Maximising the Value of Witness Evidence in Commercial Disputes
Preserving and improving the reliability of witness testimony
Governments and multinationals often use international arbitration to settle commercial disputes. International arbitration allows parties to resolve their disputes outside of local courts and outside the procedural rules of their individual legal systems. The process is often reliant on evidence from witnesses.
Dr Kimberley Wade has highlighted how unreliable memories, suggestive interviewing and misinformation can reduce the value of witness submissions. Arbitrators in commercial disputes are now more aware of the malleability of human memory and have access to research-led guidelines on how best to collect, report and evaluate witness evidence.
The International Chamber of Commerce (ICC) oversees more than 45 million companies in over 100 countries, annually administering over 800 cases. Despite the reliance on witness evidence in arbitration proceedings, there are no guidelines on who can give testimony or standard procedures to collect, preserve and present witness submissions.
In 2015 Dr Wade was invited to join an ICC Task Force created to maximise the probative value of witness evidence, and contributed on a number of key topics:
Constructed and false memory
Suggestive interview techniques
Misinformation by supposed experts
Fabricated aids to memory (such as doctored photographs)
Emotion, detail and coherence of misremembered details
Dr Wade also conducted independent research to show that witnesses in commercial contexts are prone to that same types of memory errors that are already well documented in the scientific literature.
The ICC Task Force's final report was shaped by Dr Wade’s research and recommendations to preserve and ensure more accurate witness testimony in the future. Dr Wade’s co-authored paper with an International Arbitration Lawyer actively raised awareness about hazardous practices in the arbitration community and led to the creation of the first evidence-based policy and guidelines for the arbitration community. Wade's research has also played a key role in professional training programmes for legal practitioners.