Cross-Examination In International Arbitration: Is It Worthwhile? - Chapter 16 - Take the Witness: Cross Examination in International Arbitration
BERNARDO M. CREMADES is Senior Partner of the Spanish law firm B.Cremades y Asociados and Catedrático at the Universidad of Madrid. His practice focuses on international commercial arbitration and transnational investment disputes. He has acted as counsel, party-appointed arbitrator and president of arbitral tribunals in more than 300 arbitrations.
DAVID J. A. CAIRNS is a Partner of B. Cremades y Asociados, specializing in international arbitration. His practice covers all types of contractual disputes as well as investment disputes under BIT agreements. He regularly receives appointments as an international arbitrator.
Originally from Take the Witness: Cross Examination In International Arbitration
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. 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, cross-examination is part of an oral procedure. A series of written questions put to a witness, if permitted in the applicable procedure, is not cross-examination. 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 dispositie stage of the proceedings, and can therefore be distinguished, for example, from a deposition in U.S. civil procedure.