A Matter of Suitability: CIArb Guidelines on Witness Conferencing
Witness conferencing is a process of taking evidence where two or more fact or expert witnesses testify on common issues at the same time, which is increasingly common in arbitration.
In April 2019, the Chartered Institute of Arbitrators released its Guidelines for Witness Conferencing in International Arbitration. The document was developed for use by parties, arbitrators and experts when preparing and presenting evidence in such a conference.
1. The Witnesses Conferencing: Overview
Witnesses conferencing is an evidence-taking process by which two or more witnesses give their evidence concurrently before the arbitral tribunal. According to the Guidelines, it is not a single process, so it can assume different forms in order to assure the efficiency and effectiveness of taking of evidence and procedural orders.
The conferences concern the presentation of evidence of both factual and expert witnesses, although they have been more adopted for the latter. The tribunal, the parties’ or witnesses’ counsel or a combination of these may be responsible for the conduction of the process.
The CIArb document lists some advantages of the adoption of witnesses conferencing. Some examples are the effectiveness brought by conference when receiving the evidence, in comparison with consecutive examination; the improvement of the quality of evidence; and the efficiency brought by an evidentiary hearing, when the tribunal can hear the witnesses at the same time.
It is important to emphasise that the parties and the tribunal need to determine whether this evidence-taking process is the best option for their case. Even though the witness conferencing is adopted, its procedures shall be analysed and suited to the circumstances of the dispute.
2. The Guidelines
The Guidelines contain as main sections the Checklist, the Standard Directions and the Specific Directions, besides Explanatory Notes with detailed information regarding the Checklist and the two groups of directions.
The Checklist sets out matters to be considered by the parties and the tribunal when determining if the witness conference may be adopted and, in such case, what form the conference may take. A matter of logistics, e.g. if “one or more witnesses is to give evidence by video conference”, refers to both questions of the suitability of the process and the form it should take at the same time. However, the Guidelines warn that “not all of the items will be relevant in all cases”.
The Standard Directions are a framework intended to be part of an initial procedural order issued by the arbitral tribunal. It sets principles to be applied when the tribunal “subsequently orders some of the witness evidence to be taken concurrently”. Nevertheless, it does not mean that the taking of consecutive evidence is dispensed.
The Specific Directions apply once the parties and the tribunal decided to adopt the process of taking evidence concurrently. It provides three different procedural frameworks: Tribunal-led Conference, Witness-led Conference and Counsel-led Conference. The Guidelines also allow the tribunal to combine these frameworks, to draw on different directions and to incorporate other directions. The aim of this section is to point which direction may be the most suitable for the case.
The CIArb Guidelines are an important document to assist the parties and the tribunal due to their flexibility and precise information. Once the suitability of the witness conferencing is carefully analysed, the Guidelines may help the international arbitration players even after the adoption of the process.
The Chartered Institute of Arbitrators received this year the Global Arbitration Review Award in Bert Innovation by an organisation for the Witness Conferencing Guidelines.