Cross-Examination in International Arbitration: A Clash Among Common-Law Traditions – Vol. 29 No. 2

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Description: I put it to you, Sir, that the document I have placed before you, Hearing Exhibit 4, puts the lie to your evidence before the Tribunal earlier today.

This “question,” asked by a senior barrister of one of our client’s executives, in a final hearing on the merits in Singapore, sucked the air out of the hearing room.  Was that even a question?  We hope our witness knows enough to deny that he lied, and that he is able to credibly reconcile Hearing Exhibit 4 and his prior testimony.  We had been involved in many international arbitration hearings over the years, against American lawyers who cross-examined witnesses like we do, and against civil law lawyers who viewed cross-examination as unnecessary and barely bothered with the exercise.  This was our first arbitration pitted against senior barristers trained in the English tradition of cross-examination.  It would be the first of many.

The drama unfolding before us is what is known among barristers as “putting the case” to the witness.  The idea, alien to American-trained advocates, is that whenever you intend to argue that a witness’s testimony is not credible, you must first give the witness the opportunity to disagree or explain their position by confronting the witness with whatever impeachment evidence you intend to rely upon.  In US practice, we are trained to control and contain the witness, usually by a series of incremental stealth attacks that endeavor to preclude the witness from ever having the opportunity to explain.

Cross-examination, like it or not, has become a regular feature of international arbitration.  As with other procedural cross-roads converging upon international arbitration from different legal traditions cross-examination invites controversy and debate.  This tends to focus on the procedural differences between civil-law “inquisitorial” and common-law “adversarial” systems, and how they inform the (un)desirability of cross-examination, or the need to modify it, in international arbitration

Less explored is how the practice of cross-examination differs in different common-law jurisdictions, including between prominent arbitral seats in the United States and England, Hong Kong and Singapore among others, and how those differences inform the approach to cross-examination in international arbitration.  This article focuses on our experience of those differences.

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*Tyler B. Robinson is a partner of Simpson Thacher & Bartlett LLP and is dual-qualified in the United States and England & Wales. Robert H. Smit is an independent arbitrator, Adjunct Professor at Columbia Law School, and a retired partner of Simpson Thacher & Bartlett LLP. The authors spent fifteen years representing clients together in international arbitrations conducted in jurisdictions throughout the world. They are indebted to Lauren Brazier, Paris Aboro, David Gallo, and Teresita Acedo for their contributions to this article.