Canada: CIArb Issues Guidelines On Witness Conferencing

The Chartered Institute of Arbitrators (the "CIArb") recently released Guidelines for Witness Conferencing in International Arbitration (the "Guidelines") on April 23, 2019 at a regional conference in Singapore. The Guidelines were introduced for the purpose of providing direction to tribunals and parties involved in arbitration proceedings. They articulate a list of issues in order to determine whether a witness conference is appropriate, and if so, the directions to follow according to the circumstances of each particular case. 

Witness Conferencing

Witness conferencing is a process whereby evidence is gathered when two or more witnesses present their evidence concurrently before a tribunal. When multiple areas of evidence are of concern or there are a large number of witnesses, it must be considered whether more than one witness conference would be appropriate under the circumstances. The process of a conference may include factual witnesses, expert witnesses, or both, and may be conducted by the tribunal, the witnesses, the parties' counsel, or a combination of the three.

The Guidelines for Witness Conferencing in International Arbitration

The Guidelines are made up of a non-exhaustive Checklist, Standard Directions, and Specific Directions.

(a) The Checklist is a list of practical considerations addressing two main questions: (1) whether witness conferencing is an appropriate means of taking evidence in the case at hand; and (2) if witness conferencing is appropriate, what form the witness conference should take. The Checklist incorporates considerations concerning the matters at issue, the witnesses, pre-hearing matters, and logistical concerns.

(b) The Standard Directions may be adopted as part of an initial procedural order from a tribunal regarding the conduct of the arbitration proceeding. These directions stipulate the general principles to be followed in the procedure of the witness conference. For example, witnesses giving evidence concurrently on the same issue(s) must jointly prepare a schedule that summarizes the areas of agreement and disagreement and each witness' views in those areas.

(c) The Specific Directions outline procedural steps for a witness conference once it has been agreed upon or ordered by the tribunal. These directions are contained in three separate frameworks, depending on whether the conference is to be a tribunal-led conference, a witness-led conference, or a counsel-led conference. For example, in a tribunal-led conference, solely the tribunal determines the length and order of witnesses' presentations, while in a counsel-led conference, they are determined by the tribunal in consultation with parties. However, in a witness-led conference, the order and length of presentations are determined solely by the witnesses and only by the tribunal if there is any disagreement. The Guidelines contain Explanatory Notes which offer detailed commentary on the Checklist, Standard Directions, and Specific Directions. The Explanatory Notes also state that procedural matters will ultimately be decided by the tribunal, subject to any agreements made between the involved parties and any applicable provisions of mandatory law.

The Guidelines can be found at https://www.ciarb.org/media/4595/guideline-13-witness-conferencing-april-2019pdf.pdf.

The use of witness conferencing can be an effective means of receiving evidence. Witnesses in conference can challenge other witnesses' divergent opinions on the issue at hand. Additionally, the quality of evidence can be improved as expert witnesses are often unwilling to make incorrect assertions when another expert is there to contradict them. However, the suitability of witness conferencing may be affected by the relationship of the witnesses; for example, differing levels of experience, different cultural backgrounds, or a prior personal or professional relationship between the witnesses will affect if concurrent evidence can be given.

Conclusion

The Guidelines for Witness Conferencing will be useful for those with limited experience in the process of witness conferencing and provide guidance to tribunals, parties and experts alike. In devising the Guidelines, the CIArb aimed "to craft a flexible and non-prescriptive document that would assist tribunals and parties to prepare for and conduct conferences in a wide variety of cases." The considerations set out in the Checklist, Standard Directions, and Specific Directions will allow the tribunal and relevant parties to the arbitration proceedings to decide whether witness conferencing is well-suited to their case and provide a range of approaches that can be tailored to their dispute throughout the process.

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