Young ICCA Skills Training Workshop: Cross-Examination
Post Event Report
Written by Georgia Eleni Exarchou (LL.M at The George Washington University Law School, Foreign Support Lawyer at BODENHEIMER) and Maria-Fanouria Papantonaki (LL.M. Cand. at Civil Procedural Law – Democritus University of Thrace (DUTh – Greece) and MSc Cand. at Cadastral Law – Aristotle University of Thessaloniki (AUTh-Greece), Trainee Lawyer at Tsantinis-Hadjioannou Law Firm / Athens Bar Association)
On the 29th of July 2022, Young ICCA presented in Athens a cross-examination Skills Training Workshop in the framework of the ELSA Summer Law School on International Investment Law. This was the first in-person Workshop hosted by ICCA in more than two years and attracted more than 30 attendees. Students and young lawyers interacted with leading arbitration practitioners and gained useful skills. The event was divided into two sessions.
During the first half of the Workshop, four renowned practitioners discussed best practices and pitfalls to avoid when conducting cross-examination of witnesses. Mr. Anastasios Gourgourinis, Assistant Professor of International Law at the Faculty of Law of the National and Kapodistrian University of Athens, served as moderator and posed a series of questions to the panel on the purpose and format of cross-examination in international arbitration, best ways to prepare for a cross-examination, and specific cross-examination techniques. The panel consisted of Mr Constantine Partasides, QC, Partner at Three Crowns (London), Ms Isabela Lacreta, Senior Associate at Mayer Brown (Paris) and Mr Bart Wasiak, Senior Associate at Arnold & Porter (London).
The speakers began by defining cross-examination as the taking of evidence by questioning the opposing party’s witnesses in an effort to illuminate the key points of a case, while Mr Partasides characterised it as one of the greatest legal engines.
Many thoughts were expressed on the purpose of cross-examination. Mr Partasides advised that counsel should use cross-examination carefully or they could harm their own case. Mr Wasiak added that a party can use cross-examination to establish or undermine the credibility of fact or expert witnesses. Lawyers typically try to use cross-examination to either elicit admissions and concessions that will help them win the case, or to repeat their own story or refresh the Tribunal’s recollection of key pieces of evidence.
The “how” of cross-examination varies. Although a model seems to have emerged, cross-examination is shaped on a case-by-case basis. There are lawyers who prefer to prepare outlines or scripts in advance. Others improvise. What they all have in common, however, is that they must prepare at length and study the record thoroughly in order to be successful. Finally, Ms Lacreta and Mr Wasiak emphasised the cultural differences between lawyers from different jurisdictions.
Partasides shared many practical tips, including the following:
- Ask closed questions (those that can be answered with a Yes or No); a witness can easily escape open-ended questions by giving his or her prepared presentation. As a rule of thumb, any question starting with “w” (what, who, why, etc.) is dangerous and should be avoided. Take time to think about your own questions.
- Pay attention to the length of the questions asked. Long questions confuse both the witness and the tribunal.
- Where necessary, insist that the witness respond to the question, but always do so in a polite manner, without intimidating the witness. If the witness still refuses to answer a question, the tribunal may instruct him or her accordingly.
- Pay attention to the order of the questions. A reference may be made to a piece of evidence first and then the intended question asked, or vice versa.
- Know when to stop. The questions asked are sometimes as important as those not asked. Cross-examination is all about control. Witnesses should be prevented from sharing their own narrative.
- Pay attention to the use of language used when the case is a technical one so that arbitrators can follow through. Ms Wasiak added this is crucial when cross-examining expert witnesses, when lawyers have knowledge and resources that the tribunal does not have. Ms Lacreta pointed out that when interpreters are used, it is advisable to have local counsel present to verify the accuracy of the interpretation.
Finally, Ms Lacreta advised attendees to expose themselves and practise cross-examination until they find their own voice. This can be achieved by attending cross-examination sessions, assisting lead counsel in their preparation, conducting mock sessions with potential witnesses, and signing up for special training programs.
During the second session of the Workshop, the abovementioned general principles were illustrated by means of a demonstrative cross-examination, based on a mock case prepared by Young ICCA. The demonstration sought to illustrate the best practices and pitfalls that had been discussed during the first part of the Workshop.
The three-member tribunal comprised Mr Partasides (the President), Ms Johanne Cox, Head of International Arbitration at Shoosmiths – Arbitrator & Counsel, and Mr Paschalis Paschalides, Counsel in the Litigation & Dispute Resolution practice of Arendt & Medernach. In the role of the lawyer, Mr Wasiak acted as counsel for Claimant, and Ms Lacreta was counsel for Respondent. The role of the first witness, the Claimant herself, was played by Ms Nikoletta Chalikopoulou, Associate at LALIVE (Geneva), while Ms Eugenia Stavropoulou, Foreign Attorney at Kim & Chang (Seoul), acted as a witness for the Respondent.
The most exciting and interesting part of this Workshop was that the cross-examiners took pauses throughout their demo cross to engage with the audience, to highlight problematic questions and to suggest alternative approaches. Through this “Socratic method”, young practitioners had the chance to discuss and share their opinions on how to deal with the most common issues that may come up in a cross-examination during an international arbitration hearing.
At the end of the workshop tips for preparing for cross-examination were also given, the most important ones being (a) to ask to conduct mock cross-examinations of your own witnesses and (b) to assist lead counsel in preparing outlines and developing the questions to be put to the witnesses. Last but not least, Mr Parsatides emphasized that, “if the hearing is the most important part in Arbitration, then cross-examination is the most important [part] of the hearing”.
Meet the Speakers
Anastasios Gourgourinis is an Assistant Professor of International Law at the School of Law of the National and Kapodistrian University of Athens and the Athens Public International Law Center (Athens PIL), a Research Fellow at the Academy of Athens, and a membre associé of the Centre de Recherche sur le Droit des Marchés et des Investissements Internationaux de Dijon (CREDIMI), Université de Bourgogne. Anastasios is the academic supervisor of the annual Athens Summer Law School on International Investment Law, co-organized since 2016 by ELSA Athens and Athens PIL.Anastasios is also a practicing lawyer with the Athens Bar Association in Greece, specializing in sustainable trade & investment, public law, corporate law, as well as arbitration and adjudication proceedings. In the past, Anastasios served ias Special Legal Advisor at Greece's Ministry for Development and Competitiveness, and the Ministry of State, as well as Rapporteur and Secretary of the Scientific Council of the Ministry of Foreign Affairs.
Member of the Paris, Lisbon and São Paulo Bars, Isabela Lacreta is a senior associate in the International Arbitration practice of Mayer Brown, in Paris. She regularly represents clients in commercial and investment arbitrations arising from different economic sectors and industries. She has acted as counsel for states, investors and companies in over a dozen international arbitrations conducted under the ICSID, ICC, SCC, UNCITRAL, ICDR and CAM-CCBC rules. Isabela also sits as an arbitrator and has acted as administrative secretary of arbitral tribunals in a number of cases. Isabela holds a PhD in law as part of a double degree program between the Universidade de São Paulo and the Université Paris Nanterre. Her thesis focuses on the determination of the law applicable to arbitration. She has published a number of articles on international arbitration.
In addition to her native Portuguese, Isabela is fluent in English, Spanish and French.
Constantine Partasides QC
Constantine, one of the founding partners of Three Crowns, has appeared as counsel in some of the largest international arbitrations of the last two decades. In addition to his counsel work, Constantine appears regularly as arbitrator, including in disputes that involve States and State entities. He has experience acting as Chairman or Sole Arbitrator in cases under the ICC Rules, the LCIA Rules, the SCC Rules, and the UNCITRAL Rules. Constantine is recognised internationally in all major directories and publications at the top of the arbitration market. Over the last decade, he has been named each year in the Top 20 “Global Elite Thought Leaders” by Who’s Who Legal. Chambers recognises him as one of only two “Star Individuals” in international arbitration in London. He is also listed in the “Hall of Fame” for international arbitration in The Legal 500. Constantine is a co-author of the fourth, fifth, and sixth editions of the leading textbook on international arbitration, Redfern and Hunter on International Arbitration. He is a Member of the ICCA Governing Board and a Director of the LCIA Board. Constantine is a solicitor-advocate (Higher Courts Civil) and was appointed Queen’s Counsel in 2014. He was educated at King’s College, London and Cambridge University.
Bart Wasiak is a Senior Associate at Arnold & Porter, based in London. He is dual-qualified in New York and in England and Wales. His practice focuses on representing sovereign States and private-sector clients in high-stakes international arbitration proceedings. To date, he has served as counsel in more than 20 investment-treaty arbitrations under the ICSID and UNCITRAL arbitration rules. He has advised clients in relation to a broad range of disputes, including in the energy, banking, mining and shipping sectors. He is a Vice-Chair for Policy of the American Bar Association’s International Arbitration Committee and a Fellow of the Chartered Institute of Arbitrators.
Nikoletta Chalikopoulou is an associate at LALIVE since 2019, specialising in international dispute resolution with a focus on international commercial and investment treaty arbitration, as well as public international law. She has represented both private and state entities in international arbitral proceedings in cases relating to international sanctions, as well as to the energy and financial sectors. She has also provided legal advice to international institutions in matters relating to privileges and immunities, their internal compliance procedures, internal dispute resolution mechanisms and litigation exposure. She holds an LL.B. in Law and an LL.M. in International Legal Studies (summa cum laude) from the University of Athens. She also holds an LL.M. in International Dispute Settlement (MIDS) from the University of Geneva and the Graduate Institute of International and Development Studies.
Dr Johanne Cox is a Partner in the London office of Shoosmiths and leads the international arbitration practice. Alongside counsel work, Johanne regularly sits as arbitrator. Johanne has over 20 years' experience in international arbitration and represents clients across regions in all types of disputes including energy, construction, technology, corporate and finance. Johanne worked and practiced in Africa and the Middle East from 2010-2020 - in Egypt, the UAE and Qatar - and, before this, at leading international law firms in London. In addition to handling commercial arbitrations, Johanne has leading expertise in investment treaty arbitration and has represented foreign investors and states in investment treaty arbitrations. Her book, Expropriation in Investment Treaty Arbitration (2019, Oxford University Press), is a global publication.
Paschalis Paschalidis is Counsel in the Litigation & Dispute Resolution practice of Arendt & Medernach and Associate Professor of EU Law at University of Lyon 3 “Jean Moulin”. He specialises in commercial and investment treaty arbitration as well as EU litigation. He also acts as an arbitrator and is included the Panel of Arbitrators of the SCIA (Shenzhen Court of International Arbitration) for the period 2022-2025. From 2012 to 2018, Paschalis served as référendaire for First Advocate General Melchior Wathelet at the Court of Justice of the European Union. As of 2019, he was senior associate at the international arbitration practice of Shearman & Sterling and then counsel at Gaillard Banifatemi Shelbaya Disputes. Paschalis is a member of the Luxembourg Bar and the Thessaloniki Bar. He holds a LLB in Law from the Aristotle University of Thessaloniki as well as a Magister Juris and a Master and Doctorate of Philosophy in Law from the University of Oxford.
Eugenia Stavropoulou is a foreign attorney in the International Arbitration & Cross-Border Litigation Practice at Kim & Chang. Ms Stavropoulou specializes in international commercial and investment arbitration, where she acts as both counsel and arbitral secretary. She has experience working under all major arbitral rules and her areas of specialization include private and public international law, investment, trade, competition, intellectual property, and sports law. She has acted in complex multi-jurisdictional arbitrations and cross-border litigations, including disputes arising under large-scale engineering projects, manufacturing, delivery and sales agreements, shareholders agreements, joint ventures, and license and distribution contracts. Prior to joining Kim & Chang, Eugenia practiced for several years as an arbitration lawyer at von Segesser Law Offices in Zurich, Switzerland. Eugenia is admitted to the Athens bar (Greece) and holds a master’s in Private International Law and International Transactions (University of Athens) and in International Dispute Resolution (MIDS).
Stefanie Efstathiou (Young ICCA Regional Representative)
Munia El Harti Alonso (Young ICCA Regional Representative)
Toheeb Amuda (Young ICCA Regional Representative)
Ana Coimbra Trigo (Young ICCA Events Co-Director)
Saemee Kim (Young ICCA Events Co-Director)
Matthew Morantz (Young ICCA Co-Chair)
Maria Athanasiou (Young ICCA Co-Chair)
Maanas Jain (Young ICCA Co-Chair)
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