Some arbitrations have full hearings, very similar to those which take place in front of a judge in court. Witnesses are questioned. The strength of the evidence is explored and its weaknesses exposed; the integrity of the witness soon becomes clear.
But many arbitrations are conducted on a documents only basis. Witnesses will make a statement (produce a report) and then write a further statement (a reply) addressing the points made in the other side’s initial statement or report. The documents only procedure is frequently preferred on the grounds that it is quicker and cheaper than having a hearing – in my view a doubtful proposition. Documents only has its drawbacks, perhaps, the main one being that the reports and replies of a witness often avoid, slide over or only partially address areas which are difficult for him to deal with openly and honestly. In a hearing you can force a witness to address such a difficulty or weakness but you cannot normally do this if you are restricted to written reports and replies.
One way of dealing with this is for a party to apply to the arbitrator or for the arbitrator to call for a hearing – provided of course, that the directions have not precluded this. The objections to doing so are that a hearing at this stage will add to the expense and cause delay and, of course, avoiding expense and delay were the main (apparent) motives for choosing documents only in the first place.
There is a further way of putting the witness to the test. That is by requiring the witness to answer specific written questions arising out of his report and reply. This way of proceeding is referred to in the Arbitration Act 1996 (the Act) under Section 34(2)(e) but in my experience it is little used.
The relevant parts of Section 34 state:
“34(1) It shall be for the Tribunal to decide all procedural and evidential matters, subject to the right of the parties to agree any matter.
34(2) Procedural and evidential matters include –
34(2)(e) Whether any and if so what questions should be put to and answered by the respective parties and when and in what form this should be done;”
Section 34(2)(d) will apply to the arbitration unless it is agreed by the parties that it should not. However, its use could be disruptive unless it is properly controlled. Addressing its use at the preliminary meeting (to determine procedure) should achieve this and it has the additional benefit of alerting the parties to the possibility of being put on the spot.
To incorporate Section 34(2)(d) into the procedure adopted for the arbitration a suitable initial direction might include:
- Questions arising from the expert witness statements/submissions and replies are to be made by the parties by [date within 14 days of the date for replies].
- Responses to questions are to be made by [14 days later].
- Questions may be put by the arbitrator at any time.
- Responses to questions by the arbitrator are to be made within 14 days.
What if a witness refuses to answer the question? The arbitrator could at that stage issue a Peremptory Order under Section 41 of the Act. Such an Order would repeat the direction for the party to answer the question. Failure to comply could, for example, lead to the arbitrator being able to disregard part of the evidence being put forward by that witness.
Section 34 (2)(d) offers a cheap and effective way of shining the search light into the shadowy areas where witnesses might otherwise be inclined to skulk.