On Tuesday 22 April 2019, the Chartered Institute of Arbitrators (Singapore) issued their Guidelines for Witness Conferencing in International Arbitration (the “Guidelines”),1) providing tribunals, witnesses and parties with guidance in the conduct of witness conferencing.
Witness conferencing is the process by which two or more witnesses give evidence concurrently before a tribunal. (Guidelines, page 13) In practice, this may take the form of any one of a number of procedures, usually agreed on a bespoke basis taking into account the relevant circumstances.
Participants may elect for a process driven by one (or more) of the tribunal; the parties’ counsel; or even the witnesses themselves. The conference might at any one time include all witnesses testifying on a particular issue or range of issues, or it might be directed to specific participants and/or issues. The approach taken will depend upon the scope of the issues in dispute, the nature and extent of the evidence proffered, the degree of expertise of the witnesses, as well as other factors such as the number and language of the witnesses.
Commentators cite a number of potential advantages to witness conferencing. These include the prospect of a more efficient presentation of views; greater scope for meaningful comparison of competing evidence when presented side-by-side; the moderating effect that the threat of contemporaneous rebuttal might have upon a witness’s evidence; and shorter hearing times arising from concurrency of testimony.
However, others have warned that the process might be undermined should, for instance, the witnesses in question become unnecessarily confrontational. This is a particular risk when it comes to witnesses of fact, and it is noteworthy that conferencing is less prevalent when it comes to fact witnesses. Conferencing might also be less effective should personality, cultural and/or seniority dynamics give rise to unnecessary deference between witnesses. Further, as a general matter, some practitioners (particularly those from common law jurisdictions) might simply be uncomfortable with the reduced role of the parties’ representatives, who have less freedom to present their evidential case as they choose.
Ultimately witness conferencing can be a powerful tool that in certain circumstances, and if applied and regulated appropriately and proportionately, can give rise to a quicker and more cost-effective determination of contested witness evidence.
The Guidelines comprise three main parts: (a) a “checklist of factors to consider in determining a procedure” for witness conferencing (“Checklist”); (b) a “framework procedural order that may be used as a basis for crafting appropriate directions” for witness conferencing (“Directions”); and (c) explanatory notes for each if items (a) and (b) (“ Notes”).
The Guidelines, which extend to 66 pages, provide detailed direction. However, in recognition of the diversity of witness conference procedures, the provisions adopt non-mandatory language throughout.
The Guidelines apply both to factual and expert evidence. However, the drafters recognize that “[i]n the majority of cases witnesses giving concurrent evidence will be experts giving opinion evidence”. (Guidelines, page 11)
The Checklist includes a list of matters, ranged across four headers: “Matters in Issue”; “Witnesses”; “Pre-hearing”; and “Logistics”. The Notes provide detailed considerations in respect of each issue, some of which “militate in favour of a conference, whereas others may detract”. (See Guidelines, page 12)
Some of the matters, such as “allocation of time among the witnesses” or “presentations and demonstrables” go only to the question of which form the conference might take. Others, such as “[t]he relationship between witnesses…” go also go to the wider question of whether or not to conduct a witness conference at all.
The Guidelines specify that the Checklist is “non-exhaustive”; and that “[n]ot all of the items in the Checklist will be relevant in all cases”. (Guidelines, pages 9 and 26) Again, this is helpful recognition of the diverse and bespoke nature of witness conferencing.
The Directions establish (a) “Standard Directions” to be incorporated as part of an initial procedural order; and (b) “Specific Directions” to be issued once the tribunal and the parties have determined to hold a witness conference.
The Standard Directions are intended to provide a set of applicable principles in the event that the tribunal subsequently orders some of the witness evidence to be taken concurrently. They anticipate that in such circumstances the witnesses jointly prepare a schedule listing “areas on which the witnesses agree and disagree and a summary of the witnesses’ views on those areas of disagreement” as well as a “chronology of agreed facts”. Inclusion of the Standard Directions into a procedural order does not displace the taking of consecutive evidence. (Guidelines, page 12)
The Specific Directions are addressed in turn to three principal scenarios: (a) a Tribunal led conference; (b) a witness-led conference; or (c) a counsel-led conference. They contemplate tribunal direction on issues such as: sequestration of witnesses; administration of oaths; and the right of witnesses to give an oral presentation. Further, they establish the right of a party’s counsel to seek clarifications from its witness following its examination in a counsel-led process; as well as to question the other party’s witness, and seek clarification from its own, following tribunal questioning in a tribunal-led or witness-led process. (Guidelines, sections A6, B5(5) and C5)
The Guidelines seek to achieve a difficult balance between on the one hand identifying and codifying best practice for those conducting witness conferencing, and on the other recognizing the necessary bespoke, flexible and context-specific nature of such agreements. The resulting Guidelines are non-prescriptive, but nonetheless comprise a convenient reminder of the key considerations that arbitration participants might bear in mind when contemplating witness conferencing. The drafters of the Guidelines express their hope that the Guidelines prove a “useful aide-memoire” for experienced practitioners, while assisting those with more limited experience navigate the process. The Guidelines appear well calibrated to this objective.
For original upload, click here.
Arbitration, and typically commercial arbitration, is an Alternative Dispute Resolution (ADR) which is agreed by parties of the dispute. Arbitration can be used to replace the traditional way of litigation in court.
Derive from arbitration’s dispute settlement principles, arbitration shows many pros and brings many benefits for parties in commercial dispute, specifically as follows:
A Polish appeals court vacated an International Chamber of Commerce (ICC) partial award for alleged irregularities in the arbitrator's appointment (for further details please see " ICC award set aside due to irregularities in arbitrator's appointment "). The sole arbitrator's final award was also successfully challenged and set aside. The first reason to vacate the final award was also the issue of the sole arbitrator's appointment.
It is normal to inspect the goods that have been lost or damaged during the performance of the sales contract and in the contract of carriage. However, improper inspection can lead to significant disputes and damages that you can refer to below.
The ten years of Law on Commercial Arbitration 2010 (LCA) are also the 10-year development period of VIAC - the first institutional arbitration organization in Vietnam, the organization that goes along with the formation and advancement of the legal framework of commercial arbitration in Vietnam.
Law on Commercial Arbitration (“LCA”) enacted in 2010 was considered a major step forward for the development of commercial arbitration in Vietnam. Compared with the previous years and with international standards, LCA has made remarkable progress, namely recognizing enterprises’ freedom of choice, broadening the scope of arbitration, raising the arbitral tribunal’s authority, valuing court assistance (especially interim measures enforcement), encouraging flexibility in language of arbitration, and improving party’s autonomy in arbitration while maintaining proper manners during arbitral proceedings.
Mr. Doug Jones, a leading arbitrator in the international arbitration community, revealed to me his infatuation with the beautiful beach and Vietnamese delicacies after a seminar in Da Nang. He was also inspired by the confidence, assertiveness, competence and the ambition to improve domestic arbitrators to the same level as those working in the international sphere of young arbitrators and VIAC Secretaries.
Law on Commercial Arbitration 2010 (LCA)- the procedural law governing arbitration proceedings whose seat is in Vietnam
Nowadays, as the digital economy emerges, electronic agreements on online websites are becoming more and more prevalent; hence, the legal effect of establishing terms and conditions of service when accessing the website (browse-wrap) and clicking (click-wrap) are of particular interest. The following paper analyzes some of the legal aspects of online agreement conclusion, especially the establishment of the arbitration agreement by means of browse-wrap and click-wrap.
Whether settling disputes in Court or through arbitration, when a party has the burden of proof, it must submit evidence to the arbitral tribunal. The evidence can be in many different forms: Document electronic evidence, audio recordings, video recordings, witness statement, etc. In international arbitration practice, especially in complex disputes, a type of evidence that is frequently used by the parties to defend their opinion/request is testimony/report of "expert witness".
In international commerce and investment, parties to a dispute often select arbitration as an alternative dispute resolution other than litigation in which the court, an authorized state agency, adjudicate disputes. An explanation for this phenomenon is that arbitration may be the optimal means that the parties can exercise their autonomy in writing to select one or several individuals who are not representing state agencies and state power (the so-called private parties) to resolve disputes. However, to prevent the possibility of arbitrators "privatizing" justice,  the New York Convention and the ICSID Convention set out the rules for annulment of arbitral award when such award violates arbitral proceeding. Here, questions arise. What rules of procedure are violated? And to what extent is the commercial and investment arbitral award annulled? This article seeks to elucidate the theory and practice of annulment for violations of procedure under the New York Convention and the ICSID Convention.
Goods can be consolidated, batched, packed, sorted, and grouped for a certain period of time before being loaded onto a trailer for carriage to the consignee. Disputes about whether the time to do these things are within the scope of insurance liability or not is an issue worth knowing (through the lawsuit with the documents of a foreign law firm) below for readers’ reference.
Mr. Vu Anh Duong is the Secretary General of the Vietnam International Arbitration Centre (“ VIAC “), which is the leading Vietnamese arbitration and mediation institution . Mr. Duong has contributed significantly to the development of arbitration in Vietnam in various ways; in addition to his role with the VIAC, Mr. Duong has served as a member of various drafting committees dealing with not only the VIAC’s Rules of Arbitration (2017) (“ VIAC Rules ”), but also Vietnam’s arbitration-related legislation. He also regularly lectures on commercial arbitration and sits as an arbitrator in both international and domestic commercial arbitrations.