Gursimran Bakshi*
I. Introduction
Recently, in 2019 the Chartered Institute of Arbitration (Singapore) issued its Guidelines for Witness Conferencing in International Arbitrations (The Guidelines).[1] These guidelines come post the amendment of the Delhi High Court in the Delhi High Court (Original Side) Rules, 2018 to recognize witness conferencing as a method to cross-examine expert witnesses. [2]
Hot-tubbing or Witness Conferencing, formerly known as ‘Concurrent Expert Evidence’ is an emerging mechanism of cross-examination in international arbitration. It is a technique that allows the two witnesses to face each other on the adverse/concurrent testimonies. For instance, usually in a common-law system, a witness gives its direct testimony and then is cross-examined by the opposite counsel. However, in witness-conferencing, two adverse witnesses (one from the claimant and other from the respondent) are cross-examined simultaneously.
This method finds its specific mention under the International Bar Association (IBA) Rules on Taking Evidence in International Arbitration, 2010 (IBA Rules).[3] They are a set of international principles that regulate evidentiary proceedings in international arbitration.[4] The IBA Rules are permissive in nature and allow flexibility persuaded by factors, including the goal of resolving disputes effectively and efficiently.
The author in this blog post has made an attempt to discuss about nuances of evidentiary proceedings in international arbitration from the context of UNCITRAL Arbitration Rules, IBA Rules, and Prague Rules. Further, the author has discussed about an emerging mechanism of cross-examination that is Hot-tubbing and its advantages and disadvantages in an arbitration proceeding.
- Cross-Examination in International Arbitration
The UNCITRAL Arbitration Rules allows parties to engage in the testimonies of the witnesses, including expert witness, if required. [5]The tribunal under its mandate can also allow oral testimonies of the witnesses; as well as the cross-examination, production of documents, and exhibits, as provided by the parties.
The witnesses are supposed to go through two kinds of examinations namely, Direct and Cross-examination. The party who brings the witness before the tribunal performs the direct testimony, and the opposite counsel performs the cross-examination respectively.[6] Cross-examination traditionally a part of the common-law system has gradually taken its place in international arbitration as a valuable tool in weighing and understanding the evidence of the witness. It intends to establish the unreliability of a particular witness or simply exposes a narrative unique to such a witness. However, due to the civility in the system of arbitration, the process of cross-examination rather than being aggressive requires a polite tone before the civil lawyers.
Under the IBA rules, testimony of an expert witness makes the whole process complex for the tribunal as well as for the parties. Under the direct testimony, an ordinary witness gives evidence that is strictly limited to the facts within his personal knowledge concerning the dispute at hand. This general rule doesn’t strictly apply to an expert witness who is called on questions on which expert evidence is admissible.[7] However, the complexities involved in the testimony of an expert witness appointed by the parties can be resolved through an instruction report submitted by the expert witness before appearing to give its testimony. Instructions are required on the part of an expert witness for the convenience of the parties and the tribunal as the subject an expert witness is dealing with is often technical and needs explanation.[8] Moreover, an expert report is required on the part of the tribunal-appointed arbitrators under Article 6(4) of the IBA rules. [9]
A new development has taken place with the introduction of Inquisitorial Rules of Taking Evidence in International Arbitration 2018 (Prague Rules) that focuses on the civility of the arbitration proceedings.[10]It talks about the proactive role of the tribunal in taking evidence or expert reports.[11] Moreover, the rules allow tribunal to request the parties to relevant evidences through a suo moto action.[12] Witnesses under the rules are divided into Facts and Expert witnesses. If a party wants to introduce a fact witness, it must explain the tribunal on how the witness would prove the circumstance relevant to the issue under Article 3.2(i).[13] The examination of the witness shall be conducted under the order and direction of the tribunal that will also be responsible for imposing other restrictions such as time-check or relevancy of a question. [14]
The conflict between the common-law and civil law system in terms of taking evidence in international arbitration has become apparent in the last few years. The preamble of the Prague rules does not intends to side-line the IBA rules, however, its hints towards the civil approach on taking evidence is apparent. The common-law system is adversarial and depends on a lot on documentary evidences, and that is why Prague rules are more cost-effective as it does not rely on the extensive use of documentary evidences, fact witnesses and party-appointed arbitrators.[15] Further, the tribunal under the Prague rules play a much more proactive role, and allows the tribunal to amicably settle the dispute with the consent of both the parties.
- Understanding Witness Conferencing as a tool for Cross-Examination
The technique of witness conferencing owes its origin to Australian Courts,[16] and Wolfgang Peter, the noted Swiss Arbitrator is credited for developing this technique in a systematic manner, fit for International Arbitration.[17] Witness conferencing helps the tribunal to understand the agreement between the witnesses, the areas of disagreement, and helps to gain contextual understanding of individual statements as the testimonies are concurrent and that makes it easier to point out the contradiction.[18] It finds its mention specifically under Article 8(3) (f) of the IBA Rules.[19]
Under the evidentiary proceedings, the tribunal may allow direct testimonies of the witnesses as requested by the tribunal or the parties. Subsequently, the opposition may question such witness in order as determined by the tribunal (cross-examination). Notably, the tribunal upon the request of the parties or taking a suo moto decision may vary the order of the proceedings including the arrangement of testimonies in such a manner that witnesses be questioned at the same time and in confrontation with each other. Thus in this manner, the tribunal may ask questions to the confronting witnesses. This is quite different from the current approach observed in international arbitration that requires the adoption of a uniform procedure on a case-by-case basis through party autonomy or tribunal decisions as mentioned above.[20]
In the International Chambers of Commerce (ICC) Commission Report on the “Controlling Time and Cost in Arbitration”, witness conferencing is observed as one of the methods of questioning an expert witness.[21] The role of an expert witness is to guide the tribunal in complex situations with his expert guidance on a particular subject or the issue at hand. An expert witness can either be a party-appointed arbitrator or can be appointed by the tribunal.
Certain steps need to be kept in mind while opting for witness conferencing, as the process and exercise of the witness conference allows parties to identify the issues and merits of their respective positions with the much greater clarity.[22] Before agreeing and opting for witness conferencing, the counsels should consider the strength of their expert witnesses, including their knowledge, tenacity and assertiveness.[23]
- The Advantages and Disadvantages of the Witness Conferencing
The effectiveness of the technique has to be analysed from the perspective of the tribunal, the parties, and the witness itself. From the perspective of the tribunal, the technique is aimed at reducing time and cost of the oral evidence, particularly in cases presenting a large number of discrete or technical issues. For instance, witness conferencing can be used particularly in Construction related matters for taking evidence of an expert witness.[24] These cases involve intricate issues, and may cost exorbitant to the parties if the testimonies of the expert witnesses are taken consecutively.
Further, it is a continuous process, and offers a wide comparison of evidence presented by both sides. The proponents of this technique feel that the unique procedure compels the witness to tell the truth as it offers the other witness the opportunity of immediate rebuttal, and hence doing away with the tensions associated with formal cross-examination.[25] However, it is too early to make such an assertion considering the lack of consensus over the technique by international arbitration institutions.
But opting for this technique means forgoing the traditional methods of cross-examination that most of the counsels are acquainted with. It is pertinent to note that at times the witness is hostile or simply unreliable and using this method could prove adverse for the parties. It may become difficult for the tribunal to notice when the witness gives perverse testimonies which challenges its credibility. The process of cross-examination gives a lot of leverage to the counsel to ask leading questions that are usually prohibited in direct testimonies. However, the counsel in witness conferencing might not get enough chance to ask variety of leading questions as the focus would be more on the expected rebuttal of the other side. Moreover, the immediate rebuttals it might be intimidating from a witness’s point of view.
- Conclusion
Witness conferencing has been used by countries like Australia, England and Wales, and Singapore usually in construction or patent related matters. This process is effective in case where the issues concerning the dispute are clear to the parties and the tribunal. The guidelines are considered as a welcoming step as it explains the procedural aspect of the technique including the standard directions for the tribunal. But the process can only be used when the dispute is about a technical issue.
The technique should be applied in a case where the parties are sure how much time they need to allot to a particular issue at hand so that they can adopt a time-checker method. Moreover, this technique could come handy for the inquisitorial system however, for the common-law system it might take years to forgo the traditional method of documentation, and production of witnesses that the system is heavily relied on. For now, a consensus would be required on its acceptance that would further help in developing more literature and jurisprudential grounds for the future usage of witness-conferencing by international arbitration institutions.
*Candidate for BA-LLB (Hons.) at National University of Study and Research in Law (NUSRL), Ranchi India.
[1] CIArb’s new Guidelines for Witness Conferencing in International Arbitration CIarb News (29 April, 2019)
https://www.ciarb.org/news/ciarb-s-new-guidelines-for-witness-conferencing-in-international-arbitration/ (06 May, 2020)
[2]No. 722/Rules/DHC (16 Oct.2018)
[3] International Bar Association (IBA) Rules on Taking Evidence in International Arbitration, 2010 ,
[4] Shaun Lee, ‘IBA Rules on Taking of Evidence in International Arbitration’ Singapore International Arbitration blog ( 18 July, 2012)
https://singaporeinternationalarbitration.com/2012/07/18/iba-rules-on-the-taking-of-evidence-in-international-arbitration/ ( 05 May, 2020)
[5] https://www.uncitral.org/pdf/english/texts/arbitration/arb-rules-revised/arb-rules-revised-2010-e.pdf
[6] UNCITRAL Arbitration Rules, Article2.
[7] United States v. Ship St.Albans [1931] A.C 632.
[8] IBA Rules, Article 5(2)(b)
[9] The Tribunal-Appointed Expert shall report in writing to the Arbitral Tribunal in an Expert Report.
[10] DRAFT INQUISITORIAL RULES OF TAKING EVIDENCE IN INTERNATIONAL ARBITRATION 2018 (PRAGUE RULES) accessed on (31 May, 2020).
[11] Article 2.5 of the Prague Rules: The Tribunal may also, if it deems appropriate, order the Parties to produce evidence (including making available fact witnesses) or expert reports.
[12] Prague Rules, Article 4.4.
[13] The Arbitral tribunal may request any of the Parties to produce relevant documentary evidence or make fact witnesses identified by the Arbitral Tribunal available for testimony during the hearing
[14] Prague Rules, Article 5.
[15] Vaneesa & Rebecca, The Prague Rules: is the happy partnership between the common law and civil law evidentiary tradition in arbitration really a fiction? Practical Law Arbitration Blog (8 Nov 2018)
[16] Seven Network Ltd v News Ltd [2007] FCA 1062, Para. 25 (Federal Court of Australia, 27 July 2007).
[17] Wolfgang Peter, “Witness ‘Conferencing’ ” 47 Arbitration International Vol 18, Issue 1 (2002).
[18] ICC Case No. 15416, Final Award, Para. 42 (2011).
[19] The Arbitral Tribunal, upon request of a Party or on its own motion, may vary this order of proceeding, including the arrangement of testimony by particular issues or in such a manner that witnesses be questioned at the same time and in confrontation with each other (witness conferencing);
[20] R.D KENT An Introduction to Cross Examining Witnesses in International Arbitration Transnational Dispute Management, Vol.3, Issue 2( April 2006).
[21]International Chambers of Commerce (ICC) Commission Report on Controlling Time and Cost in Arbitration, 2014: https://www.iccwbo.be/wp-content/uploads/2012/03/20151101-Controlling-Time-and-Costs-Report.pdf
[22] Supra note 2, page 56.
[23] Nemeth, Haidostan, “The hot tub method of taking expert testimony: what you need to know” (2014) Arbitration News.
[24] Expert Evidence in Construction Disputes, Norton Rose Fulbright (May 2019)
https://www.nortonrosefulbright.com/en-in/knowledge/publications/d849c955/expert-evidence-in-construction-disputes (14 June 2020).
[25]Hilmar Raeschke-Kessler, ‘the leading arbitrators’ guide to international arbitration’ 415 (2nd ed., Juris Publishing, 2008)