ReSolution Issue 12, Feb 2017 | Page 33

"...it is important for the parties to seek direction from the arbitral tribunal to clarify the position on permissible contact with witnesses."

frequently adopted in international arbitration) envisages some discussion with witnesses and potential witnesses in respect of their “prospective testimony”. Guideline 24 of the IBA Guidelines on Party Representation in International Arbitration seems to go one step further, allowing counsel to meet and interact with witnesses in order to “discuss and prepare their prospective testimony”.
Despite these provisions, it is still far from clear what witness preparation in international arbitration may involve. Given this lack of clear guidance, and in the absence of a supranational code of ethics for use in international arbitration, there is potential for lawyers from different jurisdictions to “play” by different rules. For example, whilst some Commonwealth jurisdictions (such as Australia and New Zealand) may have rules akin to the English position, with a prohibition on witness coaching, in jurisdictions such as the USA, witness coaching comprising mock cross-examinations and rehearsals is not only lawful and accepted, but common practice.
The danger is that these widely differing approaches to witness preparation could, in some cases, lead to an uneven playing field between the parties. Where this is the case, it is important for the parties to seek direction from the arbitral tribunal to clarify the position on permissible contact with witnesses. Whilst the tribunal is not able to direct counsel to go against their professional obligations, by addressing the issue at an early stage of the process, the tribunal can at least try to even up


the process by giving clear directions that take account of the background of the parties and their representatives. Adopting a pragmatic approach to witness preparation will allow the tribunal to consider the impact of the law of the seat (and any applicable laws), thus ensuring to the greatest extent possible the integrity of the arbitral process and the enforceability of the final award.
A fine balance
From a practical point of view, the process of witness preparation would ideally strike a balance between building the confidence of the witness so that he or she gives evidence in a compelling, convincing manner and, at the same time, preparing the witness for the rigours of the process. To this end, and given the fallibility of human memory, it is important to give the witness an opportunity to review (and if necessary, re-review) all the relevant materials before giving evidence. Depending on the experience of the witness, a role play exercise giving the witness some idea of the format of trial and the procedure of cross-examination may also be very helpful preparation for what might seem like a terrifying ordeal.