Young ICCA Skills Training Workshop: Witness Statement and Document Disclosure

Discussion Topics:

• Background: Role and relevance of witness statements in international arbitration proceedings;
• Drafting witness statements: typical procedure and pitfalls to consider
• Background & requirements of document request: Role and relevance of document disclosure in international arbitration; typical five stages of the document disclosure process in overview (distribution of a Redfern Schedule); the requirements for an admissible document request, Art. 3 IBA Rules on the Taking of Evidence; interplay between document requests and burden of proof.
• Objections against document requests; Art. 9 of the IBA Rules on the Taking of Evidence; levelling the playing field between different legal systems with respect to privileges and other basis for objection.
   

Moderators and Panelists:

• Joshua Fellenbaum (Associate, Mannheimer Swartling)
• Niuscha Bassiri (Partner, Hanotiau & van den Berg)
• Matthew Hodgson (Associate, Allen & Overy)
• Noradèle Radjai (Partner, Lalive)
• Rostislav Pekar (Partner, Squire Sanders & Dempsey)
• Kristoffer Löf (Partner, Mannheimer Swartling)
• Professor Dr. Kaj Hobér (Partner, Mannheimer Swartling)
• Jakob Ragnwaldh (Partner, Mannheimer Swartling)

Post Event Report

by Stefan Dudas* and Brian Kotick**

As the concern grows for finding ways to increase time and cost efficiency in international arbitration, the use of witness statements and document disclosure has become increasingly relevant. The role and relevance of witness statements and document disclosure was the topic of the Young ICCA workshop held on 7 March 2012, in the heart of Stockholm at the offices of Mannheimer Swartling Advokatbyrå.

The event gathered Young ICCA members from more than 10 different countries and also benefited from the presence of some of the most experienced arbitration practitioners in the region, including attendance of one of the most world-renowned arbitrators, Professor Dr. Kaj Hobér.

Joshua Fellenbaum from Mannheimer Swartling welcomed the participants and made a general presentation of the workshop structure. The workshop focused on two tools that have become essential to arbitration practitioners: (I) witness statements and (II) document disclosure.

I           WITNESS STATEMENTS

Kristoffer Löf of Mannheimer Swartling moderated the first part of the workshop dedicated to witness statements. Löf made an overall introduction of the topic and then introduced the speakers. First to take the floor was Noradèle Radjai from Lalive in Geneva, who lead with a general analysis as to the role and relevance of witness statements in international arbitration (A). Second, Matthew Hodgson from Allen & Overy in London, then addressed various issues pertaining to drafting witness statements (B).

A.    The analysis made by Noradèle Radjai was threefold: (1) why are witness statements useful; (2) what usually goes into a witness statement; and (3) who should usually be chosen by counsel give witness statements

1)     Why are witness statements useful?

Witness statements serve several purposes such as filling evidentiary gaps, explaining complex technical or factual issues to the arbitral tribunal, adding credibility to the case and arguments or generally helping a party’s case become more persuasive by conveying a convincing story. Also, having a witness statement in advance of the hearing, a party has the advantage of not only establishing a context to the legal arguments presented by counsel but also making the subsequent examination of that witness more efficient.

2)     What goes into a witness statement?

Before addressing the issue of what is usually contained in a witness statement, Radjai defined witness statements as written evidence that reflects a person’s knowledge of issues related to the case. She further suggested that in practice there are generally three types of witness statements: (i) simple witness statements, which only address general topics; (ii) full witness statement that are very detailed and touch upon all aspects of the case; and (iii) witness statement that address only the key points of the case and are not very detailed. The decision to choose one or another type of witness statement depends on the specific strategy a counsel wants to employ, the opposing party’s conduct, the procedural orders issued by the arbitral tribunal, or the procedural rules and applicable guidelines.

Generally, it was agreed that witness statements should contain the elements stated in Article 4(5) of the IBA Rules on the Taking of Evidence in International Arbitration (IBA Rules). Radjai mentioned that counsel will most times adopt a subjective understanding of the phrase “full description of facts” used in article 4(5)(b) of the IBA Rules, depending on the strategy adopted in each case. In addition to the elements suggested by the IBA Rules, it was recommended that the witness statement include: a statement indicating the party on behalf of which it is submitted and also a statement clearly indicating if the witness statement was prepared in conjunction with counsel. The latter indication has the purpose of avoiding tension between the parties.

Professor Dr. Kaj Hobér, commenting on the question of what should a witness statement contain, added that there is no strict rule and that this issue is usually determined on a case-by-case basis. With regards to the meaning of the phrase “full description of facts”, Professor Dr. Hobér warned that although there will always be some differences depending on the case, a general rule is that a witness statement should always contain at least a minimal description of relevant facts. He further mentioned that depending on the background of counsel (i.e. civil law or common law) the witness statement may not be considered as merely to convey a party’s story, but playing the role of evidence per se. In such case (i.e. the civil law system) the witness statement should describe specific legal facts that the arbitral tribunal can rely on. Although acknowledging these cultural differences, Professor Dr. Hobér also noted that an international arbitration culture seems to be emerging that will help fade away these differences in time.

3)     Who should give witness statements?

As to the question of who counsel should choose to act as witnesses, the overall discussion highlighted the importance of the witness interview process. Prospective witnesses should be thoroughly examined by counsel, questioned and have their knowledge of the case tested against documents before counsel asks that witness to become part of the arbitral process. Also, the seniority of a person in the company should not be the only reason for choosing that person to act as witness, as in some cases such a person may seem to be a bit hostile or unwilling to respond to a lot of detailed questions or be subjected to a thorough cross examination.

B.     Drafting witness statements

Matthew Hodgson led the discussion on issues related to drafting witness statement and started by tackling a highly controversial issue regarding the extent to which counsel assistance is admissible when drafting witness statements. While acknowledging that there may be some cultural differences between the common law system and the civil law system, a certain degree of counsel assistance seems to always be necessary and quite acceptable, especially when witness statements deal with highly complicated or contentious issues. Noradèle Radjai further suggested that parties could use an outline of the case and have the witnesses only fill in the blanks or on the very contentious issues have the witnesses freely prepare the first draft of the statement. This would allow each witness to craft the story in his or her own words and therefore prevent confusion or surprise during direct or cross-examination.

Professor Dr. Hobér pointed out that it is common knowledge in the arbitration world that counsel reviews witness statements before their submission and, consequently, counsel should openly admit this and even state it within the witness statement. However, counsel should not try to persuade the witnesses to support their client’s case by describing facts in which the witness does not in good faith believe. To the contrary, counsel should always make sure that the prospective witness understands and sustains his or her witness statement as this will bolster credibility with the arbitral tribunal.

Having acknowledged that usually a common law counsel would be more concerned with preparing the witnesses that a civil law one, Matthew Hodgson invited the participants to contemplate on the question whether such witness preparation could go so far as to do a mock hearing?

Professor Dr. Hobér stated that such preparation might be allowed, but that parties and counsel should be aware that most experienced arbitrators would easily detect witnesses who are over-prepared or simply dishonest. Also, in assessing the credibility of witnesses, arbitrators will usually have discretion to take into account all relevant circumstances. Some practitioners also noted that the witness preparations should not focus as much on what facts or story the witness should present, but more as to how the witness should behave or react when examined.

At the end of the session, the issue of payment for witness statement was raised and discussed by the participants. In his comments on this topic, Professor Dr. Hobér first suggested that a line should be drawn between expert witness statements and factual witness statement. While it is customary for experts to request payment for preparing an objective opinion on technical aspects of a case, the issue of payment for factual witness statements is more delicate. It can be acceptable for a prospective witness to request payment for the work and time put in drafting the statement or for the expenses related to attending the hearing, but it cannot be accepted for a witness to request payment in order to support a party’s case.

II          DOCUMENT DISCLOSURE

Jakob Ragnwaldh, from Mannheimer Swartling, moderated the second half of the day’s discussion focusing on document disclosure on international commercial arbitration. Beginning with the premise that there are no hard and fast rules for document production, Ragnwaldh illuminated that rules may be derived from party agreement, the discretion of the tribunal, the IBA Rules and international best practices. 

The session was divided into three parts: the first one looked upon legal cultural differences and requirements related to document requests (A); the second one addressed issues related to the timing and format of document production requests (B); and the third part focused on objections against document production requests (C).

A.    Legal cultural perspectives and requirements of document requests

Niuscha Bassiri, from Hanotiau & van den Berg in Brussels, then directed the discussion again towards differentiating civil and common law views on document production. Though the general sentiment in the conference was to ensure not to dramatize this schism, Bassiri found it particularly relevant for the discussion. Some of the participants with a United States common law background accounted for a list of pre-trial devices available in common law jurisdictions. There is a distinction between voluntary and involuntary disclosure. Interrogatories and depositions are examples where parties are legally obligated to turn over documents to opposing counsel. These do not become items of evidence, but merely resources for counsel to draw from when creating their submissions.

Bassiri then contrasted principles in civil law jurisdictions stating that there is no duty to produce all evidence relevant to the dispute. The documents and witness statements that are produced from the opposing side, however, then become items of evidence for the tribunal to consider. This usually happens before the written submissions of either side, to ensure that a case can be made with the evidence available. Germany, Bassiri explained, has now seen a trend towards favoring document disclosure since 2002 when it enacted new legal reform that permits certain types of involuntary disclosure. A court in Germany, for example, can now order a party to produce a document if the court knows that the requested party is in possession of such a document.

In practice, arbitration practitioners should weigh and balance a number of co-existing expectations that arise during an arbitral proceeding. Counsel should consider the jurisdictions of its client to harmonize their expectations of what will be required of them to disclose, but counsel should also consider the jurisdiction of the members of the tribunal. Arbitrators usually import their legal backgrounds and education into proceedings, which has the potential to establish subconscious expectations of how an arbitrator will treat the parameters of document disclosure.

Bassiri added that the role of witnesses also differs between these types of jurisdictions. Since witnesses tell the story in most cases, humanizing the dry factual patterns presented in written submissions, the use of witnesses can be another device to present the truth of the matter. Common law jurisdictions tend to value a more global truth as is evidenced by the document production requests of any and all facts that may be relevant to the case. Comparatively, civil law jurisdictions favor a more approximation of the truth provided by what the evidence available can thus show.

B.     Timing and Format of Document Requests

Timing of document production is another important factor for counsel to consider. Bassiri noted that there are three specific time frames during which parties have been seen to request documents. Counsel can choose to request documents before written submissions, after the first round of submissions or on a rolling basis throughout the proceedings.

To request documents before the written submissions may be beneficial to limit the scope of the issues for the tribunal and to establish which claims are in fact substantiated by the available evidence.   In his comments, Professor Dr. Hobér pointed out that document production requests should normally be done after the first round of submissions. When parties request production at the outset of the proceedings, the tribunal is not familiar with the relevant issues of the case and therefore are unable to render reasoned rulings on whether to approve a request for documents or not. Further, in agreement with Jakob Ragnwaldh, Hobér also advised against document production requests on a rolling basis due to the negative impact this would have on the overall efficiency of the proceedings.

For each requests, Kristoffer Löf, from Mannheimer Swartling, said to focus on the specificity of the request and explain the reasoning for requesting each type of document. Specificity justifies an unusual type of a request and also an unusual timing of a request. The typical requirements for document production requests that arbitrators look for in granting such measures are that the documents are: identifiable, relevant and material, in possession, and not protected. Identifiable means that it may fall within the categories outlined in the IBA Rules. It can include detailing the subject matter of the document or the recipient of the certain communication. Relevant and material becomes useful in producing Redfern Schedules for all the documents counsel requests. The Redfern Schedule is a basic chart that outlines the type of document, the reason of requesting that document and the relevance it may provide. 

For a document to be in a party’s possession may prove more difficult than at first blush. It will be up to the arbitrators to decide whether subsidiaries, affiliates or partner companies fall within those responsible to produce documents. The IBA Rules explicitly provide that a third party should produce under certain circumstances, such as employees and subsidiaries. In any event, national courts may provide sufficient authority to retrieve certain documents that a tribunal may not be able to.

C.     Objections against document requests

The discussion then turned to Rostislav Pekar, from Squire Sanders & Dempsey in the Czech Republic, to elaborate on the element of whether a document is protected. An interesting lens through which to look at such a request is whether a counsel must or should comply with a request. A counsel can easily turn to the IBA Rules, but a counsel must consider first if the request is potentially harmful to a client. Pekar emphasized to think about your client, especially in cases of investment arbitration where the client is the State. If a request is seemingly benign and not unnecessarily burdensome, it may be of counsel’s interest to flood the opposing counsel with a litter of documents known to be of no use to him or her. This includes elements of confidentiality, privilege and the like.

The conversation took an interesting turn when a question was posed as to what counsel should do in the event that a client merely objects to produce documents he or she in fact has. Though arbitration does have the principle of negative inferences for a party acting in bad faith, Professor Dr. Kaj Hobér commented that negative inferences are very theoretical and hardly enforceable in practice. So, the only safeguard for the integrity of the proceedings becomes the lawyer abiding by its own domestic ethical codes of conduct. However, these may obviously vary from jurisdiction. Eduard Demião Gonçalves contributed the fact that code of ethics of Brazil, his home jurisdiction, does not punish the withholding of documents and therefore allow him to exercise more discretion in how to proceed. Though not discussed by the panel, a relevant discussion must be had as to the harmonization of ethical standards in arbitration and a possible need for an international standard of ethics in arbitration. To be only bound by one’s domestic jurisdiction’s ethical code may provide unfair advantages to those parties abiding by more strict regulations of practice.

Pekar ended the discussion for the day by posing a question to the members present. “How often is smoking gun evidence actually produced in document production?” Though a few raised their hands, their experienced were all based on accidents or negligence of opposing counsel. Pekar merely pointed this out to warn counsel to think twice before requesting documents, to think about whether it will actually perform in eviscerating this global truth that we, as lawyers, so seldom find.

III         CONCLUSION

In all, the Young ICCA workshop held on the 7th of April in Stockholm proved to be a great success and a great opportunity for Young ICCA members to take advantage of the great practical experience brought to the table by highly-experienced practitioners and especially by world-renowned arbitration authority, Professor Dr. Kaj Hobér. Such events help young arbitration practitioners get a better grasp of practical issues related to witness statements and document disclosure. These have become two of the most essential tools available to the international arbitration practitioner and, consequently, the proper use of such tools is indispensable for cost and time efficient arbitral proceedings.

The workshop was also a great opportunity for practitioners from different jurisdictions and legal cultures to share some of their experiences and hopefully contribute to the emerging international arbitration culture mentioned by Professor Dr. Kaj Hobér.

*Young ICCA member, Bucharest Bar, LL.M (International Commercial Arbitration) Stockholm University

**Young ICCA member, New York State Bar, LL.M (International Commercial Arbitration) Stockholm University