Young ICCA Skills Training Workshop: Cross-examination in International Arbitration
Post Event Report
by Alice Williams, Schellenberg Wittmer, Geneva, and Ridhish Rajvanshi, World Trade Institute
On a windy 3 May 2019, Zurich (Switzerland) welcomed us for a Young ICCA Skills Training Workshop on “Cross-examination in International Arbitration”. The event was hosted and sponsored by the law firm Schellenberg Wittmer and organised by Nadja Al Kanawati and Benjamin Gottlieb of the same firm. The event was guided by Rahul Donde (Young ICCA Events Coordinator, Lévy Kaufmann-Kohler, Geneva) and Camilla Gambarini (Young ICCA Co-Chair, Withers, London).
Rahul and the team welcomed over 30 participants, lawyers and students from more than 10 different countries and gave a presentation on ICCA and Young ICCA, with a particular focus on Young ICCA's skills training workshops, mentoring programme, scholarships and blog.
The conference began with a panel discussion on "Cross-examination of Witnesses in International Arbitration". The panel comprised of Elliot Geisinger (Schellenberg Wittmer, Geneva); Niklaus J. Zaugg (CMS von Erlach Poncet, Zurich), Marie Berard (Clifford Chance, London) and was moderated by Simon Vorburger (Quinn Emanuel Urquhart & Sullivan, Zurich).
The speakers addressed the preparation of witness statements (Niklaus Zaugg), the golden rules of cross examination and when to break them (Elliott Geisinger), and the cross examination of expert witnesses (Marie Berard). The participants will remember the following:
- When preparing witness statements, conduct a thorough interview to obtain the information required to build the case; be diplomatic and show interest in the facts provided by the witness; explain to the witness that certain memories are secondary or not immediately relevant to the legal issues of the dispute; verify the credibility of the witness on a disputed fact to avoid surprises during cross-examination. When drafting or re-drafting witness statements, use short sentences and plain language, prioritising the subject and avoiding legal arguments and/or formulation; do not repeat the facts or purely quote documents: witnesses must bring an added value to the facts of the case.
- Always bear in mind the three golden rules of cross-examination: (1) never ask a question you don't know the answer to; (2) never give the witness the opportunity to launch into a long speech, and (3) never ask an open question ("why?"). However, these rules should/can sometimes be broken. A cross never goes as planned: although the examiner must always know what he/she is trying to achieve through the cross, he/she must be ready to change tactics depending on the course of the cross.
- The importance of expert witnesses for the tribunal and for the parties. An expert must be carefully selected (check his/her area of expertise, qualification and experience, ability to communicate and relationship with the parties). The wording and content of an expert report must be thorough, reasonable, objective and clearly drafted to ease the understanding of the tribunal. Cross-examination of expert witnesses will generally involve the questioning of the expert's methodology, analysis, assumptions and sometimes credibility. Common pitfalls for experts include multiple authorship of the report, contradictions with past expert legal opinions, advocating for the client's case, selective use of evidence and lack of independence.
The panel discussion concluded with a Q&A session and final recommendations for the participants' cross-examination preparation and techniques, highlighting the importance of detail and thorough background work. The key is to know the facts better than the witness.
After the theory comes practice! The participants were divided into eight groups, four representing the Claimant, four representing the Respondent and assigned a tutor to help them prepare/improve their cross-examination of fact witnesses, Mr Robot (Claimant) and Ms Terminator (Respondent), brilliantly performed by Sanela Ninkovic, Ankita Godbole, Isabella Cannatà and Lukas Fellmann.
The panelists and arbitrators, Amanda Lee, Silvia Martinez, Angelina Petti, Maud Elezam, Deepa Somasunderam and Flavio Peter provided useful tips regarding the "do's" and "don'ts", the structure and the style of the cross examination. After an hour of intense preparation, the groups moved to the hearing rooms where the mock cross-examination exercises took place.
Counsel for the parties were allocated 25 minutes for the cross-examination, and 5 minutes for an optional direct and re-direct. The groups usually divided the cross-examination exercise between themselves, so that everyone could have a go.
After each session, the members of the tribunal gave each attendee constructive feedback and personalized advice, giving practical tips such as recalling the importance of the transcript for the post hearing submissions.
Co-organizers Nadja Al Kanawati and Benjamin Gottlieb closed the workshop and treated the panelists to authentic Swiss chocolate before the party moved to the cocktail reception.
Thank you all for this constructive, fun and inspiring workshop!
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