With the current pressure to achieve time and cost savings in international arbitration, parties are bringing applications for witnesses to testify by videoconference with increasing frequency.Given the advances in videoconferencing technology and the promise of fully-immersive telepresence sessions on the horizon, these applications might well become a regular feature of international arbitration in the coming years.
Counsel must carefully weigh the consequences of dispensing with in-person testimony.The impact of oral advocacy in general and cross-examination in particular depends to a great extent on the up close and personal nature of these human exchanges.Even with the best technology, something of value is lost when all of the people involved are not in the same room. What are the relevant factors counsel should consider in deciding whether to agree to cross-examination by videoconference?If the arbitral tribunal decides to permit video testimony, what safeguards should counsel insist upon and what techniques can be applied to maximize the prospects of an effective cross-examination?
I.Should You Agree to Cross-Examination by Videoconference?
When confronted with an application to permit one or more witnesses to testify by videoconference, the threshold question for cross-examining counsel is whether to oppose this application and, if so, on what grounds.
Article 8(1) of the IBA Rules on the Taking of Evidence in International Arbitration sets out the following basic rule: “Each witness shall appear in person unless the Arbitral Tribunal allows the use of videoconference or similar technology with respect to a particular witness.”