Introduction
For many people - even senior executives of large corporations - appearing as a witness, giving evidence and being cross-examined is a daunting prospect. Understandably, a witness will want to be familiar with the process and to provide their own accurate and genuine recollection of the relevant facts or events. Equally understandably, a witness will seek to rely on their legal counsel to assist them in preparing for this process. However, in some jurisdictions, excessive witness preparation may be seen as 'tainting' a witness's evidence such that it is distorted and no longer represents the witness's own genuine recollection. Here lies a tension: while legal counsel can and should assist a witness to prepare for the process of giving evidence, counsel must be careful not to cross the line and engage in improper witness preparation or conduct that may be perceived by the tribunal as diminishing the value or weight of witness testimony. This is an area where a nuanced approach by counsel can be fundamental to the effective presentation of witness testimony in support of a case.
There are certain areas of international arbitration law where a common international approach has emerged. A good example is the IBA Rules on the Taking of Evidence in International Arbitration (IBA Rules). The IBA Rules were introduced in 1999 to record international best practice for the taking of evidence, and have since gained broad acceptance across the international arbitration community. In other areas, however, no international consensus exists and significant differences remain between jurisdictions. The proper approach to witness preparation falls into this latter category.
In a recent ICC Commission Report on The Accuracy of Fact Witness Memory in International Arbitration, it was observed that, '[t]o date, in the international arbitration context, there is limited guidance on the steps which may be taken by party counsel to "prepare" a witness, and there are no applicable general standards'.1 Indeed, the IBA Rules state only that '[i]t shall not be improper for a Party, its officers, employees or legal advisors or other representatives to interview its witnesses or potential witnesses and to discuss their prospective testimony with them'.2 The IBA Rules do not identify the types of conduct or circumstances that might amount to improper witness preparation.
The lack of general standards applicable to witness preparation means it is critical that parties receive practical advice from their legal counsel on the topic. Given the multi-jurisdictional character of international arbitration, such advice is likely to require nuanced analysis that accounts appropriately for the various jurisdictions implicated. Due consideration should be given not only to applicable ethical standards, but also to the tribunal's expectations regarding the process of taking of evidence. A practitioner's or arbitrator's jurisdictional background and place(s) of qualification will be of particular importance.
Before providing some practical guidance to conducting witness preparation, this article surveys the approach taken in a number of common law jurisdictions - England and Wales, Singapore, Australia and the United States. As will be seen, there are significant differences between these common law jurisdictions. This article does not seek to cover the various other differences that exist in the approaches taken in civil law countries. For example, in Germany, aside from ethical proscriptions against encouraging false testimony or crafting the substance of a witness's testimony, there are no formal rules governing witness preparation3 Nonetheless, a German court may well attribute little or no weight to the evidence given by a heavily prepared witness.
At the outset, it is important to note that in each of the jurisdictions surveyed, the treatment of witness preparation in the arbitration-specific context is limited. As a result, this article looks primarily to the state of the case law and other relevant rules and regulations.
England and Wales
In England and Wales, a conservative approach has traditionally been taken to witness preparation. The fundamental rule is that a witness should provide their own honest and independent recollection of the events at issue, and that their recollection should be uninfluenced by what anyone else has said or done.4
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Footnotes
1 ICC Commission Report, "The Accuracy of Fact Witness Memory in International Arbitration" (2021), at para. 5.3.5.
2 IBA, Guidelines on the Taking of Evidence in International Arbitration (2020), Article 4(3).
3 The authors thank their colleague, Svenja Wachtel, for her input on the position in Germany.
4 See Ultraframe (UK) Ltd v Fielding [2005] EWHC 1638 (Ch), at para. 25 ('[T]he principle that a witness's evidence should be his honest and independent recollection, expressed in his own words is at the heart of civil litigation'.); R v Momodou [2005] EWCA Crim 177, at para. 61 ('The witness should give his or her own evidence, so far as practicable uninfluenced by what anyone else has said, whether in formal discussions or informal conversations'.).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
