The stage is set and the curtain rises.It is the third day of merits hearings in an international commercial arbitration between two large corporations, taking place in a spacious conference room. In the witness chair sits a nervous middle-level executive of an Asian company who has submitted a written witness statement in his native language, which is not the language of the arbitration, that being English.He has affirmed, on very brief direct examination through an interpreter, that this is his written evidence. The three arbitrators, none of whom speak the witness’s native language, have read his witness statement in English translation.They smile encouragingly, raise their pencils and await cross-examination.
Facing the witness is the cross-examining attorney, who also does not speak the witness’s native language.Beside him sit an interpreter and one or more other lawyers fluent in both the witness’s language and English. On the other side of the room sit counsel for the witness’s employer, who also does not speak the witness’s language; a second “check” interpreter; and a second battery of bilingual assisting lawyers.Along the wall sit several senior executives of the witness’s company, awaiting his cross‑examination.They are not smiling.
The cross-examiner’s hopes are high. He knows that the witness has been advised to testify in his own language because, although the witness understands some English, he is likely to have difficulty in expressing himself well in answering questions in English, particularly in a highly charged situation.The cross‑examiner expects the witness will be uncomfortable because he has no experience with probing cross-examination and is likely to be sensitive about performing in this important setting in front of his superiors. Perhaps the arbitrators will form the impression that the witness is unreliable and untruthful, as the cross‑examiner believes him to be.