Memorials and witness statements: The need for reform1

Professor Doug Jones AO

International commercial and investor-state arbitrator and International Judge of the Singapore
International Commercial Court: www.dougjones.info.

Robert Turnbull2

Associate, Slaughter and May (London). From May 2022, Barrister, 8 Wentworth Chambers,
Sydney. Admitted to practise as a lawyer in England and Wales, and Australia. BA, LLB Hons I
(Syd), MCL Hons I (Cantab).

Introduction

Witness statements are a core feature of international commercial arbitral practice. They
are not going away any time soon. Over the last few decades, witness statements have
moved from a place on the periphery of international arbitral practice – principally used
by common law practitioners informed by their own domestic court procedure – to
become an indispensable arrow in the quiver of documents used by parties and their
legal representatives to win their cases. Or are they indispensable? More recent
practice suggests that, in their current form, they might not be. Witness statements have
been transmogrified from a short and curt recitation of a factual witness’ memory of the
events the subject of an arbitration, into a vehicle for the making of legal submissions,
commenting on documents (even documents the witness had never seen before the
arbitral proceedings commenced) and speculating on all manner of things, including the
conduct of other parties.

In order to promote arbitral efficiency, reduce costs, and enable the tribunal and parties
to focus on the real issues in dispute, this trend needs to be addressed. Witness
statements should return to something closer to their original purpose, namely giving the
tribunal an account of what the particular witness heard, saw or thought at the time of
the events the subject of the arbitration. In this effort, international arbitration
practitioners have something to learn from commercial litigation, in particular reforms to

1 The authors thank Christina Han and Sara Pacey for their helpful assistance in the preparation of this paper, as well as

those practitioners who commented on earlier drafts.

2 In 2014 Mr Turnbull served as Tribunal Secretary to Professor Jones. Views expressed in this article are personal to

the authors, and, in Mr Turnbull’s case, do not reflect those of his employer.

]
witness statement procedure recently introduced in the Business and Property Courts of
England and Wales.3 Those reforms seek to streamline the content and purpose of
witness statements, so that they give the judge what is needed – no more and no less –
to decide the factual issues in dispute. While we do not propose that everything being
done in England be adopted as part of international arbitral practice, we propose some
measured changes which are aimed at increasing arbitral efficiency, reducing costs, and
allowing everyone involved to focus on the real factual issues in dispute. These are set
out in a proposed procedural order appearing as an Appendix to this paper.

In parallel, we propose that changes to the practice of preparing witness statements

occur in the wider context of a broader move towards the memorial approach to the
presentation of cases. By taking reformed witness statements and a greater adoption of
memorials hand in hand, arbitration practitioners can save their clients costs, spend less
time preparing cases, and present their cases more convincingly to tribunals.

What is a witness statement?

The question, “What is a witness statement?” might be considered normative. Indeed,

the arguments contained in this article might be cited as proof that there is no fixed
content to the definition of ‘witness statement’. Nevertheless, for the purposes of this
paper it is useful to venture a definition.

Before doing so, it is necessary to define a ‘witness’. A witness is a person who gives
evidence to an arbitral tribunal to assist the tribunal in finding facts necessary to render
an award to dispose of the controversy before it. Conceivably, any person may be a
witness, 4 although witnesses are usually drawn from employees or directors of the
parties. Typically, a distinction is drawn between witnesses of fact and expert witnesses.
In the common law tradition, this distinction depends on the rule against opinion
evidence, namely that evidence of an opinion is not admissible, unless it is given by
someone qualified by experience or training to give that opinion.5 Such a person is
referred to as an expert witness. Lay witnesses, on the other hand, classically give
evidence about what they have perceived, whether by sight, hearing, or touch. A lay

3 Civil Procedure Rules 1998 (Eng), Practice Direction 57AC.

4 IBA Rules on the Taking of Evidence in International Arbitration (2020), article 4(2).

5 E.g. Civil Evidence Act 1972 (UK), section 3; Evidence Act 1995 (NSW), sections 76(1), 79.

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witness’ evidence may go beyond this, to describe events or circumstances based on
what they have been told by others. For example, a chief financial officer might give
evidence about the pattern of share ownership of a company, based on information
provided to her by the company’s registrar (which may be a third party). The balance of
this article is concerned with lay witnesses (hereinafter, “witness”).

A witness statement is the document through which a witness gives his or her evidence-
in-chief about the factual issues in dispute in an arbitration. The witness statement
should include some promise (whether an oath or similar) by the witness that the
evidence is true. Depending on the procedure adopted in an arbitration, the party which
did not call the witness may cross-examine the witness. That cross-examination need
not be confined to the matters set out in the witness statement; other issues in the
arbitration which are not addressed in the witness statement may be the subject of
questions to the witness during cross-examination. If cross-examination occurs, the
party calling the witness may re-examine the witness.

However, in some cases, cross-examination will not occur, and the whole evidence of
that witness will be contained in the witness statement together with any responsive
witness statement – no more and no less.

Origins of witness statements

It used to be the case that a witness in international arbitration would give evidence orally.
Initially the party calling the witness would conduct examination-in-chief, followed by
cross-examination and then re-examination. In those cases, witness statements had no
role to play.

This followed litigation practice. To take a domestic example, the default position in
England before 1995 was that that a witness of fact would give all of his or her evidence
orally at trial.6 The same presumption applied in New South Wales before 2001.7 In
1992 in England, witness outlines had to be exchanged before trial, and were to contain
a precis of the oral evidence which a witness would give during evidence-in-chief. In

6 Rules of the Supreme Court 1965 (Eng), Order 38, rule 1.

7 Supreme Court Rules 1970 (NSW), Part 36, rule 2.

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1995, it became mandatory to exchange witness statements before trial, and they stood

as the witness’ only evidence-in-chief.8

However, that was only if witness evidence was permitted at all. There had been a
general reluctance – particularly on the part of civilian practitioners – to allow witness
evidence in international arbitration, on the basis that the contemporaneous
documentary record provided much better evidence of what occurred than any witness
testimony (whether oral or written), and so an arbitral tribunal ought to base its award on
the documentary record as much as possible.9 On this basis, some international arbitral

practice tended to exclude witness evidence altogether.10

This general reluctance no doubt had its origins in civilian domestic court practice. While
recognising the dangers of generalisation, in contradistinction to the common law
tradition’s preference for oral evidence going back to the 12th century, 11 the civilian
approach has been to decide commercial disputes based on the documents available to
the parties and presented to the court, with very little, if any, witness evidence (whether
oral or written). This was attended by considerable doubt about the value of evidence
from witnesses who were employees of a party to a dispute.

Witness statements in arbitration today

Whatever the origins of those varying approaches, arbitral practice long ago became
unmoored from the practice of domestic court litigation, and has developed a procedure
of its own, albeit one which varies from case to case, and can change depending on the
rules adopted, the institution (if any) administering the arbitration, the agreement of the
parties, the arbitrators, and local law, amongst other matters.

As part of the development of a lingua franca of international arbitral procedure, witness

evidence and therefore witness statements have become the norm in commercial
arbitration. It is a rare case whether neither makes an appearance. The use of witness

8 Practice Direction (Civil Litigation: Case Management) [1995] 1 WLR 262, [3]; Rules of the Supreme Court 1965 (Eng),

Order 38, rules 2A(2) and 2A(7).

9 UNCITRAL, 9th session, Committee of the Whole (II), 9th Meeting, 16 April 1976 (A/CN.9/9/C.2/SR.9).

10 Pietrowski, “Evidence in International Arbitration” (2006) 22 Arbitration International 373, 394.

11 Traceable to the Assize of Clarendon (1166).

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statements is well recognised in both arbitral rules,12 and the soft-law guidelines which

inform much of international arbitration practice.13

Witness statements: Benefits

If witness evidence is to be used at all, then witness statements are intended to serve a
number of important purposes which seek to achieve arbitral efficiency and reduce
delays and costs.

First, they are intended to reduce the length of a hearing by avoiding oral
examination-in-chief.14 This can be particularly time-consuming because evidence-in-
chief is generally led by non-leading (i.e. open) questions. Witness statements reduce
costs for the parties by shortening the amount of time spent at a hearing. It assists the
tribunal in preparing the award, by setting out the evidence-in-chief in a coherent
narrative, rather than having to rely on a transcript which may contain questioning, the
structure and content of which is not always easy to follow. It also avoids debate, and
objection, about leading questions in examination-in-chief.

Secondly, it gives the parties fair and advance notice of the evidence which the other
side intends to rely on at the hearing, and in making its submissions to the tribunal. This
often means that the written submissions in memorials, or made immediately before the
hearing commences (often called ‘opening submissions’), can take account of that
evidence, which means that the parties’ arguments are more focussed, and useful for

the tribunal in preparing for the hearing.15

Thirdly, witness statements give the principal actors from the parties a means by which
they can set out – in their own words – their view of the story to date and the matters
which are the subject of the dispute.

12 E.g. International Chamber of Commerce Rules of Arbitration 2021, article 25(5); London Court of International

Arbitration Arbitration Rules 2020, article 20.3; UNCITRAL Arbitration Rules 2013, article 27(2), Singapore International
Arbitration Centre Rules 2016, article 25.4.

13 IBA Rules on the Taking of Evidence in International Arbitration (2020), article 4(2).

14 Angoura, “Written Witness Statements in International Commercial Arbitration” [2017] International Arbitration Law

Review 106, 107.

15 Born, International Commercial Arbitration (3rd edn, 2020), 2425 §15.08[X].

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Fourthly, it may encourage settlement of the dispute before the hearing, because the
parties will have a better understanding of the evidence to be deployed against them.
This can happen in at least two ways. The legal representatives will assess the witness
statements to determine the effect they have on their respective prospects of success,
and advise their clients accordingly. From the parties’ point of view, it gives the principal
actors an insight (which perhaps they did not have before) into how their opponents view
the case and their drivers in carrying on the dispute. Those fresh perspectives – legal
and personal – may incline the parties towards a settlement which might not otherwise
have been possible. We do not wish to overstate the ability of witness statements to
achieve a settlement where one could not be reached before; but it remains the case
that there are at least some cases where they will achieve this end.

Fifthly, they allow cross-examination to be more focussed because the cross-examiner

can prepare more specifically, knowing in advance what the evidence-in-chief will be,
thereby being able to focus on the key points for questioning. This means that the real
issues necessary for the client to prove are the subject of cross-examination.16

Witness statements: Drawbacks

While witness statements seek to serve these important objectives, they have taken on
some features which make them less useful than they ought to be for the witness, the
parties, counsel and the tribunal. In setting out these lamentable features, it should be
noted that this article does not engage with the issue of the reliability, or otherwise, of
human memory and the relative utility of witness evidence more generally from that
perspective, which has been covered elsewhere.17 Nor does it engage with the issue
of witness preparation or proofing, which occurs at varying degrees of intensity and
intervention, usually depending on the legal tradition from which the lawyers hail. The
extent to which witnesses should be prepared or coached to give evidence is beyond the
scope of this paper, but is an important topic in its own right.18

16 Landau QC, “Tainted Memories: Exposing the Fallacy of Witness Evidence in International Arbitration”, Kaplan Lecture,

17 November 2010, 7.

17 Landau, 13-24; International Chamber of Commerce Commission on Arbitration and ADR, The Accuracy of Fact

Witness Memory in International Arbitration (2020). For recent judicial consideration of this issue, see Mattingley v
Bugeja [2021] EWHC 3353 (Ch) at [25] ff.

18 See Landau, 9-12.

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In the hands of counsel, witness statements have been transmogrified from a written
account of the evidence which a witness would give in his or her own words under oral
questioning before a tribunal, to an unhappy amalgam of legal submission, documentary
commentary and quotation, and speculation, with some direct experiential evidence
included (but not always). 19 A prototypical witness statement in a contemporary
international arbitration bears little resemblance to what a witness would actually say
before the tribunal if giving evidence, despite this being their intended (and sole)
purpose. 20 In this form, witness statements are vehicles for lawyers to make legal
submissions even though they have ample opportunity to do that through: (i) pleadings,
(ii) written submissions, and (iii) oral argument before the tribunal.21

The problems with this transmogrification are several fold.

First, and most problematically, witness statements cease to bear much resemblance to
the witness’ own words. They have become a creature of lawyers’ minds, as they try to
craft the evidence to fit the case they seek to advance for their clients, rather than
providing the tribunal with facts they can use to resolve the dispute.22

This has the consequence that witness statements become less useful because the
tribunal places less weight on them, knowing they are heavily crafted by lawyers, rather
than representing the witness’ own evidence in their own words. So, a great deal of effort,
time and expense is devoted to creating documents which ultimately are of diminished
utility to the tribunal and the parties. Indeed, in this form, witness statement may actively
harm the party’s case because so little weight is placed on them that ultimately the party
has little, if any, witness evidence of substance telling the party’s story before the tribunal.

Secondly, the propensity to quote from, and comment upon, contemporaneous

documents does very little to advance a party’s case. Documents generally speak for
themselves, such that witness commentary on them is unlikely to assist the tribunal in

19 For similar criticism, see Mansion Place Limited v Fox Industrial Services Limited [2021] EWHC 2747 (TCC), [37].

20 Veeder, “Introduction” in Levy & Veeder (eds) Arbitration and Oral Evidence (2004), 7-9; Sanders, Quo Vadis

Arbitration? (1999), 262; Landau QC, 5.

21 Hirsch and Reece, “Witnesses in International Arbitration” (2017) 4 International Business Law Journal 315, 324;

Hunter, “The procedural powers of arbitrators under the English 1996 Act” (1997) 13 Arbitration International 345, 353.

22 HM Courts and Tribunals Service, Factual Witness Evidence in Trials before the Business & Property Courts:

Implementation Report of the Witness Evidence Working Group (July 2020), [10].

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understanding what the documents say. The tribunal can, as well as any witness or
lawyer, read and interpret the contemporaneous documents. Doubtless, a party’s legal
representatives can be expected to be able to advance the interpretation of a document
most favourable to that party via oral and written submissions. It is not common, but is
sometimes the case, that a witness’ commentary on those documents – whether in the
words of the lawyer or of the witness – is going to lend further weight to the party’s
preferred interpretation of a document.

Thirdly, the difficulties outlined above are compounded when a witness comments on a
document which they saw for the first time when it was shown to them in preparing their
witnesses statement, some months or years after the arbitration commenced, and
certainly well after the date the document came into existence. The commentary of a
witness on an email which they never received, or a document which they did not see
before the dispute arose, is unlikely to have any probative value – let alone relevance –
in helping the tribunal or the parties understand what the document means or in resolving
any dispute about the effect of the document.23

Fourthly, witness statements have become another vehicle for legal submission. 24
Arbitral procedure contains existing, and sufficient, opportunities for legal
representatives to advance legal submissions. Depending on the procedure adopted,
these include pleadings, opening written submissions, oral submissions at the beginning,
during and at the end of a hearing, and post-hearing written submissions. It is hardly
necessary to make those same submissions by putting words into a lay witness’
mouth,25 thereby showing the tribunal that the witness clearly did not prepare their own
statement, introducing unnecessary wasted time and costs, and, most importantly,
diminishing the value and credibility of the witness’ evidence overall.

These deficiencies – largely the fault of lawyers – have not only rendered the witness
statement a document of limited utility in deciding international commercial disputes.
They have actively hampered the arbitral process, and inhibited the efficient disposition
of cases submitted to tribunals. That is because they are another document which needs
to be drafted, read and digested by lawyers on all sides, and responses prepared, with

23 See JD Wetherspoon plc v Harris [2013] 1 WLR 3296, 3304 [39].

24 Hunter “The Procedural Powers of Arbitrators under the English 1996 Act” (1997) 13 Arbitration International 345, 353.

25 See JD Wetherspoon plc v Harris [2013] 1 WLR 3296, 3304 [39].

8
all of it to be considered by the tribunal. The tribunal then has to spend time assessing
the witness’ evidence, and dealing with it in the award. All of this introduces significant
and unnecessary wastage of time and cost, making the arbitral process slower and more
expensive than it needs to be.

But there is another way. Witness statements can be prepared so that they serve, rather
than hinder, the resolution of arbitral disputes.

Proper purposes of witness statements

In contrast to what they have become, witness statements should return to their roots,
namely as the evidence-in-chief a witness would give, in the witness’ own words. With
this in mind, we suggest that witness statements have four principal purposes in
international arbitration.

First, a witness statement should be an account of the witness’ recollection of events, as

the witness remembers them. As much as possible, they should be written in the witness’
own words, acknowledging that lawyers will assist in the preparation of the statement.

Second, as a whole, the witness statements should fill the gaps in the factual evidence
left by the documents. In modern disputes, much of the evidence will be documentary,
and that documentary evidence will cover a significant number of the facts in dispute.
This itself can become a burden, because of the volume of documentary evidence. But
it is often the case that the facts in issue will need to be the subject of witness evidence.
That may be because additional commentary is required, to supplement what a
document says because the document does not convey the whole story. It may be
because there is no document addressing a particular issue, so witness evidence is
needed to resolve that issue. It may be because part of the case revolves around a
conversation which was not the subject of documentary record. It may be because an
issue in dispute is a person’s state of mind or understanding of certain subject matter.
For example, in a claim alleging loss based on a misrepresentation, the way in which a
representation was understood by the representee may be relevant to determine whether
the representation conveyed the meaning alleged, and whether that representation was
misleading or not. That will often require the witness evidence of both the representor
and representee to resolve the issue in dispute, along with other relevant evidence. In
short, witness statements should contain what a witness perceived, no more, no less.

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Third, a witness statement can be a useful vehicle for a party to tell their side of the story.
A party will often choose a relatively senior employee or director to give an account to
the tribunal of how that party sees the circumstances which are the subject matter of the
dispute, and what went wrong to cause the parties to be in an arbitration. This will help
set the scene for the tribunal, and understand why the parties think they have ended up
in a dispute. This purpose should not, however, be taken too far. A witness statement
of this type should not become a vehicle to repeat legal submissions, or craft the story in
the way the lawyers think it would be best presented. Rather, as much as possible, it
should represent the witness’ own words so that the witness can explain – on behalf of
the party – their view of the factual background and the resulting dispute.

Fourth, witness statements from lay witnesses can provide an important foundation for
expert witnesses to form their opinions and prepare their reports. Without an
understanding of the factual background as understood by each party’s witnesses, the
experts can experience difficulty in providing an opinion which actually assists the
tribunal to resolve a dispute. Without the factual foundations, their opinions may be so
general or unspecific as to be unhelpful. Say there is a dispute as to whether the sum
to refurbish an office amounts to a contingent liability. The dispute turns on when the
liability will need to be incurred. The tenant might say that, in its long experience of
renting offices for its business, offices need to be refurbished every five years. The
landlord might say that, in its long experience of owning and leasing offices, a
refurbishment is indeed needed every five years, but that in this particular case, because
the previous refurbishment was done to such a high standard, and with additional cost
being incurred, it will last for eight years without a refurbishment. An accountancy expert
asked to opine on whether there is a contingent liability for refurbishment will need to
know, inter alia, the timeframe for refurbishment. Without that knowledge, any opinion
the accountant gives risks being so general as to be meaningless, whereas if he is aware
of the competing timelines put forward by the parties’ lay witnesses, he will have a surer
grounding on which to provide an opinion.

We suggest that those are the four principal purposes of witness statements. Now we
return to the practical steps needed to achieve them.

Proposed changes – memorial approach

The vices which afflict the modern witness statement cannot be addressed by reforming
this document on its own. A wider approach to procedure needs to be embraced. The

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problems identified with witness statements above are: (i) over-lawyering, (ii) extensive
commentary and quotation from documents, (iii) legal submissions, and (iv) speculation.
These problems can be addressed by adopting a memorial approach, rather than the
more traditional common law pleading approach.

Broadly, there are two principal approaches to the preparation of material for a final
hearing in international arbitration: the memorial approach and the pleading approach.26
These are not so much polar opposites as points on a spectrum. The flexibility of
international arbitration allows the tribunal and parties to craft a procedure somewhere
along the spectrum which best serves to resolve the specific dispute between them
efficiently and justly. Whether that flexibility is suitably employed, or employed at all, is
another challenge.

Stated generally, the memorial approach arises from the civil law tradition where all
documentary evidence, witness evidence and legal submissions are presented to the
tribunal and opponents in one submission. The pleading approach derives from the
common law tradition 27 where the parties set out their factual position in written
pleadings, followed sequentially by discovery/disclosure, witness statements, expert
reports (if any), and finally written opening submissions or skeleton arguments before
the oral hearing.

This article does not seek to debate the merits and demerits of either a pleading or a
memorial approach; that debate has been addressed elsewhere.28 However we do
contend that a memorial approach will often assist parties in achieving efficiency in the
presentation of their cases and will assist the arbitral tribunal in reviewing the
documentary record in preparation for a hearing, as compared with the pleadings

26 Born, 2422, §15.08 [V].

27 At least since 1875, when the Judicature Acts 1873-1875 abolished the forms of action in England, and introduced

factual pleadings: Supreme Court of Judicature Act 1873 (36 & 37 Vict, c. 66) and Supreme Court of Judicature Act
1875 (38 & 39 Vict, c. 77).

28 Shah and Stewart-Ornstein, “Memorials v pleadings: How to pick the winning approach for arbitration” (2019) Practical

Law Arbitration Blog; Bedey, “Pleadings v Memorials – what’s the difference” (2014) Lexis Nexis Dispute Resolution
Blog; ACICA Practice & Procedures Board, ACICA Explanatory Note: Memorials or Pleadings?, Australian Centre for
International Commercial Arbitration (2020).

11
approach.29 Consequently a memorial approach will make witness statements more
useful to the tribunal.

We would suggest that tribunals and parties adopt an approach closer to a memorial
approach where the parties are required to exchange simultaneously, or sequentially,
memorials containing: lay witness statements; documents on which they rely; and any
legal submissions. Those legal submissions may come close to a common law pleading
in that they will set out the factual and legal matters that the party alleges in the dispute
but go further by advancing legal argument by reference to cases and other legal
authorities and the facts as drawn from the documents and witness statements. This
should be followed by the exchanges of responsive memorials, containing the same
types of documents. Whether it is necessary to have a further reply round of memorials
will largely be governed by the nature of the dispute, however such a third round can
often be avoided.

It is also helpful to include in a memorial a chronology (which can be cross-referenced

to contemporaneous documents) and a dramatis personae. Ideally, the parties should
co-operate to produce a consolidated single version of each of these documents,
pointing out, if necessary, where there are any points of divergence between them. If
these documents are kept purely factual – and not seen as yet another vehicle for the
parties to argue their respective cases – they can assist the tribunal and parties to
understand the factual matrix of the dispute.

It is possible to incorporate at some point in this process a procedure for document

disclosure where the parties identify documents relevant to the dispute (whether helpful
or adverse to their case) and disclose those to the other parties. Documents which are
disclosed need not necessarily form part of a memorial or the documentary record which
goes before the tribunal; it will be up to the parties to deploy disclosed documents in
support of their case.

The obvious omission from the memorials is expert evidence. Given that the factual
substrata need to be broadly stated before experts are able to give an opinion to assist
the tribunal in resolving the dispute, we suggest that in most cases expert evidence be

29 Cavan and Caplan, The UNCITRAL Arbitration Rules: A Commentary (2nd edition, 2013), 494.

12
deferred until after at least the first exchange of memorials so that the experts know the
factual matters in issue and are able to provide an opinion which assists the tribunal.

The principal advantage of a memorial approach is that each of the witness statements
and the legal submissions can make cross-references to the contemporaneous
documents on which the parties rely. In this way it is possible to avoid witnesses quoting
from the contemporaneous documentary record, thereby allowing the tribunal to review
the relevant documents in the round, rather than on a selective basis as chosen by the
witnesses (or the parties’ lawyers). Modern software allowing hyperlinking between
electronic documents, and indeed, individual paragraphs or sections of documents, has
made such a cross-referencing exercise much easier (and more useful) than it formerly
was. It also makes it easier for the parties and the tribunal to navigate around the
documents by clicking through the hyperlinks.

If our proposal of the memorial approach is adopted, it will avoid the problem of witness
statements containing extensive quotation from, and commentary on, the
contemporaneous document records. Such commentary can be made in the legal
submissions which the parties submit at the same time as the witness statements. It will
also cause the parties to deprecate the approach of repeating their legal submissions in
the witness statements because both documents will be submitted to the tribunal and to
the other side at the same time.

A memorial approach also has the advantage of forcing the parties to focus on their case
at an early stage and the issues which are in dispute. The risk with a pleading approach
is that the parties advance factual cases, without having carried out a thorough review
of the documents or obtaining proofs of evidence from witnesses. Therefore, the case
as stated in the pleadings risks being modified to suit the contemporaneous documents
once reviewed, or the witness statements, once prepared. It will also force the parties
to make their case based on their own contemporaneous documents they hold, rather
than holding out hope that their case can be advanced through the disclosure of
documents held by the other side.

One potential downside of a memorial approach is the possibility that a witness

statement will engage with matters of fact which are not contested. With a memorial
approach, the factual issues in dispute are not clear until the respondent files its first
memorial. Therefore, the claimant’s witnesses are at risk of preparing long statements
to support allegations made in the legal submissions, only to find that some of those

13
allegations are accepted by the respondent, rendering the claimant’s witness statements
unnecessarily long. In our view, that risk is tempered by the fact that if our proposals for
the reform of witness statements are adopted, the claimant will rely on the
contemporaneous documents to prove factual issues, rather than through witness
statements.

A proposed solution

Drawing on some of the reforms implemented in the Business and Property Courts in
England, we propose that limits and guidelines be imposed on the preparation of witness
statements. Not all of the English proposals should be adopted; some are cumbersome,
and of themselves introduce unnecessary cost and time in the preparation of witness
evidence. It is not, however, the purpose of this note to critique the approach the judiciary
has taken in England and Wales towards the laudable objective of confining witness
statements to their proper purpose. Rather, in line with the English changes, we propose
the following principles be applied in the preparation of witness statements, and be
reflected in procedural orders:

(i) subject to providing background context, the witness statement must only
contain matters relevant to the issues in dispute of which the witness has
personal knowledge;

(ii) the witness statement must not contain any supposition, speculation,
conjecture, or commentary on another person’s knowledge;

(iii) the witness statement must not contain argument;

(iv) there should not be a recitation of the documentary record, or quotations

from contemporaneous documents;

(v) witnesses should only refer to documents which they received or were
aware of before the dispute arose, and only if it is necessary to refer to
the document; and

(vi) the witness statement should identify where documents have been used
to refresh the witness’ memory (whether those documents have been
referred to or not in the witness statement).

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By adopting both a memorial approach and the principles above, the tribunal and parties
will go a long way towards reducing the unnecessary time and cost, as well as the
inefficiency, presently attending the preparation of witness evidence, and presenting the
case to the tribunal.

The Appendix to this paper contains a portion of a draft procedural order, which can be
used in regulating the preparation of witness evidence.

Conclusion

Tribunals want to hear from factual witnesses. They shape the tribunal’s understanding
of the contours of the dispute, while helping the tribunal discharge their principal duty:
delivering an enforceable, fair award deciding the dispute and doing justice between the
parties. Parties want witness evidence to go before tribunals. Witnesses serve to put a
human face on what are often technical or commercial disputes, as well as telling a
party’s story to the tribunal. But the principal vehicle for this – the witness statement – is
not serving these objectives. It has become a product of lawyers’ eager drafting, seeking
to advance, at every opportunity, the parties’ case as the lawyers perceive it best
presented. Witness statements, as commonly deployed in international commercial
arbitration, do not help the tribunal, the parties, the lawyers or the witnesses themselves
contribute to the resolution of a commercial dispute, which, after all, is the principal
endeavour on which everyone embarks when participating in an arbitration.

Efficient dispute resolution by arbitration can be served by having witness statements

return to their proper purpose. If all participants focus on preparing witness statements
which tell the witness’ story as they perceive it, without formulaic and artificial recitation
of documents or incantation of legal arguments they are not qualified to advance, then
they can help tribunals decide disputes more efficiently, and with less cost for all involved.
If this is done in the context of a memorial approach so much the better, because, in that
way, all of the relevant material will be put before the tribunal at the same time, in a
coordinated fashion, allowing the tribunal and the parties to understand better the factual
scenarios, the legal arguments, and the documentary evidence presented by each side.

APPENDIX – DRAFT PROCEDURAL ORDER DEALING WITH WITNESSES

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1. Exchanges of Parties' Cases

1.1 The Claimant is to submit its Statement of Claim on [date].

1.2 The Respondent is to submit its Statement of Defence and Counterclaim on

[insert date]. The Statement of Defence and Counterclaim and accompanying
evidence should be responsive to the Statement of Claim.

1.3 The Claimant is to submit its Reply and Defence to Counterclaim, if any, on [insert
date]. The Reply and Defence to Counterclaim and accompanying evidence
should be responsive to the Statement of Defence and Counterclaim.

1.4 The Respondent is to submit its Rejoinder and Reply to Counterclaim, if any, on
[insert date]. The Rejoinder and Reply to Counterclaim and accompanying
evidence should be responsive to the Reply and Defence to Counterclaim.

1.5 The Claimant is to submit its Rejoinder to the Reply to Counterclaim, if any, on
[insert date]. The Rejoinder to the Reply to Counterclaim and accompanying
evidence should be responsive to the Rejoinder and Reply to Counterclaim.

1.6 Each of the pleadings referred to in the immediately preceding paragraphs are to
be accompanied by the documents sought to be relied upon by the party
submitting the pleading, legal arguments advanced by the party, factual and legal
exhibits, and factual witness statements (excluding expert reports which are to
be filed in accordance with Part [insert]). Those documents and factual witness
statements are to comply with the provisions contained in Part [insert references
to provisions addressing factual witness statements, expert reports and the
general form of documents].

2. Factual Witness Statements

2.1 The Parties shall file and exchange any factual witness statements on or before
[date].

2.2 The Parties shall file and exchange any responsive factual witness statements
on or before [date].

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2.3 The purpose of witness statements is to set out the matters of fact which a witness
would give if they were called to give oral evidence at a hearing. In accordance
with that purpose, each witness statement shall:

(i) commence with a summary of matters intended to be established by the

witness;

(ii) be as concise as the case allows;

(iii) subject to providing background context, only contain matters relevant to

the issues in dispute of which the witness has personal knowledge and
should not contain any supposition, speculation, conjecture, or
commentary on another person’s knowledge;

(iv) not contain argument;

(v) not be a recitation of the documentary record and shall not contain
quotations from documents (except where absolutely necessary);

(vi) subject to leave of the Tribunal, only refer to documents where the witness
has seen the document before the commencement of the arbitration and
it is necessary to refer to the document, for example to explain the witness’
understanding of the meaning of a document at the time it was sent or
received; and

(vii) identify where documents have been used to refresh the witness’ memory
(whether those documents have been referred to or not in the witness
statement).

2.4 In terms of format, each witness statement shall:

(i) have attached a photograph of the witness, set out the name and business
address of the witness, his or her relationship with any of the Parties, if
any, and a description of his or her qualifications, including his or her
competence to give evidence;

(ii) be signed and dated by the witness;

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 (iii) take the form of a declaration under oath or affirmation, to the effect that
the contents are true;

(iv) be numbered discretely from other documents and properly identified as

such. Witness statements submitted by the Claimant shall begin with the
letters “CWS” followed by the name of the witness (i.e., CWS-Picasso,
CWS-Da Vinci, etc.); witness statements submitted by the Respondent
shall begin with the letters “RWS” followed by the name of the witness
(i.e., RWS-Rembrandt, RWS-Rubens, etc.); and

(v) contain numbered paragraphs and page numbers.

2.5 Any person may present evidence as a witness, including a Party or a Party's
officer, employee or other representative.

2.6 Factual witness testimony at the Main Evidentiary Hearing shall proceed as
follows:

(i) Oral evidence at the Hearing shall be given under oath or affirmation.

(ii) There shall be an opportunity for a brief examination by the Party

producing the witness, limited to confirming and if required correcting the
accuracy of the contents of their written witness statement, such
confirmation or correction to be provided in writing in advance.

(iii) The other Party shall have the opportunity to cross-examine the witness
in the usual manner, subject to the ability of the Tribunal to direct questions
to the witnesses at any time in its discretion.

(iv) The first Party may then re-examine the witness if it so wishes. Such re-
examination shall be limited to matters that have arisen in the cross-
examination.

(v) Under the Tribunal’s authority and at its discretion, a Party may be allowed
to recall a witness if the circumstances so justify.

2.7 Witness statements from witnesses not required for cross-examination shall be
admitted as documentary evidence, however the Tribunal will be entitled to attach
such weight to such evidence as it considers appropriate.

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2.8 Any witness who has filed a witness statement shall make themselves available
to be cross-examined at the Main Evidentiary Hearing should notice requiring his
or her cross-examination be given by the other Party [date]. The Party relying on
such evidence shall secure that witness' presence and availability at the Main
Evidentiary Hearing in advance.

2.9 In the event that a Party does not make a witness available, the requesting Party
may apply for any additional ruling from the Tribunal, including a ruling that the
Tribunal disregard the content of that witness' statement(s), or the drawing of an
adverse inference.

2.10 The admissibility, relevance, weight and materiality of the evidence offered by a
witness shall be determined by the Tribunal with the IBA Rules on the Taking of
Evidence in International Commercial Arbitration 2020 (“IBA Rules”) serving as
a guideline.

2.11 A Party’s decision not to call a witness for cross-examination will not be taken to
mean that the Party does not contest the witness/expert’s evidence.

2.12 The Tribunal may, at any time before this Arbitration is concluded, order any Party
to provide, or to use its best efforts to provide, the appearance for testimony at a
Main Evidentiary Hearing of any person including one whose testimony has not
been offered.

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