Ensuring Admissibility: The Role of Oaths in Witness Testimony under Kuwaiti Law in International Arbitration
Dispute Resolution / Kuwait
In a recent arbitration case arising out of a construction agreement governed by the Kuwaiti law, a notable incident occurred during the cross-examination of an expert witness.
Law Update: Issue 365 - Financial Services Focus
Khaled YoussefSenior Associate,Dispute Resolution
In a recent arbitration case arising out of a construction agreement governed by the Kuwaiti law, a notable incident occurred during the cross-examination of an expert witness. Prior to giving the testimony, the tribunal initially asked the witness to take an oath, swearing to the god he believed in, that his testimony was true and accurate to the best of his knowledge. The witness stated that he was a non-believer. So instead, the tribunal asked him to confirm that his testimony was true and accurate to the best of his knowledge, and so he did. Given that the applicable law was the Kuwaiti law, this raised concerns regarding whether this such an incident would have an impact on the recognition and enforcement of the arbitral award in Kuwait.
This article explores key aspects of Kuwaiti statutory provisions and case law related to the administration of oaths to witnesses, shedding light on the conditions governing the acceptance of their testimony as reliable evidence.
Nowadays, almost every commercial arbitration involves expert testimony. Expert witnesses have become essential to the arbitration parties and the tribunal for the technical opinions and evidence they provide in arbitration cases. There are several issues that may require the expertise of expert witnesses and the provision of their opinion in arbitration, such as delay damages, cost damages, foreign law, cause of delay, a certain industry practice, etc.
Regardless of how the expert witness is appointed; whether by the tribunal or one of the parties, the expert witness should be independent and impartial, and should not advocate for any of the parties; they are expected to give completely neutral and unbiased testimony based on their expertise. Normally the rules of arbitration institutions regulate matters related to expert witnesses including their appointment, cross examination, etc. While the institutional rules regulate the involvement of expert witnesses in the arbitration proceedings whether by the tribunal or the parties, nearly most of these rules do not provide for the need for an oath to be taken by the expert witness before giving his/her testimony; this issue is often left to the tribunal’s discretion. The rules provide the arbitral tribunal with the authority to determine the admissibility, relevance, materiality, and weight of the evidence presented in the case, including witness testimony.
For instance, the International Chamber of Commerce – International Court of Arbitration rules for the appointment of expert witnesses require every expert to be and remain impartial and independent of the parties involved in the expert proceedings, unless otherwise agreed in writing by such parties. Further, under the ICC rules the tribunal is free to administer the manner in which the witnesses are examined including the taking of an oath by a witnesses and the wording of the oath before giving his/her testimony. As such, some arbitrators may choose to have witnesses take an oath to render the witness testimony more reliable and serious, while others may not find it necessary. It is eventually up to the discretion of the tribunal to decide the weight it is going to bestow upon the testimony, its relevance, materiality, and admissibility, whether an oath was taken or not.
However, considerations of the applicable law and the jurisdiction where award enforcement is sought should not be overlooked to prevent potential annulment or rejection of enforcement.
In Kuwait, witness testimony is governed by the Kuwaiti Evidence law No. 37 of 1980. Art. 44 of the Kuwaiti Evidence Law regulates the manner in which the witness should give his testimony including the requirement of taking an oath and the wording of the oath. Art. 44 has specifically indicated that a witness should take oath by saying “I swear by Almighty Allah (God)”.
Accordingly, the statutory provision relating to witness testimony has required witnesses to take an oath before giving their testimony and has further specified the wording of the oath to be taken by the witness. The statutory provisions did not, however, address the cases where the witness has different beliefs, believes in a different God, or is a non-believer. Such situation may be faced more frequently in international arbitration where parties from different countries, background, and cultures are involved. This appears to leave a legislative vacuum in this respect.
Until the year 2004 when a case was brought before the Kuwaiti court and the matter involved a testimony given by a non-Muslim witness on which the court relied. So the defendant filed an appeal No. 372 of 2005 before the Kuwaiti Court of Cassation (the Kuwaiti Supreme Court) challenging the judgment on basis that the witness did not swear the oath in the same wording as required in Art. 44 of the Evidence Law. But the Court of Cassation ruled that:
“The inference from the text of Articles 99 and 165 of the Criminal Procedures Code and Articles 44 and 70 of the Evidence Law is that the witness, when called upon to testify by the investigator or the court, must take an oath that he says, “I swear by Almighty Allah”, and that the oath is to be made according to the conditions specific to his religion, if he requests that, and he must answer the questions directed to him and be truthful and faithful in his statements. The law does not require the investigator or the criminal judge to record in the investigations the wording of the oath taken by the witness or the manner in which it was taken. It is rather sufficient to prove that it had taken place before the judge before giving the testimony.
Accordingly and given that the investigations indicate that the property keeper had taken the oath before giving the testimony before the investigating prosecutor in the presence of a translator, and the witness did not request that the oath be in a certain manner specific to his religion - which is something that the appellant does not dispute. As such, his testimony in this manner has met its necessary elements. Further, the trial court was satisfied with the statements of the property keeper and the accuracy of his depiction of the incident, and found truth and honesty in it. Hence the court accepted it and relied on it in its ruling, and disregarded all challenges put forward in this respect. As such, the appellant’s statements regarding the testimony and the evidence he presents to discredit it has no basis. Further, the appellant challenge that the wording of the oath sworn by the witness was not recorded does not per se constitute a valid ground to appeal the judgment”.
In view of the above ruling, the Kuwaiti court expanded the interpretation of Art. 44 of the Evidence Law and explained that the wording of the oath to be taken by witnesses is not limited by the wording mentioned in Art. 44 of “I swear by Almighty Allah”.
The court ruled that the witness may take the oath in any different wording based on his beliefs and upon his request. The court further ruled that oath can be taken in any manner and wording deemed by the court fit and sufficient for the court to believe that the testimony is true and honest, and the lower court had not erred when it did not record in its judgment the wording of the oath taken by the witness and only sufficed with recording that it was taken before the court.
To that effect, it may be deemed as good practice, in cases where the Kuwaiti law is the applicable law or enforcement of the arbitral award in Kuwait is anticipated, for arbitral tribunals to ensure that the transcript explicitly records the oath, that oath was sworn by the witness, or confirmation of the truthfulness, accuracy, of the testimony made by the witness.
If the tribunal later relies in its award on the witness testimony and confirms that it was assured by its truthfulness and accuracy, the requirements of the Kuwaiti law in this regard should be deemed to have been met; avoiding possible grounds for challenging the award in Kuwait.
For further information,please contact Khaled Youssef.
Published in February 2024
