Author

Ms Lucy Winnington-Ingram

International Arbitration Associate - Reed Smith LLP

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Direct Examination

I. Definition

1.

Direct examination, also known as oral evidence-in-chief, is the process whereby a party questions the witness or expert it has put forward to give evidence in the arbitration at the oral hearing. Direct examination opens the oral examination of a witness or expert at the hearing.

II. Distinction from other forms of oral examination

2.

Direct examination is distinguished from:

  1. cross-examination, being the process by which each party asks questions of the other party’s fact or expert witnesses in order to test their evidence and;
  2. re-direct examination, the process following cross-examination by which a party is permitted to ask questions of its own experts or witnesses on matters arising out of their cross-examination.

III. Practice in international arbitration

A. The substitution of direct examination by written evidence

3.

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

4.

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

5.

A brief direct examination as standard is advocated for by certain arbitration practitioners as being beneficial to the presenting party and as a means of assisting the tribunal.6

C. Direct examination where a witness or expert is not called for cross-examination

6.

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 

Bibliography

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.

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