Introduction. A fact witness statement is the written evidence‑in‑chief of a non‑expert witness in an arbitration. The fact witness statement replaces the traditional oral examination‑in‑chief used in court and serves as the witness’s primary account of what happened. With only limited time reserved for presenting the fact witness statement, most of the hearing time is devoted to cross‑examination on the fact witness statement.
Role of in-house counsel in preparing fact witness statements. Preparing fact witness statements requires careful planning by in‑house counsel, who serve as the link between the organization and external counsel. The process begins with identifying individuals who have direct knowledge of events and who can speak clearly and credibly about what occurred. In‑house counsel must work with each witness to reconstruct the timeline, review relevant documents, and ensure that the statement accurately reflects the witness’s own recollection. In some cases, in-house counsel must also help the witness familiarize themselves with the key documents appended to the statements. Any inconsistency between the statement and the documentary record can undermine credibility and weaken the case, and discrepancies among witnesses must be addressed early.
Fact witness statements also serve an important strategic function. They help refine the organization’s theory of the case, highlight strengths and weaknesses, and allow both sides to assess the evidentiary landscape in preparation for cross‑examination. For the arbitral tribunal, the statements provide a clear roadmap of what to expect at the hearing.
Form of the fact witness statement. A fact witness statement does not need to be in affidavit form. In most arbitrations, a signed statement is sufficient to place the witness’s evidence before the arbitral tribunal, reflecting arbitration’s emphasis on flexibility and efficiency rather than formalism. The essential requirement is that the statement accurately reflects the witness’s own recollection and is signed to confirm its authenticity. However, when credibility is in issue, the arbitral tribunal may require the statement to be sworn or affirmed. This typically occurs when the witness’s account is central to a disputed fact, when reliability is challenged, or when the arbitral tribunal considers that an oath will underscore the seriousness of the evidence. Although swearing the statement does not change its substance, it can assist the arbitral tribunal in assessing credibility and ensuring the witness understands the importance of providing truthful and accurate testimony.
Multiple rounds of fact witness statements. The parties and the arbitral tribunal must also determine how many rounds of witness statements will be permitted and when those statements will be delivered. Multiple rounds give parties an opportunity to rebut one another’s evidence, but they also increase the cost and length of the proceedings. The arbitral tribunal must also decide whether witness statements should be filed together with the written submissions or delivered closer to the hearing. Requiring early delivery may help narrow the issues, although this is only effective when the parties already have a solid understanding of the dispute.
Language. A fact witness statement should be drafted in the language in which the witness can express themselves most naturally and accurately. A witness who is more comfortable in, say. French should give their statement in French, and the same applies to English or Spanish, for instance. In international arbitration, it is common for the procedural language to differ from the witness’s language. Where there is a variance between the procedural language and the language of the witness, the statement is prepared in the witness’s language and then translated into the procedural language, with both versions provided to the arbitral tribunal. The arbitral tribunal may also allow the witness to testify in their preferred language with interpretation at the hearing. This approach protects the integrity of the evidence while respecting the linguistic realities of cross‑border or inter‑provincial disputes. In-house counsel will have to consider the linguistic requirements of the dispute early on and make some provision for either translation or interpretation services.