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May-July 2007 |
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John Anthony Wolf Kelly M. Preteroti Appeared in the Dispute Resolution Journal Much has been written about the struggle arbitrators and parties face in blending civil and common law traditions in international arbitrations. This article focuses on a highly valuable procedure used in high stakes international arbitration proceedings to present fact and expert testimony to the arbitral tribunal. That procedure — known as written witness statements — takes the best from the common law and civil law systems in order to allow parties from different cultural and legal backgrounds to present evidence fairly to international arbitral tribunals. Among their many benefits, written witness statements prompt advocates to prepare their cases well in advance of the arbitration hearings, making them better prepared overall. This article explains how written witness statements originated and describes how to use them. It concludes with suggestions for procedures to use written witness statements effectively in international arbitration disputes. Civil and Common Law Differences In Presenting Evidence The Common Law Practice The right of confrontation has long been a bedrock principle in common law litigation. As a result, written witness statements are generally considered inadmissible hearsay.2 The Civil Law Practice The non-confrontational nature of civil law tradition explains why civil law jurisdictions have frowned upon direct cross-examination of witnesses, which the common law tradition deemed indispensable to finding the truth.5 Indeed, civil law arbitration advocates often did not have the opportunity to question their own witness, or even determine exactly the questions to ask because the tribunal is charged with investigating the facts and it asks the questions.6 Advocates could submit to the tribunal questions they would like to see put to the witnesses, but in the end, the tribunal decided what questions would be asked. This virtually eliminated the element of confrontation. With such vastly different methods of eliciting facts and convincing the fact finder of the truth of the party's argument, advocates from common law and civil law jurisdictions obviously were at odds when both were involved in the same dispute. Significant progress was made in bridging the cultural divide with regard to evidence presentation with the compromise development of written witness statements, which are used subject to the right of cross-examination. Written witness statements replace direct oral testimony of the parties' witnesses. This allows the civil law practitioner to rely on documentary evidence to present the facts of the case. But each party has the right to live cross-examination of their opponent's witnesses. For this reason, witnesses must be present at the hearing for their witness statements to be received by the tribunal. The right of cross-examination of witnesses reflects the common law tradition of "testing" the witness's version of the facts and the witness's credibility through cross-examination. Arbitration Procedures Authorize Witness Statements The use of written witness statements as a substitute for the direct testimony of both fact and expert witnesses is widely permitted by most rules used in international dispute resolution. For instance, the UNCITRAL Arbitration Rules and the ICDR International Arbitration Rules state, "Evidence of witnesses may also be presented in the form of written witness statements signed by them."7 Similarly, the ICC International Arbitration Rules provide, "The Arbitral Tribunal may decide the case solely on the documents submitted by the parties unless any of the parties request a hearing."8 The International Bar Association's (IBA) Rules on the Taking of Evidence in International Commercial Arbitration specifically provide for written witness statements as a means to harmonize the way in which evidence is presented to tribunals when parties from different legal traditions are involved in the same case. These rules state, "The Arbitral Tribunal may order each Party to submit within a specified time to the Arbitral Tribunal and to the other Parties a written statement by each witness on whose testimony it relies…."9 Institutional arbitration rules as well as the IBA Rules exemplify the recognition that written witness statements have received their place in the arbitral tribunal's arsenal of case management tools. Next, we turn to the practical use of written witness statements for both fact and expert witnesses. Fact Witness Statements Fact witness statements are usually required to be exchanged between the parties and submitted to the tribunal as early as reasonably possible, typically as soon as it is clear to both parties what the issues are and what facts need to be proved.12 It has been said that witness statements are not "an additional opportunity for the parties to submit new factual allegations or to modify their prayers for relief, even if the witness statement is signed by a party representative."13 Nor are they a place to make legal arguments. This notion can be difficult for the common law practitioner to accept because lawyers from this tradition are used to arguing their case at every juncture. In international arbitration, the common law practitioners must avoid the instinctive urge to use witness statements to brief the case or make closing arguments. Similarly, fact witness statements should not be treated by advocates as motions containing alleged facts and legal arguments. They are a "means of adducing evidence."14 When drafting statements for fact witnesses, counsel for both parties must be mindful of the tribunal's instructions and use the governing procedural rules to determine what information is required. For example, the IBA Rules say that each witness statement should contain the witness's name, relationship to the party for whom the statement will be submitted, the witness's background and qualifications, the facts that support the witness's testimony, an affirmation of truth of the statement and the witness's signature.15 Although confirmation of a witness statement is generally required, it is possible for both sides to agree that confirmation of the witness statement, through a brief direct examination of the proponent witness where the witness confirms the truth of the statement accompanied by an opportunity for cross-examination of the witness, is not necessary. However, the advocate for the proponent of the witness should not lightly agree to this, the reason being the tribunal could decide to give the witness statement less weight. Without confirmation by the witness of their written statement and the opportunity for opposing counsel to cross-examine the witness, the tribunal may dismiss the testimony because it was not given an opportunity to assess the credibility of the witness. Expert Witness Statements As in the case of fact witness statements, the IBA Rules detail the information that must be contained in expert reports.17 In addition to the information required from a fact witness, an expert report must also contain the witness's expert opinions and conclusions. This includes a description of how the expert arrived at his conclusions.18 The exchange of expert reports allows experts to read each other's opinions and determine whether they agree on certain issues or at least identify the issues that they do not agree on and the reasons for disagreement.19 One practitioner has praised the use of these reports for such purposes, explaining This procedure removes the unfair element of surprise or deliberate ambush at the main hearing: it allows expert witnesses to meet and exchange views before the hearing…; and since hearing time is money, it saves both time and money by having everyone read these materials in advance of the main hearing without the need for direct testimony recited aloud.20 In addition, exchanging expert reports can promote settlement discussions, with the parties refining issues that are not in dispute. Benefits And Drawbacks to Written Witness Statements Written witness statements have also been criticized on several grounds. A common criticism is that these statements are not equivalent to live direct testimony and cannot help the tribunal assess credibility. Another criticism is that witness statements are not what they purport to be — statements by witnesses — because they are drafted by lawyers. As one commentator noted, "Written witness statements can bear little relation to the independent recollection of the factual witness, with draft after draft being crafted by the party's lawyer or the party itself, with the witness's written evidence becoming nothing more than a special pleading, usually expressed at considerable length."22 Furthermore, because they are often prepared by lawyers, they come at considerable expense. These perceived shortcomings could be remedied by the tribunal invoking its power to control the use of witness statements. For example, if there is a concern that the arbitrators will not have a sufficient opportunity to assess the credibility of a particular witness, the arbitrator could order a brief direct examination. If there is a concern that witness statements will be over-lawyered, the tribunal could make clear that little weight will be given to witness statements engineered by counsel.23 Counsel would be unlikely to disregard this warning which could lead to having his witness's testimony disregarded. If the tribunal is firm in this instruction and steadfast in enforcing it, the witness statement procedure is quite worthwhile. Crafting The Tribunal's Order Once there is agreement on the witness statement procedure, the tribunal can craft a procedural order. There is no single model for this order but there are some things that the order should include. As a starting point, it should reflect the fact that the parties have agreed to the witness statement procedure. The rules to be followed by counsel should reflect the expectations of the arbitral tribunal. For example, if the arbitral tribunal expects a witness statement from each witness summoned by the parties the order should say so. The reason for this is that it encourages the parties to think carefully about the witnesses they intend to use. The order should also make clear that each witness statement must be signed by the witness. This encourages more accurate statements since a witness is unlikely to agree to sign a statement that contains incorrect information. If the tribunal does not want over-lawyered witness statements, the order should convey the expectation that the statement should be made by the witness, not counsel. It should also make clear the repercussions for not following this direction, for example, that the statement will be given little or no weight. The order should set out when witness statements and rebuttal statements (if any) are to be exchanged and submitted to the tribunal. This should be coordinated with the discovery schedule. The order should also make clear that the parties must summon their own witnesses and that the tribunal will only give weight to witness statements that are confirmed by the witness at the hearing as being true and accurate and subject to cross-examination, absent exceptional circumstances or agreement of the parties. To further the goal of efficient management, the order could state how long the advocates will have for cross-examination (say 15-30 minutes per witness), which in any case should be limited to matters raised in the witness statement. It could also state that brief re-direct examination will be allowed, limited to matters raised on cross-examination. The order should make clear to the parties that the tribunal may question the witness at any time. It should also state that the tribunal has the power to refuse to hear a witness (or receive a witness statement from that witness) if it deems the facts to which the witness will testify repetitive, cumulative, or irrelevant. It also has the authority to limit a party's questioning of a witness, as well as its ability to re-call a witness, subject to the party's right to a fair hearing. Conclusion Notes 1Antonias Dimolitsa, Giving Evidence: Some Reflections on Oral Evidence and on the Obligations and Rights of the Witnesses, in ARBITRATION AND ORAL EVIDENCE 11, 12 (Laurent Levy and V.V. Veeder eds., 2005). 2Javier H. Rubinstein, International Commercial Arbitration: Reflections at the Crossroads of the Common Law and Civil Law Traditions, 5 CHI. J. INT'L. L. 303, 308 (2004). 3Hans van Houtte, Counsel-Witness Relations and Professional Misconduct in Civil Law Systems, in ARBITRATION AND ORAL EVIDENCE 105, 106 (Laurent Levy and V.V. Veeder eds., 2005). 4Julian D.M. Lew, International Commercial Arbitration: Harmonizing Cultural Differences, DISPUTE RESOLUTION JOURNAL (Aug. 1999). 5Rubinstein, supra, at 308. 6Id. 7UNCITRAL Arbitration Rules, G.A. Res. 31/98, U.N. GAOR, 31st Sess., Supp. No. 17, ch. V, § C, U.N. Doc. A/31/17 (1976) (hereinafter the "UNCITRAL Rules"), art. 25.5, available at
http://www.uncitral.org/uncitral/en/ 8International Chamber of Commerce Rules of Arbitration (January 1, 1998) (hereinafter the "ICC Rules"), art. 20.6, available at http://www.iccwbo.org/court/english/arbitration/rules.asp. 9International Bar Association's Rules on the Taking of Evidence in International Commercial Arbitration (June 1, 1999) (hereinafter the "IBA Rules"), art. 4.4, available at http://www.ibanet.org/images/downloads/ 10Id. 11Anne Véronique Schlaepfer, Witness Statements, in ARBITRATION AND ORAL EVIDENCE 65, 67 (Laurent Levy and V.V. Veeder eds., 2005). 12Schlaepfer, supra, at 66. 13Id. at 67. 14Id. 15IBA Rule 4.5 states: "Each Witness Statement shall contain: (a) the full name and address of the witness, his or her present and past relationship (if any) with any of the parties, and a description of his or her background, qualifications, training and experience, if such a description may be relevant and material to the dispute or to the contents of the statement; (b) a full and detailed description of the facts, and the source of the witness's information as to those facts, sufficient to serve as that witness's evidence in the matter in dispute; (c) an affirmation of the truth of the statement; and (d) the signature of the witness and its date and place." 16Richard H. Kreindler, Benefiting From Oral Testimony of Expert Witnesses: Traditional and Emerging Techniques, in ARBITRATION AND ORAL EVIDENCE 87, 96 (Laurent Levy and V.V. Veeder eds., 2005). 17IBA Rule 5.2 states, "The Expert Report shall contain: (a) the full name and address of the Party-Appointed Expert, his or her present and past relationship (if any) with any of the Parties, and a description of his or her background, qualifications, training and experience; (b) a statement of the facts on which he or she is basing his or her expert opinions and conclusions; (c) his or her expert opinions or conclusions, including a description of the method, evidence and information used in arriving at the conclusions; (d) an affirmation of the truth of the Expert Report; and (e) the signature of the Party-Appointed Expert and its date and place." 18Id. 19V.V. Veeder, Introduction, in ARBITRATION AND ORAL EVIDENCE 7, 8 (Laurent Levy and V.V. Veeder eds., 2005). 20V.V. Veeder, The 2001 Goff Lecture, Arbitration International, Vol 18, No. 4, 431-451 (2001), reprinted in The Lawyer's Duty to Arbitrate in Good Faith, in ARBITRATION AND ORAL EVIDENCE 115, 126 (Laurent Levy and V.V. Veeder eds., 2005); see also IBA Rule 5.3 which states, "The Arbitral Tribunal in its discretion may order that any Party-Appointed Experts who have submitted Expert Reports on the same or related issues meet and confer on such issues. At such meeting, the Party-Appointed Experts shall attempt to reach agreement on those issues as to which they had differences of opinion in their Expert Reports, and they shall record in writing any such issues on which they reach agreement." 21Veeder, supra, at 8. 22Id. at 7. 23David E. Wagoner, Managing International Arbitration: A Shared Responsibility of the Parties, the Tribunal, and the Arbitral Institution, DISPUTE RESOLUTION JOURNAL (May 1999). |
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Ober, Kaler, Grimes & Shriver Maryland
Washington, D.C. Virginia
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