Rethinking the justification for preparation and presentation of witness testimony

Elizabeth Warwick
King & Spalding, London
​​​​​​​ewarwick@kslaw.com

Report on session at the 23rd Annual IBA Arbitration Day, Friday 25 March 2022, presented by the IBA Arbitration Committee

Session Chair/Proponent

Toby Landau Duxton Hill Chambers, Singapore

Commentators

Alexandra Johnson Bär & Karrer, Geneva

Asli Zeynep Yilmaz Palmer International Chamber of Commerce, Paris​​​​​​​

Toby Landau QC chaired the third panel session of the day and unapologetically shared his view that witness testimony in arbitration needed to be overhauled. Landau considered there to be three truths in relation to witness testimony:

• it dominates most arbitration hearings but has become a lengthy and expensive exercise;
• the way witnesses are selected and prepared is now an ‘unthinking exercise’; unquestioned about its appropriateness; and
• it is wrongly used to plead parties’ cases.

Landau delved further by looking into five issues he considers there to be with respect to witness testimony, before offering his proposals for reform. Alexandra Johnson and Asli Zeynep Yilmaz Palmer were the panellists for the session and offered the delegates their take on Landau’s proposals.

The five issues

1. Witness selection strategy

‘It’s all wrong!’ said Landau. Landau expressed his view that the strategy ought to be based on which individuals have clear knowledge of, and can speak to, the various facts in questions – and who are therefore best placed to assist the tribunal. However, those are not the drivers of witness selection in practice. Instead, parties’ counsel make selections which accord to their strategies, after considering inter alia which witnesses will be most resilient to cross-examination. This approach is wrong and, at times, can be dangerous – indeed, one only needs to consider the position in investor–state arbitrations when a tribunal’s decision can impact a whole population.

2. Witness proofing and statements

Acknowledging the genesis of witness statements as an opportunity to introduce some order to the process, Landau said they have become an advocacy tool. Simply put, they are now too often full of legal submissions and commentary.

3. Human memory is unreliable and corruptible

Further, as highlighted by a recent International Chamber of Commerce (ICC) task force, Landau said it is scientifically accepted that human memory is unreliable and subject to corruption. In his view, the ‘over-lawyering process’ he’d referenced only serves to inflame this.

4. Witness preparation

Witnesses are now ‘well-cooked’, and this needs to be remedied.

5. Cross-examination

Landau expressed his view that, while cross-examination is sometimes required, is often disproportionate and does no more than cover old ground. It is also unfair. Does it help the tribunal and test the evidence, or is it nothing more than a test of the cross-examiner’s skill?

Landau’s proposals

Reposition witness selection as a collaborative process with the tribunal

Landau said that witness selection should not be counsel’s exclusive right. Rather, the tribunal should have input into the decision-making process. Landau referred to the Commercial Court in London, and its adoption of Practice Direction 57AC, which requires parties to the demonstrate the need for witness testimony – ie, it should not be used where a matter is common ground. Landau suggested that the tribunal’s input may avoid later criticism of awards, particularly when considering investor–state arbitration,

Categorisation of witnesses

Landau emphasised that witnesses of fact serve different purposes in different cases. For instance, witnesses may be required to:

• give their recollection of events (absent documentary evidence);
• narrate contemporaneous documents;
• explore the background of the dispute; or
• provide a technical explanation.

Accordingly, different procedures should be crafted that are relevant to the different categories.

Rethinking witness preparation and statements

In the same vein as the new Practice Direction adopted by the English courts, Landau called for the reevaluation of witness preparation and statements in arbitral proceedings. In Landau’s view, affirmative directions on how a witness will be questioned for the preparation of their statement, and how their statement is put together, should be made from the first case management conference and regularly revisited.

Witness statements must not become corrupted by showing the witness leading documents; thought should be given as to whether a witness could draft their own statement.

Policing cross-examination

Tribunals should be empowered to actively police cross-examination and recall witnesses if necessary. This power should be foreshadowed and added to the first procedural order.

Panellists’ views

Alexandra Johnson considered Landau’s proposals, with the benefit of her civil law experience, and noted the degree of mistrust of witness testimony in civil law jurisdictions. Looking specifically at provisions in the Swiss Code, Johnson confirmed there was no right to orally examine witnesses. She continued to share her views of how some of the issues identified may be addressed, including careful consideration of the selection of witnesses, and the tribunal being granted power to question witnesses pre-cross-examination.

Johnson’s view was that the tribunal should draw up the list of potential witnesses for the parties to review and comment on, and have the final say as to which witnesses will be heard. Once selected, the tribunal should be afforded the opportunity to ask relevant questions of the witnesses (which would also put the witnesses at more ease before cross-examination). Finally, parties should be sanctioned if they do not comply with the ethos of witness testimony – for example, with full or partial exclusion of witness evidence and/or cost orders.

Asli Zeynep Yilmaz Palmer proposed that the arbitration community be provided with a toolkit for witness testimony. Acknowledging the fallibility of witness evidence in both court and arbitral proceedings, Yilmaz Palmer noted the importance of highlighting memory distortion and imposing guidelines for witness statement preparation. For example, memory conformity can be avoided by speaking to witnesses one by one, and witnesses should hold the pen on the first draft of their statements. Yilmaz Palmer also acknowledged the ‘balancing act’ of not corrupting a witness’s memory with the unhelpfulness of an unprepared witness giving testimony.