DOKAZOVANJE S PRIČAMI

Witness Evidence in International Arbitration

Perrine Duteil

The present article will address evidence by fact witnesses in international arbitration. Although witness evidence is not considered as the most reliable means of evidence in international arbitration, it may be a useful tool to supplement the documents on record and to assist the arbitral tribunal in identifying the key elements of a case.

The parties may take advantage of the great flexibility offered in the taking of evidence to adopt procedural rules on witness evidence tailored to their needs. Usually, detailed provisions on witness evidence will be contained in the specific procedural rules adopted by the arbitral tribunal, after consultation with the parties, at the beginning of the proceeding.

Generally, the procedure provides for the submission of written witness statements by the parties. The witnesses may then be called at an evidentiary hearing to confirm the content of their statement and to answer questions from the parties and the tribunal.

The preparation of witnesses by counsel is admitted in international arbitration, contrary to court proceedings in several countries. It is not improper for counsel in international arbitration to contact a witness prior to the hearing, to assist him in drafting his witness statements and to prepare him for the evidentiary hearing. However, counsel should remind the witness of his duty to tell the truth and never encourage the witness to give false evidence. Counsel should also ensure that a witness statement reflects the witness’s own account of the relevant facts.