In Defence of Cross-Examination - Chapter 6 - Search for Truth in Arbitration: Is Finding the Truth what Dispute Resolution is About? - ASA Special Series No. 35
Constantine Partasides is a partner of Freshfields Bruckhaus Deringer LLP, and head of its international arbitration group in London. He would like to acknowledge the assistance of Oliver Marsden, an associate and member of the firm’s international arbitration group.
As a common lawyer, I have instinctive sympathy for John Henry Wigmore’s declaration in his classic treatise on the Anglo-American System of Evidence:
"Cross-examination is the greatest legal engine ever invented for the discovery of truth. You can do anything with a bayonet except sit on it. In the same way, a lawyer can do anything with cross-examination if he is skilful enough not to impale his own cause upon it."1
But was Wigmore right? And even if he was, is there not a more effective and, ultimately, more efficient means of assisting an international arbitral tribunal in finding the truth?
There are many who say yes. Such defectors argue that counsel frequently use examination to obscure the truth rather than draw it into relief, leading the witness in a way that muddies the evidence, arguing with the witness in a way that does nothing to advance it, or missing the point in a way that may lead the tribunal to do the same. Ultimately, they continue, a clever lawyer can make an inexperienced witness say almost anything once; thus, an apparent victory in this arena generally says more about counsel’s powers of verbal trickery than anything else.
Indeed, there is a received wisdom in some quarters that cross-examinations tend to amount to typhoons in teacups, to which arbitrators accord little weight in their determination of the outcome of the case. It must be conceded that very few of the awards with which I am familiar are stated to turn on the impeachment of a witness achieved in cross-examination. Two striking exceptions prove this rule. The following is an exract from the first ever NAFTA award, Azinian v. The United States of Mexico.