The role

A witness of fact (the witness) in arbitral proceedings (or in litigation) is limited to explaining what they can recall of certain events at material times that are relevant to the matters that are the subject of the dispute.

Most often, an arbitration case is started several years after the occurrence of events which are now matters in dispute. Witnesses will not be expected to be able to recall what was said in a meeting or telephone call that took place several years earlier. No opinion evidence is required, and no submissions are to be made on behalf of the party that has asked the witness to give evidence. A witness' only duty is to the Tribunal, to explain clearly and concisely the relevant facts in their written statement and in oral testimony when required.

How to select

Because formal legal proceedings are typically started several years after the material events occurred, some potential witnesses are no longer employees at the company involved in the dispute. They may not even be resident in the country any more, particularly given the transient nature of the working community in the Gulf. The sooner you can identify and locate your potential witnesses, the sooner you can determine the quality of information available to support your case.

Some individuals may be happy to assist but it might be that their memory of events isn't as good as you had hoped, or perhaps relevant records weren't maintained by others at the material time or subsequently, and some people just don't make good witness material. Your legal advisers will be able to assist you in the identification of suitable witnesses.

How to get the best out of your factual witnesses

Having identified your potential witness candidates early, the next task is to identify which of those witnesses can speak to which of the issues in dispute. It is essential to make sure that you're able to address the key issues in dispute between the witnesses available to you.

It is also important to manage their expectations and your own/those of senior management. Understand what it is that you are asking of your witnesses and give them the necessary support to allow them to properly prepare their witness statements, and in due course for the hearing:

  1. allow them sufficient time to prepare their statements around their normal day-to-day responsibilities and acknowledge their efforts;
  2. share the timetable for the arbitration case with them and ensure they are available at the key times, including for the evidentiary hearing;
  3. make sure they understand the value and importance of their factual evidence, so that they put sufficient time and effort into the preparation of their witness statements.

Beware: insufficiently prepared and poorly informed witnesses make bad witnesses, which can be detrimental to an otherwise good case.

Communication is key

Share deadline dates for witness statements with your witnesses as well as the dates for the evidentiary hearing well in advance to allow them sufficient time to prepare, and ensure that your witnesses are not travelling (for work or personal reasons) just prior to or on any of those key dates.

Key witnesses can also assist with the review of some or all or the opposing party's witness statements and comment on them regardless of whether or not the timetable for the arbitration permits the exchange of reply witness statements. Feedback from these witnesses can be very useful in the ongoing preparation of your case so it is vital that your witnesses are available to assist at these keys times in the timetable for the case.

The evidentiary hearing: preparation, preparation, preparation!

Give witnesses sufficient time to prepare by reviewing the pleadings and the statement(s) that they provided months earlier. Your legal advisers should explain to the witnesses giving oral evidence what is involved, well in advance of the "big day": the process of examination-in-chief, cross-examination, and the possibility of re-examination; that answers should be addressed to the Tribunal; that the Tribunal members may have questions of their own for the witnesses; the availability of the witness statement and related documents during testimony; whether or not an oath will have to be sworn by the witnesses; appropriate demeanour for the hearing and general conduct befitting the hearing; how to deal with questions that aren't understood when put to the witness, and so on.

This approach will reduce nerves and encourage calm, focused answers in the witness box, which more often than not presents the evidence in support of your case in a good light.

First published in the Lexis Middle East Law Alert on 26 October 2016