The English Approach to Cross-Examination in International Arbitration - Chapter 18 - Take the Witness: Cross Examination in International Arbitration
SOPHIE NAPPERT is a dual-qualified lawyer in Canada and in the UK. She is an arbitrator in independent practice, based in London. Before becoming a full-time arbitrator, she was Head of International Arbitration at a global law firm. Sophie is trained and has practiced in both civil law and common law jurisdiction
CHRISTOPHER HARRIS is a barrister at the Chambers of Ali Malek QC, 3 Verulam Buildings in London. Recommended as a leading barrister in both commercial litigation and international arbitration by Chambers & Partners and Legal 500 and described as a “notable arbitration lawyer” by Global Arbitration Review, Christopher appears as counsel across a range of commercial litigation and arbitration, both ad hoc and under the rules of the ICC, LCIA, the Swiss Rules, UNCITRAL and ICSID.
Originally from Take the Witness: Cross Examination In International Arbitration
In this chapter, we examine the English approach to cross-examination generally, how it is altered in the international arbitration setting, contrast it with the cross-examination styles often observed in lawyers from other jurisdictions and identify some of the issues which can arise from these differences.
England has a long tradition of oral advocacy. Whilst in recent years there has been an increasing tendency to use written documents, such as skeleton arguments, these are always a supplement to, and not a replacement of, the oral advocacy.
International arbitration proceeds from two essential tenets: one is cross-culturalism; the other is communication. The successful combination of effective communication in a multi-cultural setting is what sets international arbitration apart and what makes it the premier means of resolution of cross-border business disputes.
'Effective communication' of one's case to an arbitral tribunal hailing (at least in part) from a legal tradition different from one's own is therefore the challenge facing the advocate in international arbitration cases. Whilst several messages about the strength of one's case, and the weaknesses of one's opponent's, can be communicated via cross-examination in a common law setting , many of these messages may be lost on a tribunal unused to cross-examination, or unreceptive to it.
It is fair to say that the norm currently in international arbitration is for some degree of cross-examiniation to take place, even in hearings before a civil law tribunal, or located in a civil law country. The IBA Rules on the Taking of Evidence in International Commercial Arbitration have played an important part in bridging the former common law/civil law divide on this procedure, and now only the most intransigent tribunal will bridle at the process.
The accepted best practice can perhaps be described as 'enlightened cross-examination'. We examine below some areas of international arbitration practice where this can be brought into play.