Witness selection, preparation in international arbitration

By Dong Xiao and Zhao Huili, AnJie Law Firm
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generally speaking, in arbitration and litigation cases in China the proportion of cases with witnesses appearing in a hearing is not high. However, in most international commercial arbitration cases, witnesses will testify in a hearing, and cross-examination against witnesses takes up most of the hearing time. This article provides a reference for the party concerned to select factual witnesses in international arbitration and prepare the witness before the hearing.

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Dong Xiao
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Q: What is a ‘factual witness’ in international arbitration? What are the requirements for witnesses who testify in international arbitration?

A: A factual witness in international arbitration refers to a person who knows the facts of a case and provides testimony to the arbitral tribunal.

In accordance with the International Bar Association’s (IBA) Rules on the Taking of Evidence in International Arbitration, which is widely used in practice, anyone, including the party concerned or its officers, employees or other agents, can testify as a witness. In order to avoid the “sudden attack” testimony, the arbitral tribunal usually requires the witness to submit a written statement and to clarify the identity of the witness before the hearing. Every witness shall attend the hearing in person, unless the arbitral tribunal allows the witness to attend the hearing by video-conference or other means.

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Zhao Huili
AnJie Law Firm
Partner

Q: What are the main functions of witnesses in international arbitration?

A: In international arbitration, witnesses are usually questioned to present relevant evidence and show the overall facts of the case to help the arbitral tribunal understand the case. Therefore, through witness testimony, the party providing a witness statement has the opportunity to prove its claim of the case, highlight the core facts, explain the vague and ambiguous content in the unfavourable evidence or documentary evidence, and supplement the detailed facts lacking documentary evidence. The opposing party has the opportunity to cross-examine a witness and challenge their credibility. In this process, the arbitral tribunal can decide whether to accept the testimony of the witness, so as to make a judgment when the parties disagree on the facts.

Q: In international arbitration, what is the main process for witnesses to testify during a hearing?

A: During a hearing, the arbitral tribunal usually confirms the identity of the witness and asks the witness to promise that what he or she is telling is the truth. After that, the lawyer of the witness side will make a brief examination-in-chief with the witness, generally to confirm that the testimony is indeed made by the witness and the content is true and reliable. The lawyer sometimes takes the opportunity to ask the witness to state the core facts.

After the examination-in-chief, the lawyer of the opposing party will conduct a cross-examination against the witness in detail to get testimony favourable to its side and reduce the credibility of the witness. A cross-examination is usually not limited to that on the written statements, but extends to all the facts related to the dispute.

After the cross-examination, the lawyer of the witness side still has a chance to conduct a re-examination with the witness, mainly for having the witness further clarify the answers in the cross-examination. Re-examination is generally limited to the content of cross-examination, and will not raise any new questions. The arbitral tribunal may question the witness at any time during the above-mentioned stage.

Q: How are witnesses selected in international arbitration?

A: There may be many witness candidates, as there may be many people who know the facts of the case from different angles in the process of the occurrence of relevant facts of a case. To best prove its case, the party concerned needs to select the most suitable witness to testify.

There are many considerations in selecting witnesses, such as the witness’s familiarity with the important facts of the case, language expression ability, whether the witness has testimony experience or legal background, or has sufficient time to prepare for testimony, the candidate’s personality or ability to resist pressure, and the credibility and persuasiveness that can be demonstrated.

When deciding witness candidates, parties should pay attention to avoiding selecting too many witnesses, so as to avoid contradictory testimony among multiple witnesses caused by cognitive and memory bias.

Q: What are the common problems of Chinese witnesses testifying in international arbitration?

A: Because of the limited awareness of international arbitration, Chinese parties concerned often encounter the following problems in the process of testifying: (1) acting as an attorney or arbitrator, and providing legal or other non-factual opinions; (2) stating facts unrelated to the case, or stating facts that are inconsistent and unclear in logic; (3) being unfamiliar with evidence and written statements; (4) providing testimony in a language style not natural enough, with heavy preparation traces; (5) failing to answer the question raised, or adding too much unnecessary content after answering; (6) providing lengthy and repetitive answers; and (7) failing to accurately express the true meaning due to cultural differences, language barriers and translation errors, etc.

All of the above-mentioned problems may reduce the credibility of the witnesses, expose facts that are unfavourable to the party’s own side, or be used by the lawyer of the opposing party to prove claims favourable to them.

Q: In international arbitration, how should lawyers help witnesses prepare before a hearing?

A: Under the premise of strictly observing the code of ethics for lawyers, first of all, lawyers can assist witnesses to recall and sort out the facts of the case, and clarify the ideas of testimony; second, lawyers can introduce the general process of the hearing to witnesses to make them understand their role and the importance of witness testimony, as well as prompt and correct common problems in testimony, help witnesses understand the methods of cross-examination by the lawyer of the opposing party, and get familiar with the key issues that have required the witnesses to testify. If necessary, lawyers can also conduct mock trials of virtual cases with witnesses to help them face international arbitration hearings more confidently.

Dong Xiao and Zhao Huili are partners at AnJie Law Firm

Dong Xiao Zhao Huili AnJie Law Firm International arbitration

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