Re-examining the Approach to Factual Witness Evidence in International Arbitration

Abstract

The concept of witnesses having a central role in the determination of legal disputes is as old as the law itself and is a constant across all major legal systems. But the way in which witness evidence is assessed, the primacy it plays (or does not play) and how it is deployed and verified differs significantly, not least between the civil and common law systems. One author notes that ‘few differences between common law and civil law procedure are as striking as the attitudes toward the testimony of witnesses’. Although civil and common law legal systems adopt different approaches to witness evidence, they share a common goal – that of seeking to arrive at what is most likely to be the truth. This task is by no means straightforward; science has demonstrated that human memory is easily distorted and often inaccurate.