(Disponible uniquement en anglais)
Introduction. A fact witness is someone who testifies about events that they personally observed or participated in. Their role is to give the arbitral tribunal a first‑hand account of what happened, explain the context in which decisions were made, and clarify the meaning of key documents. Unlike expert witnesses, who offer opinions based on specialized knowledge, fact witnesses speak only to what they saw, did, or understood at the time of the events. A fact witness does not offer opinion evidence. A fact witness is generally tendered if the arbitral tribunal has scheduled an oral hearing.
Arbitrators rely heavily on these fact witnesses to understand the commercial context, the decision‑making process, and the operational realities that underpin the dispute that the arbitral tribunal must adjudicate. The testimony of the fact witness will assist the arbitral tribunal, assess credibility, explain the documentary record, and the parties’ conduct.
Role of in-house counsel in identifying fact witnesses. For in‑house counsel, identifying the right fact witnesses early in the process is essential. The best witness is not always the most senior or most knowledgeable person. A strong fact witness is someone who can give the arbitral tribunal a clear, credible, and first‑hand account of what actually happened inside the organization. Arbitral tribunals value authenticity and clarity far more than hierarchy. The fact witness must be able to situate the documents in their proper context and explain why certain decisions were made by the organization.
Early engagement with the fact witnesses allows counsel to assess who has the necessary knowledge, who is still available, and who can withstand the demands of cross‑examination. Early engagement also helps avoid surprises, such as discovering late in the process that a key employee has left the company or has limited recollection of critical events.
Another important consideration is the alignment between the fact witness’s testimony and the documentary record. Arbitrators place significant weight on contemporaneous documents, and fact witnesses must be able to speak to documents with confidence and accuracy. In‑house counsel must ensure that witnesses understand all of the documents that have been produced, the timeline of events, and the broader commercial context that led to the dispute. Making sure that the fact witness is familiar with all documents, even documents that they did not author is important.
Where there are multiple fact witnesses, the in-house counsel must ensure that the evidence is consistent across witnesses and that there are no contradictions. If parties can include an agreed statement of facts to the arbitration, this may limit the need for multiple witnesses. The greater the number of fact witnesses, the more expensive and lengthier the arbitration.
Finally, fact witnesses can shape the theory of the dispute. For in‑house counsel, investing time in selecting and preparing fact witnesses is not simply a procedural task; rather, it is a strategic exercise that can affect the outcome of the arbitration.