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The Art of Advocacy in International Arbitration - 2nd Edition - Hardcover
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Preview Page - Chapter 15
DIRECT AND RE-DIRECT
EXAMINATION OF THE WITNESSES
Nigel Blackaby*
In a tome dedicated to the "art" of advocacy, no-one can doubt
that the true advocacy skill lies in the art of cross examination.
There is the work of the artist in all its colour and subtlety. Direct
and redirect examination limit the work of this artist cross-examiner
much as the frame of the painting. There is less art here but the
overall impression of the work can be complemented or detracted
by the way it is presented. So it is my task to speak of picture
framing.
I. Direct Examination
Direct examination (also known as "examination-in-chief") is the
process whereby a party questions the witness it has called to give
evidence. In court practice it was traditionally the phase where the
witness tells his or her story, guided gently by the lawyer. In modern
arbitral practice, however, direct examination is positively frowned
upon and sometimes even excluded. The usual practice of
presentation of written statements1 signed by the witness (usually a
first statement and possibly a rebuttal statement) is deemed to replace
the presentation of a witness's oral recollection of the events allegedly
relevant to the resolution of the dispute.2 This practice has several
advantages. First and foremost, there is no risk of "trial by ambush"
since the evidence of the witness is known long in advance of the
hearing thereby allowing the opposing party time to prepare properly
for cross-examination. Second, much time will be saved when the
witness's evidence is "pre-recorded" in a written statement rather
than orally presented. In an international context where most
participants will be away from home in a neutral city, this can result
in important costs savings.
NIGEL BLACKABY is a Partner in Freshfields Bruckhaus
Deringer's international arbitration group and is head of both the US
and Latin America international arbitration groups. He has acted as
counsel and arbitrator in over 80 ad hoc and institutional arbitrations,
both commercial and investor-state under bilateral investment
treaties, with a focus on Latin America. He was recently named as
one of the world's 20 most prominent arbitration specialists by
"Who's Who of Commercial Arbitration". Nigel has represented
states and foreign investors in arbitrations under the auspices of
ICSID, the ICC, LCIA, AAA and UNCITRAL, both in English and
Spanish. Recent ICSID matters include representing CMS Energy,
BG Group plc and National Grid in three separate victories against
Argentina as well as successfully defending Pakistan in the case of
SGS v. Pakistan. He is currently acting in ten treaty arbitrations
involving Argentina, Bolivia, Ecuador, Paraguay and Venezuela. He
also represented Telecom Italia in five parallel arbitrations before the
ICC concerning the control of Brasil Telecom. Nigel is an editor of
Arbitration International and a member of the executive of the LCIA
Latin America Users' Committee. He is co-author of Law and Practice
of International Commercial Arbitration (Thomson Sweet and Maxwell,
2004), Guide to ICSID Arbitration (Kluwer, 2004), and International
Arbitration in Latin America (Kluwer, 2003). He is a visiting lecturer in
arbitration at the Université de Paris I Panthéon-Sorbonne. Nigel
speaks English, French, Spanish and Portuguese and has law degrees
from the University of Exeter (UK) and the Université d'Aix-
Marseille III (France).
