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International Arbitration: Hearing Testimony by Videoconference

Testimony by videoconference in international arbitration offers the disputants both a fair means for assuring that relevant evidence is heard and an effective tool for cost reduction.

It is hardly surprising that lawyers frequently encounter challenges in obtaining the voluntary appearance of a witness, particularly a third party witness, at an arbitral hearing thousands of miles away.  Often times, when the natural inclination of a witness to a commercial dispute may be to avoid involvement, the inconvenience of international travel is an especially hard sell.  Moreover, even with a cooperative witness, scheduling complications and the formidable expenses of international travel may outweigh the perceived benefits of the expected testimony.  In still other cases, a witness may not be able to enter the country where the hearing is being held -- due to visa problems, for example.

In such instances, testimony by videoconference presents a practical and fair alternative.  The potential of any inconvenience to a witness is minimized, if not eliminated.  Although there are certainly technology expenses involved with testimony by videoconference, it is a safe bet that such expenses will be less than the costs of a witness's international travel and lost time from work.  Most importantly, the videoconference testimony alternative offers the highest likelihood that the testimony of certain less accessible witnesses will be received in evidence.  Often the only other alternative would be the submission of the witness's sworn statement, which may be accorded little weight where the opposing disputant is denied the opportunity of any cross-examination.

To be sure, testimony by videoconference is not a perfect substitute for live, in-person testimony.  The impact of a direct examination is likely to be less forceful. Cross-examination may be more cumbersome and less effective too, for instance, because of difficulties that may arise in confronting the witness with documents.  The panel may also have more difficulty assessing demeanor evidence and the credibility of the witness.

It is suggested that counsel in an international arbitration make the earliest possible assessment regarding the potential efficacy of testimony by videoconference.  This is a matter that should be taken up with the panel at the first case management conference.  While the procedural rules of leading international arbitral institutions, such as the International Centre for Dispute Resolution and the International Court of Arbitration of the International Chamber of Commerce, do not explicitly permit the introduction of testimony by videoconference, neither do they prohibit it. The rules do explicitly allow tribunals to hear witnesses at any place deemed appropriate - and they emphatically promote cost-effectiveness, flexibility and fairness.  While testimony by videoconference may not be appropriate in your case, counsel is well-advised to consider it.

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