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ICC Arbitration and ADR Commission Report on the Accuracy of Fact Witness Memory in International Arbitration

At the October 2015 meeting of the ICC Commission on Arbitration and ADR, Toby Landau, QC delivered a guest speech entitled Unreliable Recollections, False Memories and Witness Testimony. In that speech, Toby Landau gave the Commission an insight into the science of human memory, highlighting its fragile and malleable nature and the ease with which memories can become unwittingly corrupted. He then questioned whether the practices that are commonly adopted for the preparation and presentation of fact witness evidence in international arbitration are themselves potentially corrupting the very evidence that arbitral tribunals rely upon for the fair resolution of disputes.

Toby Landau’s speech was not just entertaining and thought-provoking. It invited further enquiries to be made. If indeed these risks exist, what practical steps might be taken to improve the probative value of witness evidence in international arbitration?

The Commission decided to take up this invitation and created the Task Force Maximising the Probative Value of Witness Evidence. Its mandate was to look at the science (with input from eminent psychologists specialising in human memory), at arbitral practice (with input from Task Force members specialising in international arbitration from around the globe) and to consider whether modifications could be made to current practices, or alternative approaches could be adopted, in order to enhance the probative value of fact witness evidence in international arbitration, particularly as it is affected by memory.

Summary of conclusions

This Report describes the work undertaken by the Task Force, including the independent study that it commissioned by Dr Kimberley A. Wade of the Department of Psychology at the University of Warwick in England. It considers the pertinence of memory issues in international arbitration and sets forth some measures that can be taken to protect witnesses’ memories.

The Report sets out the Task Force’s conclusions and recommendations (in Section VI), which can briefly be summarised as follows:

1. Science shows that the memory of an honest witness who gives evidence in international arbitration proceedings can easily become distorted and may therefore be less reliable than the witness, counsel or the tribunal expects. Greater awareness of the circumstances in which memory distortion is likely to occur and the measures that can be taken to avoid such distortion will be a key step forward for all participants in the arbitration process.
2. There are many steps (as set out in detail in Section V) that can be taken by witnesses, in-house counsel, outside counsel and arbitral tribunals to reduce the risk of distortions of witness memory and to better assess the weight to be given to witness evidence in the light of any distortions. In some cases, however, those steps will be impractical, or may actually reduce rather than enhance the accuracy of the evidence and the efficiency of its presentation. A case by case (and potentially witness by witness) assessment is therefore required to determine which steps are appropriate.
3. Witness evidence is presented in arbitration proceedings for different purposes, many of which do not rely upon the accuracy of witness memory (as discussed in Section IV). Where the accuracy of witness memory is not relevant, neither are concerns regarding memory corruption.

The Accuracy of Fact Witness Memory in International Arbitration