The Common Law Roots of Cross-Examination: Why They Matter in International Arbitration (Even When the Rules Do Not Apply) - Chapter 3 - Take the Witness: Cross-Examination in International Arbitration - Second Edition
TIMOTHY G. NELSON (CO-EDITOR) is a Partner in the International Litigation and Arbitration practice of Skadden, Arps, Slate, Meagher & Flom. Mr. Nelson represents clients before, among others, the American Arbitration Association/International Centre for Dispute Resolution (ICDR), the International Chamber of Commerce (ICC), Singapore International Arbitration Centre (SIAC), Hong Kong International Arbitration Centre (HKIAC), the International Centre for Settlement of Investment Disputes (ICSID) and tribunals constituted under the Arbitration Rules of the United Nations Commission of International Trade Law (UNCITRAL). Mr. Nelson’s international litigation and arbitration experience includes disputes involving contracts, international trusts, partnerships (limited and general) and corporate law, as well as cases falling under the 1980 Vienna Convention on Contracts for the International Sale of Goods. Mr. Nelson has been involved in litigation arising under the US Federal Arbitration Act (FAA), the Foreign Sovereign Immunities Act (FSIA), the Alien Tort Claims Act (ATCA), the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards and the 1965 Hague Convention on Service of Process. Additionally, Mr. Nelson regularly advises sovereign and corporate clients on public international law issues, including under multilateral treaties, such as NAFTA; the Energy Charter Treaty (ECT) bilateral investment treaties (BITS); and other international trade/investment agreements. Before joining the firm in 2000, Mr. Nelson practiced as a commercial litigation attorney at major law firms in England and Australia. He has been selected as a leading lawyer in Chambers Global, Chambers USA, Chambers Latin America and Who’s Who Legal – Arbitration. Mr. Nelson also was selected by Benchmark Litigation as a 2016 “Benchmark Litigation Star.” He also is a prize winner of the 2013 ILO Client Choice Awards in the New York arbitration category and the Burton Award for legal writing. Mr. Nelson is a member of the American Society of International Law and the International Law Association, and a fellow at the Australian Centre for International Commercial Arbitration. He is admitted to practice in New York, New South Wales, and England and Wales.
The great English common law historian Frederic Maitland remarked, with reference to the English rules of pleading, that “[t]he forms of action we have buried, but they still rule us from their graves." He was referring to a series of nineteenth century reforms that had (in principle) relaxed the manner in which a common law plaintiff could set forth its case, and which were also part of an overall institutional streamlining of English court structure. Those reforms had made litigation simpler – but (as Maitland noted) it was impossible to operate within the reformed system without having some idea of how the old system (including the old “forms of action”) operated.
Those words come to mind when we address cross-examination in international arbitration. Like the institutional reforms made to common law in the nineteenth century, the modern system of international arbitration is designed – in theory – to create a more efficient structure for handling international disputes. At the same time, international arbitration remains adjudicative, and its internal processes basically adversarial. Its truth-gathering processes include documentary disclosure and cross-examination; processes that, whatever their modifications, are unmistakably borrowed from Anglo-American systems.
A practitioner who cross-examines today – even one who exclusively practices in international arbitration – should therefore be aware of how the present “norms” of arbitration cross-examination came to be what they are. Perhaps more importantly, a cross-examiner whose primary experience is in U.S. or Commonwealth courtrooms would do well to note where those rules have gone. And even in international arbitrations involving exclusively common law lawyers (an increasingly rare occurrence) there are critical differences in American cross-examination practice as against the rest of the Anglophone world – differences that only begin to make sense when one understands the court rules.
This chapter, while not exhaustive on the topic (this would be near-impossible) attempts to take a sampling of various “rules” in the common law system that have either been modified or (in some cases) never been adopted in the context of international arbitration.