Cross Examining the Legal Expert - Chapter 14 - Take the Witness: Cross Examination in International Arbitration
GEORGE A. BERMANN is the Jean Monnet Professor of European Union Law (a chair conferred by the Commission of the European Communities), as well as the Walter Gellhorn Professor of Law at Columbia Law School. He has been a member of the Columbia Law School faculty since 1975, teaching a range of subjects: initially heavily domestic (contracts and administrative law), but now for many years entirely comparative, international and transnational.
Originally from Take the Witness: Cross Examination In International Arbitration
The expert witness on law plays an especially critical role in international commercial arbitration. The evidence that the witness adduces will in many cases pertain directly to the substance of the legal principles that the arbitrators will in turn directly apply to the merits of the dispute. Foreign law expert witnesses of course play an analogous role in national court litigation. Some of the challenges facing the expert witness and the lawyer examining him or her will be essentially no different in the two contexts, but others will.
What is said in the pages that follow is sometimes addressed primarily to the legal expert himself or herself, and sometimes to the attorney who will be examining or cross-examining him or her. The truth is that every observation made here is one that entails lessons for the expert and the attorney alike. This chapter does not deal with the situation in which an arbitral panel appoints its own legal expert. It is highly unusual for international arbitral tribunals to appoint independent legal experts; even international arbitrators who come from systems in which court-appointed foreign law experts are the rule will be comfortable in having expert legal opinion come before the panel through experts retained by the parties. Moreover, should the legal expert be a person of the tribunal's choosing, rather than party-retained, the entire dynamic will be altered. Counsel will want to treat the panel's expert no more roughly than counsel treats the panel itself.