Compelling Witness Testimony Under The 1996 Arbitration Act

• Published date: 19 February 2024
• Subject Matter: Litigation, Mediation & Arbitration, Arbitration & Dispute Resolution
• Law Firm: Norton Rose Fulbright Hong Kong
• Author: Zayba Drabu, Cloudesley Long and Majdie Hajjar

Witness evidence is pivotal in the outcome of most disputes. Working collaboratively with witnesses is always the best way to secure testimony, not only because it saves time and costs, but, more importantly, because there are inherent risks in compelling an uncooperative witness to give evidence in the hope that evidence will support your case.

When faced with a witness who is unwilling to give evidence, steps may be taken to compel that witness to give testimony. In those circumstances, it is necessary to consider what purpose the witness would have in assisting in the determination of the dispute - for example, whether their evidence is material - and then balancing that against the risk of an uncooperative witness giving evidence which is unhelpful.

Where it is decided to compel a witness in an arbitration seated in England, Wales and Northern Ireland, practitioners should consider whether the provisions of the Arbitration Act 1996 (the Arbitration Act) can assist in compelling witness testimony. This article looks at the different considerations, and therefore processes, required to compel witness testimony under the statutory framework of the Arbitration Act. As noted below, certain provisions can apply to arbitrations seated outside this jurisdiction.

Witnesses located inside the United Kingdom

Section 43 of the Arbitration Act entitles a party to arbitral proceedings to apply to the court to "secure the attendance before the tribunal of a witness in order to give oral testimony or to produce documents or other material evidence." This is a mandatory provision that cannot be excluded by parties to an arbitration agreement and entitles a party to an arbitration to use the same court procedures for summoning witnesses that are available for court proceedings under CPR 34.

To do so, some conditions must be met. First, the witness must be in the United Kingdom, second the arbitral proceedings must be conducted within the jurisdiction of the Arbitration Act, and third - and the most difficult hurdle - is that the agreement of the other party (or parties) to the arbitration or permission of the tribunal is required. Practically, it is likely to be difficult to obtain agreement from opponents - particularly in respect of compelling testimony of witnesses who are, for example, "under their control."

Importantly, the place where the arbitral proceedings is conducted does not necessarily mean the 'seat' of the arbitration. Provided that the physical hearing...