How to rely on witness evidence in arbitral proceedings?

A company wishes to submit testimonies in support of its allegations in arbitral proceedings. It wishes that the witnesses to be presented to the arbitral tribunal be assisted in preparing statements and in the preparation of their examination at the hearing.

A party wishes to rely on witness evidence and to prepare the examination of the witnesses during an arbitral hearing

Preparing testimonies and the examination of a witness in the course of arbitral proceedings.

Our client's challenge

Relying on credible witness evidence to support its allegations efficiently

A company has initiated arbitral proceedings following a dispute with a commercial partner. Due to deficiencies in project document management, this party wishes to leverage the testimonies of individuals involved in the project to bolster its evidence and add a concrete and personal insight to its factual allegations.

Within the ICC proceedings, the procedural guidelines established by both the parties and the arbitral tribunal, which additionally make reference to the IBA Rules on the Taking of Evidence in International Arbitration, allow the parties to rely on witness evidence. These rules provide that the witnesses submit a witness statement. The witnesses may then be summoned to appear at the hearing on the basis of this statement, in order to be cross-examined by the adverse party and be questioned by the arbitrators.

Our client wishes to be assisted in this opportunity to rely on witness evidence.

Our way

Assisting and preparing the use of witness evidence in the proceedings

The use of witness evidence is frequent in international arbitration. It is seen as providing a different perspective on the facts in issue, by relying on people having direct knowledge of the facts, in order to inform the arbitral tribunal.

It is usually required from witnesses that they submit a written statement detailing the facts they testify on. This statement serves as a frame for the testimony and can help assess the usefulness of the facts stated and serves as a basis for the potential examination of the witness. If the substance and words must remain those of the witness, the statement can be prepared with the help of counsel for the party bringing this testimony forth.

Examination of witnesses is a key step of the proceedings, and is used to establish the facts, confront them with those of the case and assess their coherence, relevance, accuracy and reliability. The examination is usually centered around the cross-examination of the witness by the adverse counsel and the questions of the arbitral tribunal. For that purpose, counsel for the party bringing the testimony prepare witnesses by informing them of the process of the hearing, identify the key and contested points in their testimony and ensure that the cross-examination is completed correctly at the hearing.

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