Take the Witness: Cross-Examination In International Arbitration

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Take the Witness: Cross-Examination In International Arbitration

This volume is the “go to” reference for the arbitration practitioner who needs to master the art of cross-examination in the international arena.  In this concise volume international arbitrators and world-class attorneys present proven techniques for the effective cross-examination of laypersons, adverse witnesses, scientific experts, legal experts and others anywhere in the world.

FOREWORD  
Charles B. Renfrew

ABOUT THE AUTHORS  

INTRODUCTION      

Lawrence W. Newman and Ben H. Sheppard, Jr.

PART ONE
TECHNIQUES OF CROSS-EXAMINATION IN INTERNATIONAL ARBITRATION

CHAPTER 1   
TAKING CHARGE-PROVEN TACTICS FOR EFFECTIVE WITNESS CONTROL   
By Ben H. Sheppard, Jr.

CHAPTER 2   
WHEN TO BE FRIENDLY AND WHEN TO IMPEACH
By  David Haigh

CHAPTER 3   
CONFRONTATION - TECHNIQUES FOR IMPEACHMENT   
By  J. William Rowley, Markus Koehnen and Robert Wisner

CHAPTER 4  
CROSS-EXAMINATION WITHOUT DISCOVERY: NOT BLIND, BUT WITH BLINDERS   
By  Laurence Shore

CHAPTER 5
INTUITION IN CROSS-EXAMINATION  
By  Lawrence W. Newman

CHAPTER 6
POLITE CROSS-EXAMINATION: A SYMBOLIC STEP TOWARD FURTHER UNIFORMITY IN INTERNATIONAL ARBITRATION  
By  Arthur W. Rovine

CHAPTER 7
IDENTIFYING AND AVOIDING PITFALLS AND MISTAKES IN CROSS-EXAMINATION   
By  Steven A. Hammond

CHAPTER 8
CROSS-EXAMINATION AGAINST THE CLOCK  
By  Richard Kreindler

CHAPTER 9
WHEN TO CROSS-EXAMINE AND WHEN TO STOP  
By  Hilary Heilbron and Klaus Reichert


PART TWO
ANTICIPATING CROSS-EXAMINATION IN THE PRESENTATION OF WITNESSES

CHAPTER 10
PREPARING THE WITNESS FOR CROSS-EXAMINATION  
By  Robert S. Rifkind
 
CHAPTER 11
THE EFFECTIVE USE OF A POWERFUL EVIDENTIARY TOOL: CONSIDERATIONS FOR BOTH COUNSEL AND ARBITRATORS  
By  C. Mark Baker

PART THREE
SPECIAL CONSIDERATIONS IN THE CROSS-EXAMINATION OF EXPERTS

CHAPTER 12
CROSSING THE HOT TUB: EXAMINING ADVERSE EXPERT WITNESSES IN INTERNATIONAL ARBITRATION  
By  John M. Townsend

CHAPTER 13
CROSS-EXAMINING A TECHNICAL OR SCIENTIFIC EXPERT  
By  Kim J. Landsman

CHAPTER 14
CROSS-EXAMINING THE LEGAL EXPERT   
By  George A. Berman

CHAPTER 15
TEN GUIDELINES FOR THE CROSS-EXAMINATION OF FINANCIAL AND TECHNICAL EXPERTS   
By  Carolyn B. Lamm, Francis A. Vasquez Jr., and Matthew N. Drossos

PART FOUR
CULTURAL ISSUES

CHAPTER 16
CROSS-EXAMINATION IN INTERNATIONAL ARBITRATION: IS IT WORTHWHILE?  
By  Bernardo M. Cremades and David J.A. Cairns

CHAPTER 17
CROSS-EXAMINING WITNESSES BEFORE CIVIL LAW ARBITRATORS  
By  Robert H. Smit

CHAPTER 18
THE ENGLISH APPROACH TO CROSS-EXAMINATION IN INTERNATIONAL ARBITRATION  
By  Sophie Nappert and Christopher Harris

CHAPTER 19
EFFECTIVE CROSS-EXAMINATION IN ASIAN ARBITRATIONS  
By  Michael Hwang & Colin Y.C. Ong

CHAPTER 20
EFFECTIVE CROSS-EXAMINATION IN INTERNATIONAL ARBITRATIONS INVOLVING LATIN AMERICA  
By  Henri C. Alvarez

CHAPTER 21
THE PERILS OF CROSS-EXAMINATION IN A LANGUAGE OTHER THAN THE LANGUAGE OF THE PROCEEDING  
By  James H. Carter

LAWRENCE W. NEWMAN received his initial courtroom experience in his five years as an Assistant United States Attorney in the Office in the United States Attorney for the Southern District of New York, after which he joined the litigation department of the New York office of Baker & McKenzie. That department, under his direction, focused on international litigation and arbitration and became the leading law office in the world (in terms of number of cases) in the representation of claimants against Iran in arbitration at the Iran-United States Claims Tribunal in The Hague. Mr. Newman has represented claimants and respondents in commercial and investment arbitration proceedings in the United States, Europe and Latin America.  He also sits as an arbitrator in cases involving international matters.

BEN H. SHEPPARD, JR. is a Distinguished Lecturer and Director of the A.A. White Dispute Resolution Center at the University of Houston Law Center. From 1969 through 2005 he practiced at Vinson & Elkins L.L.P. where he was a Partner and Co-Chair of the firm's international dispute resolution practice.  His practice focused on litigation and arbitration, both as counsel and as arbitrator. He has served in international and domestic arbitrations as sole arbitrator, tribunal chair, party-appointed arbitrator and on tripartite tribunals selected from institutional rosters. He was chair of the AAA/ICDR task force that promulgated the 2006 amendment to the ICDR International Arbitration Rules establishing a pre-arbitral emergency arbitrator procedure.

About the Contributors:
HENRI ALVAREZ is a Partner with Fasken Martineau DuMoulin LLP's international dispute resolution practice group. Based in Vancouver, he has acted as arbitrator or counsel in over one hundred institutional or ad hoc international arbitration proceedings in North and South America, Europe and Asia. of the Arbitration Committee of the International Bar Association and a member of the London Court of International Arbitration.

C. MARK BAKER is co-head of both his firm's 16 office International Department and its Arbitration and ADR Practice Group.  In 2010 Mark was selected by the National Law Journal as one of the 40 Lawyers Who Defined the last Decade of Legal Practice in the United States.  In addition to acting as lead Counsel in cases involving energy contracts, power purchase and sales agreements, construction contracts, project finance and development agreements, joint ventures and complex financial transactions, Mark has chaired, on average, eight international arbitration cases each year since 1998.

GEORGE A. BERMANN is the Jean Monnet Professor of European Union Law (a chair conferred by the Commission of the European Communities), as well as the Walter Gellhorn Professor of Law at Columbia Law School. He has been a member of the Columbia Law School faculty since 1975, teaching a range of subjects: initially heavily domestic (contracts and administrative law), but now for many years entirely comparative, international and transnational.

DAVID J. A. CAIRNS is a Partner of B. Cremades y Asociados, specializing in international arbitration. His practice covers all types of contractual disputes as well as investment disputes under BIT agreements. He regularly receives appointments as an international arbitrator.

JAMES H. CARTER is a Partner in the New York office of Sullivan & Cromwell LLP and co-coordinator of its international arbitration practice, in which he is active as counsel and as an arbitrator.  He is a graduate of Yale College and Yale Law School, attended Cambridge University as a Fulbright Scholar and served as law clerk to Hon. Robert P. Anderson of the U.S. Court of Appeals for the Second Circuit.
 
BERNARDO M. CREMADES is Senior Partner of the Spanish law firm B.Cremades y Asociados and Catedrático at the Universidad of Madrid. His practice focuses on international commercial arbitration and transnational investment disputes. He has acted as counsel, party-appointed arbitrator and president of arbitral tribunals in more than 300 arbitrations.

MATTHEW N. DROSSOS, is an Attorney with White & Case LLP in the firm's International Arbitration and Litigation Practice Groups. Mr. Drossos has assisted on matters before the International Center for the Settlement of Investment Disputes (ICSID), the International Chamber of Commerce (ICC), and federal courts.

DAVID R. HAIGH is a Senior Partner with the Calgary law firm of Burnet Duckworth & Palmer LLP where he has practiced as a commercial, construction and energy litigation counsel in the Canadian courts and as an advocate and arbitrator in the field of international commercial and investor-state arbitration.

STEVEN A. HAMMOND specializes in international arbitration and litigation, advising and defending multinational and state enterprises in connection with a broad range of commercial activity.  He co-chairs the international practice group at New York-based Hughes Hubbard & Reed LLP.

CHRISTOPHER HARRIS is a barrister at the Chambers of Ali Malek QC, 3 Verulam Buildings in London. Recommended as a leading barrister in both commercial litigation and international arbitration by Chambers & Partners and Legal 500 and described as a "notable arbitration lawyer" by Global Arbitration Review, Christopher appears as counsel across a range of commercial litigation and arbitration, both ad hoc and under the rules of the ICC, LCIA, the Swiss Rules, UNCITRAL and ICSID.

HILARY HEILBRON is a barrister and Queen's Counsel practicing from Brick Court Chambers, London. She has extensive experience as counsel both in international arbitration and commercial litigation, including appearing as counsel in LCIA and ICC arbitrations and in the House of Lords and Privy Council and is currently involved in a leading New York Convention case before the Supreme Court.

MICHAEL HWANG won a scholarship to Oxford University and read law at undergraduate and post graduate levels. He taught law at the University of Sydney before commencing private practice in 1968 at Allen & Gledhill (now Singapore's largest law firm) where he practiced for over 30 years, except for 1991 to 1992 when he served as a Judicial Commissioner (Fixed Term Judge) of the Supreme Court.

MARKUS KOEHNEN is a litigation Partner with McMillan LLP. Markus is listed in Chambers Global: The World's Leading Lawyers for Business under Dispute Resolution and in Who's Who Legal: Commercial Litigation. He currently serves as Co-Chair of the Litigation Committee of the International Bar Association. He has appeared before all levels of courts in Canada, including the Supreme Court of Canada as well as before domestic and international arbitral tribunals. His practice concentrates on complex commercial litigation with the following particular areas of focus.

RICHARD KREINDLER is a Partner of Shearman & Sterling LLP, in its Frankfurt office, and has specialized in international arbitration and litigation matters for the past 25 years.  He is a member of the New York and Paris Bars.  He is also an Honorary Professor of Law at the University of Münster, Germany, where he has taught for over a decade.

CAROLYN B. LAMM is a Partner at White & Case LLP where she concentrates in international arbitration, international trade matters and international commercial litigation, and has substantial experience in federal court litigation, administrative law, and government contracts. She is involved primarily in the representation of foreign corporate clients and sovereigns. Ms. Lamm is a member of the firm's Partnership Committee.

KIM J. LANDSMAN is a Partner at Patterson Belknap Webb & Tyler LLP with 30 years of commercial litigation experience specializing in alternative dispute resolution and intellectual property.  Mr. Landsman is a member of the Roster of Neutrals of the American Arbitration Association and the Panel of Neutrals of the International Trademark Association and has served as a mediator in the United States District Court for the Eastern District of New York.

SOPHIE NAPPERT is a dual-qualified lawyer in Canada and in the UK.  She is an arbitrator in independent practice, based in London.  Before becoming a full-time arbitrator, she was Head of International Arbitration at a global law firm. Sophie is trained and has practiced in both civil law and common law jurisdiction

COLIN ONG is Managing Partner of Dr. Colin Ong Legal Services, Brunei. Colin is also a Chartered Arbitrator and a practicing barrister in England since 1991 and is a member of Essex Court Chambers and 3 Verulam Buildings in London. He has either been appointed as neutral national presiding arbitrator or acted as counsel in some of the largest commercial disputes in Asia and Europe.

KLAUS REICHERT is a barrister in practice principally in the field of international arbitration from Brick Court Chambers in London and commercial litigation at the Bar of Ireland. He has served as an arbitrator in excess of thirty international cases right across the spectrum of commercial and investment matters. His counsel practice encompasses a similarly wide range of cases including ICSID, ICC, ICDR matters.

CHARLES B. RENFREW has served as a United States District Judge, the Deputy Attorney General of the United States, and the top corporate legal officer of Chevron Corporation, and as a director and trustee of numerous boards. Judge Renfrew has long been a leader in the dispute resolution movement.

ROBERT S. RIFKIND is a graduate of Yale University (B.A. 1958 summa cum laude) and Harvard Law School (J.D. 1961 cum laude).  Admitted to the bar of the State of New York (1961), the United States Supreme Court (1965) and various other courts, he served as assistant to the Solicitor General in the U.S. Department of Justice (1965-68) and was a Partner in the litigation group at Cravath, Swaine & Moore LLP (1971-2001), where he is now Senior Counsel.

ARTHUR W. ROVINE has been serving as an arbitrator in international cases under NAFTA, ICSID and AAA/ICDR since retiring from Baker & McKenzie in 2005. He is the Director of the International Arbitration Conference at Fordham Law School, the Editor of the annual volume Contemporary Issues in International Arbitration and Mediation: The Fordham Papers, and an Adjunct Professor of Law at Fordham.

J. WILLIAM ROWLEY was elected Chairman of McMillan LLP in 1996 and Chairman Emeritus and Special Counsel on his retirement from the partnership in 2009. He attended University of Ottawa Law School from 1965-1968, where he was Editor-in-Chief of the Ottawa Law Review, University Gold Medalist and graduated Magna Cum Laude.

LAURENCE SHORE is a dual U.S./U.K. qualified Partner in the New York office of Gibson, Dunn & Crutcher LLP.  He is Co-chair of the firm's International Arbitration Practice Group.  He has been the lead advocate in a number of arbitration cases under, for example, the ICC, LCIA, ICDR, UNCITRAL, Cairo Regional Centre, and SWISS Rules.

ROBERT H. SMIT is a Partner at Simpson Thacher & Bartlett LLP in New York where he concentrates in international arbitration and litigation.  He has served as counsel, arbitrator, and expert in a wide variety of international arbitrations around the world.

JOHN M. TOWNSEND is a Partner in the Washington office of Hughes Hubbard & Reed LLP and chairs that firm's Arbitration and ADR Group. He is the Chairman of the Board of Directors of the American Arbitration Association and was appointed by President Bush to the Panel of Arbitrators of the International Centre for the Settlement of Investment Disputes (ICSID).

FRANCIS A. VASQUEZ JR. is a Partner at White & Case LLP where he practices in the areas of international arbitration and commercial litigation. Mr. Vasquez has appeared in many international arbitrations and US court actions involving foreign sovereigns, their affiliates, international organizations and related commercial entities.

ROBERT WISNER is a Partner in the Litigation and Dispute Resolution group of McMillan. His practice focuses on international arbitration and litigation, foreign investment protection and international trade. Robert is recognized in Who's Who Legal, Best Lawyers in Canada and Lexpert in the area of international arbitration. Robert has argued cases involving businesses and governments from around the world before international arbitral tribunals established under international commercial contracts, bilateral investment treaties and trade agreements.

"This book is a very useful reference for arbitration counsel, whether new to the art of cross examination, or experienced but in need for a "refresher" on good oral advocacy skills. In a concise volume leading international arbitrators and counsel, mostly - although not only - trained in common law jurisdictions, present proven techniques for the effective cross examination of witnesses. They address a wide range of specific situations commonly encountered in international arbitration and set out practical tools to deal with them effectively before and during the hearing."
ASA Bulletin 3/2011 (September)

"This book is packed with straegies and insights from authors who have practiced what they preach. It includes chapters on effective cross-examination of various types of experts, including the legal expert, the technical or scientific expert, and the cultural issues, including cross-examinations in arbitrations involving Asia and Latin America. This indespensable resource for all international arbitration practitioners, including those with experience who may need to unlearn certain tactics that are useful in the courtroom but harmful in arbitration." - Dispute Resolution Journal

"Newly minted lawyers now have better tools available, including 21 superb essays written by prominent international practitioners in Take the Witness: Cross-Examination in International Arbitration. Courtroom veterans can also find nuggets that could enhance their practice, particularly as disputes become more international." - Mark A. Cymrot, Partner, Baker & Hostetler LLP, Washington D.C
 

"An all-star set of contributors present a superb collection of essays on a topic vital to international arbitration.'"
William Park, Professor of Law, Boston University: Of Counsel, Ropes & Gray, Boston; President, London Court of International Arbitration (LCIA)
 

"A remarkable collection of essays about cross-examination in international arbitration, from a host of leading practitioners and arbitrators; the contributions are both thoughtful and practical, and should be required reading for anyone involved in international arbitration."
Gary Born, Partner and Chair of the International Arbitration Practice Group, Wilmer, Cutler, Pickering Hale & Dorr LLP, London.
 

"We often hear that cross-examination in international arbitration requires both generic and specific cross skills.  We do not often hear, at least outside of private LCIA-Tylney Hall type sessions, enough about the specific skills.  This has changed with Larry Newman's and Ben Sheppard's "Take the Witness:  Cross Examination in International Arbitration."  In this important new "how-to" book, over 25 international arbitration experts -- yes, including many leading international arbitrators who will be deciding your cases based on your examinations -- offer 22 chapters on carefully selected topics.  These range from the concrete (cross-examining technical, legal and financial experts; ) to the not-so-concrete (intuition in cross-examination, where to start and when to stop a cross, when to be friendly and when to impeach).  Particularly welcome, for the real-life international arbitration world, are the chapters on cross-examination under tight time limits, cross-examination before civil law arbitrators, and preparing for cross-examination without discovery."
Lucy Reed, Partner and Co-Head of the International Arbitration Practice Group, Freshfields Bruckhaus Deringer LLP, Former President of the American Society of International Law.

 

"This impressive collection of essays on the art of cross-examination as it applies to international arbitration will serve to level the playing field between counsel from different legal traditions or having varying degrees of experience in oral advocacy.  For that, Ben Sheppard and Lawrence Newman are to be commended.  This book is a must for all international arbitration practitioners."
Pierre Bienvenu, Partner and Co-Chair of the International Arbitration Group, Ogilvy Renault LLP, Montreal; Former Co-Chair, Arbitration Committee, International Bar Association (IBA).

 

"Advocacy in international arbitration has been the focus of increasing interest in recent years, both as regards specialist training and in identifying best practices from different legal traditions and cultures. This book is a timely contribution to the international debate on the subject, written by a stellar cast of authors.  It will be a valuable tool for practitioners."
Judith Gill, Partner, Allen & Overy, London. She is a Director of the LCIA, member of the LCIA Court and member of the ICC UK Arbitration Group.
 

"In most international arbitration, things build up to the main hearing, and after the main hearing people discuss what happened.  The main hearing focuses on the testimony of live witnesses, usually on the basis of written witness statements.  What was just paper comes to life.  This is the ultimate test.  It is also the moment when civil law and common law procedure may meet in a productive way. This new book brings together leading practitioners from all over the world.  It is full of ideas and advice.  A hands-on book that belongs in the hands of any arbitration practitioner."
Pierre A. Karrer, Honorary President of ASA (Swiss Arbitration Association); Vice President, Arbitration Institute of Stockholm Chamber of Commerce (SCC); former Vice President, LCIA; Court Member, ICC; former Chair, Arbitration Commission of Swiss National Committee of the ICC.
 

"As a frequent international arbitrator, I have seen significant differences in how cross-examination is conducted.  I have also chaired hearings in which what was developed through effective cross-examination made a significant difference in the outcome. As common lawyers know, trials have a long tradition of oral advocacy and we tend to bring the questioning of witnesses into the international arbitration process. Civil lawyers question whether cross-examination is worthwhile in international arbitration. International lawyers have done much to harmonize the procedures in recent times. Harmonized or not, there are nonetheless many situations where practitioners have not availed themselves of whatever helpful opportunities may be presented. This book, edited by two lawyers with significant practical experience and aided by an all-star cast of international lawyers and arbitrators with equal experience, brings together insights and experience not found in the covers of any single volume in existence. What they have to say is both well presented and valuable. No matter whether you are for or against cross-examination in international arbitration, you will benefit from the wisdom provided in this book."
Gerald Asken, Former Vice Chair of the ICC International Court of Arbitration; former President of the College of Commercial Arbitrators, former General Counsel, American Arbitration Association.

"These chapters are a pageant of accounts of real life experience in international arbitration. Cross-examination is not a science, and it is exquisitely context-based. Appropriately then, the chapters are each studded with anecdotes, and bristle with cautionary tales. That is the most use for those who want to learn the subject, and the only substitute, a partial one, for real life experience."
-Transnational Dispute Management (TDM), review by Phillip Landolt, Landolt & Koch