Evidence and Witness Preparation in Arbitration

15th March, 2024 - 6:36 am Categories: Arbitration 0 Comments

The arbitral process bears a striking resemblance to domestic civil proceedings, and yet it is also fundamentally different in many crucial respects. The taking of testimony from a variety of witnesses is perceived to be one of the key aspects of arbitral practice; witness testimony is often advanced as the most persuasive form of proof in arbitration, as it is in a court of law. In contrast to a judicial system, the actual mechanics of compiling and presenting evidence and the organization of witness testimony are relatively untouched by any specific statutory or case law framework or procedural regime. Therefore, the onus is on those participating in the arbitration, including the legal representatives for the parties and the arbitration itself, to ensure that the evidence and witness testimony are effectively marshalled and marshalled coherently and practically. This article, Evidence and Witness Preparation in Arbitration, aims to consider and analyze the practical mechanics of evidence compilation and witness preparation before and during arbitration, both from the perspective of the legal representatives and on the part of the tribunal itself. Offset against this practical focus, the text also aims to consider the wider theoretical and philosophical questions concerning arbitral practice, how witness and documentary evidence is understood and put into use during arbitration, and how modern developments in technical case management and evidential presentation may be brought to bear to improve the efficacy of arbitration as a form of dispute resolution.

Purpose of Evidence and Witness Preparation

Because witness preparation programs can be rigorous and may involve aspects such as language coaching, video presentations and professional interrogative exercises, there is no shortage of international guidance and opinions on what constitutes a fair and effective preparation regime. It is important to remember that “professional examination and consultation services for the legal profession” are now considered to be exclusive activities in the United Kingdom and are regulated as such. These services cover “the provision of expert advice or assistance in connection with the resolution of disputes before any court or other judicial body”, which would arguably include expert witness consulting. This is a factor that legal representatives will have to bear in mind when considering who to instruct to prepare their witnesses.

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Effective witness preparation involves working with the witness to ensure that he or she appreciates the importance of giving honest and accurate evidence, and feels comfortable in a hearing environment. This is fundamentally different from witness familiarization, which is a common feature of the disclosure process in litigation. Witness familiarization is the process of the witness and a legal representative sitting down together and reviewing the written statements that the witness has provided as part of the disclosure. The legal representative explains to the witness what happens in the hearing and the witness is then asked to confirm that his or her statement is accurate and whether any amendments are required. This statement is then signed by the witness as a declaration of truth.

The purpose of evidence and witness preparation is not to teach the witness what he or she should say in a hearing, but rather to facilitate the process of creating the best possible evidence for presentation to the arbitration tribunal. It is very common that, if one side in an arbitration persuades a witness to give evidence the way the party wants, the evidence will be contrived rather than genuine. Such evidence is likely to be disregarded by the arbitrators when they make their award, which could be very damaging to the case.

Importance of Effective Preparation

Effective preparation is important to the arbitration process for several reasons. The first is that the witness will have their memory adequately refreshed for the hearing. There are various techniques for doing this, but the most effective way is to prepare a detailed statement well in advance of the hearing and then have a meeting with the witness to go through it. The statement should be as comprehensive as possible. It should deal with the witness’ entire case and not just with the witness statement evidence, it should touch on all the documents which the witness has referred to and the sequence in which events happen should be set out as clearly as possible. This approach ensures that a witness gives their best evidence at the hearing by providing the tribunal with clear and relevant testimony. In addition, opposing counsel’s opportunity to discredit the evidence should be minimized. Cross-examination is a skill and, in some cases, a counsel may try to push the boundaries of what is or is not permissible in an attempt to unsettle a witness. However, the operation of the witness-familiarized technique minimizes the risk of success for such tactics. When the tribunal members see a witness settling down into their task once the proceedings have started and giving clear evidence consistent with their witness testimony, then the value of the demonstration will not be lost on the tribunal. Lastly, thorough preparation will allow the advocate to mould the evidence to suit their case. When a claim is turned down at a hearing this will not necessarily mean that the case was ‘unwinnable’. This is because in many cases, the evidence itself and the credibility of the witnesses will provide an advocate with considerable flexibility in putting the best case forward for the client. However, for an advocate to have this flexibility, detailed instructions must be taken as to what the facts are. These are the facts as known from the client and it will be from that factual matrix that the legal submissions will be developed. Also, the firing of a witness’ statement from a witness’ instructions should be avoided at all costs. All too often, witness statements are drafted in an advocate’s words and it is vitally important that a draft is checked with the witness so that they can confirm that it accurately reflects their evidence. The sign of the statement could lead to an abuse of the witness’s familiarized preparation technique.

Role of the Arbitrator in Evidence and Witness Preparation

An arbitrator is responsible for ensuring not only that the arbitration hearing is conducted fairly, but also that it is seen to be conducted fairly. As a central part of that responsibility, the arbitrator plays a fundamental role in the management of both evidence and witness preparation. In comparison to the usual less interventionist role in civil litigation, an arbitrator’s role in evidential decision-making and the preparation of witness evidence can be much more hands-on and proactive. This is because, in comparison to being a mere viewer of a trial, the arbitrator has been tasked with managing the evidence process so that the evidential decision is properly informed. Secondly, the need to justify and make it clear to all the participants the reasoning and conclusion in that decision means that an arbitrator must have an active role in the preparation and giving of witness evidence. This is in contrast to the position in civil litigation under the English Civil Procedure Rules, where a judge is expected to manage witness evidence in a way that focuses on the actual trial and the witness statements. The proactive involvement of an arbitrator in the preparation of witness evidence is most commonly seen in the practice of holding a preliminary meeting with the parties to agree to the procedural aspects of that preparation. This meeting, known as a “Preparation for Witness Conference,” is typically held with the relevant lawyers and it can help to take the sting out of the preparation of evidence and give a much more positive and cooperative environment to that preparation and to the main hearing itself. Also, that procedure is much more akin to an inquisitorial form of trial than the full adversarial method found in civil litigation, and this fits in with the overall management of evidence in arbitration.

Preparing Witnesses

The arbitral process bears a striking resemblance to domestic civil proceedings, and yet it is also fundamentally different in many crucial respects. The taking of testimony from a variety of witnesses is perceived to be one of the key aspects of arbitral practice; witness testimony is often advanced as the most persuasive form of proof in arbitration, as it is in a court of law. In contrast to a judicial system, the actual mechanics of compiling and presenting evidence and the organization of witness testimony are relatively untouched by any specific statutory or case law framework or procedural regime. Therefore, the onus is on those participating in the arbitration, including the legal representatives for the parties and the arbitration itself, to ensure that the evidence and witness testimony are effectively marshalled and marshalled coherently and practically.^[1] This textbook, Evidence and Witness Preparation in Arbitration aims to consider and analyze the practical mechanics of evidence compilation and witness preparation before and during arbitration, both from the perspective of the legal representatives and on the part of the tribunal itself. Offset against this practical focus, the text also aims to consider the wider theoretical and philosophical questions concerning arbitral practice, how witness and documentary evidence is understood and put into use during arbitration, and how modern developments in technical case management and evidential presentation may be brought to bear to improve the efficacy of arbitration as a form of dispute resolution.

Purpose of Evidence and Witness Preparation

Because witness preparation programs can be rigorous and may involve aspects such as language coaching, video presentations and professional interrogative exercises, there is no shortage of international guidance and opinions on what constitutes a fair and effective preparation regime. It is important to remember that “professional examination and consultation services for the legal profession” are now considered to be exclusive activities in the United Kingdom and are regulated as such. These services cover “the provision of expert advice or assistance in connection with the resolution of disputes before any court or other judicial body”, which would arguably include expert witness consulting. This is a factor that legal representatives will have to bear in mind when considering who to instruct to prepare their witnesses.

Effective witness preparation involves working with the witness to ensure that he or she appreciates the importance of giving honest and accurate evidence, and feels comfortable in a hearing environment. This is fundamentally different from witness familiarization, which is a common feature of the disclosure process in litigation. Witness familiarization is the process of the witness and a legal representative sitting down together and reviewing the written statements that the witness has provided as part of the disclosure. The legal representative explains to the witness what happens in the hearing and the witness is then asked to confirm that his or her statement is accurate and whether any amendments are required. This statement is then signed by the witness as a declaration of truth.

The purpose of evidence and witness preparation is not to teach the witness what he or she should say in a hearing, but rather to facilitate the process of creating the best possible evidence for presentation to the arbitration tribunal. It is very common that, if one side in an arbitration persuades a witness to give evidence the way the party wants, the evidence will be contrived rather than genuine. Such evidence is likely to be disregarded by the arbitrators when they make their award, which could be very damaging to the case.

Importance of Effective Preparation

Effective preparation is important to the arbitration process for several reasons. The first is that the witness will have their memory adequately refreshed for the hearing. There are various techniques for doing this, but the most effective way is to prepare a detailed statement well in advance of the hearing and then have a meeting with the witness to go through it^[2]. The statement should be as comprehensive as possible. It should deal with the witness’ entire case and not just with the witness statement evidence, it should touch on all the documents which the witness has referred to and the sequence in which events happen should be set out as clearly as possible. This approach ensures that a witness gives their best evidence at the hearing by providing the tribunal with clear and relevant testimony. In addition, opposing counsel’s opportunity to discredit the evidence should be minimized. Cross-examination is a skill and, in some cases, a counsel may try to push the boundaries of what is or is not permissible in an attempt to unsettle a witness. However, the operation of the witness-familiarized technique minimizes the risk of success for such tactics. When the tribunal members see a witness settling down into their task once the proceedings have started and giving clear evidence consistent with their witness testimony, then the value of the demonstration will not be lost on the tribunal. Lastly, thorough preparation will allow the advocate to mould the evidence to suit their case. When a claim is turned down at a hearing this will not necessarily mean that the case was ‘unwinnable’. This is because in many cases, the evidence itself and the credibility of the witnesses will provide an advocate with considerable flexibility in putting the best case forward for the client. However, for an advocate to have this flexibility, detailed instructions must be taken as to what the facts are. These are the facts as known from the client and it will be from that factual matrix that the legal submissions will be developed. Also, the firing of a witness’ statement from a witness’ instructions should be avoided at all costs. All too often, witness statements are drafted in an advocate’s words and it is vitally important that a draft is checked with the witness so that they can confirm that it accurately reflects their evidence. The sign of the statement could lead to an abuse of the witness’s familiarized preparation technique.

Role of the Arbitrator in Evidence and Witness Preparation

An arbitrator is responsible for ensuring not only that the arbitration hearing is conducted fairly, but also that it is seen to be conducted fairly. As a central part of that responsibility, the arbitrator plays a fundamental role in the management of both evidence and witness preparation. In comparison to the usual less interventionist role in civil litigation, an arbitrator’s role in evidential decision-making and the preparation of witness evidence can be much more hands-on and proactive. This is because, in comparison to being a mere viewer of a trial, the arbitrator has been tasked with managing the evidence process so that the evidential decision is properly informed. Secondly, the need to justify and make it clear to all the participants the reasoning and conclusion in that decision means that an arbitrator must have an active role in the preparation and giving of witness evidence. This is in contrast to the position in civil litigation under the English Civil Procedure Rules, where a judge is expected to manage witness evidence in a way that focuses on the actual trial and the witness statements^[3]. The proactive involvement of an arbitrator in the preparation of witness evidence is most commonly seen in the practice of holding a preliminary meeting with the parties to agree on the procedural aspects of that preparation. This meeting, known as a “Preparation for Witness Conference,” is typically held with the relevant lawyers and it can help to take the sting out of the preparation of evidence and give a much more positive and cooperative environment to that preparation and to the main hearing itself. Also, that procedure is much more akin to an inquisitorial form of trial than the full adversarial method found in civil litigation, and this fits in with the overall management of evidence in arbitration.

Gathering and Presenting Evidence

The primary purpose of gathering evidence is to enable all parties to the arbitration and the arbitrator to find out the full picture of the facts in issue, to assess the true extent of the dispute and to reach a conclusion as to the proper application of the law to those facts. Arbitration is less formal than court proceedings and parties have a say in how procedures are conducted. There is usually no hearing to gather and to present oral evidence at the beginning of an arbitration. Gathering evidence is mainly about the parties disclosing to each other and to the tribunal the documents which are relevant to the issues in dispute. The answers date argued are based on those disclosed documents. The tribunal will allow those answers to date documents to be used during the arbitration so that the arbitrator can see them and take them into account when making a decision. The role of the arbitrator is to manage the exchange of documents and other evidence between the parties. This usually involves making a direction at an early stage that the parties disclose the documents on which they intend to rely. It is not uncommon for such document disclosure directions to be made before the tribunal is even formed, for example by the court, if a party is applying for a direction in aid of arbitration. Once the disclosure directions are made, the documents are exchanged between the parties. Each party is under an obligation to swear an affidavit to confirm that they have disclosed all the relevant documents that are in their possession, custody or power. This is often called a disclosure affidavit. The arbitration tribunal will produce a direction setting out the timetable for the evidence. Part of that timetable involves the parties exchanging and swearing the disclosure affidavit. Without the directions ordered by the arbitrator, the process of gathering the relevant documents can become significantly time-consuming. The ultimate sanction is that if a party fails (without good reason) to obey the tribunal’s orders, the arbitrator has the power to make an adverse inference against the defaulting party at the final hearing. Adverse inference means that the arbitrator is entitled to take the view that the failure to disclose relevant documents supports the other party’s case. This rule encourages parties to cooperate and obey the orders of the tribunal.

Purpose of gathering evidence

The primary purpose of these rules and of the arbitrators in taking electronic evidence is to ensure a fair process and a fair chance for each party to advance its case. The theory of the various rules is broadly based upon the proposition that evidence collection should be driven by the requirement of providing a level playing field for the parties and the necessity of ensuring that only material and relevant evidence which is necessary and proportionate for the resolution of the issues is collected and considered. A secondary purpose of the rules is to facilitate the efficient and cost-effective performance of the arbitration, in particular, to enable the arbitration proceedings to stay within the advertised length and prevent the evidence stage of proceedings from becoming front-loaded at the expense of the merits of the case, which should be the focus of the attention of the parties and the tribunal. The rules recognise the need for flexibility and a degree of party autonomy in evidence collection and arbitral tribunals are granted broad powers to make orders about evidence and evidence collection where appropriate.

Collecting and Organizing Evidence

As a prerequisite to any arbitration, parties are required to exchange documentary evidence within a certain prescribed period. The term “documents” means anything on which there is recorded information, and would therefore include photographs, video and audio tapes. This does not mean that all potentially relevant documents worldwide have to be searched for and disclosed. The purpose of gathering evidence is to provide materials that could support a party’s case. However, it is not unknown that arbitrations “run aground” as a result of a party or an arbitral tribunal failing to appreciate the importance of observing the necessary procedural steps for the collection and analysis of evidence. For example, in a construction dispute, the production of a mass of irrelevant documents could, in the worst case, obfuscate and confuse the real issues in dispute. There would also be a waste of time and costs in reviewing and analyzing the mass of irrelevant material. Therefore, proper organization and presentation of evidence are crucial for the success of the arbitration process. By indications of the Arbitration Act 1996, evidence is to be given by witness statement and the witness statement has to indicate which of the person’s statements of case it is to be taken as the evidence in chief^[4]. However, in practice, documentary evidence is still a key component in deciding the outcome of the case. The parties are free to agree on the rules of evidence that should be adopted by the tribunal in the absence of any agreement. Where no agreement is reached, the tribunal should have the discretion to determine whatever procedures are appropriate to ensure fairness and efficiency in the arbitration process. To give flexibility and autonomy to the parties as to how the proceedings are conducted, the Arbitration Act 1996 and the model law do not prescribe in detail what rules of evidence should be followed by arbitrators. However, it is stated that the parties are entitled to rely on the substantive law applicable to the arbitration on matters like the admissibility of evidence.

 Importance of presenting evidence effectively

At the initial stage of gathering the evidence, a lawyer should see the end. The end product we have in arbitration is the making of the award. The evidence should influence the award in favour of the party that is producing it. It is therefore very important from the beginning that the evidence to be adduced at the oral hearing should be in the mind of the lawyer. This is because the evidence should lead to something. It should not be mere adducing of evidence for the sake of it. In that sense, as a lawyer continues to gather evidence by looking at the end product, it may assist him or her to focus the evidence on something substantial that will lead to the achievement of the purpose at the end. The effectiveness of the oral hearing in arbitration is highly dependent on how the evidence is being presented. The oral submission and the examination of witnesses during the arbitration proceedings are the most crucial part of the entire proceedings. If the tribunal gives equal opportunity to the parties to fully participate in the conduct of the arbitration, then the oral hearing should be used effectively and the evidence should be presented to the tribunal in such a way that the tribunal will understand the case and the issues a party is raising. The importance of presenting evidence effectively cannot be overemphasized. In the case of Raju Vijayanah v. Arjun Dev Arora & another, Civil Appeal No. 30 of 2010, the Supreme Court of Mauritius held that a party has every interest that the Court exercise diligence in not only admitting evidence but also ensuring that he is accorded a fair chance to present his case through the evidence that he proposes to produce before it. The Court further held that in an arbitration case, the strict rules of evidence are set aside so that parties are free to adduce and rely on any type of evidence that is considered to be relevant. However, the Court emphasized that a party who intends to rely on expert evidence must ensure that the expert has all the materials necessary to form his opinion and is made available for cross-examination. Such must be the importance of presenting evidence effectively that the court must make sure that the evidence that a party wishes to lead is relevant to the case and that the relevant evidence is not unduly kept from the scrutiny of the tribunal.

Challenges and Strategies

Effective witness preparation and evidence management are fundamental to the process of arbitration. Not only is it important to ensure that your witnesses can give their evidence clearly and coherently, but it is also vital to consider what will happen if the evidence is challenged. The recent changes to the International Bar Association Guidelines on Party Representation in International Arbitration Proceedings (the “IBA Guidelines”) have placed greater emphasis on managing evidence and focused on improving practice in the arbitration community^[5]. It seems probable that such changes may result in further disputes before arbitral tribunals. This dissertation will explore the most significant challenges that party representatives face when preparing their witnesses and evidence in arbitral proceedings and will consider the range of potential strategies that can be employed to address such issues. This research will be especially relevant in addressing the challenges posed by the new IBA Guidelines and, indeed, it will form an early stepping stone from which to critically analyze how those Guidelines are changing the landscape of arbitration practice. By critically analyzing the practice and by providing recommendations as to best practice witness preparation and evidence management, it is hoped that this dissertation will serve as a useful guide for current and aspiring arbitration practitioners who are preparing for disputes. The first chapter will introduce the reader to the key themes and topics to be addressed in the work and will give a general overview of witness preparation and evidence management. The second chapter will discuss in depth the process of obtaining “examination and…” orders from the High Court which can be used to allow a party’s lawyer to prepare a witness statement in advance of the start of proceedings. Chapter 3 will discuss when in the arbitration process such witness statements should be exchanged and the relevant provisions of the Arbitration Act 1996 about evidence. The 4th and 5th chapters will then explore potential conflicts in evidence which can arise before arbitral tribunals. By using practical examples and case law, the 4th chapter will examine the risks regarding disputes over the admissibility of evidence and how such disputes can be managed. The 5th chapter will consider how technology can assist in the process of preparing and presenting evidence in arbitration and will discuss the growing importance of specialist providers of electronic management in the arbitration sector.

Dealing with Uncooperative Witnesses, Addressing Objections and Challenges to Evidence, Handling Complex or Technical Evidence, Overcoming Bias and Persuading the Arbitrator

The Civil Procedure Rules provide for any party to raise an issue arising from the other side’s evidence in a written presentation, and the arbitrators are not bound by that comment – it is simply a part of the case of the party making that written observation. However, a party should not breach the duties of confidentiality and good conduct, and the arbitrator may have the power to impose financial and all or partial cost sanctions for unjustified failures to comply with the rules. Moreover, misbehaviour about the disclosure of documents or the giving of evidence may also be a breach of the rules, and this may lead to the tribunal informing a relevant professional body.

It is reasonable to say that good preparation is key to any such anticipatory strike against evidence, and it is unrealistic to expect the relevant potentially biased witness to provide parts of the evidence that lawyers might seek to obtain by way of some procedure for giving evidence to the tribunal^[6]. It is critically important that any written objection to a witness statement or the evidence that a witness may give is done sensibly, and the perceived weakness of potential bias should be explored coherently if a legitimate point is to be made.

A useful practice is to encourage the arbitrators to provide a list of all the members of the tribunal and the parties and give that list to the witness. Then, the witness is required to confirm or otherwise, whether or not any of the members of the tribunal and any of the parties are known to them. By using this method to establish the extent of bias, it is possible to cement the evidential weight to be given to a witness statement later down the line.

These types of problems are frequently encountered in arbitral proceedings, and many disputes involve one or both sides having to deal with one or more witnesses who are uncooperative or who are not as helpful as a party might hope. One common example, and one that is often flagged up as a potential area of bias, is where a witness has made what appears to be a witness statement of fact but that witness might also be a legal advisor. There could be a professional interest in the outcome of the dispute, and this might mean that the adversary parties challenge whether or not the evidence can be relied upon.

Conclusion

Effective preparation of evidence and witnesses is crucial for the success of arbitration proceedings. The process of gathering and presenting evidence, as well as preparing witnesses for examination and cross-examination, requires careful attention to detail and adherence to procedural rules. Arbitrators play a key role in managing the evidence process and ensuring that it is conducted fairly and efficiently. They must strike a balance between allowing parties the flexibility to present their case and ensuring that the evidence presented is relevant and necessary for the resolution of the dispute. Challenges such as uncooperative witnesses, objections to evidence, handling complex technical evidence, and overcoming bias are common in arbitration. However, by employing strategies such as thorough preparation, effective communication, and adherence to procedural rules, these challenges can be addressed and overcome. Overall, effective evidence and witness preparation are essential for achieving a fair and successful arbitration outcome. Parties and their legal representatives should prioritize these aspects of the arbitration process to maximize their chances of success.

Author: Vani Sharma, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

^[1] Marcus Eklund, Approaches to Evidence across Legal Cultures, Global Arbitration Review (Oct. 12, 2023), https://globalarbitrationreview.com/guide/the-guide-evidence-in-international-arbitration/2nd-edition/article/approaches-evidence-across-legal-cultures

^[2] (Dec. 12, 2018), https://ciarb.org/media/3064/witness-conferencing-guidelines-draft-for-consultation.pdf

^[3] Preparing witness evidence for arbitration, LexisNexis (Nov. 20, 2019), https://www.lexisnexis.co.uk/legal/guidance/preparing-witness-evidence-for-arbitration

^[4] Łukasz Ostas, Planning and Organising Effective Procedures for Taking Evidence, Global Arbitration Review (Oct. 12, 2023), https://globalarbitrationreview.com/guide/the-guide-evidence-in-international-arbitration/2nd-edition/article/planning-and-organising-effective-procedures-taking-evidence.

^[5] Witness preparation in international arbitration: where to start and where to stop, Lexology (Dec. 21, 2016), https://www.lexology.com/library/detail.aspx?g=0597b332-eb8e-4027-9235-13f73732ae6e.

^[6]http://arbitrationblog.practicallaw.com/witness-preparation-in-international-arbitration-where-to-start-and-where-to-stop/.