Factual witnesses in commercial arbitration

The recent Sun Yang case has brought the role of factual witnesses in international arbitration into the spotlight. As one of the factual witnesses, Sun Yang’s mother refused to answer questions directly, and also provided inconsistent testimony during the hearing. This witness’s behaviour had significant negative impacts on the case.

In commercial arbitration, the claimant and the respondent shall each provide evidence for the facts on which they apply, reply or counterclaim. Witness testimony often plays an indispensable role in providing facts and restoring the truth of a case. This article takes the practice of the China International Economic and Trade Arbitration Commission (CIETAC) as an example to outline the responsibilities and procedures for taking the evidence of a factual witness.

Meanwhile, the authors will compare the jurisprudence and practices regulating the factual witness with such popular procedural rules as the IBA Rules on the Taking of Evidence in International Arbitration (2010) (IBA rules) and the Rules on the Efficient Conduct of Proceedings in International Arbitration (2018) (Prague rules).

Roles and responsibilities of factual witnesses

According to article 8 of the CIETAC Guidelines on Evidence, any person capable of proving the relevant facts of the case may appear as a witness, including a party’s employee, representative or agent. The witness statement shall contain the name and address of the witness, his/her relationship with the parties, his/her background, a detailed description of the facts related to the dispute, the sources of the witness’s information, the date of the witness’s statement and the signature of the witness.

Generally, a factual witness shall provide related facts of the controversy to assist the tribunal to form the whole picture of the facts. Subjective or legal opinions shall not be provided by the factual witness.

In practice, factual witnesses help the tribunal to determine the different weights of the narratives. Testifying a factual witness during a hearing is essential to highlight the core facts and degrade the credibility of the counterparty’s factual witness, such as by proving their witness’s testimony contains memory mistakes or prejudicial evidence. Nonetheless, a factual witness can be even more vital if some detailed facts of a case cannot be directly proved by documents (for example, the purchase agreement of a software might be completed through the simple delivery of a hard disk).

Jin Xi is assistant secretary-general, CIETAC South China Sub-Commission, and Xu Rui is JD&JM candidate at the School of Transnational Law, Peking University