Fairness & Impartiality:

Are Witnesses Truly Independent in Your Jurisdiction?

Global commerce is by its nature a complex beast and it is inevitable that sometimes disputes arise between companies doing business across the world.

As more international deals are signed off – often in greater degrees of complexity than will have been done in the past – it has also led to a rise in the number of disputes that end in arbitration.

Indeed, international arbitration was the preferred method of dispute resolution for 97% of respondents in the 2018 International Arbitration Survey, conducted by the School of International Arbitration at Queen Mary University of London, in association with White & Case LLP.

Moreover, 99% of respondents said they would recommend international arbitration to resolve cross-border disputes in the future – which shows the strength of the system across the world.

An important aspect of the arbitration process is the use of the expert witnesses. There are few cases where an expert witness is not called on to give evidence on a range of technical, financial, legal and, on occasion, scientific issues to help the arbitration tribunal to understand evidence on complex matters and help them form a decision.

Those involved in disputes must be aware of how expert – and also fact – witnesses are used in different jurisdictions, as this can vary markedly between territories.

The independence of witnesses is a subject that crops up repeatedly – especially around who they serve, their effectiveness and how they are viewed by judges in arbitration tribunal panels.

Another factor that must be considered is the differing rules between jurisdictions and the impact that can have on proceedings. Many jurisdictions have their own arbitration rules, and there are also the international ICC and IBA rules to consider, among others. Often, the litigant will try to steer proceedings to use their home rules – and if they are unfamiliar to the other party, they will need to engage experts in the local laws.

The following discussion took place between IR Global members from seven countries who are experts in arbitration. Their wide-ranging discussion addresses several topics including the importance of crosscultural issues regarding arbitration rules and witnesses in their jurisdiction and how important IBA rules are in terms of rules in their jurisdiction and internationally. Their responses demonstrate the differences that exist across the world.