Can an Arbitrator be Called as a Witness?

Can an arbitrator be called as a witness to testify on arbitral procedure before the court hearing annulment or enforcement proceedings? The answer is in the affirmative especially when the arbitrator is asked to give testimony on the elements of facts in the proceedings. The Courts have however been careful not to interfere with the arbitrator’s freedom of judgment and has refused to make enquiries about the grounds of their decisions. Mainly, the arbitrator’s testimony could be used to determine how and on what basis the final award was originally reached this includes whether the parties’ improper conduct affected the outcome of the arbitration such as disclosure of fraudulent documentation or whether the arbitrator exceeded his jurisdiction resulting in the annulment or setting aside the award. The courts in England have addressed this issue and concluded that arbitrators may be asked to give testimony of facts in a proceeding.

According to Gordon Blanke there is, “a discrete body of English common law that sheds light on the issue” more specifically the old English Case of DUKE OF BUCCLEUCH v METROPOLITAN BOARD OF WORKS (1871-1872, L.R. 5 H.L. 418) dealt effectively with this proposition. In this case compensation was awarded for the reduction in value of property pursuant to Section 68 of the Lands Clauses Consolidation Act. The claimant was the occupier under a lease from the Crown of an estate, it had a garden that ran down to the Thames River. Pursuant to the Thames Embankment Act the respondent effected certain works, which resulted in the creation of a dry area in which a roadway was constructed which reduced the value of the claimant's leasehold interest. The matter was brought before an arbitrator and subsequently determined by the House of Lords. On whether an arbitrator could serve as a witness in subsequent court proceedings the House of Lords summarised its position as follows:

1. That the umpire was a competent witness, like any other person to prove matters material to the issues [i.e. determining the arbitrators’ jurisdiction].

2. That questions might be properly put to him for the purpose of proving the proceedings before him, so as to arrive at what was the subject-matter of adjudication when the proceedings closed, and he was about to make his award.

3. That as regards the effect of the award no questions could properly be put to the umpire for the purpose of proving how it was arrived at, or what items it included, or what was the meaning which he intended at the time to be given to it.”

The House of Lords distinguished the position of the arbitrator from a judge by stating that it did not know of any objection to the very possibility to hear arbitrators as witnesses. For the court, the reasons preventing judges from testifying and being cross-examined did not extend to arbitrators. The arbitrator could therefore be questioned as to what took place before him. The House however refused to hear arbitrators on the content of the award. It held :“As soon as the award is made it must speak for itself . . . but cannot be explained or varied or extended by extrinsic evidence of the intention of the person making it.”

Romain Dupeyre further explains that the arbitrator is precluded from giving testimony on the content of the award partly because the arbitrator is functus officio once the award is rendered, therefore he cannot modify the award in any way once it is signed except to interpret the award or make a few corrections. The Court stated that “The award taken by itself is something certain and fixed, and settles the rights of the parties; but if evidence be admitted of the intention and state of mind of the umpire when he made it, its certainty is destroyed, and its effect depends on his memory . . .”

This early case was confirmed in Dare Valley Railway Co in which the court ruled:

“I can see no reason why the arbitrator should not be just as well called as a witness as anybody else, provided the points as to which he is called as a witness are proper points upon which to examine him” (L.R. Eq. 429 at 435).

In later cases the English court decided that the testimony of arbitrators should only be heard in exceptional circumstances, when the facts of the case could not be ascertained by any other means:

“In the view of the Court this is an exceptional case, and in this exceptional case the Court has arrived at the conclusion that the only way in which it can satisfactorily deal with the matter before it, is by having the assistance of the evidence of the arbitrators, who, being independent persons, can tell the Court what it is unable to ascertain from perusal of the affidavits on one side and the other – namely what are the essential facts of the case” (Leisarch v Schalit [1934] 2 K.B. 353).

Under Nigerian Law the Arbitration and Conciliation Act does not specifically refer to the arbitrator acting as a witness during subsequent court proceedings. Conclusion Since the Arbitration and Conciliation Act does not contain specific provisions on whether an arbitrator can be called to give evidence in subsequent court proceedings. English common law can serve as persuasive authority. Based on DUKE OF BUCCLEUCH v METROPOLITAN BOARD OF WORKS cited above arbitrators can be called to give evidence in subsequent court proceedings as long as their examination does not go beyond the facts or procedure arising from the arbitral proceedings, this preserves arbitral proceedings from unnecessary interference from the courts. On a final note Romain Dupeyre in the Article titled “Arbitrators on the Witness Stand! Comparative approaches” notes that the admissibility of the arbitrators’ testimony raises a number of questions: Is the arbitrator entitled to refuse to testify? Is the arbitrator entitled to receive compensation for the time spent on his testimony? In cases where there are several arbitrators, should the president alone testify? What would happen if the testimonies of the arbitrators differ with one another? Could an arbitrator be subject to cross-examination? Should this issue be dealt with by institutional arbitration rules? These questions represent the possible dilemmas arbitrators might face if they are asked to give testimony in court proceedings.