Module 3 Chapter 5: Witness Evidence in Arbitration

Evidence of Witnesses in Arbitration

• Chapter focus is on the issues concerning witness evidence relied upon in arbitration
• Rules of evidence in courts are not binding in arbitration, but provide a helpful basis for evaluation
• The IBA Rules on the Taking of Evidence in International Arbitration offers relevant guidance

Learning Objectives

• Describe how witness evidence is presented
• Explain examination of witnesses, including cross and re-examination
• Describe duties and responsibilities of expert witnesses
• Explain the restrictions on expert evidence in England and Wales courts

Witness Competence and Compellability

• Issues of witness competence and compellability are essential
• Court practice provides helpful guidelines
• Any competent witness can give evidence in court proceedings
• A child can be a competent witness if they understand the oath and duty to speak truthfully, and can justify their evidence
• Persons of unsound mind unlikely to be competent
• Witnesses impaired by drink or drugs may be temporarily incompetent, but can become competent after adjournment
• Courts may compel witnesses and issue summons for court attendance
• Arbitral tribunals cannot compel witnesses to attend
• Most arbitration legislation allows courts to aid arbitration by making orders

Singapore International Arbitration Act

• Section 13 allows parties in arbitration agreements to issue subpoenas to testify or produce documents.
• The High Court can compel a witness to attend an arbitral tribunal if they are within Singapore
• No one is compelled to produce documents via subpoena that they could not be compelled to produce at trial

Court Control of Evidence

• In civil cases, courts control the evidence prepared and can direct the evidence presented
• Courts can direct witness calling
• This ensures just and cost-effective claim handling, providing a useful, non-binding guideline for arbitrators

Witness Statements

• A witness statement is relevant, admissible written evidence a witness would give orally
• May act as evidence-in-chief, negating direct examination
• Courts can direct service and order of written witness submission
• Exchange of witness statements saves time, money, and allows dispute settlement evaluation
• Direction is for simultaneous exchange of statements, however courts can order sequential exchange

Arbitration and Witness Statements

• Witness statements are common in arbitration
• Arbitrators are able to tailor court procedure cost effectively
• Article 4 of IBA Rules provides for witness statement submission, form, and content
• Article 4 addresses arbitrator powers if a witness fails to appear

Privilege Regarding Witness Statements

• In England and Wales, witness statements have legal professional privilege until disclosed
• Civil Procedure Rules (1988) requires disclosure of statements for witnesses intended to be called
• Statements of harmful witnesses can be withheld, maintaining privilege
• Serving the statement waives privilege, allowing other parties to use it as hearsay evidence if requirements are met
• Civil Evidence Act 1995 (E&W) is the relevant legislation in this case
• Rules on privilege may vary, arbitrators must know relevant jurisdictional provisions

Examination of Witnesses in Court

• There are three typical steps:
  • Examination-in-chief (direct examination): party introduces witness evidence
  • Cross-examination : opposing side questions on matters from examination-in-chief
  • Re-examination : party clarifies issues from cross-examination

Examination-in-Chief

• Courts may accept exchanged witness statements instead of in-person evidence
• In arbitration, witnesses usually give evidence in person for cross-examination and fair process
• Arbitrators can ask questions to expand evidence and address new matters
• Court practice provides guidance for witness questioning

Leading Questions

• In examination-in-chief, leading questions are not allowed
• Leading questions suggest the desired answer
• Example: Instead of asking "Did Mr. X hit you in the stomach with his fist?", ask a series of questions detailing the events
• Answers to leading questions is not inadmissible, but its weight may be reduced

Refreshing Memory

• Witnesses having trouble recalling may refer to documents like diaries or account books
• This is also possible via a lawyer or the tribunal
• Conditions to satisfy this:
  • document was made or verified contemporaneously
  • document is available for inspection by either court or other party
• Witnesses refresh their memories from own previous statements before court

Previous Inconsistent Statements

• Generally, previous inconsistent statements are inadmissible
• However, civil matters has an exception to this

Unfavorable and Hostile Witness

• An unfavorable witness does not give the evidence expected, or give evidence unfairly, making it so the calling party cannot impeach their credibility
• Other witnesses can be called to testify about what the unfavorable witness failed to answer
• A hostile witness shows no desire to tell the truth, determined by tribunal
• In civil litigation, parties who cannot get a witness statement can apply to serve a witness summary
• A witness summary covers a reluctant or unwilling hostile witness

IBA Rules on Taking of Evidence in International Arbitration

• Article 4.9 provides that if a witness does not cooperate, the arbitral tribunal can take steps to obtain testimony or seek leave to take such steps
• Under arbitration laws, the arbitral tribunal or a party with tribunal approval may ask State courts to compel or examine the witness

Witness Summary

• It is a summary of evidence or matters the questioning party proposes

Cross-Examination

• Witnesses are liable to cross-examination by the opposing side after examination-in-chief
• While witnesses do not have to be cross-examined, the evidence is typically accepted if a witness is not
• This does not apply in arbitration:
  • witness evidence in person is preferred
  • Witness Statement may not be accepted as agreed evidence-in-chief
• Article 4.8 of IBA Rules states non-request of a witness appearance deems parties to have not agreed to the correctness of the content of the Witness Statement
• Unlike examination-in-chief, leading questions can be asked, though may be limited to prevent improper manners
• The main aims when cross-examining is to extract cross-examiner's facts version and diminish witness's evidence
• Topics for cross-examination include:
  • previous inconsistent statements
  • previous misconduct
  • challenge memory quality
  • witness's mistakes, omissions, and inconsistencies

Re-Examination

• After cross-examination, the witness may be re-examined by the party who initially called them
• Aims to resolves damages to witness's credibility
• Re-examination is limited to matters out of cross-examination, and asks any questions under leave of court

Expert Witnesses

• In arbitration, the tribunal decides all fact and law questions
• Facts in issue proved by evidence include:
• witness oral evidence
• real evidence
• documentary evidence
• Disputes have scientific and technical matters, in which an arbitrator may need expert guidance
• This section deals with introducing expert evidence to aid decision-making and to understand arbitrator duties and responsibilities and the restrictions on expert evidence

Expert Opinion Evidence

• Opinion evidence generally inadmissible, with exception for expert opinion evidence
• Exception exists in cases where tribunal of fact will not be in a position to reach a conclusion without it
• Qualified experts can give opinions in matters calling for their expertise

Court Expert Role

• Procedural laws across countries say court experts assist decision-makers in understanding evidence requiring specialized analysis
• Must come to a decision founded on balance of probabilities, beyond reasonable doubt or within intimate convictions standards
• Requires independence, objectivity, and reliability
• Netherlands is a civil law example who sets standards for objectivity, unbiased, independent, and impartial

Expert Evidence Conditions in Jurisdictions

• Two conditions must hold true for such evidence to be admitted:
• matter must necessitate expertise
• witness must be suitably qualified
• Examples include:
• medical
• scientific
• architectural
• engineering
• technical issues
• Person regarded as expert, if they are skilled thru qualifications or experience, as a result are permitted to offer opinion testimony in court
• They will need to give an opinion in an area with expertise

Guidelines to Asssessing Expert Evidence

• Field of expertise has credible knowledge and expertise that can be recognized
• Expertise: Witness's sufficient knowledge so they can assist the court
• Common knowledge: information the court needs a third party for
• Ultimate issue: the function of the court should not be supplanted
• Basis: admissibility depends on factual basis proof

Expert Witness Duties

• Cresswell J in National Justice Campania Naviera SA v Prudential Assurance Co Ltd examined civil case duties, including: - evidence must be independent, not influenced by litigation - act as an objective assistant to the court and provide unbiased opinions - never assume the role of an advocate - state facts where opinions were based and material facts that could detract from opinion advanced - make it clear when a matter falls outside their expertise area - state any deficiency in data prevent proper researching - communicate any change of mind following the exchange of reports without delay - providing and submitting all exhibits to the other side during exchange of reports
• Experts in subsequent cases did not always follow the decision guidance

Pozzolanic Lytag Ltd v Bryan Hobson Associates

• Involved short and expert points in expertise and that the experts should have provided short reports
• Elaborate reports dealing with other issues increased litigation costs
• Steps should be taken against this so the judge suggested special orders
• In international arbitration, there are party-appointed experts or tribunal-appointed experts

Contents of Experts Report

• Article 5.2 of IBA Rules on Taking of Evidence in International Arbitration states expert report contents should have:
  • Name and address of Party-Appointed Expert, present and past relationships with parties and advisors, and background
  • instructions descriptions
  • independence statement from the Parties, their advisors and the Arbitral Tribunal
  • facts statement that expert opinions and conclusions are based on.
  • opinions and conclusions listing methods with evidence that were used
  • translations statement for language use
  • affirmation of their belief
  • signature of the Expert
  • attribution to each author"

Without Predjudice Discussions

• Article 5.4 permits arbitral tribunals to order party-appointed experts to meet and discuss issues in their reports
• Article 8.3 (f) provides conferencing with experts during hearing
• A writing agreement is achieved with remaining differing areas
• Discussions are "without prejudice", where experts will narrow dispute areas, believed to have a positive cost and time impact
• Concessions do not bind unless adopted by party

'Hot-Tubbing'

• Another name for without predjudice discussions

Disclosure and Expert Reports

• Legal professional privilege protection, party appointed report with all content
• Without party consent, experts intellectual property cannot be chosen
• Allows a party to choose something more favorable, or expert can seek another opinion
• Report is still privileged

England and Wales

• CPR Rule 35.13 provides courts can fail to disclose report, that can effect report from trials, unless court gives permission
• Non-disclosure sanction can impose a requirement
• R G Carter v Edmund Nuttall Ltd [2001]
• Arbritrators must ensure each party meets overriding obligations to each advisor
• Can cause difficulties during arbitration or expert reports that haven't been disclosed outside the arbitration
• Used when specialists have different proceedings that assist parties, this cases are suitable to avoid unfair processes.

Self-Assessment / Revision Questions

• What is meant by 'competence' in relation to witnesses?
• Explain the nature of a witness statement
• Are witness statements privileged?
• What are the three steps involved in the examination of a witness?
• What is a leading question?
• What is the exception regarding the admissibility of a previous inconsistent statement?
• Describe an unfavorable witness and how it is different from a hostile one
• What is a witness summary?
• What is the purpose of cross-examination?
• What is the purpose of re-examination?
• Which conditions must be satisfied before expert evidence can be introduced?
• How is expert evidence normally requested to be presented in court?
• In what circumstances will the court direct that parties use a single joint expert?
• What is the nature of the discussions between experts?
• Is an expert's report privileged?
• The sanction for nondisclosure of an expert’s report?