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The role of cross-examination in international arbitration

Knowing when and how to cross-examine is an essential part of properly representing clients in international arbitrations. Many cases have been won by good cross-examinations and lost by bad cross-examinations, and that is just as true in international arbitrations as it is in any other dispute resolution procedure in which counsel are permitted to cross-examine witnesses.

But cross-examination by counsel in an international arbitration differs in highly significant ways from cross-examination by counsel in a domestic arbitration or court trial. That is obviously true when counsel is a lawyer from a legal tradition in which counsel hardly if ever cross-examine at all–such as a lawyer from some of the civil law countries or from China or Russia. Because of the many important differences between an international arbitration and an Anglo-American domestic arbitration or court trial, however, it is also true even when counsel is a lawyer from the Anglo-American legal tradition in which counsel routinely cross-examine witnesses. No matter what legal tradition counsel may come from, many of the assumptions on which counsel would proceed in a domestic arbitration or court trial are simply inappropriate in an international arbitration.

To begin with, an international arbitration is not tried before a decision maker from the same country as counsel. The decision maker in an international arbitration is the arbitrators, who will usually be three highly-experienced lawyers, often from three different legal and cultural traditions. Counsel may come from one or more other legal and cultural traditions. The result is that five, or sometimes even more, legal and cultural traditions may be present in a single arbitration proceeding. Those who are present may also have no mother tongue in common, so that the arbitration will be conducted in a language–often English–that none of them learned at home and in which they may not be equally competent. The arbitration proceeding will also differ, and almost certainly in different ways for each of them, from what they are accustomed to at home.

Image: 'Signing a contract', © Gajus, via iStock Photo.
Image: ‘Signing a contract’, © Gajus, via iStock Photo.

The arbitrators will usually have a detailed understanding before the main hearing starts of the issues they are to decide, quite possibly a far more detailed understanding than a domestic judge would have at the start of a domestic court trial. This is because the parties will have exchanged with each other, and submitted to the arbitrators, very extensive evidentiary material (including written witness statements) during the previous phases of the arbitration, and the arbitrators will usually have studied this material with considerable care. The arbitrators will evaluate the cross-examinations at the main hearing against the background of their detailed understanding of the issues they are to decide, and that will impact counsel’s freedom of action in cross-examining.

It is not only the decision maker that will be very different from what counsel would encounter in a domestic arbitration or court trial. Almost every aspect of the arbitration, including the main hearing, will be governed by the arbitration agreement between the parties, although the law of the country where the arbitration takes place will also play a role. The rules of procedure and of evidence are thus likely to be very different from what counsel would expect in a domestic arbitration or court trial, and because the grounds for challenging an arbitration award are very limited counsel will almost certainly have less control over how rules of law are applied than would be the case in a domestic court.

No national rules of evidence will apply in an international arbitration unless the parties have agreed otherwise, and the arbitrators will determine what evidence to admit based on whatever rules the parties have agreed to make applicable. Arbitrators are likely to be considerably more liberal in admitting evidence than a national court would be and thus have both the right and the duty to evaluate evidence very freely. The absence of national rules of evidence also means that some conduct which is customary, or even obligatory, in some national systems–the practice of “putting” a contention to a witness, for example–has no place in international arbitrations.

There will be considerable pressure on counsel, far more than in an Anglo-American court trial, to make their cross-examinations succinct and efficient. There are at least two reasons for this.  One is that the arbitrators are likely to have a detailed understanding of the case. The other is that the witnesses will usually have given their direct testimony by means of written witness statements that counsel will have seen in advance of the hearing. Lengthy cross-examinations of the type often encountered in Anglo-American court trials are very rare in international arbitration, and an attempt to conduct that kind of cross-examination will often be seriously counter-productive. In addition, the chance that counsel will be able to surprise witnesses by confronting them with unexpected documents or prior inconsistent statements is far smaller than it would be in an Anglo-American court trial because the extensive exchange of evidentiary material in advance of the main hearing will usually enable adversary counsel to resolve any such issues in the course of preparing witnesses to testify.

Despite these and many other differences between international arbitrations and domestic dispute resolution procedures, the goal of the cross-examiner in an international arbitration is the same as in any other dispute resolution procedure. That goal is to maintain control of the witness so as to accomplish the purposes of the cross-examination without allowing the witness to say something the cross-examiner does not want the decision maker to hear. Our book is intended to be useful as an aid to achieving that goal, no matter what legal and cultural tradition counsel may come from and no matter how experienced or inexperienced counsel may be.

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