One of the paradoxes of international arbitration is that, on the one hand, it is celebrated for being flexible and, on the other, it follows some fairly uniform practices. These practices are sometimes embodied in soft law promulgations by such organizations as the International Bar Association (IBA) (e.g., the IBA Guidelines on the Taking of Evidence in International Arbitration), and cover such issues as the procedures used for, and the scope of, discovery; the use of strict rules of evidence; and the submission of witness testimony. Depending on the arbitrators, some or all of these procedures often presumptively apply to a case unless a party can convince the arbitrators to depart from them or all parties to the proceeding agree otherwise.
These procedures can impact the appropriate approach to cross-examination in international arbitration proceedings. Because international arbitration often takes a different approach to the submission of evidence and witness testimony than that taken in U.S. litigation, one cannot approach cross-examination in international arbitration as one would in U.S. litigation. In this article, I offer three practice pointers for cross-examination in international arbitration. These points are not necessarily exclusive to international arbitration, but rather are an application to that field of more general considerations regarding the conduct of cross-examination.
Whether to Cross-Examine
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