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The landscape around how international arbitration tribunals want witness testimony presented at hearings is changing. With increasing frequency, international arbitrators are turning to “witness conferencing,” both to speed up the process and to compartmentalize issues.

What Is Witness Conferencing?

Witness conferencing is a technique whereby opposing witnesses provide testimony on common topics and issues at the same time. While courts and tribunals have for many years employed traditional methods of witness examination, such as direct examination, cross-examination, re-direct and re-cross, international tribunals are not restricted to these linear approaches. All the major international arbitration rules and institutions permit the arbitral tribunal considerable flexibility in dealing with witnesses, and some specifically empower the tribunal to arrange witnesses around the issues in the case. For example, the International Bar Association's Rules on The Taking of Evidence in International Commercial Arbitration provide that: “The Arbitral Tribunal . . . may vary this [traditional] order of proceeding, including the arrangement of testimony by particular issues or in such a manner that witnesses presented by different Parties be questioned at the same time and in confrontation with each other.”¹ Witness conferencing has been used for many years with expert witnesses, but recently the technique has increasingly been used for the testimony of witnesses of fact.

How Does Witness Conferencing Work?

Witness conferencing usually takes one of the two following forms (or combines the two):

• Tribunal as Moderator. In this form, the tribunal acts as moderator and leads a discussion on a particular topic among witnesses from different parties. Counsel are also allowed to ask questions, either during or (more typically) after the tribunal's questioning. This form of witness conferencing requires a significant amount of preparation by the tribunal, so the tribunal will generally have a good understanding of the issues before the hearing begins.

• Simultaneous Examination. In this form, counsel cross-examining an adverse witness may turn to its own witnesses and elicit their testimony on the same topic without having to wait for those witnesses to “take the stand.” When testimony of all witnesses has been exhausted on the topic, counsel will move on to cross-examine on another topic and the process begins again.

What Are the Benefits of Witness Conferencing?

Time/Efficiency. When a topic is addressed simultaneously by all relevant witnesses, a significant amount of time can be saved over the course of a hearing. Not only is there less repetitious testimony, but each witness’s cumulative testimony is also shorter because there is less need to “set up” his or her testimony. Those experienced in arbitrations employing witness conferencing believe the process can reduce the amount of hearing time by a third or even by half. In an international arbitration recently handled by DLA Piper, a hearing originally scheduled for six days was completed in less than four.

Credibility. Human nature dictates that witnesses are more likely to give truthful testimony (or are less likely to exaggerate) when there are other witnesses present who can immediately question the truth of their statements.

Clean Record. When witness conferencing is used, an immediately clear benefit is a clean record. Because testimony on a particular topic will appear in one place (or a small number of places), the transcript of the hearing flows better. If the tribunal reviews the hearing transcript during the preparation of its award (which it undoubtedly will), its job is made easier. A clean record also makes the preparation of post-hearing briefs easier.

Preparing for a Hearing with Witness Conferencing

Preparation for a hearing that uses witness conferencing requires special preparation. First and foremost, it is important that clients and key witnesses understand the process and what might occur during the hearing. Unlike traditional trials where a witness prepares to take the stand once, witnesses (especially important witnesses whose evidence covers many topics) need to pay close attention to the testimony of other witnesses and be prepared at all times to tell their side of the story on that issue.

Second, arbitration practitioners should think ahead about how to use witness conferencing to their advantage. For example, in an arbitration that DLA Piper recently handled, it was planned that certain questions would not be asked of an adverse witness on cross-examination in order not to highlight his version of events early in the hearing. However, when the tribunal ordered that witness conferencing would be used, those questions could readily be asked, since after the adverse witness' response was received, counsel could immediately contradict that evidence if necessary by asking the client the same question.

A hearing with witness conferencing requires counsel to be prepared to jump in at any time. It requires lawyer, client and witness alike to adopt a different mind set than in a traditionally structured hearing. The free flow of information at the hearing can create a more productive environment, and, if done correctly, the hearing will take less time, cost less and create a better record. Witness conferencing therefore seems likely to become an increasing trend in international arbitration.