Whether cross-examination in international arbitration is a productive exercise is a hotly debated question among members of the international arbitration community. Many view it as a wasteful, aggressive exercise more suited to a U.S. courtroom than a merits hearing in a transnational dispute. However, the author of this chapter believes that cross-examination can be a powerful and productive tool for counsel to assist the tribunal in its fact-finding mission. The author further suggests – perhaps controversially to civil law lawyers – that proper cross-examination provides the best evidentiary means for unveiling the truth and educating the arbitral tribunal on the most salient issues in dispute.
This chapter discusses the value of the cross-examination method in international arbitration and suggests some broad guidelines for its most effective implementation. In addition, the author explores the important and often-neglected role the arbitral tribunal plays in facilitating effective cross-examination. In this chapter, the author speaks from his personal experiences as both counsel and arbitrator in a number of high-profile international arbitrations.
I. The Value of Cross-Examination in International Arbitration
Many international arbitration advocates, particularly those trained in the civil law tradition, believe that cross-examination offers little value to the arbitral process. This perspective no doubt arises chiefly out of the “document is supreme” approach to evidence that prevails in the civil law tradition. However, much of the negativity surrounding the cross-examination method is also fueled by a lack of understanding of the technique and, unfortunately, frequent exposure to its poor implementation. As a result, there has a been a gradual diminution of the role of cross-examination in international arbitration, as more and more tribunals impose highly arbitrary time limitations on witness evidence or turn instead to witness conferencing.