We all know that arbitration and litigation are governed by different rules which dictate the way disputes are dealt with and the way that hearings proceed. One perhaps surprising difference, however, is the approach to oral evidence.
Oral Evidence in Court
In court, oral evidence is often central to the trial and follows the Civil Procedure Rules. Witnesses and experts are generally required to attend trial and give live evidence under oath. This allows judges to assess credibility first hand often by observing how witnesses respond to hostile questioning by way of cross-examination by the opposing legal team.
Courts enforce formal procedures to ensure fairness and transparency. Importantly, courts also have the power to compel attendance by summoning witnesses or experts who refuse to appear, ensuring that all relevant oral evidence is heard.
Oral Evidence in Arbitration
By contrast, arbitration provides a much more flexible framework for presenting oral evidence. Under section 34 of the Arbitration Act 1996, the arbitral tribunal has the authority to decide all evidential matters, subject to any agreement by the parties. This includes whether and to what extent oral evidence will be heard and how it will be managed.
The tribunal’s approach differs markedly from an adversarial court system because the tribunal takes a more active role in managing evidence at the hearing. For example, tribunals may cross-examine witnesses themselves, particularly if one party lacks legal representation. Parties and tribunals can agree on procedures, allowing the process to be tailored to the specific needs of the case.
Evidentiary hearings may or may not take place, depending on factors like complexity, cost, and procedural fairness. Sometimes the tribunal may rely primarily on written statements or reports to avoid unnecessary expense or delay – tribunals have the discretion to limit or waive oral cross-examination entirely, which can speed up proceedings and reduce costs. That said, the evidentiary hearing of a high-stakes arbitration will typically involve cross-examination which is as intense and adversarial as its litigation equivalents; especially those which encompass substantial amounts of factual evidence.
BPY v MXV
The recent Commercial Court decision in BPY v MXV provides important insight into how oral evidence and cross-examination are handled in arbitration.
In that case, the claimant challenged an arbitral award on the basis that certain serious allegations had not been put to witnesses in cross-examination, allegedly breaching the traditional rule in Browne v Dunn. This rule states that if a party intends to contradict a witness’s evidence, they must raise it in cross-examination to give the witness a chance to respond.
The court in BPY v MXV held that the rule in Browne v Dunn does not apply rigidly to arbitration proceedings. Given the practicalities of this particular case – which involved 30 witnesses giving evidence in just 6 days – the arbitrator had decided it was for her to assess the weight of the evidence, regardless of whether cross-examination had taken place in respect of every point. The court emphasised that tribunals have wide discretion to conduct proceedings in a manner they consider fair and efficient, which may include limiting or omitting oral cross-examination, and upheld the award.
Conclusion
Oral evidence can play a crucial role in both court and arbitration proceedings, but how it is ultimately presented can look very different. Courts tend to emphasise live testimony, formal procedures, and have the power to compel attendance to ensure thorough examination. Arbitration affords tribunals a greater degree of discretion to tailor the process to the case’s needs, often prioritising efficiency and cost-effectiveness over strict formality.
About the author
Leyla Maestri is an Associate in the Dispute Resolution team at Kingsley Napley. Leyla has experience acting on a broad range of disputes, including complex cross-border litigation, civil fraud matters, contract disputes, contentious trust and probate claims and arbitration proceedings.
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