II. Distinction from other forms of oral examination
Direct examination is distinguished from:
III. Practice in international arbitration
A. The substitution of direct examination by written evidence
The submission of factual witness statements and expert reports as the main form of direct evidence has become customary in international arbitration.1 Direct examination may be dispensed with entirely in favour of written evidence and the witnesses’ or expert’s examination at the hearing will begin with cross-examination by the opposing party.2
B. The nature and purpose of direct examination
Notwithstanding the submission of written evidence, the procedural rules may permit supplemental direct evidence in the form of direct examination at the oral hearing. For factual witnesses, this is typically limited to introductory questions and clarifications,3 including any necessary corrections of, or updates to, written evidence. By contrast, the direct examination of expert witnesses sometimes (and increasingly) takes the form of an oral presentation by the expert, often accompanied by visual aids.4 Direct examination can also be used by a party to present evidence rebutting the last round of written submissions.5
Gabriel Resources Ltd. and Gabriel Resources (Jersey) v. Romania, ICSID Case No. ARB/15/31, Procedural Order No. 24, 22 October 2019, para. 38; Chevron Corporation (USA) and Texaco Petroleum Company (USA) v. The Republic of Ecuador, UNCITRAL, PCA Case No. 34877, Final Award, 31 August 2011, para. 138.
C. Direct examination where a witness or expert is not called for cross-examination
There is no absolute right to present oral testimonial evidence.7 In circumstances where the opposing party has elected not to call a witness or expert for cross-examination, the issue of whether the other party should be entitled to call its own witness or expert for direct examination has arisen. The broad discretionary powers over the presentation of evidence held by tribunals has led to the adoption of inconsistent approaches.8 Whilst a number of tribunals have held that witness statements shall stand in lieu of direct examination and, accordingly, that a witness or expert shall only appear for oral testimony if summoned by the opposing party,9 other tribunals have included within the procedural rules, or subsequently confirmed, the parties’ right to call their own witnesses and experts for direct examination. This right is typically (but not always)10 subject to the tribunal’s consent11 and/or the existence of exceptional circumstances.12
Poštová banka, a.s. and ISTROKAPITAL SE v. Hellenic Republic, ICSID Case No. ARB/13/8, Procedural Order No. 1, 20 December 2013, para. 18.1; William Ralph Clayton, William Richard Clayton, Douglas Clayton, Daniel Clayton & Bilcon of Delaware Inc. v. Government of Canada, PCA Case No. 2009-04, Procedural Order No. 18, 16 April 2013, para, 4.1; Adel A Hamadi Al Tamimi v. Sultanate of Oman, ICSID Case No. ARB/11/33, Procedural Order No. 1, 13 July 2012, para. 16.7; Saint Mary’s VCNA, LLC v. Government of Canada, PCA Case No. 2012-29, Procedural Order No. 1, 10 September 2012, Section 21.1(c).
Canadian Cattlemen for Fair Trade v. United States of America, UNCITRAL (formerly Consolidated Canadian Claims v. United States of America), Procedural Order No. 1, 20 October 2006, para. 8.2; RosInvestCo UK Ltd. v. Russian Federation, SCC Case No. V079/2005, Award on Jurisdiction, 1 October 2007, para. 11; TCW Group, Inc. & Dominican Energy Holdings, L.P. v. The Dominican Republic, PCA Case No. 2008-06, Procedural Order No. 2, 15 August 2008, para. 6.2; Chevron Corp. (USA) & Texaco Petroleum Co. (USA) v. Republic of Ecuador, PCA Case No. 34877, Interim Award, 1 December 2008, para. 20.
Alberto Carrizosa Gelzis, Enrique Carrizosa Gelzis and Felipe Carrizosa Gelzis v. Republic of Colombia, PCA Case No. 2018-56, Procedural Order No. 2 (Presentation of Claimants’ Witnesses at the Hearing on Jurisdiction), 6 April 2020, para. 21; Telefónica S.A. v. United Mexican States, ICSID Case No. ARB(AF)/12/4, Procedural Order No. 1, 8 July 2013, Section 15.1.8; Mercer International, Inc. v. Government of Canada, ICSID Case No. ARB (AF)/12/13, Procedural Order No. 1, 24 January 2013, para. 61.
Ashton, N., Davidson, E., and Langley, D., Creating Compelling Expert Testimony in International Arbitration Using Visual Aids, 2019.
Davies, N., and Menaker, A., The Direct Examination of Witnesses and Experts Not Called for Cross-Examination: Balancing Efficiency and Fairness, BCDR International Arbitration Review, 2015, pp. 135 – 152.
Duvanel, V., and Schlaepfer, A., Direct and Re-Direct Examination, in Jagusch, P., Leventhal, A., and Pinsolle, P.(eds.), The Guide to Advocacy, 4th ed., 2019.
Harbst, R., A Counsel’s Guide to Examining and Preparing Witnesses in International Arbitration, 2015, pp. 35 – 66.
Landau, T., Chapter 4: Tainted Memories: Exposing the Fallacy of Witness Evidence in International Arbitration, in Hong Kong International Arbitration Centre (eds.), International Arbitration: Issues, Perspectives and Practice: Liber Amicorum Neil Kaplan, 2019, pp. 119 -144.
Thomson., D., Should witness Statements be abolished?, 2016.