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The Nuts and Bolts of Cross-examination in International Arbitration, Edinburgh, Scotland,
30 May 2019

By Gabriela Gallardo Estrada and Orobogia Clark

On 30 May 2019, Young ICCA organised a skills-training workshop on the “Nuts and Bolts of Cross-examination in International Arbitration” at the Scottish Arbitration Centre, Edinburgh, Scotland. The Steering Committee was composed of Ms Camilla Gambarini (Young ICCA Co-Chair), Mr Rahul Donde (Young ICCA Events Coordinator), Ms Fiona Menzies (Scottish Arbitration Centre), Ms Laura West (CMS and CIArb Scottish Branch) and Dr Gloria M. Alvarez (Young ICCA Mentoring Programme Coordinator). The Scottish Arbitration Centre generously sponsored the workshop, which was very well attended by a number of students and young international arbitration practitioners.

After a welcome lunch, Ms Fiona Menzies made a few introductory remarks about the Scottish Arbitration Centre, and then gave the floor to Ms Lise Bosman (Executive Director of ICCA) who provided an outline of ICCA’s history and achievements. Dr Gloria M. Alvarez (University of Aberdeen) spoke about Young ICCA and its activities.

The first part of the Workshop was a panel discussion on cross-examination lead by highly experienced practitioners: Ms Erica Stein (Dechert LLP), Mr Alexis Martinez (Squire Patton Boggs), Mr Dipen Sabharwal QC (White & Case) and moderated by Dr Gloria M. Alvarez (Young ICCA Mentoring Programme Coordinator). The panelists shared their experiences in relation to the choice of witnesses to be cross-examined, the objectives to be achieved from cross-examination and gave several practical tips to the participants.

Erica Stein (Dechert LLP) noted that, while international arbitral procedure is a hybrid between common and civil law practices, cross-examination is directly borrowed from the common law tradition. She gave important tips to be considered when identifying which witness should be cross-examined, including whether witnesses’ written testimony speaks to facts that are actually in dispute. Erica concluded by highlighting that cross-examination should be used as a medium to educate and inform the arbitral tribunal about your case.

Mr Alexis Martinez (Squire Patton Boggs) discussed issues concerning the efficiency of cross-examination. He began by stating that a cross-examination can be very efficient and useful if the examiner is well prepared. He then explained how to avoid common mistakes in cross-examination, and shared his comments on Irving Younger’s “10 commandments” adjusted for an effective cross-examination in arbitration:

1.     Be brief, short, and succinct;
2.     Use short questions and plain words;
3.     Ask leading questions in the right circumstances;
4.     Be prepared;
5.     Listen to the answer;
6.     Do not quarrel with the witness;
7.     Avoid repetition – never permit the witness to repeat what has been said on direct examination;
8.     Never permit the witness to explain anything;
9.     Avoid asking “one question too many”
10.   Save the ultimate point for the end of the cross-examination 

The last speaker on the panel, Mr Dipen Sabharwal (White & Case) spoke about familiarizing witnesses and experts to avoid cross-examination disasters. He also gave advice on avoiding such disasters, explaining that cross-examination is not a quest for glory but a strenuous exercise where one needs to work together with the witness for an effective outcome. He then gave his own “10 commandments” that lawyers could share with their witnesses facing a cross-examination:

1.     Know your witness statement or report;
2.     Know the issues;
3.     Listen to the question;
4.     Answer the question;
5.     If in doubt, ask for the question to be restated;
6.     Do not fill silences (testimony is not a conversation);
7.     Never guess an answer – ask to see the relevant document (testimony is not a memory test);
8.     Use your own words, not counsel’s words;
9.     Maintain eye contact with arbitrators;
10.   Be credible, not clever.

The first panel ended with a lively Q&A session. It was followed by a coffee break, giving another opportunity to the participants to interact with the panelists.

The second session of the Workshop included a demo cross-examination exercise to illustrate what a cross-examination looks like in practice. The arbitral tribunal for the exercise was composed of Ms Patricia Saiz (International Arbitrator and Professor at ESADE Law School), Mr Brandon Malone (Scottish Arbitration Centre) and Mr James Clanchy(Independent International Arbitrator).

The first team of counsel composed of Ms Iuliana Iancu (Hanotiau & van den Berg) and Ms Eliane Fischer (Freshfields Bruckhaus Deringer), cross-examined “witness” Ms Laura West based on a script prepared by Young ICCA that had been circulated to the participants in advance. The counsel and the tribunal paused the examination on several occasions to discuss potential mistakes committed by counsel, identifying different approaches to address the same question, allowing the panelists to interact with the attendees.

The second team of counsel was composed of Mr Basil Woodd-Walker (Simmons & Simmons) and Mr Farouk El-Hosseny (Three Crowns) who cross-examined Ms Leigh Herd(Shepherd and Wedderburn LLP and CIArb Scottish Branch) without a prepared script. The counsels and the witness focused on exposing the participants to well established techniques of cross-examination in international arbitration.  

Participants and the panelists then proceeded to enjoy a cocktail reception in Tigerlily Edinburgh, where they engaged in further exchanges on the lessons learned during the day’s event and their academic and work experiences.

The Workshop was motivating, educative and insightful for all participants, especially young arbitration practitioners who learnt about effective cross-examination techniques from experienced members of the international arbitration community.


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