Confrontation - Techniques for Impeachment - Chapter 3 - Take the Witness: Cross Examination in International Arbitration
J. WILLIAM ROWLEY was elected Chairman of McMillan LLP in 1996 and Chairman Emeritus and Special Counsel on his retirement from the partnership in 2009. He attended University of Ottawa Law School from 1965-1968, where he was Editor-in-Chief of the Ottawa Law Review, University Gold Medalist and graduated Magna Cum Laude.
MARKUS KOEHNEN is a litigation Partner with McMillan LLP. Markus is listed in Chambers Global: The World’s Leading Lawyers for Business under Dispute Resolution and in Who's Who Legal: Commercial Litigation. He currently serves as Co-Chair of the Litigation Committee of the International Bar Association. He has appeared before all levels of courts in Canada, including the Supreme Court of Canada as well as before domestic and international arbitral tribunals. His practice concentrates on complex commercial litigation with the following particular areas of focus.
ROBERT WISNER is a Partner in the Litigation and Dispute Resolution group of McMillan. His practice focuses on international arbitration and litigation, foreign investment protection and international trade. Robert is recognized in Who's Who Legal, Best Lawyers in Canada and Lexpert in the area of international arbitration. Robert has argued cases involving businesses and governments from around the world before international arbitral tribunals established under international commercial contracts, bilateral investment treaties and trade agreements.
Originally from Take the Witness: Cross Examination In International Arbitration
In the climactic scene of many Hollywood legal dramas, the crusading trial lawyer, through vigorous cross-examination, succeeds in destroying the credibility of the star witness for the opposition. In technical terms, the witness has been “impeached”. The trial lawyer has accomplished this by confronting the witness with a reliable statement or proposition that contradicts the earlier testimony, thereby diminishing the witness’ credibility in the eyes of the jury.
The successful impeachment of a witness, like successful cross-examination generally, is the subject of many books and articles on trial advocacy techniques. These techniques are discussed below as they provide a strong foundation for advocacy before international commercial arbitration tribunals.
However, traditional trial advocacy techniques cannot be transplanted into the field of international commercial arbitration without adaptation to the unique procedures and culture that govern this form of dispute resolution. The purpose of trial advocacy is to persuade the decision-maker. Traditional courtroom advocacy may be less persuasive when the decision-makers are professional arbitrators rather than lay juries, where the arbitrators have already read extensive pre-hearing submissions (including documents and witness statements) and where the strict rules of evidence do not apply.