Does a Party Have to Cross-Examine a Witness in International Arbitration? The Rule in Browne v Dunn
On 29 November the Supreme Court of the United Kingdom confirmed a long standing rule that “a party is required to challenge by cross-examination the evidence of any witness of the opposing party on a material point which he or she wishes to submit to the court should not be accepted.” The Court confirmed that “[t]hat rule extends to both witnesses as to fact and expert witnesses” (TUI UK Ltd v Griffiths). It is known as the rule in Browne v Dunn. This judgement was issued in the context of domestic litigation. How important it is for international arbitration practitioners? In my opinion, it is of limited relevance. Generally, arbitral tribunals have wide discretion as to the management of evidence. They are not bound by any particular national laws. Most civil law arbitration practitioners would not accept a notion that a witness must be cross-examined for his testimony to be challenged. Were the rule in Browne v Dunn to be applied in international arbitration, counsel would be incentivized to cross-examine all witnesses on all possible points, otherwise risking that their written statements would be considered true. Arbitration costs would increase, efficiency would fall. That is why quite often procedural orders no. 1 provide that the tribunal will not consider witnesses’ written statements true just because a party decides not to cross-examine them.
It will be interesting to see to what extent the Supreme Court judgement in TUI UK Ltd v Griffiths will make arbitrations seated in London different from other seats in Europe. Earlier this year the English Commercial Court held that “In arbitration proceedings, subject to any specific agreement between the parties otherwise, the tribunal is likely to have a wide discretion as to how to conduct proceedings. (…) Subject to compliance with the general duties enshrined in s. 33 AA a tribunal may adopt a procedure which does not involve oral cross-examination of witnesses, whether on a particular point or at all. This includes in a case in which it is said that a witness is not telling the truth, although in some cases fairness will necessitate cross-examination.” (BPY v MXV). Section 33 of the English Arbitration Act provides for a general duty on an arbitral tribunal to act fairly and impartially as between the parties, giving each party a reasonable opportunity of putting his case and dealing with that of his opponent, and to adopt procedures suitable to the circumstances of the particular case. Based on the Commercial Court’s decision, I understand that the rule in Browne v Dunn would not be directly applicable to arbitration, although consequences of not cross-examining a witness may be assessed in the light of the general duty of fairness and impartiality set out in Section 33 AA. And it seems that English judges may have different opinions than continental judges as to whether an omission to cross-examine a witness breaches such a general duty.
Michał Kocur