Much has been written about the struggle arbitrators and parties face in blending civil and common law traditions in international arbitrations. This chapter focuses on a highly valuable procedure used in high stakes international arbitration proceedings to present fact and expert testimony to the arbitral tribunal. That procedure—known as written witness statements—takes the best from the common law and civil law systems in order to allow parties from different cultural and legal backgrounds to present evidence fairly to international arbitral tribunals. Among their many benefits, written witness statements prompt advocates to prepare their cases well in advance of the arbitration hearings, making them better prepared overall.
This chapter explains how written witness statements originated and describes how to use them. It concludes with suggestions for procedures to use written witness statements effectively in international arbitration disputes.
II. Civil and Common Law Differences in Presenting Evidence
“It is the arbitral tribunal’s duty to ensure that evidence is taken in an efficient and economical manner, while also ensuring, ‘equality of arms’ between parties from vastly different legal traditions.” The benefit of efficiency while blending the traditions of both common law and civil law procedures explains why written witness statements have become favored tools of evidence presentation in international arbitration. To understand why written statements meld these two traditions, it is necessary to understand the different methods common law and civil law practitioners have used to present evidence to the finder of fact.