REUTERS | Lisi Niesner

In international arbitration, to cross-examine or not to cross-examine?

Having read some of the academic material out there on the civil/common law divide as a law student, as I stepped into my first international construction arbitration I was very curious to see how cross-examination and oral evidence would work in practice.

As you would expect, day one in the hearing room was a real mixed bag. We had a tribunal consisting of two North Americans and a European, as well as lawyers from all over the world. Common law cross-examination was employed, followed by tribunal questions for each witness and “hot-tubbing” for each expert pair.

Each witness, before being cross-examined, exclaimed similar things in the breakout room, generally along the lines of “I want the tribunal to hear X” or “I just want the tribunal to understand Y”. However, as is often the case in hearings, the witness did not get a chance to say X or Y during cross-examination. Instead, they were questioned (often aggressively) on a very small portion of their written evidence, which sometimes did not go to the heart of the matter at all. As the witnesses went into the stand, one by one, the journal articles and opinion pieces that I had read when I was a student started to click on a practical level.

The tribunal in this technical construction arbitration was well read and experienced. They “got it”. Their questions for the witnesses were focused and to the point. They asked for summaries of the evidence to assist them during the hearing.

But it did leave me thinking whether this process is really the best way of testing the evidence or of conducting technical arbitrations. For example:

  • Should we allow long cross-examinations on irrelevant points or should the system be more inquisitorial, retaining some aspects of the adversarial process (the witnesses have to be challenged by the parties, after all)?
  • If the “norm” in international arbitration became a mixture of adversarial and inquisitorial approaches, would parties see it as a positive development or as something that interferes with their right to control the arbitration and present their case in the way they want to?
  • Does a tribunal place any weight at all on a peripheral line of questioning and other “trickeries”, or do they simply rub the tribunal up the wrong way?

Is an inquisitive tribunal the answer?

The key to this surely lies with the tribunal. As parties have the freedom to appoint tribunal members with a reputation for taking an active role in oral evidence, they should aim to have an inquisitive tribunal that works hard to understand the key points and the technical issues, but which is firm and guides the cross-examinations.

One possible downside of an inquisitive tribunal is that lines of questioning may go in an unexpected direction, although there is always that risk, even with an adversarial approach. This can be managed by preparing more focused submissions that help the tribunal to understand the issues.

We need to bear presentation in mind right at the outset of an arbitration, especially if the issues are technical. Submissions, witness statements and experts’ reports should be clear, concise, contain signposting and should make it easy for the tribunal to grasp the issues and allow it to formulate sensible questions.

Surely this is a better outcome than a tribunal being dazzled and distracted (or simply irritated) by the jazz hands and glad rags of the show that is the cross-examination.

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