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    Artbitration case

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    2002 - Wolfgang Peter

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    AnnadeJesus
    Artbitration case

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    © All Rights Reserved
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    Witness ‘Conferencing’ by WOLFGANG PETER’ I. INTRODUCTION It is increasingly felt that arbitration no longer lives up to the expectation of its users. Complaints about formalism, overlawyering, delays and inefficiency are frequent.! This chorus of complaints counts amongst its members a fair number of lawyers who cannot truly disclaim a share of responsibility in this development. The idea that arbitration is a simple and straightforward procedure for adjudication of disputes has no longer much meaning, if it ever had. And the question as-to which of the socalled common law or civil law procedural systems hhas had more -nfluence on International Commercial Arbitration may be of academic interest, but it fades in the light of the realisation that, in any event, the lawyers with their entire procedural arsenal have taken over. AS a consequence, arbitrators of our modern times become adventurers on a Jong and difficut- journey, They first have to master the ascent of the grim and icy Discovery Peak with its crevices, overhangs, avalanches and snowstorms that bear such interesting names as requests for production of documents, interrogatories, requests for admissions, motions to compel production and so on, Beyond the Discovery Peak lies the Death Valley of Arbitration where suffocating heat storms, volcanoes, quicksand and attacks from hostile tribes come in the form of acrimonious multifaceted procedural battles. Such expeditions are expensive, sinee the increasingly complex and lengthy procedures generate more and more billable hours. ADR is certainly one of the answers to this evolution. But arbitration does and will remain an indispensable method of dispute resolution ‘Therefore, innovative concepts for improved elficiency without compromising Partner and Auorney at Lay at Python, Sehifleli, Peter & Partners, Geneva, The author thanks David Plant, Esq,, New London, New Hampstire, forthe invaluable asistance given on the strenglh of bis ‘experience and insight. © Redfern and Hunter, ‘Law and Practice of International Commercial Arbitration’, (1999, Preface tothe Grd ‘en, at pp. v-vis Fai S. Nariman, "The Spirit of Arbitration, The Tenth Annual Goff Lecture in 16 Arbitration International (2000), t pp. 261-378; and Brano Oppeti, "Théorie de Iavbiteage’, (Pats 1998), at p. 25 who speaks of te ‘deviation processuete' of arbivaion, “Andreas Lowenfele “The Two Way Mirror: International Arbitration as Comparative Procedure? in 7 ‘Mich. J. In Ly at >. (63 ARBITRATION INTERNATIONAL, Vol. 18, No. 1 © LEIA, 2002 47 48 Arbitration International Volume 18 Number 1 quality are needed. We cannot expect arbitration to be more efficient than procedures before State courts if lawyers ~ counsel or arbitrators - essentially copy ‘court precedures. Hearing witnesses is still heavily influenced by State court procedures. As it has been recently observed by an experienced practitioner ‘in general and unless the Parties agree otherwise, witnesses do not participate in the hearing before they depose ir. order to preserve the sincerity of their testimony’ In my opinion, witness hearings are one ficld where there is much room for improvement. Hearings conducted in the traditional way of State courts, witness after witness, are entirely inefficient for certain types of arbitration. In tying to deal with these inefficiencies I have come to adopt! an approach ~ or should it be called a technique - which I have named ‘witness conferencing’s and which has been successfully put to test in eleven arbitrations over the last six years. IL CHARACTERISTICS AND FIELDS OF APPLICATION (a) Definition Witness conferencing consists of the simultaneous joint hearing of all fact witnesses, expert witnesses, and other experts involved in the arbitration, It is not an occasiozal confrontation of two fact witnesses or expert witnesses, butt involves all witnesses and experts appearing simultaneously throughout the entire hearing. ‘Witness conferencing is therefore not a ‘witness-by-witness’ hearing, but a team. versusteam hearing. (b) Fields of Application Arbitrations often concern mergers and acquisitions, construction, tumkey projects, research and development, intellectual property and other fields where a contractual process based on complex technical facts, systems and procedures, involved most or all potential witnesses who, given their expertise, are not only factual but also quasi-expert witnesses. Consequently, witness conferencing would Dominique Hascher, “Prncipes et pratiques de procédure dans Farbitcge commercial internationat, a RCADI 279 (1985) at pp. 51-193 (L17). See also the model of ‘spulation for prearbitation and arbitration procedures’ annexed to Hinchey and Baer, ‘Discovery in Intemational Arbitration, Salary Gonference on International Commercial and Construction Arbitration of 15-18 June 2000, Soe ‘Except for». corporate representa: tive(s) foreach pary, witnesses shall be sequestated, subject to the further deciion of the Arbitrators daring the couse ofthe hearing’ “ Inpreparing his article I have found that other practitioners have alreatly expressed the need to overcome the tational practice of heating witness after witness. See Mare Blessing ‘La procédure devant le cbnal arbival, Bul, CCI (November 1992) at pp. 87-88, 42-43; Michael E. Schneider, Bull. ASA (1992) at pp LO-211, 881, 575.576, 593-594, Witness ‘Conferencing’ 49 appear to be ideally applied in such circumstances, although it was successfully used in less ‘technical’ arbitrations. The basic characteristic of these arbitrations is that most wimesses are far more knowledgeable in the particular field than the members of the panel or even well prepared counsel. Through the written briefs and documents submitted prior to the hearings, it furthermore becomes clear that, the hearings will langely consist in opposing presentations of complex technical * facts, systems and procedures (even though in the end the process may boil down (oa few legal questions). (O) Characteristics Witmess confe-encing makes sure that the matter is dealt with efficiently on the spot. The traditional method of hearing witnesses consists of long hours of questioning technically trained witnesses who extensively develop points which either may note relevant or may tur out to be disputable from a technical point of view, but nobody in the hearing room can efficiently counter such a witness. ‘To Confront at a later stage a counterswitness with the transcript of the hearing of the first witness in hand also proves inefficient. The second witness will often explain why, from a technical point of view, the frst witness was entirely wrong, and again, nobody can ef‘ectively check or challenge this. What then often follows are lengthy posthecring briefs where each side analyses the depositions ofall witnesses seeking to justify one’s own positions. The arbitrators may thereafter choose the line of argument which in their eyes appears more convincing, sometimes with the assistance of an expert appointed by the tibunal, certainly not an ideal approach. Consequently, the traditional method of hearing witnesses one-by.one” imposes frustrating inelfisiencies in fields where technical aspects play an important part. ‘Therefore the idea to confront witnesses comes quite naturally. Nobody can be a better check and counterbalance to a witness with advanced expertise than the witness who was their counterpart during the contractual relationship. (d) Witness Teams Witness conferencing conftonts two teams. If properly conducted the process should clarify the technical point at issue and permit the azbitral tribunal to apply the results to the specific dispute. Alternating questioning assures that each ele can express itself until the matter is clear or, if there is still disagreement among the Jn fae, this aie tad been given by a fellow arbitrator who, as «distinguished former jade, wanted to fxorest his dismay st dhe fact dha the established rules of witness hearings were replaced by something thet be ddainfully called ‘mnere witness conferencing’. It should however be noted thar the sume abirar ae the end of this new experience, came (o the conclusion that it was an efficient technique tat he would Fecommend and support in the future. “Esper often have cly second: nd lsnowlege of what occured inthe contractual reaionship, therefore, although arbitral panels are occasionally inclined to confront them, thei testimony without te tnerecse participation ofthe contractual players i offen of limited wake * Often all of the eaimant's wimesses are heard fist one-byone and then, days later, allowed by the defendan’s witnesses also heard one-byn, which maker things even worse, 50 Arbitration International Volume 18 Number 1 parties, until it is clear why the sides still have diverging opinions and the underlying rationale for their positions. (©) Confronting Two Witnesses Instead of Full Witness Conferencing ‘The question may then arise why, instead of fully-fledged witness conferencing, orie, should not simply hear these types of witnesses two-by-two, one from each side. However, two witnesses (or expert witnesses) will only cover part of the events, that occurred in the contractual process. Consequently their hearing, without the simultaneous presence and hearing of the other witnesses, considerably reduces the interactive questioning effect because of their limited coverage of the issues. Obviously, two witnesses in confrontation are preferable to the hearing of a single witness, but in my experience well below the efficiency provided by more inclusive witess conferencing. In particular, confronting only two witnesses often leads them, particularly under the pressure of the hearings, to refer the question or the issue further. Thus, the expert will often invite the arbitral panel to enquire in respect of'a particular question with the fact witness who supposedly observed what happened on site (‘I wouldn’t know, but that particular engineer who was on site should be able to confirm this’). Unfortunately, this engineer is not in the hearing room nor is their counterpart. Conversely, the fact witness, for instance an enginzer, may describe some technical principle, and may be contradicted by their counterpart, but no expert can immediately conduct a critical review of the two opposing positions because there simply is no one attending. In hoth these examples, the arbitral tribunal is very likely to embark on a line of questioning which may turn out to be hypothetical or based on incorrect assumptions. Another reason not to limit the hearing of witnesses to a two-by-two approach is that one witness’ testimony is often closely linked to the testimony of a further witnes: and, therefore, there is a continuing chain of reference to the other witnesses who are not attending (or even if they are attending, are not being simultaneously examined). ( Interaction Between Counsel and Witness While I would not wish to intellectualise the discussion of witness hearings ~ in essence a practical issue - I believe that one could say that witness conferencing changes the interaction between counsel and witness. The nature of the game is modified. In the traditional system, it is striking that the strength and impact of counsel’s questions frequently dwarf the quality of the wimesses’ response. It is clear where the art of speech lies, but in very technical arbitration this style may be inappropriate. By contrast, witness conferencing puts the lawyer ~ counsel and arbitrator alike ~ in the role of catalysts that direct the focus of the witnesses on both sides on the disputed factual and technical issues. The debate takes place among the informed and specialized witnesses; it is expert knowledge v. expert knowledge and no longer the lawyer's questioning technique v. the witnesses? expert knowledge Witness ‘Conferencing? 5 . Ml. CONDITIONS OF APPLICATION fa) Understanding of the Technique cis obviously necessary that prior to the hearing the parties consent to the use of \witness conferencing. Consequently, the partes, in particular counsel, must have a clear understanding, which requires that this technique is properly described to them. The principles expressed in the recently adopted IBA. Rules on the taking of ‘evidence in international commercial arbitration,® especially Article 8.2 (witnesses questioned at the same time and in confrontation with each other) and Article 5.2 (partyappointed experts to mect and confer) should help to convince the parties of the interest in agreeing to witness conferencing? (b) Preparation for the Hearings For the efficient conduct of the hearing, counsel and witnesses must not only understand the :echnique as such, but they also have to prepare themselves and organise their decumentation and their presentation accordingly. Itis interesting to note that the witnesses adapt far more easily to the technique of witness conferencing than the lawyers involved in the process. After all, the witnesses are ‘newcomers’ and not burdened with tradition. Wimess conferencing also imposes @ serious task of preparation on the members of the arbitral tribunal, The technique is therefore not suitable for arbitrators who intend to learn the Particulars of the file through the hearings and who wish to limit their role to the occasional question. For effective use of witness conferencing, arbitrators should be as well informed on the key issues as the carefully selected file submitted to them permits. This does not mean that a long series of questions must be prepared in advance. Tt requires, however, a good understanding and knowledge of the key arguments, the documents filed in the arbitration and the written witness statements, (©) Understanding of Technical Issues ‘Witness conferencing also requires from the members of the arbitral tribunal a fair Knowledge and understanding of the technical issues underlying the dispute. Generally, the writen briefs and the documentation filed in the arbitration should at least provide a basic understanding. But often these submissions are not 24Y-B. Com Arb (1899) at p. 40. Alo walle online st . Tt also notes that “the rationale of these provisions is that differences in the evidence of Ceposing witess car best he explored when they appear simllancously’ and that “his technique encourages the witnesses 10 explain themselves to ther colleial peers and to take conteston of Uncontested matters, us to sharpen the tue to be decided’ 52 Arbitration International Volume 18 Number 1 panicularly clear, sometimes reflecting the draftsman’ limited understanding of technical questions. While there is nothing wrong in asking questions of a technical nature in the course of the hearings in order to gain a better understanding, I believe that too many lawyers involved in technical arbitration preceedings are afraid to lose face by asking such questions. Even apparently naive or basic questions often bring out facts on which the parties have a very different understanding, although both sides have used the same technical jargon. (d) The Questioning Technique At the start of the hearing, witness conferencing will be initiated by kickoff Questions. Such questions result quite naturally from the submissions and once the ball is rolling, arbitrators who have a good grasp of the issues know how to involve both witness teams with the same issues. As a matter of consequence, witness conferencing requires arbitrators to have a good sense as to when it is time to alteinate questions from one witness team to the other side without becoming disruptive. As in all hearings, itis important that a wimess who is answering a question can make their point, but they should be able to make it with reasonable speed and brevity. Then it is time to switch to the opposing team and so forth, After a while, the rhythm is quite naturally established and the questioning can be concucted by any member of the arbitral panel or by counsel on either side. Even the “aking over’ by counsel fits in well. In the event of a dispute among counsel about priority rights for putting questions, the tribunal should decide with Pragmatism and respect the ground rule that each side's counsel gets a fair Opportunity of asking their questions. The true difficulty, with which each counsel has to cope under witness conferencing, is that the depositions of their witnesses, when questioned in direct, will be countered on the spot by the opposing witness: team. Consequently, counsel have to adapt to this situation, which is facilitated by the fact that their own witness team will in turn pick up the challenge. ‘The difference when compared to the traditional witness hearing is that counsel cannot easily build up in the direct questioning of their own witnesses a complete impression or description of an issue without being challenged and corrected by the opposing team. And where counsel is conducting cross-examination, they must accep: that other witnesses from the opposing team may assist the crostexamined witness. However, when the cross-examined witness(es) seeki(s) to escape from embarrassing questions, for instance by hiding behind a smokescreen of technically irrelevant argument, then the counsel can bring in their own team in order to comer the opposing witness(es) (e) Written Witness Statements The technique requires from each witness a prior written statement for the Preparation of the arbitral tribunal, counsel and the other witnesses and often this includes the filing of counter-witness statements. These written statements provide for all the participants important guidelines for the simultaneous heating of the witnesses. The importance and usefulness of written witness statements is well Witness ‘Conferencing’ 58 established in practice. Particularly for witness conferencing the statements are important in order to prepare the various points that must be addressed. The panel members, counsel, and the witnesses must be familiar with them, in order to perinit efficient questioning of the written statements during witness conferencing, All this highlights the importance of careful preparation of the statements. It is particularly dangerous to take positions in written statements which may, perhaps, ‘remain unchallenged when a witness is questioned in the traditional one-by-one witness hearing, but which will not survive the test of witness conferencing, where knowledgeable opposing witnesses with practical knowledge of the case and a high degree of expertise are cager to challenge the opposing party’s statements, Witness conferencing vill somewhat discourage witnesses from submitting witness statements drafted entirely by counsel. () Court Reporting ‘Witness confereacing requires court reporting since itis difficult to efficiently tape- record such hea:ings. Obviously, the arbitral tribunal must make sure that, when the attending wimesses and counsel become so emotionally involved they would tend to speak simultaneously, the process is put back to order so as to allow court reporting. Although these situations obviously occur from time to time, they are ‘ot frequent enough to become a problem. Interestingly, itis in this respect that had fo answer most sceptical questions. However, the concern that all persons attending the hearing might speak at the same time, which would truly lead to chaos and impossibility of court reporting, is unfounded. There is no reason why the arbitral tribunal cannot efficiently exercise its control over the process. In all the arbitrations where the technique was used over the last years, I was never confronted with a situation that went out of control. @ Structuring in Special Cases ‘Witness conferencing requires in certain cases, such as construction arbitrations (i.e, when there i no single subject matter but several different claims), that the arbitral tribunal sroceed with the hearings claim-by-claim. This contrasts with traditional hearings where a witness will generally be heard across the board on all claims in which they were involved. In one recent arbitration, where the high number of experts and witness would have made their simultaneous hearing unmanageable for obvious reasons (about 50 persons in total were announced to attend), the tribunal and the parties defined four subject matter and the corresponding witnesses. Limited to 12 to 15 witnesses per area, the process worked smoothly. Obviously, some of the witnesses had to be heard in more than one area. When such splitting is necessary, then I consider thata ground rule must be followed: all wimesses should attend each specific hearing where they have material knowledge 54 Arbitration International Volume 18 Number 1 : IV. ADVANTAGES (a) Speed ‘Witness conferencing speeds up the hearings to an extent that has not even been expected by the most optimistic participants. In almost all of the arbitrations where ‘the technique has been used, the duration of the hearing has been shortened to a fraction of the time that a traditional witnessafter-witness hearing would require. It was also regularly shortened to a fraction of the time that counsel on each side had estimated. But, most importantly, as shall be described hereunder, the increased speed has in no way been achieved at the expense of quality in terms of results ~ rathe: quite the contrary. Tn essence, one can say that the witness hearings are shortened. because a) Each relevant question is generally put only once and the most qualified wimess will address it, while in the usual witnessafier-witness hearing the same question will be put to several witnesses. In the traditional approach, putting the same question to several witnesses may make sense cither because they all confirm a specific point or because, if they diverge, it may be interesting to analyse the differences. The witness conferencing approach does not need multiple answers to the same question, it generally establishes ‘the’ answer (or at least an answer agreed by the participating witnesses) through the adversarial process. Where there are stil disagreements (e.g. issues of witness credibility, as well as substantive differences, may remain) sullicient arguments on both sides provide a solid basis for final decision by the arbitral tribunal. b) Witness conferencing is an interactive system that very quickly eliminates divergences and therefore needs no lengthy developments, introductions and descriptions that each witness and counsel will try to put on the record. (b) Clarification of Factual and Technical Issues On factual issues, wimess conferencing brings out the points that are relevant, sheds light and clarifies issues to an extent that goes clearly beyond traditional hearings. As a matter of fact, its very difficult for a witness under the gaze of their counterparts to persist in a clearly inaccurate version of the facts. Itis also very difficult to stick to a well~prepared but highly subjective line of factual presentation. On technical questions, the simultaneous hearing flushes out most differences and leaves only a few specific points of disagreement. But even in respect to these remaining open points, the transcript of the hearings generally show that they are well circumscribed, differences of view of the parties are established with clarity, and in most cases, the underlying assumptions which lead to these diverging views have been made clear, In other words, the ground for rendering the award has been well prepared. Witness ‘Conferencing’ 55 : (c) Elimination of Irrelevant Positions A particular advantage in respect to technical issues is that, in the interactive and simultaneous questioning which characterises witness conferencing, there is no room for the endless and often mystifying technical depositions by experts and witnesses when heard one-by-one. When dealing with complex technical facts, yystems and procedures with which the witnesses were concerned, wimess conferencing is by far a more reasonable or natural way to directly oppose the two teams of high degree of expertise who were involved in the project. Particularly in respect to the technical questions, it is sometimes quite amazing how quickly theories or carefully developed interpretations, which may or may not have been inspired by counsel in view of the hearings, collapse when put to the tough test of wimess conferencing, (d) Enhanced Efficiency As a by-product, one will note that this process establishes the real key witnesses, who sometimes are not those originally announced or portrayed as such by the parties. As a matter of fact, where the question is put to an entire team of witnesses and experts, very quickly the most knowledgeable witness will take the lead in answering, obviously assisted by other witnesses of their team. In other words, the system brings ou: the best level of knowledge that the witnesses and experts of a arty have to offer. This is because neither in direct examination nor in cross- examination conducted under the traditional winess-by-wiess method are all questions that a specific witness would be most qualified to answer put to them. By contrast, when the entire witness team is jointly participating in the hearing, no witness will miss any question that they are personally most qualified to answer. ‘The technique reduces or even eliminates the need for experts to be appointed by the arbitral eibunal. Where they are nevertheless required, their mission and subsequent testimony are shortened and made more efficient through the presence of the other witnesses and expert witnesses, (@) No Solemnity of Procedure ‘While the process may seem complex to describe, it establishes itself in practice very quickly and almost naturally. It reduces the solemnity of the procedural process; in my view, it brings out the best that a qualified witness has to offer, instead of intimidating the witnesses through such solemnity, often coupled with aggressive questioning, that does more to impair a witness’ ability to provide meaningful answers than to help the tribunal to understand complex technical issues, (9 Witness Conferencing Enhanced by Information Technology All witnesses attending the hearing should ideally see the documents or technical exhibits that are being discussed. This can be cumbersome where a large number of witnesses all take a look at the hard copy exhibits that are available in only a 56 Arbitration International Volume 18 Number 1 limited number. Therefore, the effectiveness of witness conferencing is further enhenced through the use of Information Technology (IT) for the organisation and presentation of documents and exhibits. In fact, the use of IT not only ensures that all information can be simultaneously visualised by all participants, but also permits quickly switching between all documents and exhibits referred to in the flow of the dehate, which is obviously ideal for witness conferencing. @ Conducive to Seitlement Finally, it should be mentioned that witness conferencing is very conducive to a settlement. Significantly, parties who have adopted wimess conferencing will generally settle during or at the end of the hearings. T can say that - with owo exceptions - this has happened each time. Clearly, the settlement does not come carly in the arbitration, since some work will have been done by the time the witness hearings take place. However, I believe that it is still a satisfactory achievement to settle at that stage. Parties who are present throughout the witness conferencing realise with great clarity the strengths and weaknesses of their respective positions. The result of several days of hearing will be reviewed in each party's internal discussions and leads therefore in most cases t0 a settlement. Once a party sees its position with realism, it does not make sense to continue the procedure before a panel which is also then much more aware of the parties? strengths and weaknesses as it would be otherwise. V. DISADVANTAGES (a) Consequences for Counsel ‘At the start of hearings conducted under the technique of witness conferencing, counsel - even though they have agreed to the technique but have not experienced it yet - may be somewhat disoriented. In addition, lawyers from common law jurisdictions are often taught not to ask a question on cross-examination unless they know the answer. This raises another psychological barrier to witness conferencing. Usually however, after one or two hours of witness conferencing, counsel have adapted to the technique. Furthermore, counsel may have the feeling that their role is diminished and they sometimes also fear the loss of control of ‘their’ witnesses. But where they adapt to the system and conduct themselves in the interrogation in the witness conferencing mode, they will play an active and efficient role, although different than under traditional crossexamination. (b) Consequences for the Arbitral Panel It has also been said that witness conferencing puts a higher burden on the members of the arbitral tribunal with respect to preparation and conduct of the Witness ‘Conferencing’ a7 hearings. This can, in my opinion, only be seen as a disadvantage if the philosophy prevails that arbitrators may take a quick glance at the file and then leave the bulk of questioning and preparation of the hearing to counsel. However, since witness conferencing should only be used on a fully consensual basis, starting with the intemal decision of the arbitral wibunal to propose the system to the parties, qbittators who do not wish to depart from the usual hearing technique can decide So atthe level of the panel, and the issue will simply not arise. Similarly, if counsel for one party were to propose witness conferencing over the objection of an opposing party, the arbitral tribunal could sustain the objection, However, if counsel for all parties jointly propose witness conferencing, it is likely that the arbival tribunal would have to accept the proposal Finally, it should be stressed that there is a real reward for the increased effort, as the hearing will not only be far more efficient, but also much more lively and interesting. () Effect on Witnesses Witness conferencing raises concern among practitioners that a wimess may be influenced by listening to other witnesses. It is therefore sometimes argued that this technique reduces the ‘freshness’ of a witness deposition. Considering, however, that in the cases where I recommend the technique we are dealing with technical witnesses who have already filed a written statement and studied those of their counterparts, such concern is largely unfounded."? Furthermore, one must bear in mind that the opposing witness team directly counterchecks each witness. Under all these circumstances, I believe that in these technical cases witness conferencing is more conducive to establishing the facts than the traditional form of witness hearings. Wimess conferencing puts the burden of simultaneous attendance on all witnesses involved in the arbitration, since most witnesses have to attend the full hearing. However, such a burden is largely compensated by the much shorter overall hearing time, VL REACTIONS TO THE PROCESS (a) Arbitrators Arbitrators who have experienced this technique have sometimes been surprised by its marked difference with traditional witness hearings, an aspect that is often not fully articipated or appreciated. I have, however, not seen a case where an arbitratot "If it would appear necessary due to particular ctcumstances, purely fact witnesses whose recollection may be etallenged by another fet witness may be sequestered when credibiliy is at isue, Where witness

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