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Ms Arantxa Cuadrado

Associate - Holland & Knight, LLP

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Fact Witness

I. Definition

1.

A fact witness is a person with knowledge about the relevant facts in a particular case who appears before an arbitral tribunal, through a witness statement and potentially in person, to provide testimony pertaining to the facts.1

II. Who may be a witness

2.

Any person with information of the relevant facts in the arbitration based on his or her own direct knowledge, the statements of others,2 or review of documents, can be a witness,3 including party representatives and interested persons.4 However, the arbitral tribunal has discretion to determine the weight to be given to the witness’ testimony.5

III. Contacts between the witnesses and attorneys before the hearing

3.

Counsel may assist witness in the preparation of the witness statement(s).6 However, the witness statement must reflect the witness’ own testimony.7 Counsel often draft witness statements based on previous detailed discussions with the witness and then provide the draft to the witness for review and comment or the witness may prepare the statement on his/her own.

4.

Counsel are also permitted to interview witnesses in order to prepare them to testify at the hearing.8 Counsel, however, must not coach the witness into providing untrue or misleading answers to anticipated questions.9

5.

In some jurisdictions, counsel may be subject to domestic rules of professional conduct that prohibit or limit contacts between attorneys and witnesses before they testify.10 

IV. Examination of witnesses

A. Rules for the examination of witnesses

6.

The rules for the examination of witnesses are agreed to by the parties or determined by the Tribunal at the first session11 or at the pre-hearing organizational meeting.12 

B. Examination of witnesses at the hearing

7.

The examination usually commences with a brief direct examination by the party presenting the witness which is often limited to introducing the witness, confirming or making corrections to the witness statement (if any) and responding to matters that arose after the witness statement was provided.13 Such brief direct examination is followed by cross-examination where counsel for the adverse party asks the witness questions to impeach the witness’s testimony and credibility.14 Cross-examination is sometimes limited to the matters covered in the written witness statement,15 but may be permitted to address other issues relevant to the dispute.16

8.

After cross-examination, the party who presented the witness is given the opportunity to re-examine him/her on matters raised in cross-examination (re-direct-examination).17 The other party will then be entitled to examine the witness once again (re-cross-examination).18 Usually, the arbitral tribunal can ask questions at any time.19

C. Sequestration of witnesses

9.

Fact witnesses may not be allowed to attend another witness’ testimony before giving their own oral testimony.20 Such “sequestration” aims to avoid that a witness would be influenced by the testimony of others and would modify his or her subsequent testimony.21 Party representatives are usually excluded from the “sequestration” order and allowed to attend all parts of the hearing in order to protect the right to present their claim or defense.22 Parties may also agree that there shall be no sequestration of witnesses.23

D. Failure to attend the hearing

10.

If a witness who is called to testify fails to attend the hearing without a valid reason, the arbitral tribunal may (i) draw negative or adverse inferences,24 (ii) disregard the witness statement,25 or decide to not give any weight to the evidence presented by the witness through his/her witness statement(s).26 

V. Special measures to protect fact witnesses

11.

In appropriate circumstances, tribunals can adopt special measures to protect witnesses who are at risk on account of the testimony given. Such measures include: (i) redacting the witness’ identity and other personal information;27 (ii) disclosing the witness’ name only to an agreed list of persons;28 (iii) protecting the confidentiality of the witness’ testimony;29 (iv) prohibiting the party not presenting the witness from approaching the witness except for the purposes of cross-examination;30 and/or (v) changing the hearing venue.31

Bibliography

Baizeau, D. and Richard, J., Addressing the Issue of Confidentiality in Arbitration Proceedings: How Is This Done in Practice?, 2016, pp. 53-78

Blackaby, N., Partasides, C., Redfern, A. and Hunter, M., Conduct of the Proceedings, in Redfern and Hunter on International Arbitration, 6th ed., 2015, p. 6179.

Born, G., Procedures in International Arbitration, in International Commercial Arbitration, Vol. II, 2014, pp. 2775-2776, pp. 2288-2289.

Caron, D. and Caplan, L., The UNCITRAL Arbitration Rules: A Commentary, 2nd ed., 2013, p. 573.

Harbst, R., A Counsel’s Guide to Examining and Preparing Witnesses in International Arbitration, 2015, p. 190.

Hobér, K., Cross-Examination in International Arbitration, in Calissendorff, A. and Schöldstrom, P. (eds.), Stockholm Arbitration Yearbook 2019, p. 43.

Mayer, P., Le pouvoir des arbitres de régler la procédure une analyse comparative des systèmes de civil law et de common law, Revue de l’Arbitrage, 1995.

Moser, M., The Pre-hearing Checklist Protocol: A Tool for Organizing Efficient Arbitration Hearings, in Shaughnessy, P. and Tung, S. (eds.), The Powers and Duties of an Arbitrator: Liber Amicorum Pierre A. Karrer, 2017, p. 231.

O’Malley, N., Rules of Evidence in International Arbitration: An Annotated Guide, 2nd ed., 2019, para. 4.35.

Orlowski, V., Upping the Arsenal – Using the ICC Rules to Counteract Guerilla Tactics, in Horvath, G. J. and Wilske, S. (eds.), Guerrilla Tactics in International Arbitration, 2013, p. 66.

Rizzo Amaral, G., Burden of Proof and Adverse Inferences in International Arbitration: Proposal for an Inference Chart, Journal of International Arbitration, 2018, p. 27.

Sourgens, F., Duggal, K. and Laird, I., Witnesses and Experts, in Evidence in International Investment Arbitration, 2018, pp. 200-204.

Waincymer, J., Approaches to Evidence and Fact Finding, in Procedure and Evidence in International Arbitration, 2012, p. 775, pp. 794-796.

Waincymer, J., General Witness and Expert Evidence, in Procedure and Evidence in International Arbitration, 2012, pp. 927-928.

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