Witness conferencing

•  Witness conferencing and expert conferencing in particular may be a very useful tool for the arbitral tribunal to form an opinion if there are conflicting testimonies regarding the same issue
• So called “witness confrontation” or “witness confrerencing” or "hot-tubbing" is the procedure during which two or more witnesses will be heard at the same time an in confrontation with each other
• The IBA Rules provide that,by party agreement or upon the order of the tribunal, this conference (referred to in some sources as ‘confrontation’) should occur as part of the examination of the witnesses before the tribunal:
  

  "The Arbitral Tribunal, upon request of a Party or on its own motion, may vary this order of proceeding, including the arrangement of testimony by particular issues or in such a manner that witnesses presented by different Parties be questioned at the same time and in confrontation with each other." (Article 8.2 IBA Rules)

• As the procedure is relatively novel and there are obviously different ways of approaching it, the tribunal must set clear guidelines to ensure both counsel and the witnesses understand how the process is to work
•  Witness conferencing is considered to be more efficient with expert witnesses, practical rather than with fact witnesses
• A typical application is for expert witnesses to provide their written or oral testimony separately and then appear jointly for further questioning, to ensure that each witness can respond to allegations of the other witnesses
• A special form of expert witness confrerencing is to have the experts meet in advance of a hearing (so called “pre-trial expert conferencing”): The parties' experts are ordered to create a joint report on the technical facts
• At witness confrerencing opposing witnesses are typically questioned side-by-side on particular topics
• This serves to narrow down conflicting testimonies and may save considerable time by avoiding repetition
• The Arbitral Tribunal leads witness conferencing. It may ask questions to one witness , then may ask others to comment on the first witness' answers, or to answer the questions themselves.
• Then the party pepresentatives, usually Claimant, will have an opportunity to ask further questions on the same issue, followed by other party (Respondent)
• At the end, the witnesses may be asked whether anybody wishes to provide further comment.
• This way, the procedure allows concentrating on one subject at a time
•  Provided that the tribunal is well-prepared to avoid chaos, this technique may lead the experts and thereby the parties to further agreement on issues that initially may have seemed impossible to agree
• Advatage: Witness conferencing may be regarded as a potentially useful way for an arbitral tribunal to assess the truth as between two conflicting versions of factual events           
• Disadvantage of this process is the fact that factual witness evidence is based in large part on subjective recollections and views on events which occurred