Originally from the Leading Arbitrators' Guide to International Arbitration - Fourth Edition

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I. INTRODUCTION

Witness evidence holds paramount significance in international arbitration, serving as the human factor in factual narratives at the center of complex disputes and often supplying critical evidence that cannot be obtained from documents. Over the last thirty to forty years, it has become a widely accepted practice to submit witness evidence in international arbitration in the form of a detailed written witness statement presenting factual evidence about what a witness has observed, heard, or experienced that is relevant to matters in dispute. These statements typically accompany the parties’ written submissions and the witness will usually be subject to oral examination at the hearing.  The stakes are high: a parties’ success can turn on a credible and compelling witness statement while inaccuracies or inconsistencies can sink a case.

International arbitrations once lacked a standardized approach to witness evidence. Parties might have only identified by name the witnesses who would be appearing in advance, submitted a list of topics on which they proposed to have their witnesses examined, or submitted a written summary of the witnesses’ intended testimony without submitting a detailed statement. The different approaches stemmed from the disparate legal cultures from which the participants came, the lack of prescriptive provisions in arbitration legislation or institutional rules about how witness evidence should be tendered, and a general uneasiness among many practitioners that prepared witness statements may compromise the authenticity of testimony, which might be more likely to emerge in the unscripted environment of an oral hearing.