Young ICCA Skills Training Workshop: Cross Examination in International Arbitration
Post Event Report
by Maria Anna Dalkowska, Sołtysiński Kawecki & Szlęzak and Jan Ciaptaz, Jagiellonian University
On 27 September 2019, Young ICCA held a Skills Training Workshop on Cross-examination in International Arbitration, which took place at the premises of the Court of Arbitration at the Polish Chamber of Commerce in Warsaw. The event was generously sponsored by the Court of Arbitration at the Polish Chamber of Commerce, the Young Arbitration Forum of the Court of Arbitration at the Polish Chamber of Commerce, Clifford Chance, DWF, Sołtysiński Kawecki & Szlęzak and Wardyński & Partners.
The Workshop was organized by a Steering Committee comprising of Dr. Konrad J Czech (Gessel, Koziorowski Sp.k., Warsaw), Piotr Goledzinowski (Wardyński & Partners, Warsaw), Agnieszka Grabowska-Łysyszyn (Court of Arbitration at the Polish Chamber of Commerce, Warsaw), Marta Kozlowska (Wardyński & Partners, Warsaw) and Katarzyna Paczuska-Tokarska (Sołtysiński Kawecki & Szlęzak, Warsaw). The Steering Committee was kindly guided by Young ICCA Co-Chair, Panagiotis Chalkias (White & Case, Geneva), and Young ICCA Events Coordinator, Ana Coimbra Trigo (PLMJ Advogados, Lisbon).
The Workshop began with a welcome speech by Ana Coimbra Trigo, who also gave a brief overview of Young ICCA and ICCA and their activities. The event was divided into two parts, the first one involving a panel discussion and the second one providing the participants with the opportunity to put their oral advocacy skills to the test by participating in mock cross-examination sessions.
The panel discussion, which was moderated by Marie-Isabelle Barretto Delleur (Clifford Chance, Paris), was devoted to various practical aspects of cross-examination of witnesses in international arbitration. The panel was composed of the following experienced practitioners: Andrew McDougall (White & Case, Paris), Emilie Gonin (Doughty Street Chambers, London), Matt Gregoire (4 New Square Chambers, London) and Kartikey Mahajan (King & Spalding, London).
The panel discussion started with Mr. Kartikey Mahajan, who defined the concept of cross-examination and explained its practical importance for international arbitration. After analysing the goals to be attained by counsel while cross-examining a witness and discussing an arbitral tribunal’s perception of cross-examination, he answered the question why cross-examination is needed in arbitral proceedings. He suggested, though, that it is not always desirable to conduct cross-examination and that it is a strategic choice whether to do it with a particular witness or not. Mr. Mahajan also briefly discussed the nuances between a common law and a civil law approach to cross-examination.
Ms. Emilie Gonin discussed the various steps involved in attempting to conduct a successful cross-examination. She emphasized the importance of preparation, which involves becoming familiar with and managing the record of the case. Regarding the strategy for drafting questions, Ms. Gonin suggested that sticking to one’s case theory was an important take away for young lawyers. She also stressed that before the actual cross-examination, counsel should practice, by asking questions and preparing for potential answers, to determine which questions to keep and which ones to avoid. Ms. Gonin pointed out that counsel must be ready to react at the hearing and to amend the previously drafted questions according to the witness’s answers and the arbitral tribunal’s reactions.
Mr. Matt Gregoire concentrated on the technique of cross-examination and gave practical tips based on his own experience. Some of them concerned the general attitude of counsel – how to find one’s own style in cross-examining, to be reasonable and polite. Mr. Gregoire explained the importance of appropriately structuring the questions, making them concise and closed, and advised to refrain from asking those to which a cross-examiner does not know the answers. Following this, he discussed how the questions should be asked and shared concrete examples of cross-examination questions and answers with the audience. Finally, the speaker suggested keeping an eye on the arbitral tribunal and its reactions during the cross-examination.
The last panellist – Mr. Andrew McDougall – addressed the junior lawyers’ role in preparing and conducting cross-examination. His presentation included a list of guidelines for young lawyers and their involvement in cross-examination throughout the whole process – how to get involved in cross-examination, how to assist in and complete the preparations and finally what to do during the hearing itself. Based on his own experiences as a junior and senior lawyer, Mr. McDougall provided concrete tips on what is expected of young lawyers when the more senior lawyers are preparing for and conducting a cross-examination and how these expectations can be met in the most successful manner at each particular stage of the process.
The discussion was highly regarded by the attendees and led to a dynamic Q&A session, during which the panel members addressed methodology issues and cross-examination strategies based on their own experiences. The first part of the Workshop provided the participants with a comprehensive set of cross-examination tips for the afternoon mock cross-examination sessions.
After the panel discussion, the participants were divided into claimant’s and respondent’s teams and started getting prepared for the afternoon mock cross-examination sessions. These sessions involved the cross-examination of two factual witnesses before mock arbitral tribunals in a mock case concerning a sale and purchase agreement. The role of the witnesses was played by Mr. Jakub Barański (Wardyński & Partners, Warsaw), Ms. Adelina Prokop (Clifford Chance, Warsaw), Dr. Mateusz Irmiński (Sołtysiński Kawecki & Szlęzak, Warsaw) and Ms. Patrycja Treder (DWF Poland, Warsaw). The role of the arbitral tribunal members was played by Ms. Anna Bilanová (Czech Ministry of Finance, Prague), Ms. Justyna Szpara (Łaszczuk & Partners, Warsaw), Mr. Rafał Morek (DWF Poland, Warsaw), Ms. Anna Tujakowska (Sołtysiński Kawecki & Szlęzak, Warsaw), Mr. Piotr Bytnerowicz (White & Case, Warsaw) and Mr. João Vilhena Valério (BeecheyArbitration, Hong Kong). During the cross-examination sessions, the participants had the opportunity to put their knowledge into practice and conduct cross-examination. At the end of each session, the participants received feedback from the arbitral tribunals on their performance and further tips as to how a real-life cross-examination would have been conducted.
The Workshop ended with the closing remarks given by the Steering Committee members, Ms. Marta Kozlowska and Piotr Goledzinowski, who invited the audience to join them for a cocktail reception held by the law firm, Wardyński & Partners. During the cocktail reception, the participants and the faculty members were able to exchange experiences and continue their discussions on the practice of international and domestic arbitration.
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