Credibility of Fact Witnesses in Arbitration in Light of Current Debates
Abdullah Harun KorkmazFact witnesses have been used in both private and criminal legal proceedings for centuries. Fact witnesses are frequently used in international arbitration, contrary to the rule of “proving by deed” (or in a general sense, written evidence) that is prevalent in Turkish civil procedural law. Witnesses gain importance when no documents are available to prove the disputed point, when a document is present but it is not self-explanatory, or when the background of the dispute needs to be understood. Despite the widespread use of fact witnesses, several drawbacks accompany them. These undesirable points have been examined for decades due to the importance fact witnesses have in criminal proceedings, however, the idea that the same drawbacks are also considerable for international arbitration have become somewhat common in recent years. This view has been particularly emphasized at certain events the International Chamber of Commerce (ICC) organized, and many in the international arbitration community have taken a doubtful approach toward fact witnesses. Some authors have evaluated the possible drawbacks of witnesses’ memory as well as the possibility of testing their truthfulness in an attempt to come up with suggestions for overcoming them. This study first questions the credibility of fact witnesses in light of these evaluations and discussions then provides a number of methods that can be used to compensate for these drawbacks after highlighting some of the main problematic aspects of fact witnesses. The study makes use of several pieces of research, including the recently published ICC report (2020) regarding the memory of fact witnesses as well as some older articles, and seeks to present a holistic perspective on this matter.
Güncel Tartışmalar Ekseninde Tahkimde Tanık Delilinin Güvenilirliği
Abdullah Harun KorkmazTanık delili yüz yıllardır olduğu gibi bugün de gerek özel hukuk gerekse de ceza yargılamalarında kullanılmaktadır. Türk medenî yargılama usulündeki “senetle ispat” kuralının aksine özellikle milletlerarası tahkimde tanık deliline yoğun bir şekilde başvurulmaktadır. Bazen belgelerle ispat imkânı olmayan ihtilaflı noktaları ispatta, bazen belge olsa da içeriği tek başına anlaşılmayan durumlarda, bazen de uyuşmazlığın arka planını ortaya koymada tanıklar önem kazanmaktadır. Fakat tanık delili bu yaygın kullanımına rağmen birçok sakıncayı da beraberinde getirmektedir. Bu sakıncalı noktalar tanıkların ceza hukukundaki önemi sebebiyle on yıllardır inceleniyor olsa da son yıllarda aynı sakıncaların milletlerarası tahkim bağlamında da geçerli olabileceği fikrine dikkat çekilmiştir. Özellikle Milletlerarası Ticaret Odası (ICC) tarafından düzenlenen bazı etkinliklerde bu noktaya parmak basılmış ve milletlerarası tahkim câmiasında bu yönde bir sorgulama vâki olmuştur. Pek çok yazar gerek tanıkların hafızasının yanılabilir olması gerekse de doğru söyleyip söylemediklerinin tespit edilmesi konusundaki sakıncaları değerlendirerek bu delil türünün en doğru şekilde kullanımı için öneriler sunmuştur. Çalışmada öncelikle bu değerlendirme ve tartışmalardan hareketle tanık delilinin ne kadar güvenilir olduğu üzerinde durulmuştur. Tanık delilinin belli başlı sakıncalı yönleri ortaya konduktan sonra bunlara karşı başvurulabilecek yöntemlere yer verilmiştir. Belirtmek gerekir ki çalışmada ICC’nin tanıkların hafızasına dair yayınladığı raporun yanı sıra nispeten eski sayılabilecek bazıları da dahil olmak üzere pek çok farklı araştırmadan istifade edilerek bütüncül bir bakış açısı sunulmaya gayret edilmiştir.
Fact witnesses have been used as evidence since ancient times in establishing justice, and this usage still continues. Fact witnesses are frequently used these days in both criminal and civil legal proceedings. With advancements in psychology, however, many studies have revealed unignorable statistics, especially in recent years. This situation concerns criminal law in particular and attracted the attention of many jurists in the last century, with various works having been written. Many of these evaluations emphasized that the evidence presented by fact witnesses to not be entirely credible and should be taken as the basis of the judgment after very careful examination.
The first part of this study presents a short evaluation of the permissibility of fact witnesses in arbitration. This is particularly important because, despite the presence of exceptions regarding the resolution of certain types of disputes in Turkish courts, the main rule in Turkish civil proceedings is “prove by deed.” While this law does not define the concept of deed, Article 199 of the Turkish Code of Civil Procedure (No. 6100) indicates “prove by deed” to be a type of written or printed evidence.
However, the same cannot be said for arbitral proceedings. Neither the Turkish Code of International Arbitration (No. 4686) nor the provisions of the Turkish Code of Civil Procedure (No. 6100) on domestic arbitration have any limitation on what claims can be proved with which types of evidence. Therefore, the use of fact witness as evidence can be at least as important as “proving by deed” (written evidence) in arbitral proceedings. As far as could be determined, this approach is also valid in many other legal systems. Likewise, no restrictions exist as such in the rules of most institutional arbitration centers. In fact, far from being prohibited, witness evidence is widely used in arbitration.
The second part of this study evaluates the research regarding the credibility of fact witnesses as evidence. Many studies have been conducted over the use of witness evidence in terms of criminal law. The suitability of the conclusions from these studies may be considered for private legal proceedings by analogy. However, studies are also found to have dealt with the issue directly in terms of private legal proceedings, as well as arbitral proceedings in particular. This second section of the study utilizes both types of research as well as other ones focused on criminal law that may hold valid for the concept of fact witnesses as used in arbitration, even if the research is not directly related to arbitration.
Some of the research utilized in this section has dealt with witness evidence by establishing the main issue to be about determining the honesty of the witness, while other research has centered around the reliability of witnesses’ memory. The basic questions primarily involve understanding whether the witness acted honestly or not and whether physical indicators such as a witness’ behavior, facial expressions, or tone of voice (being among the most used criteria) are able to provide direction. As mentioned before, some studies have sought answers to these questions. As for other studies that have focused on witness memory, the basic question involves the reliability of witness memory as a source of information, regardless of the witness’ honesty. These questions are crucial for arbitral proceedings, as they are sometimes vital for the emergence of a fair decision and also because the preparation of witnesses is one of the most time-consuming and costly stages.
The first thing that can be said regarding the various general possible inferences that resulted from the utilized research is that criteria perceivable by the five basic senses (e.g., demeanor, tone of voice) should be used as little as possible when assessing the honesty of a witness. Another general inference is that, contrary to popular belief, witness memory does not record like a video camera and thus can be misdirected and therefore mislead as a source of information. The current study makes mention of many scientific studies in order to exemplify this last inference, and these studies have shown that being very cautious is necessary when making a judgment based on witness evidence.
The third and final and part of this study provides suggestions regarding the use of fact witnesses, because despite these aforementioned facts, no tendency is found in the international arbitration community to abandon the use of fact witnesses as evidence. As a matter of fact, not even any recommendation could be found in this direction, even by researchers themselves. As such, when using witness evidence, one must be aware of the drawbacks mentioned throughout the study and must take measures for these drawbacks when necessary. For example, the most reliable way to find out whether a witness is telling the truth or not is to focus on the compatibility of that witness’ statement with other facts that have already been proven to be true. When a witness recounts the same event more than once, doubting that witness’ honesty may be appropriate if contradictions have arisen or if the story does not fit the ordinary course of life upon careful examination. Meanwhile, arbitrators should reduce the margin of error regarding memory as much as possible by asking witnesses how they had obtained the information they are providing and by informing witnesses that they can simply state what they do not remember. This study includes some of the many suggestions from both the ICC Report (2020) regarding witness memory and from other studies, and these suggestions should be taken into consideration due to having been obtained through extensive research and experience. Both arbitrators and the parties involved should comply with these suggestions and use fact witnesses as evidence in the most efficient way, as the costs of using these types of witnesses are often very heavy.
