Opportunities to see expert cross-examinations are often infrequent in international arbitration and the occasions to sharpen these skills for many are rare. This book is both an invaluable teaching tool as well as a general guide to effective cross-examination in international arbitration. Based on extensive experience and insight from the authors and aided by practical examples, it provides a thoroughly illustrated analysis of how essential cross-examination techniques can best be adapted to the arbitral format. Concise and well organised, it leads the reader through the different cross-examination techniques in an accessible point by point structure, presenting readers with a clear and authoritative introduction on how best to conduct a cross-examination or a quick-reference for more experienced practitioners.
An international arbitration hearing is very different from a trial in a court and any practitioner appearing as counsel, whether common or civil law lawyers, needs to know what will happen and how it will differ in order to adapt their conduct. Hober and Sussman explore the challenges practitioners face when conducting a cross-examination in such an environment and provide practical learning aids to help overcome them. Cross Examination In International Arbitration addresses the common issues that can occur in cross-examination in arbitrations such as adjusting the level of English to consider the competency of the panel's least competent member or how to cross-examine a witness with only the use of a written statement rather than by means of oral direct testimony. By highlighting the common challenges which might arise, the authors present a guide which will benefit those practicing or looking to practice in this field.
Cross-examination by counsel in an international arbitration differs in highly significant ways from cross-examination by counsel in a domestic arbitration or trial. Hat is obviously true when counsel is a lawyer from a legal tradition in which coun-wi hardly if ever cross-examine at all—such as a lawyer from some of the civil law I Irantnes or from China or Russia. But, because of the many important differences :«rween an international arbitration and an Anglo-American domestic arbitration I or court trial, it is also true even when counsel comes from the Anglo-American cd tradition in which counsel routinely cross-examine witnesses.
Relying on our extensive experience in arbitration, as arbitrator and counsel, and in cross-examination, as well as in teaching, we seek in this book to provide the reader with a basic understanding of how best to conduct a cross-examination in an international arbitration. We do that taking into account the highly significant differences between international arbitrations, on the one ha¥id, and domestic arbitrations and court trials, on the other. Those differences derive not only from the multinational characteristics of international arbitration but also from the legal and procedural framework within which the cross-examiner in such an arbitration must work.
This book is thus addressed to all lawyers who represent clients in international arbitrations, no matter what legal or cultural traditions they may come from, but perhaps especially to lawyers who are relatively new to that work. It is intended to acquaint the reader with the most significant of the differences between cross-examinations in international arbitrations and those in domestic arbitrations and trials, and then ed assist the reader in appropriately taking those differences into account when preparing for and conducting cross-examinations in international arbitrations. We are very grateful to the publisher of Francis L. Wellman’s superb book, The Art I Cross-Examination (4th edition, 1936), for giving us permission to quote a few things from that book to help us illustrate some of the points we seek to make in this book.
Knowing when and how to cross-examine is an essential part of properly rep resen t-mg clients in international arbitrations. It is not too much to say that cases have been won by good cross-examinations and lost by bad cross-examinations. That is just as true in international arbitrations as it is in any other dispute resolution procedure in which counsel are permitted to cross-examine witnesses.
All of us learn to cross-examine by cross-examining rather than by reading books. A book can nonetheless provide a foundation upon which to begin and guidance on how to improve. We hope this book will do that and that all lawyers who use this book, no matter what legal and cultural traditions they may come from and no matter how experienced or inexperienced they may be, will find it to be useful.
Howard S. Sussman
Stockholm and New York