Originally from Between East and West: Essays in Honour of Ulf Franke

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I. INTRODUCTION

Cross-examination is quintessentially a concept of common law procedure. It refers to the oral questioning by counsel on behalf of one of the parties of a witness called by another party during a trial or comparable stage of procedure.1 It is conducted according to rules of practice and procedure distinct from those that apply to the oral questioning of witnesses in other circumstances.

The elements of this definition require some comment. Firstly, crossexamination is part of an oral procedure. A series of written questions put to a witness, if permitted in the applicable procedure, is not crossexamination. Second, cross-examination is always performed by counsel; questioning of a witness by a judge, arbitrator or other judicial or administrative officer is not a cross-examination. Thirdly, it refers to questioning by counsel of a witness called by another party, as counsel is not permitted the same freedom to question a witness that his client has called. Cross-examination presupposes a differential treatment of the questioning of witnesses depending on which party has called the witness. Cross-examination is therefore the complement of the examination of witnesses, which refers to oral questions by counsel on behalf of a party of a witness called by the same party (also called “examination-in-chief” or “direct examination”). Finally, cross-examination occurs in the dispositive stage of the proceedings, and can therefore be distinguished, for example, from a deposition in U.S. civil procedure.

The questioning of witnesses seems to be a self-evident good in legal proceedings, including international arbitration. It enables the tribunal to listen to the explanation of events first-hand from the participants in the events. It fills gaps in the documentary record and enables individual documents to be explained and placed in a human context. It gives the tribunal the opportunity to assess the credibility of individuals. It gives each party the opportunity to question and challenge the very individuals that stand witness against them. It can expose deceit, confusion, error and ignorance, or confirm the accuracy and integrity of critical evidence. It is immediate, direct, efficient and consistent with due process. The result is a fuller and fairer process, a better informed tribunal, more sophisticated decision-making, a more secure award and probably greater probability of immediate and voluntary compliance.