ROBERT H. SMIT is a Partner at Simpson Thacher & Bartlett LLP in New York where he concentrates in international arbitration and litigation. He has served as counsel, arbitrator, and expert in a wide variety of international arbitrations around the world.
In the United States, cross-examination is revered as one of the great “engines of truth” in the U.S. adversarial system of justice. Cross-examination is hard, frequently dramatic and a powerful tool of advocacy for the U.S. trial lawyer.
By contrast, in international arbitration, particularly those conducted by civil law arbitrators, U.S.-style cross-examination is often viewed with considerably more skepticism. Civil law lawyers are accustomed to the judge, as opposed to the parties’ counsel, taking the lead on the examination of witnesses in civil law judicial proceedings. Unlike a neutral judge’s questioning of a witness, a common law lawyer’s cross-examination of a witness is often perceived by civil law arbitrators as an advocate’s efforts to trick and embarrass the witness. Moreover, under the procedural laws of many civil law jurisdictions, representatives of the parties are presumed biased and deemed incompetent to testify. As a result, civil law lawyers simply have less opportunities to cross-examine adverse witnesses, and less exposure generally to cross-examination.