Witness statements are the standard method by which the direct testimony of witnesses is submitted in evidence in international arbitration proceedings. Typically, they are submitted in writing some months before any hearings and, in most cases, little time is spent at hearings on the examination-in-chief of a witness—typically a 10 to 15 minute “warm up.” The bulk of hearing time is spent on cross-examination. In a previous article in this column, I offered some practice pointers for conducting cross-examination in international arbitration proceedings. (“Cross-Examination in International Arbitration,” NYLJ, Aug. 7, 2015). Here, I do the same for the preparation of witness statements.
My focus is not on the formal content of a witness statement. For that I refer the reader to Article 4.5 of the IBA Rules on the Taking of Evidence in International Arbitration. Rather, I want to focus on how to avoid submitting a witness statement that is a time-bomb—a statement that apparently strongly supports your client’s case at the time it is submitted, but that, months later at the hearings, blows up in the witness’s face the minute she is cross-examined about it.
