Witness Statements - Chapter 30 - Handbook on International Commercial Arbitration
Peter Ashford is Solicitor of the Supreme Court and a Partner at Cripps Harries Hall LLP and is Head of the firm's Commercial Peter Ashford is a Partner and Head of commercial dispute resolution in the leading United Kingdom Firm of Cripps Harries Hall LLP, Tunbridge Wells, United Kingdom. Mr. Ashford advises on a wide range of commercial disputes with a particular emphasis on substantial commercial contract disputes, especially those involving an international aspect, partnership and LLP disputes, professional issues for solicitors and professional negligence. He is particularly experienced in complex, high value claims and acts for many international clients. He handles disputes in court, arbitration, mediation and disputes without any formal process. Mr. Ashford received his training in London and qualified in 1986. He joined Cripps Harries Hall LLP in 1987 and became a partner in 1991.
Originally from Handbook on International Commercial Arbitration
Most Arbitral Tribunals will be motivated to ensure that the oral stages of the reference and, in particular, the evidentiary hearings are as limited as possible. Typically much more than two weeks is unusual. In order to achieve this, there has to be economy in dealing with each witness. This is usually achieved by each witness making a statement—and occasionally, in addition, a statement in reply—and examination-inchief or direct examination being limited to confirming name and address, position and status and confirmation that the statement is true. In some instances, somewhere between a few and thirty minutes will also be spent in either bringing out key issues or examining a witness on the evidence of the opposing party. Similarly, cross-examination is usually relatively brief—no more than a couple of hours. This is either expressly or impliedly on the basis that, contrary to some rules in national courts, if the positive case is not put to the opposing witnesses in crossexamination the evidence of that witness is treated as admitted.
The IBA Rules on the Taking of Evidence in International Commercial Arbitration (1999) has detailed rules for such statements.
Witness statements are invariably drafted by counsel from instructions from the witness and that is widely accepted, indeed, the IBA Rules make this clear as do the LCIA Rules. Equally, it is permissible to assist witnesses to testify with confidence; indeed, there are a number of commercial organisations that train witnesses to testify. They do so using specimen facts rather than the facts of any particular case. The same procedure can be used to assist witnesses in effectively recalling key facts. What is generally regarded as impermissible is to coach a witness as to what to say and how to say it. Clearly counsel who planned with a witness to mislead the Arbitral Tribunal would not serve the interests of his client but would also risk severe sanctions.
The most persuasive witness evidence is that tested under cross-examination and notwithstanding able cross-examination, holds up well.