How reliable is witness testimony in international arbitration? ICC Commission publishes report on “The Accuracy of Fact Witness Memory in International Arbitration” and provides guidance on best practice for in-house counsel and external lawyers

The ICC Commission on Arbitration (the “Commission”) has published a report on “The Accuracy of Fact Witness Memory in International Arbitration” (the “Report” - accessible here). The Commission decided to undertake this work following a guest speech (entitled ‘Unreliable Recollections, False Memories and Witness Testimony’) delivered by Toby Landau QC at a meeting of the ICC Commission on Arbitration and ADR (in October 2015). The Report sets out the work undertaken by a Task Force (set up by the Commission) on ‘Maximising the Probative Value of Witness Evidence’ and incorporates scientific input from psychologists specialising in human memory. This article discusses the Report’s findings and lists some key practical considerations practitioners can take away from these conclusions.

Witness evidence is a core part of arbitration proceedings, but the preparation of witness statements is both a time intensive and costly process. The Report considers the effect of memory on the value of witness evidence and concludes that witness memory can become easily distorted. The Report is supported by evidence from a study on memory involving over 300 adults from a range of industries. Within the context of international arbitration, this means that the testimony of a witness may be less reliable than expected. However, the Task Force has reinforced the value and importance of witness testimony – accordingly, it has recommended numerous steps that can be taken by all parties during the arbitral process to reduce the risks of distorting witness memory as early as possible.

Why is the Report relevant to arbitration practitioners?

As mentioned above, witness evidence is a core part of arbitration proceedings and their preparation is costly and time intensive – for both the witness being taken away from their work and for the legal team. However, it is often an essential part of building a party’s case and a significant portion of time is usually set aside at the hearing for the presentation of oral evidence. Moreover, as the Report highlights, the decision of the tribunal on the merits of the case will often turn (in varying degrees) on the witness evidence that has been presented (see paragraph 1.6(e)).

Disputes which are the subject of arbitration often relate to a series of events or matters which occur over a prolonged period of time thereby increasing the risk of memory distortion at various points. The Task Force therefore considered how parties can reduce distortion of human memory within the context of a commercial dispute. As highlighted in Section II of the Report, the way in which that witness evidence is obtained and prepared in the context of commercial disputes gives rise to multiple opportunities for a witness’ memory to be distorted. For example (as referred to in paragraph 2.7):

1. A witness may be interviewed on a number of occasions by in-house counsel and/or external lawyers and the specific wording of a question can change the way a witness replies;

2. A witness may also be influenced by post-event information (e.g. information transmitted from another person or presented in documents) – this can result in misinformation, or in certain circumstances, the creation of entire false memories; and

3. Even the act of retelling a story from a particular perspective can influence, and change, a witness’ memory.

What measures can be taken to improve the accuracy of witness memory?

The Report acknowledges that there are a variety of issues relating to witness memory and witness testimony. However, in section V of the Report, the Task Force has identified a number of measures that can be implemented by parties to arbitration in order to help reduce the inaccuracies or distortions that may arise as a result of imperfections of the memory process.

The suggested measures are not exhaustive, nor are they intended to be ‘one-size-fits-all’. Each dispute will turn on its facts and parties to an arbitration will need to evaluate what measures may be appropriate and proportionate.

Key Takeaways

Although the Report is detailed, there are a number of key takeaways for practitioners to be mindful of when liaising with witnesses and preparing witness evidence:

In-house counsel

• Obtain complete accounts of a witnessed event/series of events as soon as possible after their occurrence and take detailed contemporaneous notes of those discussions – this reinforces the memory for later recall.
  
  
• Where possible, meet with potential or likely witnesses individually and discourage potential witnesses from discussing the matter amongst themselves unnecessarily.
  
  
• Encourage witnesses to provide a full account of the event or series of events in question without suggesting a ‘party line’.
  
  
• Involve external counsel at an early stage with a view to preserving witness evidence while it remains fresh.

External counsel

• Carefully consider how interviews with witnesses are conducted and seek to do so at the earliest opportunity.
  
  
• Remind witnesses that they are only required to report on their personal knowledge of events and ask witnesses to distinguish between what they remember (as opposed to what they have read or been informed by others).
  
  
• Use open-ended questions and neutral language when discussing a matter or dispute with a potential witness and avoid seeking to reinforce tentative or unsure responses.
  
  
• Assess information provided by the witness holistically and where possible, consider asking a witness to prepare the first draft of their own statement.

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