Rules of Evidence in International Arbitration
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CHAPTER 4
Witnesses of fact
Introduction
4.01 The general preference for documentary evidence notwithstanding, fact witnesses are often relied on in international arbitration as a means of presenting evidence. The procedures for taking witness testimony have evolved over time and it would seem that the modern practice for admitting witness evidence follows three basic assumptions: (1) a party has the right to be given notice of the identity of a witness and the subject matter of their testimony-in-chief before a hearing; (2) a witness who has provided testimony should be available to answer questions of the opposing party and/or the tribunal based upon that testimony; and (3) a tribunal’s right to freely consider and weigh the evidence before it means that there are very few restrictions on who may offer testimony as a witness. 4.02 In order to accommodate these expectations, it has become common practice for a written witness statement to be used as the means of conveying a witness’ testimony-in-chief. Earlier jurisprudence indicates that the witness statement was not as widely used as it is today; however, in modern practice it is rare to find instances where witnesses have not prepared and submitted a written version of their primary testimony prior to an oral hearing. A statement’s form and the general requirements for its content also follow a widely used format. 4.03 There are variations in practice, and there are still instances where a witness statement may not be used. Exceptions notwithstanding, as article 4 makes clear, there are a number of generally recognised rules that provide guidance for the introduction and use of written witness testimony. The following chapter considers those rules, and the manner in which they have been applied in practice. Included in this section, among other topics, is a discussion of who may be a witness, the timing and content of a witness statement, the rules concerning the interviewing and preparation of witnesses prior to their testimony and the implications of a witness’ failure to appear for an oral hearing. Specific matters regarding the oral testimony of witnesses are considered more thoroughly in , which covers hearing procedure. For a discussion of the particular issues arising out of the use of expert witnesses the reader is directed to and 6.Identification of witnesses
| Article 4.1 2010 IBA Rules: | 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. |
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General discussion
4.04 It is widely accepted that a party has the right to be informed of the witnesses who have offered testimony in support of the adverse party.1 Article 4.1 restates this principle, and also requires that a party who intends to present a witness should provide an indication of the subject matter of their testimony. In principle, the duty to provide such notice is satisfied by the filing of witness statements in the arbitration (see comments to article 4.4). Notice, whether it be in the form of a witness statement or otherwise, should be provided within the time frames set forth by the tribunal.Failure to give notice of witness within the specified time
4.05 Failure to provide notice to the tribunal and the adverse party of a proffered witness within the prescribed time frames may result in the exclusion of both the written and oral testimony2 of that witness.3 As with documentary evidence submitted after the passing of a deadline, a tribunal may exercise its discretion to admit such evidence despite its tardiness. However, before doing so, it is customary for a tribunal to consider whether any prejudice or undue delay will result from the failure to observe the deadline, as well as the possible evidentiary value of the testimony (see also comments to articles 3.1 and 9.2(g)). 4.06 With regard to particular problems raised by witness evidence offered late, a tribunal may often be required to consider whether the belated submission of testimonyPage 113
Who may be a witness
| Article 4.2 2010 IBA Rules: | Any person may present evidence as a witness, including a Party or a Party’s officer, employee or other representative. |
| Other Statements of the Rule Article 27(2) 2010 | |
| UNCITRAL Rules: | 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. Unless otherwise directed by the arbitral tribunal, statements by witnesses, including expert witnesses, may be presented in writing and signed by them. |
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General discussion
4.08 In some jurisdictions the witness testimony of a party or an individual bearing a significant relationship to that party may not be admitted into evidence.8 This principle derives from policy considerations or legal traditions; however, these restrictions generally do not apply in international arbitration. The customary approach taken by international tribunals has been to admit the testimony of witnesses into a proceeding irrespective of the connections, be they financial, social, familial or employment-related, which that witness may have with a party. This principle is restated in article 4.2 where it is made clear that “any person” may tender a witness statement in an international arbitration. Ultimately, as the arbitral tribunal is charged with weighing the value of the evidence, as set forth in article 9.1, it is up to the arbitrator to determine what, if any, probative value may be assigned to the statements made by a witness who maintains connections of some type with a party or otherwise has an interest in the outcome of the proceedings.Testimony by witness with a connection to a party
4.09 In international arbitration a tribunal may admit the testimony of a witness who has an interest in the outcome of the arbitration, or is otherwise connected to one of the parties. This customary rule thus permits the testimony of persons bearing the following types of relationships to a party: (1) the claimant or respondent themselves;9 (2) the shareholder of a party;10Page 115
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Persons interested in the outcome of proceedings to be treated as a witness
4.10 The practice adopted by some international tribunals with regard to admitting testimony from fact witnesses with an interest in the outcome of the proceedings, has been to allow such statements to be submitted as part of the proffering party’s case, but not as witness testimony.16 It would seem that under this approach the individual is not treated as a “witness” or given the opportunity to offer “testimony” in a manner similar to other witnesses, although the tribunal will allow their oral and written assertions to be part of the record.17 4.11 This practice is unsatisfactory for a number of reasons. From a procedural standpoint, this method is less desirable as it leaves in doubt the exact nature of the statement that has been submitted and its evidentiary value (if any). A party in such a circumstance may be justifiably confused as to whether the statement should be regarded as evidence or simply argument. Moreover, this scenario creates uncertainty as to whether a tribunal may rely on a statement of this type, and if the person submitting the statement should be subject to cross-examination as a witness normally would be. 4.12 The IBA Rules do not adopt this approach. As noted above, article 4.2 sets forth a broad and liberal definition of “witness.” In this regard, the IBA Rules have followed the principle that arbitrators are free to appreciate the evidence before them and, thus, consider whether the ties between a witness and a party should require less weight to be assigned to the testimony.18Page 117
Witnesses who have legal obligations of confidentiality to a party
4.13 Difficult procedural issues may arise where a fact witness bears a relationship to a party which carries with it certain legal duties, such as a responsibility to maintain the confidentiality of certain information. The most obvious example being a witness who is also a legal counsel to the party and has a duty to maintain the confidentiality of privileged communications. Where this situation comes about a tribunal is presented with the difficult task of admitting the factual evidence into the record, while simultaneously observing the duty (to the extent that the tribunal accepts such privilege as binding) not to reveal privileged information. Where such issues have arisen in the past, arbitrators have drawn distinctions for the witness as to what areas are outside the scope of their privilege obligations. In particular, such instructions generally note that matters of fact, such as what occurred at a relevant (but non-privileged) meeting, may be disclosed, whereas legal advice rendered in relation to that meeting, may not.20 It may be in these circumstances that a tribunal will have to communicate clear guidelines ahead of the hearing to the parties in order to clarify the issue to both the examining party and the witness. 4.14 Where a witness’ confidentiality obligations render their testimony so incomplete that the examining party is simply unable to properly challenge or question the testimony, a tribunal should take such factors into consideration in determining the weight assigned to such testimony. Moreover, a tribunal may be wary of a fact witness using privilege as a sword, as well as a shield, insofar as a witness reveals partially the facts of a situation to support one party’s case, but refuses to answer questions which would probe the veracityPage 118
Preparing witnesses
| Article 4.3 2010 IBA Rules: | 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. |
General discussion
4.15 Some jurisdictions regard it as unethical for a party or its lawyer to interview its witnesses prior to the giving of testimony. The difference in approach to witness preparation between domestic jurisdictions does not run strictly along civil law and common law divides. Even among countries that share similar legal heritages there is divergence as to the extent and quality of contact between legal counsel and witness considered permissible.23 National rules which dictate acceptable levels of witness preparation have not been adopted in international arbitration, as is made plain by the simplicity of the rule set forth in article 4.3. It is generally accepted that lawyers appearing before international tribunals may interview and work with witnesses prior to the submission of witness statements and the appearance of the witness at a hearing.24Page 119
Ethical considerations for counsel
4.18 Following the release of the 2010 IBA Rules, the IBA Guidelines adopted a similar approach to article 4.3. Guideline 24 in essence reflects the same view as article 4.3, with some qualifications which are in line with the IBA Rules.29 The adoption of this guideline further solidifies the view that interactions between counsel and witnesses concerning their future testimony are not per se inappropriate. The above being said, Guideline 23 makes plain that meetings or interactions with witnesses cannot be undertaken by counsel in orderPage 120
Contacting adverse witnesses and ethical concerns
4.19 Article 4.3 considers communications between a party or its counsel and those witnesses it has or intends to present, but does not expressly apply to communications between party representatives and adverse or third-party witnesses. This is made plain by the text where it refers to a party interviewing “its witnesses”. It might be said that a party who contacts an adverse witness with the hopes of convincing that witness to give information helpful to its case is, in effect, communicating with a “prospective” witness, which is generally sanctioned by the rule. This appears to be the view of an UNCITRAL tribunal which ordered that witnesses who had previously rendered testimony on behalf of the claimant be made available for an interview by respondent’s counsel on the basis of articles 4.2 and 4.3.31 4.20 There are reasons to hold article 4.3 is not applicable to contact between a party and an adverse witness, in particular, because the rule gives no consideration to the issue of “witness intimidation”, an allegation that may arise in the context of such communications. Arbitral tribunals in the past have issued orders prohibiting contact between a party and those witnesses testifying against it in the face of such accusations.32 Thus, whether article 4.3 is sufficient in itself to govern cross-contact between a party or its legal counsel and an adverse witness merits further consideration. 4.21 A more detailed set of procedural rules governing requests to communicate with adverse witnesses may be taken from the Azinian v Mexico ICSID arbitration, where a tribunal of well-experienced arbitrators considered a request by the claimant to interview the respondent’s witnesses. Here the tribunal found it permissible for a party to conduct such interviews, but set forth several conditions, which are summarised as follows:33 (1) the witness should feel free to answer or not answer any questions; (2) the witness should be informed that his or her legal counsel may be present at the interview; (3) statements made during the interview are not to be admitted into the proceedings; (4) the only testimony to be given probative value is that contained in a written statementPage 121
The use of witness statements
| Article 4.4 2010 IBA Rules: | 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, liability or damages), the Arbitral Tribunal or the Parties by agreement may schedule the submission of Witness Statements separately for each issue or phase. |
General discussion
4.23 The customary practice within international arbitration is for each witness to submit a written statement recording their testimony.37 This approach has become standard practice for a number of reasons, not least of which is procedural economy. Consider, for instance, the comments of one experienced arbitrator presiding over an ad hoc arbitration seated in Zurich, Switzerland: “What I would like to receive is from each prospectivePage 122
Ethical issues for counsel and witness statements
4.26 The IBA Guidelines devote considerable attention to the interaction between counsel and witnesses. Counsel, whom are working with witnesses to prepare their written testimony, should be mindful of their ethical obligations while shepherding the preparation of their case. It is widely accepted in international arbitration practice for counsel to assist witnesses in the drafting of their statements. Some may argue that this practice undermines the weight of the statement39 nonetheless, it is not regarded to be a breach of any internationally recognised ethical duty on the part of counsel.40 The aforementioned notwithstanding, counsel should ensure that the statement reflects the witness’ own words and recollections41 and further work to prevent false testimony from being given.42Page 123
A party’s right to withdraw a witness statement
4.28 Article 4.4 (nor article 4 generally) does not directly address the situation where a party seeks to withdraw a witness statement it has previously submitted. Nevertheless, there is evidence that arbitral tribunals will accept this possibility.43 Moreover, this is arguably the correct view if one applies the general principles of the Rules (as per article 1.5) to the question. It is a basic premise of article 4 that the admissibility of a witness statement is tied to the availability of the witness for cross-examination, as is made evident in article 4.7. Thus, it stands to reason that if a party is not able to, or does not wish to present the witness at the hearing, it may petition to withdraw the witness statement from the record. However, this principle is formulated without prejudice to the possibility that the withdrawn witness will be summoned to the hearing as per articles 4.9 and 4.10, or the possibility that the adverse party will reintroduce the withdrawn statement into the record as a document, in accordance with article 3 of the Rules. Furthermore, a tribunal may also consider the standard set forth in article 4.7 in determining that there is an exceptional reason for maintaining the witness statement in the record, even though the party which submitted it will no longer present the witness at the hearing.The time frame for submitting a witness statement
4.29 As noted in the comments to article 4.1, a party must submit a witness statement within the time frames set by the tribunal or otherwise risk having the statement declared inadmissible. The customary time frames in international arbitration for the submission of witness statements are often linked to the dates for submitting the primary pleadings in the matter. Thus, the direct testimony of a witness will often accompany either the statement of claim or statement of defence, as the case may be.44 Witness testimony offered in rebuttal will often be submitted along with the rebuttal or reply brief. This approach mirrors thePage 124
Contents of a witness statement
| Article 4.5 2010 IBA Rules: |
Each Witness Statement shall contain:
|
General discussion
4.31 Article 4.5 sets forth the basic requirements of a witness statement in international arbitration. Subparagraph (a) of the article is part of an overall change that was instituted with the 2010 revision of the IBA Rules, in which the Review Subcommittee required both expert and factual witnesses to divulge any connection existing between a witness and a party. It has been debated to some extent whether it is necessary for a witness to divulge such facts, however, from a procedural standpoint it is undeniable that cross-examining counsel often will seek to expose these connections during questioning. Ensuring that such disclosures are included in the written statement in advance of a hearing may help to dispose of these issues quickly.Disclosure of relationship to a party
4.32 As noted in the comments to article 4.2, the testimony of an individual who has a relationship to a party or interest in the proceedings may be admitted as witness evidencePage 125
Full description of the facts
4.33 As stated in article 4.5(b), a witness statement must provide a detailed recitation of the particular facts to which a party is attesting. This rule captures the approach commonly adopted by international tribunals, such as was described by an ad hoc tribunal seated in Dubai, United Arab Emirates:[T]he Respondent shall produce to the Claimant and the Arbitral Tribunal a statement indicating precisely the specific facts which Mr. D will relate (Witness Statement). Where the statement makes reference to any documents in the File, it will identify its reference. New documents referred to in the statement shall be attached to it.46