OVERVIEW
First published on Thomson Reuters Practical Law Arbitration Blog
In November 2020, the International Chamber of Commerce (ICC) published an ICC Commission Report on "The Accuracy of Fact Witness Memory in International Arbitration". James M. Turner QC, counsel and arbitrator at Quadrant Chambers, reviews the ICC Report's salient findings and suggestions and asks whether it advances matters.
In Gestmin v Credit Suisse [2013] EWHC 3560 (Comm), Leggatt J (now Lord Leggatt JSC) criticised the legal system's reliance on oral testimony. In a striking passage (at [15]-[22]), he pointed out not just the inherent fallibility of human recollection, but its propensity to be modified, as well as the lack of correlation between its accuracy and its clarity. There are also numerous cases deprecating the practice of interviewing two or more witnesses together: see, e.g., Smith New Court Securities v. Scrimgeour Vickers [1992] BCLC 1104 at 1115-1116, and R v Momodou [2005] 1 WLR 3442 CA.
The ICC Report is a promising combination of academic research and ...