// Giving evidence in arbitration hearings - the do's

#1 Prepare

The Tribunal are interested in your contemporaneous recollection of the events in dispute, but that doesn't mean that you need to go into a hearing blind. Your witness statement, and most importantly the documents exhibited to it, are an aide-memoire to help jog your memory of the events that occurred. It's a good idea to re-read your statement before giving evidence and point out to counsel if there is anything you feel needs adding or clarifying, before you begin your evidence.

#2 Ask for help finding your documents

Whilst it's also a good idea to understand which documents are in the trial or witness bundle, you are not expected to know where everything is. If you know you wrote an email or prepared a document at the time that will help you answer the question being asked of you, describe that document the best you can and ask for a moment to look for it. If you cannot locate it, it is likely that someone can direct you to it. There is nothing preventing you from using the documents you created to remind yourself of what you did, or said, at the time.

#3 Admit when you can't remember

Not being able to remember precise details about what were then seemingly unimportant conversations or events is perfectly understandable. A witness that is prepared to admit they simply cannot remember is a more credible witness than one that seeks to make an 'educated guess'. Phrases such as "I can't be sure but I should have", "I think I" or "I must have" indicate that you cannot recall the event with sufficient accuracy, and are best admitting so. As long as you have done your best to assist the Tribunal by answering the questions put to you throughout, no one is likely to penalise you for your candour if your memory fails you. What you shouldn't do however is use the fallibility of memory to avoid answering the tough questions - you'd be surprised just how obvious that can be!

Giving evidence at any hearing, whether it's your first or fifth time is daunting. Preparation is vital. Do remember that you are being questioned on your own specialist subject - what you did and said at the time. By refreshing your memory using your own documents, and admitting when you can't remember, your credibility before the Tribunal will only increase.

Madelaine Power is a Barrister at Pinsent Masons in London, specialising in international construction, commercial and oil and gas arbitration, often with links to the GCC.