Arbitration In IndiaInternational ArbitrationWitness Statements in Domestic and International Arbitration

June 16, 20220


Witness statement refers to a clear and concise statement made by a person to provide information or views regarding relevant documents submitted as evidence. As per the laws of Evidence, a witness statement is a sworn statement made under oath.

In Arbitration proceedings, witness statements enable the presentation of evidence  before the Arbitral Tribunal. A witness statement is an excellent means of disclosure to the opposing counsel and the Tribunal of what the witness knows and has to say about the facts in issue.

Witness statements have certain correlated purposes in Arbitration proceedings, as they help in reducing the duration of hearing by presenting pertinent points from the oral testimony of the witness in advance. This, in turn, helps reduce the need for discovery and gives the opposite counsel an opportunity to rebut the testimony by presenting appropriate documents.

Given the significance of witness statements, it becomes necessary to examine the rules which govern their presentation before the Arbitral Tribunal. The present article elaborates upon witness statements and their examination in both domestic and international Arbitration.


Section 19 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the “Act”) provides that the Arbitral Tribunal is not bound by the Code of Civil Procedure, 1908 (hereinafter referred to as the “CPC”) or the Indian Evidence Act, 1872 (hereinafter referred to as the “IEA”).

Section 19 of the Act is in consonance with the foundational principle of Arbitration, i.e., party autonomy, as it is intended to provide autonomy to parties in determining their own set of procedures applicable to the Arbitral proceedings.

In the absence of any agreement between the parties regarding the procedures to be followed, the Act confers discretion on the Arbitral Tribunal to decide its set of procedures.

In the absence of definite rules of procedure and evidence, the question arises with regard to the manner of production of evidence in the form of witness statement, and subsequent examination of such witnesses.


The provision enshrined in Section 19 of the Act is meant to provide some degree of flexibility to the Arbitration process, being the principal feature which sets the mechanism of Alternative Dispute Resolution (“ADR”) apart from conventional adjudication mechanism. However, while flexibility is essential, the Arbitral proceedings  must ensure proper dispensation of justice.

Though Indian Courts have opined that although the CPC and the IEA are not applicable to Arbitration proceedings in the strictest sense, the principles of the statutes are applicable in spirit. Similarly, the Arbitral Tribunal has to ensure that no evidence is admitted without informing the opposite party, and without giving the opposite party an opportunity for cross-examination.

Section 18 of the Act  mandates that the parties be treated with equality and each party shall be given full opportunity to present his case. Additionally, Section 24(2) of the Act also provides that the parties are entitled to adequate advance notice of any hearing and of any meeting of the Arbitral Tribunal for the inspection of documents, goods, or other property. Further, the Arbitral Tribunal is also required to communicate all documents and other information submitted to it by a party, to the opposite party.

In Sukhbir Singh v. M/s Hindustan Petroleum Corporation Ltd. O.M.P. 1118/2014 dated 16.01.2020, the Delhi High Court was to determine whether the parties’ right to cross-examine witnesses in Arbitration is subject to the Arbitral Tribunal’s discretion. After a careful interpretation of Section 24 of the Act, the Delhi High Court held that a party has a right to cross-examine a witness produced by the other party unless the same right has been expressly waived off by the parties by way of an agreement to that effect.

This, however, does not imply that the parties shall be entitled to unending cross-examination or oral submissions. The Arbitral Tribunal reserves the right to determine the length and scope of oral hearings.

The Tribunal may also determine certain points on which it requires the parties to lead evidence. Similarly, it is also open for the Arbitrator to set appropriate time limits for oral arguments. All in all, the principles of natural justice and reasonableness dictate the rules of procedure and evidence.


The Indian Arbitration Forum (“IAF”) is an association of leading arbitration practitioners. The IAF issued the Guidelines for Conduct of Arbitrations Version 2.0 February 2020 (hereinafter referred to as the “IAF Guidelines”), of which Section IV and V provide for ‘Examination and Role of Witnesses’ and the ‘Procedure for Witness Examination and Cross Examination’ respectively.

Article 20 of the IAF Guidelines states that parties may prepare a provisional list of witnesses. To ensure efficiency in the management of proceedings, it is mandated that all the names of the witnesses should be listed conclusively at the time of making the statement of claim. Article 21 provides that the Tribunal should generally allow the examination of a witness unless their evidence is to be disregarded altogether.

Article 27 of the IAF Guidelines recommends the procedure for witness examination. It is structured in a manner that is both time and cost efficient. For instance, the procedure requires the intent to examine or cross-examine a witness to be expressed 4 to 6 weeks prior to the hearing to ensure the availability of the witness.

The IAF Guidelines also insist upon scheduling consecutive testimonies of witnesses in a hearing to save costs and time. The Tribunal may also prescribe specific time limits for each party’s witness, with the provision of giving an extension to both parties equally, if required. The Tribunal may also impose sanctions as per its discretion if the parties or their counsel fail to conduct the examination in a streamlined manner.


International Arbitrations tend to be factually complex, involving multiple moving pieces. In such a scenario, oral witness testimony can be helpful in affording clarity to the dense subject matter of the dispute in Arbitration.


The International Bar Association (“IBA”) released the IBA Rules on the Taking of Evidence in International Arbitration  (hereinafter referred to as the “IBA Rules”) which was adopted by a resolution of the IBA Council in 17.12.2020. The IBA Rules serve as a guiding resource for the conduct of efficient, economic and fair process for taking evidence in international Arbitration.

The IBA Rules lay down framework for the presentation of documents, witnesses of fact and expert witnesses, inspections, and the conduct of evidentiary hearings. The IBA Rules are to referred in consonance with other ad hoc, institutional or other rules of procedure governing international Arbitrations.

Further, the United Nations Commission on International Trade Law (“UNCITRAL”) issued the UNCITRAL Arbitration Rules, which provides a well-defined structure for the conduct of Arbitral proceedings arising out of disputes within a commercial relationship.

With respect to witness statements, it provides that the Arbitral Tribunal shall hold hearings for the presentation of evidence by witnesses if any party so requests. In the absence of such request from any party, hearings for presentation of witness statements may be conducted on the basis of the Arbitral Tribunal’s discretion.

Articles 27 and 28 of the UNCITRAL Arbitration Rules further enumerate the procedure for evidence and hearings. A plain reading of the provisions of the UNCITRAL Arbitration Rules concerning witness statements and examination indicate that the same is largely based on the Arbitral Tribunal’s discretion.


  1. Singapore International Arbitration Centre (SIAC)

When the parties refer their disputes to SIAC for Arbitration or agree to proceed with their Arbitration in accordance with the Rules of SIAC, the SIAC Rules, 2016 shall become applicable. The SIAC Rules, 2016 comprehensively lay down the process for conduct of Arbitration, from the commencement of Arbitral proceedings to their conclusion and passing of Award.

Rule 25 of the SIAC Rules, 2016 concerns witnesses, and provides that prior to any hearing, the Arbitral Tribunal may require the parties to give notice of the identity of witnesses whom they intend to produce and the same should be accompanied by the subject matter of their testimony and its relevance to the issues.

The Arbitral Tribunal has the discretion to allow, refuse or limit the appearance of witnesses to give oral evidence at any hearing. The parties, their representatives and the Tribunal are also free to question the witness giving oral evidence.

  1. International Chamber of Commerce (ICC)

The ICC Rules of Arbitration, 2021 provide a neutral framework for the resolution of cross-border disputes through Arbitration. As per the ICC Rules of Arbitration, 2021, witness examination may be allowed by the Arbitral Tribunal as per its discretion after consultation with the parties.

The ICC Rules of Arbitration, 2021 stipulate that one of the key considerations guiding the Tribunal while deciding upon the scope, length and extent of witness evidence and examination is effective case management. For effective case management, the ICC Rules of Arbitration, 2021, provide for the avoidance of unnecessary repetition and maintaining focus on the key issues.

  1. London Court of International Arbitration (LCIA)

When the parties by an agreement, submission or reference indicate that the Arbitration is to be conducted under the rules of LCIA, the LCIA Arbitration Rules shall apply. Article 20 of the LCIA Rules provides for witnesses.

The LCIA Arbitration Rules require the parties to give a written notice of the identity of each witness that the party wishes to produce. The notice should also include the subject matter of the witness’s testimony and its relevance to the dispute. The witness’ testimony can be presented by a party in written form.

The Arbitral Tribunal can decide the time, manner and form in which said written materials are to be exchanged between the parties and presented before the Arbitral Tribunal. Lastly, any party can cross-examine the witness giving oral evidence at a hearing subject to the Tribunal’s discretion and direction. The Arbitral Tribunal can also pose questions to the witness at any stage of such testimony.


The article provided an insight into the procedure of witness statement and examination in domestic and international Arbitrations. For domestic Arbitrations in India, although the rules of procedure and evidence as laid down in CPC and IEA are not applicable in the strictest sense, judicial decisions indicate that Arbitration must be conducted in accordance with the principles of natural justice.

With regards to international Arbitration, the common Guidelines and the different Rules of Institutional Arbitration Centres indicate that significant importance is placed on party flexibility and autonomy for the presentation of witness statements, which form the foundation of Arbitration as a mechanism of dispute resolution.

Notably, all aforesaid Guidelines and Rules provide for witness examination in a manner that is time and cost-effective and also compliant with the parties’ needs given the unique facts of the dispute. The same ideology of efficiency and flexibility in the process is also reflected in the IAF Guidelines.

-Team AMLEGALS, assisted by Ms. Aditi Mishra (Intern)

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