INTERNATIONAL ARBITRATION: ARE WRITTEN WITNESS STATEMENTS WORTH THE INK?
The eventual outcome of an international arbitration often turns heavily on the facts rather than the application of the relevant principles of law. Evidence given by fact witnesses is thus an important means by which arbitral tribunals reach their convictions as to the truth of the assertions made by parties.
Fact evidence in the form of written witness statements has gradually become a routine feature of international arbitration. It is established practice today for parties to an international arbitration to exchange the direct testimony (evidence-in-chief) of their respective fact witnesses in writing in advance of the hearing.
The use of written statements in substitution for oral evidence was a procedural reform progressively introduced in common law systems (for example, in England and Wales). Its purpose was essentially twofold: it was intended to save the time and cost of oral examination-in-chief of fact witnesses at the hearing, and it was designed to enable each party to know in advance what evidence it would have to meet, eliminating any element of surprise at the hearing as to the witnesses each party intends to call at the hearing and as to the substance of their evidence. In effect, the parties are encouraged to place their cards on the table.
Most, if not all, users of international arbitration would consider such objectives as laudable.
There has been criticism, however, as to the extent to which written witness statements achieve such objectives. Rather than enabling the parties and the arbitral tribunal to focus on the real matters in dispute, critics contend that witness statements are often used to advocate a party’s case, as opposed to recording the witness’s memories of relevant events. An enormous amount of time is spent by lawyers ‘massaging’ lengthy witness statements, such that they effectively become an elaborate exercise in legal drafting.
Apr-Jun 2021 issue
Reed Smith LLP