Witness Evidence in Arbitration - Chapter 5

• Chapter 5 covers issues that arise when witness evidence is used in arbitration.
• While court evidence rules do not apply, they can inform how evidence is evaluated.
• The IBA Rules on the Taking of Evidence in International Arbitration is helpful guidance.
• After completing this chapter, it will be possible to: describe ways witness evidence is presented, explain rules for witness examination (including cross and re-examination), describe duties/responsibilities of expert witnesses and explain restrictions on expert evidence in England and Wales courts.

Background

• One of the initial concerns when dealing with witnesses is their competence and compellability, and court practice provides guidelines.
• Generally, any competent witness can give evidence in court.
• A child may be a competent witness if they understand the oath/truth duty and have sufficient understanding.
• Individuals of unsound mind are usually not competent, nor are those temporarily impaired by drink/drugs.
• Witnesses can be compelled to give evidence via a witness summons.
• Arbitral tribunals cannot compel witnesses to give evidence.
• Most arbitration laws allow courts to assist arbitrations.
• The Singapore International Arbitration Act section 13 states that any party to an arbitration agreement may take out a subpoena to testify or produce documents. That the High Court or a Judge thereof may order that a subpoena to testify or produce documents shall be issued to compel the attendance before an arbitral tribunal of a witness wherever he may be within Singapore. That no person shall be compelled under any such subpoena to produce any document which he could not be compelled to produce on the trial of an action.
• Courts can control the prepared evidence in civil cases.
• They can direct the issues, nature, and presentation of evidence (including witness calling).
• The rationale is to ensure proper case preparation for just and cost-effective claims resolution.
• The logic is a useful guideline, though not binding on arbitrators.

Witness Statements

• A witness statement is a written document containing evidence a witness could give orally (relevant and admissible evidence).
• Witness statements may be accepted as evidence-in-chief.
• Courts may direct the service and order of written witness statements.
• Exchanging witness statements aims to save time and money, allowing parties to assess their chances of success and potentially settle.
• Normally, simultaneous statement exchange is directed.
• Courts may order sequential exchange in some cases, where one party's case is unclear until they see the other side's statements.
• Witness statements are common in arbitration.
• Arbitrators can customize court procedures for cost-effective proceedings.
• Article 4 of the IBA Rules on the Taking of Evidence in International Arbitration provides guidance on submitting witness statements, including the form and matters they should cover, as well as the powers and procedures if a witness fails to appear.
• In England and Wales, witness statements have legal professional privilege until disclosed.
• The Civil Procedure Rules (1988) (CPR) require disclosure of intended witnesses' statements.
• Witness statements of harmful or unhelpful witnesses can remain on the attorney's file without disclosure.
• Waiving privilege occurs when a witness statement is served.
• Other parties can use the disclosed witness statement as hearsay evidence if they meet legal requirements (Civil Evidence Act 1995 (E&W)).
• Arbitration experts should be aware of jurisdiction-specific rules on privilege.

Examination of Witnesses

• The typical three step procedure is examination-in-chief, cross examination and re examination.
• The first step is examination-in-chief (direct examination), during which the calling party introduces evidence through the witness.
• Following this, the other side has the opportunity to cross-examine about the evidence raised in examination-in-chief.
• This is followed by re-examination by the party calling the witness to address concerns arising during cross examination.

Examination-in-chief

• The witness statements exchanged in court may replace the witness's evidence-in-chief, eliminating the necessity for the witness's physical presence.
• It is not the case in arbitration unless everyone involved agrees that the witness needs not attend.
• It is more typical for a witness to provide testimony in person during an arbitration hearing, giving the other party the chance to cross-examine them to guarantee a fair process.
• In order to clarify their evidence or provide information on a relevant matter that has surfaced since their statement, it is also beneficial for the arbitrator to be able to question the witness.
• When questioning a witness, it is helpful to follow court procedure.
• On a contentious topic during examination-in-chief, leading questions should not be asked.
• A leading question suggests the desired answer, for example, "Did Mr. X hit you in the stomach with his fist" would be regarded as a leading question.
• What the prosecution should have asked is a series of questions such as: "Where were you on x night?" "If the witness then said, "Out with Mr. X." The next question would be:" What were you and Mr. X doing?" "Out for a stroll." "What happened while you were out for a stroll?""Mr. X hit me." "Where did he hit you?" "In the stomach." And so on.
• If asked and answered, the answer to a leading question is not deemed to be inadmissible evidence; however, theweight attached to it may be reduced.
• If a witness has a hard time remembering the facts to which their evidence pertains, they may use a document to help them remember, like a diary, logbook, or account book. A lawyer or the tribunal may recommend this to them as well.
• The conditions that must be satisfied are that the document: was made or verified by him contemporaneously with the events, and the document is produced for inspection by either the court or the other party. It is common for witnesses to refresh their memories from their own previous statements before going into court.
• Usually, previous inconsistent statements are inadmissible.
• In civil cases, there is a significant exception to this rule.
• An unfavorable witness is one who gives unexpected evidence for the calling party.
• The common law doesn't allow the calling party to impeach the witness's credibility.
• Other witnesses may testify on topics the unfavorable witness failed to cover.
• Hostile witnesses don't want to tell the truth; the tribunal decides if it is the case.
• Civil litigation rules let a party who can't get a witness statement apply to serve a witness summary instead, covering unwilling or reluctant hostile witnesses.
• If a witness refuses to cooperate, Article 4.9 of the IBA Rules on Taking of Evidence in International Arbitration lets the party ask the arbitral tribunal to take steps to obtain testimony, or seek leave from the tribunal to take such steps itself.
• Under most arbitration laws, either the arbitral tribunal, or a party with the approval of the arbitral tribunal, may ask the State courts to compel the witness to appear or to examine the witness itself.
• A witness summary is a summary of the evidence, if known, which would otherwise be included in a witness statement, or, if the evidence is not known, the matters about which the party serving the witness summary proposesto question the witness.

Cross-examination

• Witnesses are liable to cross-examination by the other side, usually right after their examination-in-chief.
• No requirement exists that witnesses be cross-examined.
• If not cross-examined, the witness's evidence-in-chief is normally considered accepted (whether given in person or via Witness Statement).
• This is not the case in arbitration.
• Witness evidence in person is preferred, and a Witness Statement may not be accepted as agreed evidence-in-chief.
• According to the Article 4.8 of the IBA Rules on Taking of Evidence in International Arbitration "If the appearance of a witness has not been requested [for the purposes of cross-examination] pursuant to Article 8.1, none of the other Parties shall be deemed to have agreed to the correctness of the content of the Witness Statement."
• Unlike in examination-in-chief, leading questions can be asked in cross-examination.
• The tribunal may limit cross-examination to prevent improper or oppressive use.
• Cross-examination mainly aims to elicit evidence that supports the cross-examiner's version of the facts and to cast doubt on the witness's evidence.
• It is unlimited to any facts at issue and not restricted to examination-in-chief matters.
• To cast doubt on the witness's evidence, the cross examiner may ask questions on the witness's previous inconsistent statements, previous misconduct to show bad character, to challenge the quality of his memory of the events and about the witness's mistakes, omissions and inconsistencies in his evidence.

Re-examination

• A witness can be re-examined by the calling party after cross-examination.
• Re-examination aims to repair any damage done during cross-examination.
• Where cross-examiner has extracted evidence from the witness that supports his version of the facts in issue, or where he has damaged the witness's credibility.
• Re-examination must be limited to matters arising out of the cross-examination.
• All other questions require the court's leave.

Expert Witnesses

• The tribunal decides on all law and fact questions in arbitration.
• The facts in issue are proven by the introductionof evidence, such as oral evidence from witnesses, real evidence and documentary evidence.
• Disputes may involve scientific and technical matters that a judge arbitrator or arbitrator may lack expertise to decide.
• Understand the procedures to assist judges in decision making.
• Rules help arbitrating practitioners to appreciate the duties and responsibilities of expert witnesses and the extent to which expert evidence is used in arbitration.
• It utilizes the English courts as an example to examine the restrictions that may be placed on expert evidence.
• A general rule states that opinion evidence is inadmissible.
• A qualified expert may give an opinion on cases calling for experience.
• Procedural rules state that "In procedural laws across various inquisitorial and common law countries, the role of the court expert is toassist the decision maker in understanding certain types of evidence requiring specialised analysis and treatment, in order to come to a decision in the case, that is on the 'balance of probabilities' in common lawor 'beyond reasonable doubt' in criminal law or 'within intimate conviction' standards in civil system criminal cases. This requires independence, objectivity and reliability on the part of the expert6."
• The same source notes that most jurisdictions follow the common law tradition.
• The Netherlands is an example of a civil law country that sets the standards to which experts should comply when working for the courts: objective and unbiased and independent and impartial.
• An expert must show expertise and be professionally qualified.
• Expert evidence is admissible only dealing with matters that calls for expertise.
• Medical, scientific, architectural, engineering and technical issues are examples, but there are many more areas that may require expertise.
• An expert is regarded as an expert only if they have specific training, knowledge or experience, and are permitted by the court to do so.
• The expert will be limited to giving an opinion in the area in which he has expertise.
• Views differ about the rules that control admissibility of expert evidence.
• Possible guidelines for assessing the admissibility of expert evidence are field of expertise, expertise, common knowledge, ultimate issue and basis. Which states that the claimed knowledge or expertise should be recognised as credible by others who are capable of evaluating its theoretical and experiential foundations, the witness should have enough knowledge and experience to be regarded as an expert who can help, the expert should be something upon which the court needs the help of a third party, as opposed to relying upon its own general knowledge and common sense, the expert's contribution should not have the effect of supplanting the function of the court in deciding the issue before it and the admissibility of expert opinion evidence depends on proof of the factual basis of the opinion.

Duties and Responsibilities

• The duties and responsibilities of expert witnesses were examined in the case of National Justice Campania Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) [1993], where Cresswell J said that an expert witness in a civil case had a number of duties and responsibilities to the court, including the expert evidence presented to the court should be the independent product of the expert andshould not be influenced as to form or content by the exigencies of the current litigation, the expert witness should act as an independent assistant to the court and his duty was to furnish an objectiveand unbiased opinion concerning the matter within his area of expertise, an expert witness in the High Court should never assume the role of an advocate, facts or assumptions upon which the expert's opinion was founded should be stated along with material facts which could detract from the opinion advanced, an expert witness ought to make it clear when a matter (for example, a question or issue) falls outside his areaof expertise, if insufficient data was available to enable the expert to properly research his opinion or part thereof,then that deficiency had to be stated, together with an indication that the opinion was provisional if when following an exchange of reports, the expert witness changed his mind on a material matter then thatchange of view should be communicated to the other side without delay through legal representatives and, when appropriate, to the court and all the documents and exhibits referred to in the expert evidence should be provided to the other side at thesame time as the exchange of reports.
• Experts in subsequent cases did not always follow the guidance given in The Ikarian Reefer decision.
• For example, in Pozzolanic Lytag Ltd v Bryan Hobson Associates [1998], Dyson J said that the case involved a short point needing expertise and that the experts should have provided short reports.
• Instead, they produced elaborate reports dealing with other issues and added to the costs of the litigation.
• The judge felt that steps should be taken to discourage such protracted expert reports, and suggested that in appropriate cases, specialorders for costs may be a suitable sanction.
• Both party-appointed experts and tribunal-appointed experts can exist in international arbitration.

Contents of the Expert's Report

• Article 5.2 of the IBA Rules on the Taking of Evidence in International Arbitration states that the expert report should contain the full name and address of the Party-Appointed Expert, a statement regarding his or her present and past relationship (if any) with any of the Parties, their legal advisors and the Arbitral Tribunal, and a description of his or her background, qualifications, training and experience, a description of the instructions pursuant to which he or she is providing his or her opinions and conclusions, a statement of his or her independence from the Parties, their legal advisors and the Arbitral Tribunal, a statement of the facts on which he or she is basing his or her expert opinions and conclusions, his or her expert opinions and conclusions, including a description of the methods, evidence and information used in arriving at the conclusions. Documents on which the Party-Appointed Expert relies that have not already been submitted shall be provided, if the Expert Report has been translated, a statement as to the language in which it was originally prepared, and the language in which the Party-Appointed Expert anticipates giving testimony at the Evidentiary Hearing, an affirmation of his or her genuine belief in the opinions expressed in the Expert Report, the signature of the Party-Appointed Expert and its date and place, and if the Expert Report has been signed by more than one person, an attribution of the entirety or specific parts of the Expert Report to each author.

'Without Prejudice' Discussions

• It allows the arbitral tribunal to order the party-appointed experts to meet and discuss the issues considered or to be considered in their expert reports either in advance of their preparation or in advance of the hearing.
• If they can reach agreement onany issues, they shall record that agreement in writing as well as any remaining areas of disagreement and the reasons therefor.
• Such discussions are conducted on a 'without prejudice' basis and are designed to clearly identify and narrow the areas of dispute between the experts.
• The rule anticipates that the experts will 'discuss' the matter and produce a list ofissues on which they agree and a list of issues on which they disagree, along with the reasons for disagreement.
• Narrowing issues and pinpointing disagreements is believed to have a positive impact on time and costs.
• The expert binds only the instructing party unless the instructing party expressly adopts them.
• The content usually remains the intellectual property of the expert and a party cannot choose which parts to submit.
• To ensure fairness, each party must comment on the other party's expert evidence.
• If expert reports are not disclosed outside arbitration before, it can cause issues.
• The arbitrator may have been appointed as a technical specialist in a technical dispute and his view may in practice be different from both parties' submissions as expressed by their experts.
• However, as noted earlier, the arbitrator must not raise issues during the proceedings that may prejudicially assist either party and must not step outside the remit he has been given.
• It may be appropriate to use a tribunal-appointed expert to raise relevant issues; in this case, all parties must have the opportunity to consider the points raised and submit their views to the arbitrator to avoid any suggestion of unfair process.