Cross Exam Arb

Cross-Examination in
International Arbitration
Daniel E. González
April 2021
www.hoganlovells.com
Cross-Examination in International Arbitration
• Characteristics of Cross-Examination in
• Strategies
• Challenges
• Controlling the Witness
• Preparing Cross-Examination
• Three Tools
Characteristics: Cross-Examination in International Arbitration
• Accepted as standard in international arbitration hearings

– Even in arbitrations where both parties are from civil law jurisdictions
• However, diversity in legal backgrounds still impacts
conduct of cross examination
– Different strategies
– Different challenges
| 3
Cross Examination in International Arbitration
• Characteristics of Cross Examination in
• Strategies
• Challenges
• Three Tools
Strategies
The Background and Preferences of the Tribunal

• Know your audience for cross
• Civil law arbitrators:

– May have a negative view of cross-
examination
– May dislike aggressive U.S. style
• Tribunals generally will give freedom

to the cross-examining lawyer
| 5
Strategies
Lack of Strict Evidentiary Rules

• Consider the lack of strict evidentiary rules
• Institutional rules give Tribunal control
• Article 8.2 of the IBA Rules provides:
| 6
Strategies
Leading Questions, Concept

• Questions that suggest the
answer to the questioner
– Generally admitted in
International Arbitrations
– Generally not as tight as in
common law courts
• General commandment is to
always lead the witness
– Comes from the fear of what the
witness may otherwise say
– There are some exceptions
| 7
Strategies
Leading Questions, Learning to Lead

• Begin questions with:
– Is it a fact that…?
– Is it true that…?
– You would agree…?
– Isn’t it true that ….?
• Then move on to the rest of the sentence
| 8
Strategies
Three Techniques
• 1. Cross-examining to impeach
– Sending the message that the
witness is not trustworthy
• 2. Cross-examining to get
information
– Bringing out the information that
helps your side of the case
• 3. Cross-examining to limit
– The witness testimony does not
matter
| 9
• Strategies
• Challenges
• Three Tools
Challenges
Time Limits
• Time is generally equally allocated
• Chess-clock timing
– E.g., five day hearing:
• Half a day for opening statements
• Remaining 25h evenly split between
the parties to cross-examine
– Each party to allocate 12.5 hours
among all the witnesses
• Hearings have a fixed length
| 11
Challenges
Questions to Which Examiner Does not Know the Answer
• General commandment is to never ask a

question you do not know the answer
– Lack of depositions and other characteristics
makes it more difficult to follow this rule in IA
– It is not always possible
Hogan Lovells | 12
Challenges
Questioning by the Arbitral Tribunal

• Arbitrators tend to ask questions to
the witnesses
– Interruptions more similar to the judge’s
role in civil law jurisdictions
• It is important to listen and follow-
up on questions
• It can be challenging to get back
after tribunal interruption
| 13
Challenges
Languages and Translations

• It is common that witnesses speak different
languages
• Some need interpreters, choice:
– Simultaneous
– Consecutive
| 14
Challenges
Narrow Grounds for Objections
• Lack of formal rules of evidence

• Tribunals tend to be more flexible allowing
questions
| 15
• Strategies
• Challenges
• Three Tools
Controlling the Witness
Witnesses who Volunteer
• Volunteering
information
– Lack of strict procedural
rules makes volunteering
information likely
admissible
– Learn to control the
Witness
– Keep focused on your
questions and repeat if
necessary
| 17
Controlling the Witness
Adverse Testimony
• Witnesses that give harmful

information
• Merely giving adverse testimony
does not mean witness will be
believed
• Attempts to silence the witness will
give greater credence to hurtful
testimony
| 18
• Strategies
• Challenges
• Three Tools
Preparing Cross-Examination
One Question too Many?

• Prepare your objectives and goals for
cross before developing your questions
• Assess the witness and how far you can
take your cross
• Do not be afraid to:
– Make the points needed
– Cross-examine fully
– Put the hard questions to the witness
| 20
Note-taking During Direct

• Mental awareness of the hearing room is
fundamental:
– Arbitral Tribunal
– Adversary
– Witness
• Note-taking may distract from important aspects
• Listen, Listen and Listen!!
| 21
Where to Start and End
• Feel out the witness

• Start strong
• Finish strong
| 22
• Strategies
• Challenges
• Three Tools
Three Tools
1. Prior Inconsistent Statements
• Indexing prior
statements.
• Using the prior

statements
– Lack of depositions
goes both ways.
| 24
Three Tools
2. Credibility Attacks
• Case-specific → generally, prior

inconsistent statements
• General character
• Bias and interest
| 25
Three Tools
3. Using Rules of Probability

• One of the most important skills
| 26
Recommended Readings
• Kent, Introduction to Cross Examining Witnesses;

• Stern & Saltzburg, Trying Cases to Win – Chapters
16, 17 and 18;
• Cross-Examination, in Ragnar Harbst , A Counsel's
Guide to Examining and Preparing Witnesses in
International Arbitration, Kluwer Law International
2015
| 27
Daniel E. González
Partner
600 Brickell Avenue
Suite 2700
Miami, FL 33131
Tel: +1 305 459 6649
Email: daniel.gonzalez@hoganlovells.com
"Hogan Lovells" or the "firm" is an international legal practice that includes Hogan Lovells International LLP, Hogan Lovells
US LLP and their affiliated businesses.
The word "partner" is used to describe a partner or member of Hogan Lovells International LLP, Hogan Lovells US LLP or
any of their affiliated entities or any employee or consultant with equivalent standing. Certain individuals, who are
designated as partners, but who are not members of Hogan Lovells International LLP, do not hold qualifications equivalent
to members.
For more information about Hogan Lovells, the partners and their qualifications, see www.hoganlovells.com.
Where case studies are included, results achieved do not guarantee similar outcomes for other clients. Attorney
advertising. Images of people may feature current or former lawyers and employees at Hogan Lovells or models not
connected with the firm.
© Hogan Lovells 2021. All rights reserved.


Cross Exam Arb

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Cross Exam Arb

Uploaded by

Copyright:

Available Formats

Cross-Examination in

• Accepted as standard in international arbitration hearings

The Background and Preferences of the Tribunal

• Civil law arbitrators:

• Tribunals generally will give freedom

Lack of Strict Evidentiary Rules

Leading Questions, Concept

Leading Questions, Learning to Lead

• Then move on to the rest of the sentence

Questions to Which Examiner Does not Know the Answer

• General commandment is to never ask a

Questioning by the Arbitral Tribunal

Languages and Translations

Narrow Grounds for Objections

• Lack of formal rules of evidence

Witnesses who Volunteer

• Witnesses that give harmful

One Question too Many?

Note-taking During Direct

Where to Start and End

• Feel out the witness

1. Prior Inconsistent Statements

• Using the prior

• Case-specific → generally, prior

3. Using Rules of Probability

• Kent, Introduction to Cross Examining Witnesses;

© Hogan Lovells 2021. All rights reserved.

You might also like