In 2019, Sir Michael Burton delivered judgment in P v D EWHC 1277, establishing that if a respondent requests the tribunal not to give credit to a witness’s testimony, it must crossexamine the witness to explain why they should not be believed. Failure to do so prevents the arbitral tribunal from considering the evidence refuted. English courts may set aside awards under section 68 of the Arbitration Act 1996 where arbitrators breach their duty under section 33 to act fairly and impartially by reaching adverse credibility conclusions without adequate cross-examination. Since 2019, English courts have considered P v D in three cases: Obrascon Huarte Lain, Tenke Fungurume Mining and BPY v MXV. Whilst recognising its procedural fairness principles, courts have distinguished P v D on factual grounds, demonstrating its limited application. The precedent establishes a developing principle on witness treatment, requiring careful factual analysis and special attention to cross-examination protocols on fundamental credibility issues.
Iurgium [previously Spain Arbitration Review]