of an earlier procedural order,214 the tribunal requested the parties ‘to use their best efforts to provide for the appearance for testimony of these two persons at the hearing’.
(p. 278) 2. Party Objection
7.230 Where, in accordance with its powers under Article 4.10, a tribunal asks a party to secure the attendance of a witness at an evidentiary hearing, the party so requested has a right (also under Article 4.10) to object to that request on any of the grounds set out in Article 9.2 of the IBA Rules.215 This provision ensures that the otherwise far-reaching power of the tribunal to direct the attendance of a witness is counter-balanced by the right of a party opposing that step to voice its disagreement by reference to the carefully crafted grounds of objection to the introduction of evidence set out in Article 9.2. Those grounds include a situation where the evidence is not sufficiently relevant to the case or material to its outcome, as well as circumstances of commercial or technical confidentiality, legal privilege or impediment, political or institutional sensitivity, and considerations of procedural economy, proportionality, and fairness. These matters are dealt with in Chapter 12.
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.
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.
6 See further Chapter 5 paras 5.74–5.76.
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.
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.
11 See Chapter 5.
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).
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.
19 1999 IBA Working Party and 2010 IBA Rules of Evidence Review Subcommittee, ‘Commentary on the Revised Text of the 2010 IBA Rules on the Taking of Evidence in International Arbitration’ (International Bar Association, 2010) 15 <www.ibanet.org/Document/Default.aspx?DocumentUid=DD240932-0E08-40D4-9866-309A635487C0> accessed 27 November 2018 (hereafter ‘Commentary on the IBA Rules’).
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’.
27 See Chapter 12 paras 12.31–12.42.
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’).
36 ibid rC9.3.
37 ibid rC9.4. See also The Ethics Committee of the Bar Council, ‘Witness Preparation’ (The General Council of the Bar, August 2017) <http://www.barcouncil.org.uk/media/438420/witness_preparation.pdf> accessed 28 November 2018.
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.
44 Queen Mary University of London, ‘2012 International Arbitration Survey: Current and Preferred Practices in the Arbitral Process’ (White & Case, 2012) <www.arbitration.qmul.ac.uk/media/arbitration/docs/2012_International_Arbitration_Survey.pdf> accessed 28 November 2018.
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.
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.
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).
61 The IBA Arbitration Guidelines and Rules Subcommittee, ‘Report on the Reception of the IBA Arbitration Soft Law Products’ (International Bar Association, 2016) para 96 <www.ibanet.org/Document/Default.aspx?DocumentUid=105d29a3-6261-4437-84e2-1c8637844beb> accessed 27 November 2018 (hereafter ‘2016 IBA Report’). The respondents who responded in these terms were from Argentina and Singapore.
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.
69 See Chapter 11 paras 11.56–11.67.
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.’
74 See further discussions at 7.100– 7.101.
75 See Chapter 5 paras 5.71–5.76.
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.
80 Wade (n 45) 20-008.
81 These points are made in Markus Wirth, ‘Fact Witnesses’ (2010) International Arbitration Law Review 207, 208 (hereafter ‘Wirth’).
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.
84 IBA Rules (n 1) Article 2.2(a). See Chapter 5 paras 5.56–5.64 and 5.71–5.76.
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.
89 See Harbst (n 71) 68.
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.
93 See (n 92).
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 –.
103 Chapter 12, paras 12.31–12.42.
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.
105 See Chapter 6, paras 6.26–6.36 and 6.341–6.349.
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.
110 See discussion of IBA Rules (n 1) Article 3.12(d) at Chapter 6 paras 6.379–6.385.
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).
112 See, for more detail, Chapter 11 paras 11.108–11.110.
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).
114 See Chapter 11 paras 11.101–11.107.
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.
121 See Chapter 11 paras 11.56–11.64.
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.
132 Ashford (n 91) 103.
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.
142 Wirth (n 81) 210.
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.
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.
154 See 7.139– 7.145.
155 See ‘Procedural Order of 12 May 2004 in ICC Case 12990 (extract)’ and ‘Procedural Order of 12 May 2003 in ICC Case 12169 (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) 4.7; 10 (emphasis added).
156 ‘Procedural Order of 20 September 2004 in ICC Case 13054 (extract)’ in ibid 10 (emphasis added).
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).
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.
163 Article 9.6 is covered in Chapter 12; see paras 12.357–12.386.
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.
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.
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.
180 Chapter 11 paras 11.26–11.42.
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).
185 See Chapter 6 paras 6.76–6.146.
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).
189 The scope and application of 28 U.S.C., s 1782 is the subject of ongoing debate. For further discussion, see Jonathan Blackman and Peter Fox, ‘Discovery in Aid of Arbitration under 28 USC 1782’ (The Arbitration Review of the Americas, 16 August 2017) <https://globalarbitrationreview.com/insight/the-arbitration-review-of-the-americas-2017/1067594/discovery-in-aid-of-arbitration-under-28-usc-1782> accessed 29 November 2018.
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.
192 SeeChapter 6, 6.316–6.322.
193 Commentary on the IBA Rules (n 19) 18. See discussion at 6.319-6.322 on possible exception to such a requirement.
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 .
198 IBA Rules (n 1) Article 4.9.
199 Commentary on the IBA Rules (n 19) 18.
200 See 7.197– 7.206.
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.
204 US FAA (n 181) s 7.
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’.
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).
210 Chapter 11 paras 11.86–11.92.
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.