Taking an Oath in a Virtual International Arbitration Hearing

In international arbitration, witness testimony is one of the evidences that parties can present. As far as witness testimony is concerned, witnesses may be required to be cross-examined on oath by the parties’ counsel, that is to make “a  declaration made according to law, before a competent tribunal or officer, to tell the truth; or is the act of one who, when lawfully required to tell the truth, takes God to witness that what he says is true.” This oath usually includes raising a person’s hand and promising to tell “the truth, the whole truth, and nothing but truth.”

In practice, witnesses in international arbitration are not usually required to take an oath. It is generally sufficient for arbitrators to simply seek confirmation that the witness will tell the truth and to alert the witness of the fact that failure to do so may constitute a breach of applicable laws. However, when deciding whether an oath is required, the tribunal must also consider the lex arbitri or law of the seat of the arbitration of where the arbitration takes place. 

The requirement of an oath in arbitration varies depending on its  lex arbitri. For instance, Article 211(1) of the United Arab Emirates (“UAE”) Civil Procedure Code states that “the arbitrators shall cause the witnesses to take oath. Whoever makes a false statement before the arbitrators shall be deemed to have committed the crime of perjury.” As a result, in the UAE, witnesses are required to take an oath in a prescribed manner. Indonesia also supports the same view. Article 49(3) of the Law No. 30 of 1999 concerning Arbitration and Alternative Dispute Resolution asserts that witnesses or expert witnesses in arbitration shall testify upon oath, given prior to such testimony. On the contrary, French law prohibits arbitrators from administering oaths where Article 1467 of the French Code of Civil Procedure affirms that “witnesses shall not be sworn in.”

The abidance to the lex arbitri itself is mandatory, as the arbitral award might risk being set aside if the tribunal failed to do so. This is further supported in the 2005 International Bechtel Co. Ltd v Civil Aviation case, where the US District Court of Columbia refused to enforce an award made in Dubai on the basis of the failure to properly administer the oath in accordance with the UAE’s Civil Code. Therefore, in cases where an oath is required, the tribunal shall comply with the lex arbitri and administer oaths prior to the witness testimony.

Amidst the pandemic, arbitration proceedings have shifted from in-person to remote hearings. Parties, counsels, and arbitrators must adapt to the new reality of conducting virtual arbitrations due to travel restrictions and social distancing measures. They are now confronting the decision on whether to proceed forward with conducting the proceedings remotely. Although it is conducted virtually, the tribunal should still decide on the lex arbitri for the purposes of conducting an arbitration. Another adaptation of conducting a virtual hearing includes presenting witness testimonies remotely. 

However, this remote conduct may result in numerous issues, one of which is upholding the procedural fairness in virtual arbitration. The arbitral tribunal has an obligation to ensure that in the context of virtual hearings, all forensic and procedural fairness requirements are met.  The problem arises when a remotely heard witness is coached or otherwise unduly influenced.  This is due to the fact that there is a possibility that a witness is being secretly advised off camera or reading documents without the knowledge of the tribunal or opposing party.

Considering the above-mentioned problem, the standard oath is clearly not enough to accommodate the fair conduct of the arbitral proceedings. The standard oath, of course, is effective in the case of in-person hearings. However, in the context of virtual or remote hearings, the standard oath can still be made even by a witness who receives information from others during their testimony, thereby impeding the aim of the oath itself.  This reality requires the adoption of some procedural safeguards, including an expanded or altered witness oath which should accommodate the virtual witness testimony concerns and should be agreed upon by both parties. This practice has been laid out and advised in several online arbitration guidelines, namely Australian Centre for International Commercial Arbitration (ACICA) Online Arbitration Guideline and Hong Kong International Arbitration Centre (HKIAC) Guidelines for Virtual Hearings.

Therefore, an altered oath should be given to the witness when one or both of the parties address the aforementioned concerns. One example of the altered oath that can be used in virtual arbitration  is:

“I swear and affirm that the evidence you are about to give will be the truth, the whole truth, and nothing but the truth. I swear and affirm that I have followed the Panel’s procedures regarding my appearance as a witness in this matter. I affirm that there is no one else in the room with me [except those authorized], that no unauthorized person can communicate with me, and that I have not seen or reviewed the documents that may be shown to me by opposing counsel.”

Moreover, the parties should also consider to have an agreement on how oaths can be validly administered by video conferencing. Some of the advisable practice is that the witness shall turn on their camera, and shall be identified by the person that is qualified to administer the oath (in this case the tribunal). Additionally, the parties could also agree that there is a requirement of a “record” that must be kept of the virtual oath.

On a final note, the requirement of oath in arbitration varies depending on the lex arbitri of the arbitration. In case where an oath is required, especially in the virtual setting, the parties shall agree on the procedural requirement of the so-called “virtual oath.” This includes the extended or altered witness oath, as well as the procedural requirements on how oaths can be validly administered in a virtual setting.