Lawrence W. Newman has been a partner in the New York office of Baker & McKenzie since 1971, when, together with the late Professor Henry deVries, he founded the litigation department in that office. He is the author/editor of 4 works on international litigation/arbitration.
Michael Burrows, Formerly, Of Counsel, Baker & McKenzie, New York.
International arbitration, particularly as engaged in Europe, has relied on the parties’ presenting their cases in chief through written witness statements. The result is that hearings at which witnesses are heard orally consist primarily of the questioning of witnesses by opposing parties. Ironically, lawyers who are trained in the court systems that find written presentations more readily acceptable, are often not adequately prepared in the skill (and art) of questioning witnesses in oral hearings. The result can be that such written witness testimony is not sufficiently challenged, thereby affording opportunities to the unscrupulous of offering written presentations of witness evidence that are less than complete and honest.
There are different ways of challenging witnesses in oral hearings, depending on the culture and tradition both of the examining lawyers and of the arbitrators before whom the cross-examination is conducted. A recent conference held in Paris on Cross-examination in International Arbitration (at which the first-named of the authors was the moderator) revealed these different approaches.
The Paris seminar presented competing cross-examinations by two pairs of two experienced international arbitration lawyers of each of two witnesses, one a fact witness and the other an expert. Thus, there were four different cross-examination approaches presented. On the basis of these different approaches and from our more general observations, there can be certain descriptive conclusions drawn as to the ways in which crossexaminations in international arbitration can be conducted.