Cross-Examination against the Clock - Chapter 12 - Take the Witness: Cross-Examination in International Arbitration - Second Edition
Originally from Take the Witness: Cross-Examination in International Arbitration, 2d Ed.
The concept of conducting an arbitration proceeding “against the clock,” which often means literally against a chess clock or a stopwatch, is neither new nor necessarily controversial. The parties agree to, or the tribunal stipulates, mathematically precise total amounts of time for each party or side, including multiple claimants and multiple respondents jointly, to put on their respective case.
The narrow topic to be discussed here is cross-examination of fact and expert witnesses within the hearing, against the clock. First, the discussion proceeds with arbitration proceedings against the clock generally. Second, it addresses general considerations of witness examination against the clock. Third, it considers cross-examination against the clock from the counsel’s perspective and then the arbitrator’s perspective. Finally, it concludes with lessons to be drawn and best practices.
I. Arbitration Proceedings against the Clock Generally
Particularly in international arbitration, which for present purposes is defined as arbitration involving parties or counsel or both of different nationalities, conducting the proceedings against a clock may have particular advantages. This may be so both from the parties’ and the arbitrator’s perspective.
There are four main hallmarks of the chess clock method. The time available is agreed or stipulated in advance of the use of the time. In principle, each side has equal time. Each side can decide how to apportion the time available to it as it sees fit. Each side can receive a regular update as to the time remaining. Thus, what the chess clock method may appear to impose in mechanical rigidity and discipline is compensated for in some users’ eyes by its inherent equality, transparency and allowance for freedom of choice.