A renowned member of the arbitration community recently opined that there is no such thing as “clash of cultures” in arbitration, as that term is commonly understood, and that real clash of cultures in arbitration would be that of claimants and respondents. It is true that parties from all over the world would always try to present their case in the light most favourable to them and, to this effect, may use identical techniques or fall in similar traps. It is also true that unreasonable and confusing explanations will always appear unconvincing whether they are spelled out by witnesses from Asia, Oceania, Europe, Africa or the Americas. However, people’s sense of propriety, values and behaviour may vary depending on their cultural background, and this may affect the way in which they present testimony. [...]
This chapter aims to highlight distinctive features that counsel, arbitrators, and clients should consider when intervening in arbitration proceedings involving Asian witnesses. This is a topic requiring considerable caution, as it would be incorrect and dangerous to treat parties or witnesses from any single Asian country as a homogeneous group, and this danger is compounded when relying excessively on generalities across the Asian region.
In that regard, as with any witness, the personality of the specific witness is far more important than the cultural background of the witness when determining the best approach to cross-examination. In commercial arbitration, where the parties often have a history of working together, each party will have had interactions with the witnesses for the counterparty, and counsel should explore this history to better understand the personality of the counterparty's witnesses.