Witness preparation in international arbitration: where to start and where to stop
- Jue Jun
There is now a broad consensus across the common and civil law divide that it is permissible in international arbitration for counsel to prepare a fact witness for the purpose of giving evidence to the arbitral tribunal. However, considerable differences still exist as to what constitutes permissible “witness preparation”, under arbitration laws and within ethical rules of different jurisdictions. This post considers a number of legal, ethical and practical considerations that might influence practitioners’ approaches to witness preparation in international arbitration.
Ethics: the English position Witness preparation is generally thought to involve different levels of witness contact; therefore, a distinction is made frequently between witness familiarisation and witness coaching (or witness training). Witness familiarisation is designed to demystify the practice and procedure of giving evidence for the witness. This may involve explaining the layout of the hearing room and the likely order of events, and, perhaps, a mock cross-examination based on a hypothetical set of facts. Witness coaching, on the other hand, involves a detailed review of the specific facts of the dispute in question and seeks to rehearse with the witness their answers to anticipated questions on cross-examination. For advocates practising in English courts, the law is clear. As stated by the Court of Appeal in R v Momodou [2005] EWCA Crim 177: “There is no place for witness training in this country, we do not do it. It is unlawful”. In particular, the Court of Appeal confirmed that, whilst witness familiarisation is permitted, training or coaching is not permitted: a witness must convey his or her own evidence uninfluenced by others. Despite it being a criminal case, it has been held that the rules laid down in Momodou in relation to witness preparation are equally applicable to civil litigation in England and Wales (Ultraframe (UK) Ltd v Fielding and others [2005] EWHC 1638). In line with the case law, the English Bar Standards Board’s code of conduct prohibits a barrister from rehearsing, practising or coaching a witness in relation to his or her evidence. Similarly, under the Solicitors Regulation Authority’s Code of Conduct, English solicitors are required to refrain from deceiving or knowingly misleading the court (or becoming complicit in others’ doing so). Given that neither of these rules contains express carve-outs in relation to arbitration, English lawyers clearly must comply with their professional obligations, irrespective of whether they are acting in international arbitration or domestic litigation. The boundaries in international arbitration Notably, unlike the clear stance under English law, the majority of the institutional arbitration rules provide little guidance in relation to witness preparation. The London Court of International Arbitration (LCIA) Rules are silent on the topic of witness preparation, save for Article 20.5, which allows witness interviewing subject to the mandatory provisions of any applicable law, and the Singapore International Arbitration Centre (SIAC) Rules contain similar wording. The International Centre for Dispute Resolution (ICDR), Stockholm Chamber of Commerce (SCC) and International Chamber of Commerce (ICC) Rules are all silent as to witness interviewing or preparation. Article 4(3) of the International Bar Association (IBA) Rules on the Taking of Evidence (which are