C. MARK BAKER is co-head of both his firm’s 16 office International Department and its Arbitration and ADR Practice Group. In 2010 Mark was selected by the National Law Journal as one of the 40 Lawyers Who Defined the last Decade of Legal Practice in the United States. In addition to acting as lead Counsel in cases involving energy contracts, power purchase and sales agreements, construction contracts, project finance and development agreements, joint ventures and complex financial transactions, Mark has chaired, on average, eight international arbitration cases each year since 1998.
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.