Originally from The MENA Leading Arbitrators’ Guide to International Arbitration

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I. INTRODUCTION

Fact witnesses have a crucial role in international arbitration, which can often influence the dynamics and even determine the outcome of a dispute.  They play a predominant part in an advocate’s role in any given arbitration and should be at the heart of any case strategy.  Indeed, winning a case depends greatly on the advocacy of counsel and one of the most fundamental of such skills is an advocate’s ability to persuade the tribunal hearing the dispute that his/her client’s case should be the case that succeeds. In this vein, an effective persuasion technique lies in emphasizing the facts through testimony from fact witnesses.

Counsel and arbitral tribunals alike rely primarily on factual witnesses to help fill in the gaps in incomplete or incoherent documentation.  Fact witnesses would have ideally “lived” the dispute, and would therefore frequently be the first port of call for counsel when they first discover the case.  Fact witnesses are also often presented by parties to “humanise” their case.  However, fact witnesses also have the unenviable position of being in the crosshairs of well-prepared cross-examiners who intend to exploit any possible inaccuracy or detail, no matter how minor, to discredit their testimony and the opponent’s case.  In fact, fact witnesses have become so ever-present in international arbitration that an entire business of “Witness Familiarisation” has been developed, intended to prepare witnesses for this very purpose. 

The purpose of this chapter is to briefly explore the role of the fact witness in international arbitration.  It will first discuss the important role of witness evidence in order to provide the context of this chapter (Section I).  It will then explore the dichotomy between the civil and common law legal traditions in their approaches towards fact witnesses and their examination (Section II).