Originally from Soft Law in International Arbitration, Second Edition

PREVIEW PAGE

Preamble

1. Witness conferencing can be described as any evidence-taking process whereby two or more witnesses give evidence concurrently before a tribunal. A more precise definition of the phrase might mistakenly convey the impression that it describes a single established process. However, witness conferences may take many forms. They may concern the evidence of factual or expert witnesses, or both. They can be conducted by the tribunal, the witnesses or parties’ counsel, or any combination of them. These guidelines recognise the diversity of approaches that can be adopted without seeking to restrict the ability and imagination of tribunals and parties to shape a conference most suited to any given dispute.

2. Witness conferencing has in recent years become a popular means of taking evidence particularly— but not exclusively — from expert witnesses in international arbitration. The process is not, however, encountered only in arbitration. For example, the courts of Australia, England and Wales and Singapore have also explored or adopted the process to a greater or lesser degree. This popularity stems from a number of perceived advantages. First, a conference can be a more effective means of receiving evidence than consecutive examination of witnesses by parties’ counsel. The side-by-side presentation of evidence can make it easier to compare witnesses’ different views on an issue, and for the witnesses to challenge each other’s views with direct responses or rebuttals. Second, the quality of evidence may be improved. For example, expert witnesses may be less willing to make technically incorrect assertions in front of 14 Preamble a peer who can supply an immediate rebuttal. Third, the process can promote efficiency at an evidentiary hearing, as the tribunal can hear evidence from all the witnesses on the issues at once, rather than at different stages of a hearing as the parties present their cases.

3. At the same time, witness conferencing gives rise to other considerations. For example, whilst taking evidence in conference may lead to shorter hearings than where evidence is taken consecutively, the time and costs for preparing a witness conference beforehand may be higher. The quality of evidence may also be affected, and proceedings disrupted, where witnesses in conference prove to be unfriendly, hostile or even rude to each other, or where one witness is more reticent giving evidence in the presence of another, for example due to differing levels of experience in giving evidence, cultural factors or some pre-existing professional or personal relationship between them.

4. The matters set out in the Checklist, and the Standard and Specific Directions will help the tribunal and the parties to determine whether witness conferencing is appropriate for their particular dispute and, if so, what procedures will best suit the circumstances of their case.