LAURENCE SHORE is a dual U.S./U.K. qualified Partner in the New York office of Gibson, Dunn & Crutcher LLP. He is Co-chair of the firm’s International Arbitration Practice Group. He has been the lead advocate in a number of arbitration cases under, for example, the ICC, LCIA, ICDR, UNCITRAL, Cairo Regional Centre, and SWISS Rules.
U.S. litigators are almost always missing something when they prepare their cases for an evidentiary hearing in international arbitration – they are missing deposition transcripts. Typically, in an international arbitration discovery depositions are not part of the parties’ information exchange. As counsel, you normally learn of the witness evidence (both factual and expert) of the opposing party through written witness statements (or expert reports). Depending on the procedural timetable implemented by the arbitral tribunal, you may receive two rounds of such statements, with the second statement being a reply to first round statements of the opposing party’s witnesses. But whether one round or two, when you cross-examine the witness at the evidentiary hearing before the arbitral tribunal, you will not have had a previous opportunity to see the witness, much less ask questions of her.