Originally from Take the Witness: Cross-Examination in International Arbitration, 2d Ed.

International arbitration practice combines elements of different legal cultures to create a balanced and flexible system suitable for the efficient and economical presentation of evidence in the resolution of international disputes. This approach has led to a considerable degree of harmonization of common or “best” practices reflected in recent instruments such as the IBA Rules on the Taking of Evidence in International Commercial Arbitration (the “IBA Rules”).  These Rules or practices are said to combine basic aspects of the “common” and “civil” law systems: the oral examination of witnesses at an evidentiary hearing from the former, and reliance on detailed written pleadings and documentary evidence from the latter. The primary contribution to this combined system from common law practice is the cross-examination of witnesses at an oral hearing.  This form of witness examination, which plays a key role in the oral, adversarial common law tradition, maintains an important role in modern international arbitration practice. However, the context is significantly different and the effective use of cross-examination will depend on understanding the transnational setting in which international arbitration is conducted and making appropriate adjustments.

Whether the involvement of Latin Ameria parties, counsel or place of arbitration offers any distinguishing features is a difficult question to answer. There are a very significant number of arbitrations involving Latin American parties, counsel or seats of arbitration and a broad variety of actors and practices. In my experience, the most relevant distinction is between common law and civil law practice and the corresponding degree of familiarity, witnesses, counsel and arbitrators from these legal traditions have with cross-examination and witness evidence more generally.