New ICC report takes bold move to tackle unreliability of witness testimony in arbitration

  • 19 January 2021

ICC has launched a new report on the accuracy of fact witness memory in international arbitration. The report, which is the first of its kind conducted by an arbitral institution, analyses the psychological science of human memory, and offers arbitrators and counsel guidance to enhance the probative value of fact witness evidence

The groundbreaking report, by the ICC Commission on Arbitration and ADR, was presented today during a live webinar.

The ICC Task Force on Maximising the Probative Value of Witness Evidence – initiated by former Commission Chair Christopher Newmark and co-chaired by Baker & McKenzie Partner Ragnar Harbst and Reed Smith Partner Jose Astigarraga – set out to explore the science behind the human memory retrieval process and investigate how typical arbitral practice can skew witness memory, resulting in less reliable evidence. The Task Force also considered whether changes could be made to current arbitral practices or alternative approaches could be adopted to reduce the risk of witness memory distortion and make witness evidence more reliable and the process more cost effective.

To understand the psychology of witness memory recall during an arbitration, Dr Kimberley Wade of the Department of Psychology at the University of Warwick was commissioned to conduct an independent study for the report. The outcomes of the study, which solicited views from 300 international professionals from across industries and took five years to complete, led to the following conclusions:

The memory of an honest witness in an international arbitration hearing can be easily distorted due to the interactions that commonly take place during the preparation and presentation of  witness evidence. However, awareness within the arbitration community of the factors that are known to create memory distortions, as well as appropriate and selective use of measures that are set out in the report to avoid such distortion should together signal a key step forward.

A case-by-case assessment should be made to determine which of the many steps identified in the report is most appropriate to be used.

It is understood that witness evidence is presented in arbitration proceedings for a variety of purposes, many of which do not rely upon the accuracy of witness memory. Should the accuracy of witness memory not be relevant, the concerns regarding memory corruption are not relevant.

As witness evidence often takes a central role in many arbitral proceedings, this pioneering report aims to bring certain fault points into mainstream discussions in order for practitioners and tribunals to better streamline efforts and costs. The report may also serve as a successful basis for future collaborative research projects involving psychologist and arbitration specialists.

Commenting on the launch of the report, Christopher Newmark said:

“Once this report is digested and discussed, the arbitration community will be able to adjust its practices to make witness evidence not only more reliable, but also more cost effective. That should be very good news to the parties who pay for the whole process and who are looking to arbitration to produce fair and reliable outcomes.”