Friday, November 7, 2014

Witness preparation in international arbitration

  • Preparation of written witness statements involves considerable time and effort and thus substantial costs for the parties.
  • Written witness statements give the arbitral tribunal a possibility to prepare for the witness hearing more selectively and save time and costs
  • Risk of fundamental re-shaping of witness statements by lawyers
  • Witnesses providing written witness statement must be available for cross-examination
  • For procedural economy considerations, the arbitral tribunal chooses the witnesses to be summoned,  by anticipated appraisal of evidence and its relevance to claims
  • However, non-hearing  of witnesses might breach the right to be heard of the party
  • The arbitral tribunal can request the parties to name the most important witnesses  among the named witnesses for the organizational hearing
  •  Many laws and arbitration rules are silent on to which extent the preparation of witnesses is permissible
  • Hence,  it is advisable for the arbitral tribunal to issue supplemental procedural rules on this issue to guide the parties
  • The parties will cover the expenses related to the appearance of their witnesses, later added to the costs of the proceedings and allocated to the parties according to the outcome of the case
  • No generally accepted rules exist for the conduct of the witness examination. Therefore, the arbitral tribunal should agree with the parties on the method
  • In complex cases it may also be practical to examine all witnesses for each set of issues, the either in succession or together, what is known as witness conferencing or other forms of joint examination
  • Particular issues may require that the witnesses concerned are available for the entire witness hearing, hence the joint examination of witnesses in confrontation can be highly effective



Source:
Christian Oetiker, Witnesses before the International Arbitral Tribunal, ASA Bulletin, (© Association Suisse de l'Arbitrage; Kluwer Law International 2007, Volume 25 Issue 2) pp. 253 - 278
at http://www.kluwerarbitration.com/CommonUI/document.aspx?id=ipn27649&query=ONEAR/0(content:%22witness%22,content:%22conferencing%22)#note23



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