ABSTRACT: There is a considerable degree of flexibility in the rules governing production of witness evidence in international arbitration. This reflects the paramount importance of party autonomy and the broad powers conferred on arbitrators in the conduct of proceedings. The international practice shows, however, that the procedural steps to be followed are fairly uniform in order to promote efficiency whilst reflecting the perspectives of different legal systems. The presentation of written witness statements in advance of direct and cross-examination at the hearing is an example of a sequence of procedural steps commonly used in arbitration. Several aspects of such procedural steps are still subject to a considerable degree of controversy, particularly as to the functions and limits of cross-examination, the situations in which it is permissible for a witness to amend a written statement, the sequence to be followed in presenting the evidence and the scope and limits on the preparation of witnesses by counsel. This article sets out the relevant concepts and dynamics together with key points in the controversy surrounding these procedural steps. Reference is made, whenever relevant, both to current arbitration practice in Brazil and to the techniques adopted internationally. The author concludes that whilst excessive harmonization of the production of witness evidence might hamper the required flexibility, the procedures to be followed do need to be clearly predictable in order to fulfill the parties' legitimate expectations.
Revista Brasileira de Arbitragem