Guidelines 18–25

Abstract

18. Before seeking any information from a potential Witness or Expert, a Party Representative should identify himself or herself, as well as the Party he or she represents, and the reason for which the information is sought. 19. A Party Representative should make any potential Witness aware that he or she has the right to inform or instruct his or her own counsel about the contact and to discontinue the communication with the Party Representative. 20. A Party Representative may assist Witnesses in the preparation of Witness Statements and Experts in the preparation of Expert Reports. 21. A Party Representative should seek to ensure that a Witness Statement reflects the Witness's own account of relevant facts, events and circumstances. 22. A Party Representative should seek to ensure that an Expert Report reflects the Expert's own analysis and opinion. 23. A Party Representative should not invite or encourage a Witness to give false evidence. 24. A Party Representative may, consistent with the principle that the evidence given should reflect the Witness's own account of relevant facts, events or circumstances, or the Expert's own analysis or opinion, meet or interact with Witnesses and Experts in order to discuss and prepare their prospective testimony. 25. A Party Representative may pay, offer to pay, or acquiesce in the payment of: (a) expenses reasonably incurred by a Witness or Expert in preparing to testify or testifying at a hearing; (b) reasonable compensation for the loss of time incurred by a Witness in testifying and preparing to testify; and (c) reasonable fees for the professional services of a Party-appointed Expert. IBA COMMITTEE COMMENTS Comments to Guidelines 18–25 Guidelines 18–25 are concerned with interactions between Party Representatives and Witnesses and Experts. The interaction between Party Representatives and Witnesses is also addressed in Guidelines 9–11 concerning Submissions to the Arbitral Tribunal. Many international arbitration practitioners desire more transparent and predictable standards of conduct with respect to relations with Witnesses and Experts in order to promote the principle of equal treatment among Parties. Disparate practises among jurisdictions may create inequality and threaten the integrity of the arbitral proceedings. The Guidelines are intended to reflect best international arbitration practise with respect to the preparation of Witness and Expert testimony.