Hearing Witnesses and Experts Before the Arbitral Tribunal

The stage of hearing witnesses and experts before the arbitral tribunal is one of the most precise and decisive procedural stages in commercial disputes, as it determines the relative weight assigned to the evidence and shapes the arbitrators’ assessment and conviction.

Within the framework of commercial arbitration proceedings from commencement of the claim until the case is reserved for award, evidence through witness testimony or expert opinion is not limited to the submission of oral statements or engineering and financial reports; it also extends to subjecting such evidence to examination and confrontation.

Domestic investors and foreign companies alike face significant challenges in organizing evidentiary hearings, which requires a deep understanding of procedural rules and professional coordination to ensure the presentation of coherent evidence that strengthens the legal position before the tribunal.

Egyptian Legal Framework Governing Witness Testimony and Expert Opinions

The arbitral tribunal derives its authority to hear witnesses and engage experts in Egypt from the provisions of Egyptian Arbitration Law No. 27 of 1994, together with the procedural rules of institutional arbitration centres, such as the Cairo Regional Centre for International Commercial Arbitration CRCICA, or the rules applicable to (Ad-hoc) arbitration.

Article (33) of the Egyptian Arbitration Law: grants the arbitral tribunal discretion to determine evidentiary hearings, hear witnesses or summon experts, and hear their testimony orally, while allowing the parties to engage in discussion and examination.
Article (36) of the Egyptian Arbitration Law: regulates the mechanism by which the arbitral tribunal appoints one or more experts to submit a report on specific technical, financial, or engineering matters, and requires the expert to make available for inspection the documents and originals of the documents presented to him.
Calling Experts at the Request of the Parties: each party is entitled to engage specialized experts (Party-Appointed Experts) to submit their testimony and reports, which is a practice widely followed in international commercial arbitration.

Practical Procedures and Procedural Requirements for Presenting Witnesses and Experts

The arbitral tribunal follows a defined timetable for handling oral testimony and technical expert evidence. The process generally proceeds through a number of successive procedural steps:

Submission of Witness Statements and Written Reports (Witness Statements & Expert Reports): the parties are required to submit written and signed witness statements, together with expert reports and the documents attached thereto, sufficiently in advance of the hearings.
Calling Witnesses and Experts to the Hearings: the tribunal determines the individuals who are required to be examined. Where a witness or expert is not called by the other party or by the tribunal, the written statement may be admitted as evidence subject to the arbitrators’ assessment.
Application of IBA Rules in Examination (IBA Rules on the Taking of Evidence): in many international and domestic commercial arbitrations, the International Bar Association rules are applied as guidance for organizing the presentation of evidence, particularly the examination of witnesses and experts.
Testimony through Modern Means of Communication (Remote Hearings): modern arbitration permits testimony to be given through video communication technologies, provided that the confidentiality and integrity of the procedural process are ensured and that the witness is not subjected to any external prompting.

Mechanism of Direct and Cross-Examination (Direct & Cross-Examination)

The system for hearing witnesses and experts in commercial arbitration differs from the traditional evidentiary system before national courts, as it combines different approaches in practice, including the model derived from Common Law proceedings.

Direct Examination (Direct Examination): a concise examination conducted by the lawyer who presented the witness or expert, with the aim of confirming the substance of the testimony or report and clarifying specific points.
Cross-Examination (Cross-Examination): one of the most important stages of the hearing, during which counsel for the opposing party examines the witness or expert in order to challenge credibility, reveal inconsistencies, or establish technical bias.
Re-Examination (Re-Examination): limited to clarifying points raised during cross-examination that remained unclear.
Tribunal Examination (Tribunal Questioning): members of the arbitral tribunal are entitled to ask questions directly at any stage in order to verify material points.

Special Considerations for International Clients and Multinational Companies

Complexities increase where foreign parties or multinational shipping, import, and export companies are involved, requiring consideration of a range of procedural and practical factors.

Legal Translation and Interpretation: the language of the arbitration should be agreed upon, and certified legal interpreters should be provided to avoid the loss of sensitive verbal nuances during examination.
Differences in Legal Cultures: a foreign witness may have a different understanding of the nature of the questions and the characterization of local laws, such as Egyptian civil law, which may affect the manner in which testimony is presented and its credibility.
Protection of Confidentiality and Commercial Data: discussions involving financial and technical experts may require closed hearings and safeguards against the disclosure of industrial or commercial secrets.

Legal Risks and Commercial Implications for Companies

Inadequate preparation for the stage of hearing witnesses and experts may result in significant legal and financial consequences affecting the company’s position in the dispute.

Collapse of Evidentiary Support: poor witness performance or inadequate preparation of the expert may give the opposing party an opportunity to undermine the credibility of the entire report during cross-examination.
Increased Procedural Costs: appointing experts and calling international witnesses involves significant financial costs that may ultimately be borne by the unsuccessful party to the dispute.
Delay in Issuing the Arbitral Award: ongoing disputes concerning the scope of experts’ authority or requests to call additional witnesses may prolong the arbitral proceedings.

Common Mistakes and Practical Best Practices

Common Mistakes

Submitting general expert reports that are not supported by precise documentation.
Failing to prepare witnesses and train them on the nature of cross-examination questions (Cross-Examination).
Relying on witnesses who do not have direct knowledge of the event subject to the dispute (Hearsay Evidence).
Failing to object in a timely manner when an expert exceeds the scope of the assigned mandate.

Best Practices

Advance Preparation and Hearing Simulation (Mock Cross-Examination): training witnesses on question scenarios without compromising impartiality and truthfulness.
Clearly Defining the Expert’s Scope of Mandate (Terms of Reference): identifying the precise technical issues to avoid exceeding the scope of the dispute.
Careful Review of Evidentiary Documents: ensuring complete consistency between the written witness statement and the supporting documents before the hearing takes place.

When Is the Intervention of a Specialized Lawyer or Local Counsel in Egypt Required?

Attendance at witness and expert hearings requires specialized expertise in advocacy techniques and commercial arbitration. The need for a specialized local law firm (Local Counsel) is particularly important in the following circumstances:

Examining financial and engineering experts and challenging their reports in accordance with the applicable legal and commercial rules in Egypt.
Drafting cross-examination questions (Cross-Examination) with precision to achieve the required legal effect.
Ensuring compliance with mandatory procedural rules under the Egyptian Arbitration Law in order to limit the risk of subsequent annulment of the arbitral award.
Providing on-the-ground and procedural coordination for managing virtual and intensive hearings involving foreign parties.

How Can Specialized Legal Support Assist?

At El Rouby Law Firm, we provide integrated legal advice and professional representation to domestic and international companies throughout the various stages of arbitration.

Regulatory and Procedural Compliance: ensuring that procedures for hearing witnesses and experts comply with the Egyptian Arbitration Law and the applicable institutional rules.
Risk Management and Development of Evidence: reviewing technical and financial expert reports and preparing robust cross-examination strategies.
Witness and Expert Preparation: providing legal guidance to witnesses and experts to ensure the delivery of consistent testimony capable of withstanding cross-examination.
Representation Before Arbitral Tribunals (Local Counsel): providing comprehensive legal support to foreign law firms and multinational companies before arbitral tribunals in Egypt.

Frequently Asked Questions

May an arbitral tribunal refuse to hear a witness presented by one of the parties?

Yes. The arbitral tribunal has discretion to exclude witnesses if it considers their testimony irrelevant to the dispute or repetitive, provided that this does not prejudice the right of defence.

What is the difference between a Tribunal-Appointed Expert and a Party-Appointed Expert?

A Tribunal-Appointed Expert is appointed by the tribunal pursuant to its decision to provide an impartial report on a technical matter, whereas a Party-Appointed Expert is appointed by one of the parties to the dispute to support its position and challenge other reports.

Can testimony be given in a language other than the language of the arbitration?

Yes. This is permitted provided that a certified legal interpreter acceptable to the arbitral tribunal and the parties is engaged to translate the testimony accurately.

What procedure is followed if a witness refuses to appear before the arbitral tribunal?

The arbitral tribunal does not have coercive authority; therefore, the tribunal or the party concerned with the testimony may apply to the competent court, the President of the Court of Appeal, for assistance in compelling attendance or imposing the applicable sanction under Egyptian law.

Is written testimony sufficient, or must the witness attend to testify orally?

As a general rule, testimony is submitted in writing. However, if the other party requests examination of the witness or the tribunal expresses a desire to hear the witness, oral attendance becomes necessary to give effect to the right of confrontation.

References

Egyptian Arbitration Law in Civil and Commercial Matters No. 27 of 1994, as amended.
Rules of the Cairo Regional Centre for International Commercial Arbitration (CRCICA).
International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration (IBA Rules on the Taking of Evidence in International Arbitration).
Egyptian Court of Cassation – Commercial and International Circuits (judgments concerning evidentiary rules and rights of defence in arbitration).