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Cross-Examination in International Arbitration

Author: Peter ROSHER

Type: Article

ref: 32017203-223

N0:3 of 2017

Pages: 203-223

It has been observed that with more and more tribunals imposing somewhat arbitrary time limits on the questioning of witnesses, the resulting reduction in time devoted to cross-examination has led to a relative decrease in its impact and effect in influencing the tribunal's decision in the proceedings. One school of thought is that cross-examination adds very little value to the arbitration process. This tends to arise out of the document-orientated civil law approach. However, it is submitted that this pessimistic view is borne out of a lack of understanding and/or experience of cross-examination. This is not helped by those who adopt a traditional "common law" approach without having regard to the nuances of international arbitration, thus missing out on the benefits that could be achieved by adopted a calm, polite and targeted cross-examination exercise. If undertaken correctly, cross-examination can assist arbitrators to better understand the matters in dispute between the parties by enhancing their knowledge of the key facts, and understanding the context of each witness and their involvement in the issues in dispute. It can highlight factual inaccuracies in the chronology and serves to demonstrate the credibility of each witnes's testimony.