General Pros and Cons
·
Advantages:
- 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
- Prevents repetition and thus saves time and
costs
- The
creation of a less adversarial environment than the traditional procedure.
The panel aims to have the feel of a roundtable
discussion between colleagues
- A greater
capacity for witnesses to explore
and fully understand the issues about which they are expressing an
opinion, by questioning and interacting with other experts
·
Disadvantages:
- factual witness evidence is based in large
part on subjective recollections
and views on events which occurred
- The
recollections of one witness may be
influenced, even unintentionally, by hearing the evidence of other
witnesses
- Instead of
coming to point of common agreement,
which likely to happen in expert
witness conferencing, the fact
witnesses, particularly when they are the parties or parties'
employees, are likely to remain opposed
Purpose
and Use of Witness Conferencing
·
Witness conferencing 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
·
Witness
conferencing take form of not a ‘witness-by-witness'
hearing, but a team-versus-team hearing
·
The putting
together of opposing experts (hot tubbing) as if the experts were
sitting together in a hot tub scrubbing each other's back— and apparently this
practice has first been introduced in Australian
courts. However, today it has become a common feature in many arbitrations
with extensive expert evidence, such as for instance construction arbitrations
·
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
·
Conferencing of
factual witnesses could be particularly beneficial for instance in construction disputes, or in failed joint-venture or partnership arrangements,
where the commercial documentation is inadequate /ambiguous, and where the true
intent of the parties are to be established from a number of pre and
post-contractual meetings
Hot-tubbing is becoming
more common in English engineering and
construction arbitration, particularly where the tribunal is made up of
engineering or construction specialists who have an independent understanding
of the expert issues and are capable of handling an inquisitorial approach
Rules on Witness Examination Techniques
·
No generally accepted rules exist for the conduct
of the witness examination. Therefore, the arbitral tribunal should agree with the parties on the method
·
As the procedure of
witness conferencing 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
·
The IBA
Rules on
Evidence 2010 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 be questioned
at the same time and in confrontation with each other." (Witness
conferencing) (Article 8. 3
(f) of 2010 IBA Rules, similar provision found in Article 8.2 of 1999 IBA Rules on
Evidence)
Expert Witness v. Fact Witness Conferencing
·
Witness conferencing is considered to be more
efficient and practical with expert witnesses, rather than with fact witnesses
·
A typical application of this procedure for expert witnesses is 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 fact-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
Procedure for Witness Conferencing
·
The witness conferencing is lead, co-ordinated and controlled by the tribunal. The
tribunal 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 representatives, 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
Tribunal's Role in Witness Conferencing
·
As witness
conferencing is a relatively new development, there may be the risk of chaos if
the procedure is not well controlled.
·
Provided that the tribunal is well-prepared for effective questioning and 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
·
There is a risk
with conferencing between experts that the tribunal might assume that the two
experts are of equal standing and tribunal may be lost in the technical expert
witness debate.
·
The Tribunal
shall not assume that somebody who may be very good at speaking and expressing
an opinion necessarily has the depth of knowledge and expertise of the other
person, who might not be quite as good at speaking and expressing his opinion
·
However, pre-hearing "hot
tubbing"
resulting in a joint expert report remains by far the most efficient solution.
The "Experts' Facilitator"
may make it possible.
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