FACT WITNESS EVIDENCE IN INTERNATIONAL ARBITRATION: RIPE FOR CHANGE?
As Sigmund Freud wrote in his 1899 book ‘The Interpretation of Dreams’: “Our memory has no guarantees at all, and yet we bow more often than is objectively justified to the compulsion to believe what it says.”
Within the pages of his seminal work, Freud, among other things, muses on the fallibility of memory and the inconsistency of human retention and recall processes. However, while a fallible memory may be little more than a minor inconvenience in everyday life, in certain spheres, such as the arbitration community, accurate recollection is essential to the veracity of proceedings.
In arbitration, where memory can serve as evidence, it is important to distinguish between ‘expert’ evidence and ‘factual’ evidence: the former focuses on the application of technical expertise to the matters in contention, while the latter is called upon to recall and confirm facts pertinent to the dispute.
Drilling down, factual evidence, or fact witness evidence, is testimony given by those persons with experience of the contemporaneous events as they occurred. With the assistance of lawyers, fact witnesses produce a written witness statement detailing their recollection of the events. The witness may be subject to cross-examination at a hearing by the opponent’s counsel on the content of the statement. The tribunal itself may also ask the witness questions directly.
“Fact witness evidence does not have to form part of international arbitration, but it typically does and generally forms part of the procedural order for a case,” observes Alex Johnson, a partner at Freeths. “Parties submit fact witness evidence to prove disputed facts that are unsupported by documents or where a witness is required to testify to the facts contained in documents or explain the background behind the creation of those documents.
Oct-Dec 2022 issue
Fraser Tennant