Credibility of Fact Witnesses in Arbitration in Light of Current Debates

Abstract

Fact witnesses have been used in both private and criminal legal proceedings for centuries. Fact witnesses are frequently used in international arbitration, contrary to the rule of proving by deed (or in a general sense, written evidence) that is prevalent in Turkish civil procedural law. Witnesses gain importance when no documents are available to prove the disputed point, when a document is present but it is not self-explanatory, or when the background of the dispute needs to be understood. Despite the widespread use of fact witnesses, several drawbacks accompany them. These undesirable points have been examined for decades due to the importance fact witnesses have in criminal proceedings, however, the idea that the same drawbacks are also considerable for international arbitration have become somewhat common in recent years. This view has been particularly emphasized at certain events the International Chamber of Commerce (ICC) organized, and many in the international arbitration community have taken a doubtful approach toward fact witnesses. Some authors have evaluated the possible drawbacks of witnesses' memory as well as the possibility of testing their truthfulness in an attempt to come up with suggestions for overcoming them. This study first questions the credibility of fact witnesses in light of these evaluations and discussions then provides a number of methods that can be used to compensate for these drawbacks after highlighting some of the main problematic aspects of fact witnesses. The study makes use of several pieces of research, including the recently published ICC report (2020) regarding the memory of fact witnesses as well as some older articles, and seeks to present a holistic perspective on this matter.