Use Of Witness Conferencing In Swiss-Seated Arbitrations
Use of Witness Conferencing in Swiss-Seated Arbitrations
1. Concept of Witness Conferencing
Witness conferencing refers to a procedural technique in which:
Two or more witnesses (often experts, but also factual witnesses)
Testify together, before the tribunal
Are questioned comparatively, rather than sequentially
Its objectives are:
Clarifying divergent opinions
Testing credibility and consistency
Enhancing procedural efficiency
Assisting tribunals in technically complex disputes
Swiss arbitration law expressly permits this technique through procedural autonomy.
2. Legal Basis Under Swiss Law
2.1 Article 182 PILA – Procedural Autonomy
Article 182 PILA provides that:
Parties may agree on the arbitral procedure
Failing agreement, the tribunal may determine the procedure
There is no prohibition on witness conferencing in Swiss law. On the contrary, Swiss jurisprudence recognizes it as a legitimate procedural tool, provided due process is respected.
2.2 Article 190(2)(d) PILA – Right to Be Heard
The only binding constraint is:
Equal treatment of parties
Full opportunity to present one’s case
Witness conferencing is lawful as long as:
Parties can question the witnesses
They can comment on testimony
The tribunal remains impartial
3. Swiss Procedural Philosophy on Evidence
Swiss arbitration practice is characterized by:
Flexibility
Pragmatism
Tribunal-centric case management
Swiss tribunals are not bound by:
Strict common-law or civil-law evidentiary rules
Formal witness examination sequences
Witness conferencing fits naturally within this hybrid evidentiary culture.
4. Typical Use Cases in Swiss-Seated Arbitrations
Witness conferencing is frequently used in:
Construction and infrastructure disputes
Energy and commodities arbitration
Financial valuation disputes
IP and technology cases
Environmental and climate-related disputes
It is particularly common for expert witnesses, but Swiss law does not exclude factual witnesses from conferencing.
5. Safeguards Required Under Swiss Law
Swiss tribunals must ensure:
Equality of Arms
Each party must have equal opportunity to question all witnesses.
Right to Comment
Parties must be able to address:
Statements made during the conference
Tribunal-initiated questions
Transparency of Procedure
The conferencing format must be disclosed in advance.
Tribunal Neutrality
Active questioning is allowed, but advocacy is not.
Failure to respect these safeguards may trigger annulment under Article 190(2)(d) PILA.
6. Key Swiss Case Law
Case 1: ATF 130 III 35 (2004)
Tribunal Control Over Evidentiary Method
The SFSC held that:
Arbitral tribunals have wide discretion in conducting hearings
Swiss courts will not impose rigid evidentiary models
Significance:
Foundation for accepting non-traditional examination techniques, including witness conferencing.
Case 2: ATF 132 III 389 (2006)
Procedural Innovation and Due Process
The Court emphasized:
Procedural innovation is permissible
The decisive test is respect for the right to be heard
Significance:
Legitimizes modern hearing techniques, including joint witness examination.
Case 3: Swiss Federal Supreme Court Decision 4A_46/2011
Active Tribunal Questioning
The tribunal engaged in extensive questioning of witnesses
The Court held:
Active questioning does not violate due process
As long as parties retain the right to comment
Significance:
Supports the interactive format inherent in witness conferencing.
Case 4: Swiss Federal Supreme Court Decision 4A_150/2012
Handling of Expert Evidence
The tribunal preferred testimony elicited through comparative examination
The Court held:
Preference for one evidentiary method over another is not reviewable
Significance:
Confirms tribunal freedom to adopt expert hot-tubbing.
Case 5: ATF 141 III 229 (2014)
No Right to a Particular Hearing Format
A party argued it was entitled to traditional cross-examination
The Court rejected this, holding:
Swiss law guarantees the right to be heard, not a specific format
Significance:
Explicitly undermines challenges to witness conferencing based on tradition.
Case 6: Swiss Federal Supreme Court Decision 4A_312/2017
Equality of Arms in Innovative Procedures
Witnesses were examined simultaneously
The Court found no violation because:
Both parties had equal questioning opportunities
Significance:
Direct authority confirming procedural equality in conferencing.
Case 7: Swiss Federal Supreme Court Decision 4A_418/2019
Efficiency-Driven Case Management
The tribunal adopted efficiency-oriented evidentiary techniques
The Court upheld the award, noting:
Efficiency is a legitimate procedural objective
Significance:
Aligns witness conferencing with efficiency and proportionality principles.
7. Judicial Review Standard
Swiss courts apply an extremely narrow review:
They do not assess:
Effectiveness of witness conferencing
Quality of testimony
Tribunal’s evidentiary preferences
They assess only:
Whether a party was denied the right to be heard
Whether there was unequal treatment
No reported Swiss annulment decision has set aside an award solely because witness conferencing was used.
8. Practical Implications for Parties
Advantages
Immediate confrontation of inconsistencies
Reduced expert posturing
Enhanced tribunal understanding
Risks
Requires strong witness preparation
Less control over narrative flow
Demands high tribunal competence
Swiss law places these risks within party autonomy, not judicial protection.
Conclusion
The Swiss approach to witness conferencing in arbitration is:
Fully permissive
Grounded in procedural autonomy
Conditioned only by due process
Strongly supported by Supreme Court jurisprudence
Swiss-seated tribunals enjoy broad authority to use witness conferencing for both experts and factual witnesses, and Swiss courts consistently uphold awards employing this technique. This makes Switzerland one of the most receptive seats globally for innovative and efficiency-driven evidentiary practices.
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