Until recently there has been no consensus among Polish scholars, courts and legal practitioners on the admissibility of written witness statements in place of oral questioning at arbitration hearings.
Such practice is excluded in civil proceedings before Polish civil Courts. This was confirmed by the Appellate Court in Warsaw which stated in a significant judgment of 7 January 2005 (case reference number: VI ACa 477/04) that written statements of facts by third parties cannot be regarded as evidence in the absence of the party making that statement. Significantly, the Court underlined the fact that witness evidence should be in oral form. Following the judgment, there was a risk that admitting written statements as evidence before an arbitration could be regarded as contrary to the fundamental public policy rules of the Republic of Poland (the public order clause). According to Polish law, that would lead to a mandatory refusal of recognition and/or enforcement of any arbitral award grounded on such evidence.
At the latest conference on practical problems of arbitration in Poland organised by The Court of Arbitration at the Polish Chamber of Commerce in Warsaw, speakers argued strongly against the abovementioned approach. The main arguments were:
- it is against international standards (see UNCITRAL Arbitration Rules, Article 25.5.; LCIA Arbitration Rules, Article 20.3 and 20.4; IBA Rules on the Taking of Evidence in International Commercial Arbitration, Article 4.4);
- it is not time effective (it takes far longer to question witnesses at a hearing);
- it does not help to gather any further useful evidence (usually the representatives for the parties and the arbitrator are prepared to engage in only limited questioning);
- it reduces the parties' control over the proceedings and makes the proceedings less predictable.
The widely accepted conclusion was that there are no legal reasons to treat written statements of witnesses presented before arbitral tribunals as a violation of fundamental Polish rules on public policy.