554 THE ADVOCATE
VOL. 80 PART 4 JULY 2022
Witness Conferencing: The Practical Perspective
In practice, as arbitrator in competition- and IP-related arbitrations, I have
used witness conferencing in connection with the provision of expert economic
testimony. Expert testimony is, as the CIArb Guidelines reflect, the
most paradigmatic use of witness conference procedure to test testimony.
This is so for many reasons, including that witnesses providing expert opinions
may or should be more objective and have less of a hostile bias to the
counterpart on the other side; thus, the procedure (via shoulder-to-shoulder
comparison) is more likely to develop smoothly with fewer histrionics.
Indeed, in some instances the opposing expert witnesses come together on
certain points when giving testimony concurrently (“Yes, I happen to
agree”), and most of the time their differences will be more pronounced and
not obfuscated by the close-in-time “side-by-side” comparison. To my mind,
the more complex the issue to be resolved, the greater the benefit from the
witness conference and the contemporaneous comparison of testimony.
In fact, there is no reason why the party-appointed experts might not, in
advance of the witness conference, hold a “meet and confer” between themselves
and attempt on their own to reach agreement on certain issues in
their expert reports and then subsequently record the areas of disagreement.
This form of “hot tubbing” with a written joint report is recognized by
the IBA Rules on Taking Evidence in International Arbitration5 and would
work nicely in conjunction with a follow-on witness conference.6
The format I have followed has always involved a mixture of counsel
examination and tribunal questioning, usually with counsel’s examination
proceeding first and then the arbitrator’s; it is to be worked out if counsel can
pose further questions after that. Also, I found the process works easier, and
indeed it is simpler, if each economic issue (as applicable) is taken up seriatim.
Given the complexity of the economic issues, one seeks the easiest
process to clarify and simplify the resolution of the disputed testimony.
Taking only one example in the vast area of competition law (and one can
use any example of a complex issue in any complex case), in many arbitrated
competition disputes in certain major legal regimes, a central issue
can be whether the challenged agreement at issue likely harms competition
by increasing the ability or incentive of one party to that agreement to profitably
raise the price for a significant period of time above—or reduce output,
quality, service or innovation below—what would likely prevail in the
absence of that agreement. That is, a key issue can be whether the conduct
in question would confer market or monopoly power on that one party in a
relevant market (in both product and geography). Thus, the definition of a
relevant market becomes a focal issue in the arbitration, which is an issue