Young ICCA Skills Training Workshop: The Nuts and Bolts of Cross-examination in International Arbitration
Post Event Report
By Michael Martinez (Nishimura & Asahi)
On 4 October 2019, Young ICCA and Young JAA joined forces and held a skills training workshop on the “Nuts and Bolts of Cross-examination in International Arbitration” at the offices of Nishimura & Asahi in Tokyo, Japan. The Steering Committee was composed of Ms. Eriko Kadota (Linklaters), Mr. Masaki Kawasaki (Nishimura & Asahi), Ms. Meisei Kure (Nagashima Ohno & Tsunematsu), and Ms. Yuki Sakioka (Anderson Mori & Tomotsune), with the kind guidance of Young ICCA Co-Chair, Mr. Panagiotis Chalkias (White & Case), and Young ICCA Events Coordinator, Ms. Saemee Kim (Lee & Ko). The workshop was generously sponsored by Nishimura & Asahi, Anderson Mori & Tomotsune, Herbert Smith Freehills, and Nagashima Ohno & Tsunematsu. It was attended by approximately 50 local and international young arbitration practitioners and students.
To start off, Mr. Kawasaki gave some introductory remarks and background about Young ICCA/ICCA and their activities, including Young ICCA’s mentoring program, scholarships, and ICCA’s publications. Next, Ms. Kure introduced the Keynote speaker, Ms. Yoshimi Ohara (Nagashima Ohno & Tsunematsu and ICCA Governing Board Member).
Ms. Ohara shared her insight on cross-examination from the perspective of the arbitral tribunal. In particular, she pointed out that counsel should conduct cross-examination with two things in mind: (i) how to gain the tribunal’s trust, and (ii) how to be helpful to the tribunal. This includes keeping in mind the differences between litigation and arbitration, as well as the differences in legal traditions across jurisdictions. Following Ms. Ohara’s helpful tips, Ms. Sakioka introduced Dr. Lars Markert (Nishimura & Asahi), who moderated the panel on cross-examination in international arbitration.
Dr. Markert briefly introduced the panel, comprising of Ms. Dana Kim (Herbert Smith Freehills), Ms. Yoko Maeda (City-Yuwa Partners), and Mr. Melvin Sng (Linklaters). To set the stage for discussion, he touched on the primary purposes of cross-examination in international arbitration namely: (i) to establish facts, and (ii) to test the credibility of the witness.
Ms. Kim commented on the preparation for cross-examination, including the important process of determining which evidence is reliable. In doing so, she outlined the following five factors to be considered in determining the reliability of a witness’s statements:
1. Whether the witness’s statements are consistent with contemporaneous documents;
2. Whether the witness’s statements are consistent with other witness statements;
3. Whether the witness’s statements are consistent with his/her own statements;
4. The fact that the tribunal will note that a witness’s statements are inconsistent; and
5. The witness’s demeanor.
Ms. Maeda discussed the actual conduct of the cross-examination and pointed out the two different cross-examination styles: the soft approach and tough approach. She commented that there are inherent risks and benefits to both methods. For example, a soft approach may cause the witness to lower their guard and reveal more information. However, the witness may also underestimate the cross-examiner. In terms of a tough approach, it may trip-up the witness and elicit more information, but could also be off-putting to the tribunal. In addition, Ms. Maeda noted that it is important to manage the client’s expectations for the cross-examination. The client may expect the cross-examiner to aggressively question the witness based on portrayals in the media. However, the client should be informed that, generally, such cross-examination is unsuccessful as both sides are undoubtedly well prepared.
Mr. Sng shed light on the role of the junior lawyer in cross-examination and emphasized that effective cross-examination is a team effort. He broke down the role of the junior lawyer into two stages, preparation and conduct of the cross-examination. In terms of preparation, the junior lawyer should be familiar with the documents, confirm the accuracy of the documents, and identify potential issues for the witnesses. During the conduct of the cross-examination, the junior lawyer should take notes and prompt lead counsel when necessary, confirm the transcript is correct, ensure that all underlying documents are ready, and be prepared to take action to support lead counsel if unexpected issues arise.
After the panel, the panelists answered questions from the audience, followed by a short break before the second session of the workshop, which involved a mock cross-examination.
The mock cross-examination consisted of the tribunal, composed of Ms. Earl Joyce Dolera(The Arbitration Chambers), Mr. Aoi Inoue (Anderson Mori & Tomotsune), and Ms. Michele Sonen (Singapore International Arbitration Centre), the cross-examiner, Ms. Olga Boltenko(Fangda Partners), and the witness, Ms. Kadota. After each round of questioning, in which Ms. Boltenko demonstrated different cross-examination styles and techniques, the tribunal gave its insight on what was done well and the mistakes made by the cross-examiner. This way, the participants got a taste of what are the dos and don'ts of cross-examination in international arbitration.
Following the mock cross-examination, Mr. Tsuyoshi Suzuki (Momo-o, Matsuo & Namba and YJAA President) gave closing remarks and thanked the faculty members and participants for attending the workshop. He also introduced Mr. Naoki Takahashi (Kojima Law Offices) as his newly elected replacement as President of the YJAA, and new Committee Members Mr. Daniel Allen (Mori Hamada & Matsumoto) and Ms. Aiko Hosokawa (Oh-Ebashi LPC & Partners).
Afterwards, the panelists and participants attended a cocktail reception during which they were able to discuss the workshop and their own cross-examination experiences.
Overall, the workshop was a great learning experience for those in attendance, who were able to hear the advice and perspectives of experienced practitioners in international arbitration.
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