Cross Examination in International Arbitration

Description

A practical, self-teaching guide to effective cross-examination in international arbitration. Offers an introductory or quick-reference guide to essential cross-examination techniques and how they can best be best adapted to the arbitral format. Cover CROSS-EXAMINATION IN INTERNATIONAL ARBITRATION Copyright Preface Table of Contents Part I Background 1 Introduction 2 The Legal Background of International Arbitration A A Dispute Resolution Procedure Agreed upon by the Parties B The Law Surrounding International Arbitrations C The Arbitration Agreement Bars Court Proceedings D The Doctrine of Separability E The Principle of Compétence de la Compétence F Arbitral Awards Are Final and Binding on the Merits G International Enforceability 3 Proceedings in International Arbitration A The Typical Stages of an International Arbitration B Deviations from the Usual Procedures of Civil Litigation 1 Restraints on pre-hearing discovery 2 Few, if any, rules of evidence 3 Inapplicability of iura novit curia C Written Submissions 1 The initial submissions a The prayers for relief b The legal grounds c The facts and circumstances 2 New claims, amendments, set-offs, counterclaims 3 Post-hearing briefs D Evidence 1 Party control 2 Powers of the arbitrators 3 Admission of evidence a Standards for admissibility b Documentary evidence and production of documents c Witness testimony in general d The form of the testimony 4 Implications for Cross-examination in International Arbitration A The Decision-maker B Multiculturalism C Evidence in General D Documentary Evidence E Limitations on Time and on the Possibility of Surprising a Witness 5 Fundamentals of Cross-examination in International Arbitration A The Purpose of Cross-examination B What Is Cross-examination? C Deciding Whether to Cross-examine D The Risks of Cross-examination E Planning the Cross-examination F Keeping Control of the Witness G The Form of the Questions H What Do You ‘Know’? I Avoid Questions about Conclusions J The Significance of the Non-verbal K Sensing the Environment L Getting Your Question Answered M Self-control N Make No More than Three Main Points O Adapt to the Environment Part II The Nine Basic Principles 6 Basic Principle No. 1: Be Fully Prepared A A Lot of Hard Work B Prepare a Plan for Your Cross-examination C Determine the Ultimate Objective of Your Cross-examination D What Questions Should You Ask? E How Should You Put the Questions? F Prepare Your Use of Documents and Exhibits G Prepare Follow-up and Alternative Questions H Mental and Other Training 7 Basic Principle No. 2: Be Brief A Make No More than Three Main Points B The Rationale for Brevity C Cross-examining Experts 8 Basic Principle No. 3: Use Only Leading Questions A What Is a ‘Leading Question’? B Open Questions C Formulating Questions 9 Basic Principle No. 4: Use Only Short, Simple, Unambiguous Questions A Simplicity Is Essential to Effective Advocacy B Use Only Short Questions C Use Only Simple Questions D Use Only Unambiguous Questions E Another Real-life Example 10 Basic Principle No. 5: Listen to the Answer A Evaluate the Answer Before Proceeding B An Illustrative Hypothetical Case C The Witness’s Psychological State D The Nature of the Answer—A Simple ‘Yes’ E The Nature of the Answer—More than ‘Yes’ F Failure to Answer—In General G Failure to Answer—the Honest Witness H Failure to Answer—the Witness with an Agenda I Another Illustrative Hypothetical Case 11 Basic Principle No. 6: Do Not Ask for Conclusions A Stick to the Facts B The Consequences of Not Sticking to the Facts C Explicit Requests for Agreement D Indirect Requests for Agreement E Avoid ‘One Question Too Many’ F When to Stop 12 Basic Principle No. 7: Do Not Let the Witness Repeat the Direct Testimony A The Nature of the Risk B Avoiding Repetition of Direct Testimony C Dealing with a Repetition D Inconsistent Statements by the Witness E The Nature of the Inconsistency 1 What the inconsistency relates to 2 Evading or explaining the inconsistency F Use of Inconsistent Statements—In General G Use of Inconsistent Statements—the Resistant Witness H Other Intended Repetitions 13 Basic Principle No. 8: Do Not Let the Witness Explain A Maintaining Control B ‘I can’t answer that yes or no’ 1 The cooperative witness 2 The recalcitrant witness C ‘I don’t understand the question’ D ‘Let me explain that’ 1 The witness’s speech 2 Your response a Using the content of the speech b Using simple questions c The witness’s anxiety level d What to avoid E ‘Let me ask you a question’ 14 Basic Principle No. 9: Exercise Self-control—Do Not Argue, Or Get Angry, with the Witness A Controlling the Witness Requires Your Self-control at All Times B Arguing with the Witness 1 Loss of control 2 Loss of persuasiveness C Avoiding Argument D Getting Angry with the Witness E Avoiding Anger F Self-control G Your Need for Personal Integrity Part III Concluding Remarks 15 Learning from Experience Index