Witness examination in international arbitration: doing it right is only the beginning

By Epaminontas Triantafilou, (Of Counsel, Quinn Emanuel, London)

Witness examination, and in particular cross-examination, is a legal process familiar to many due to its frequent use in the numerous legal TV shows and in cinema – discounting of course for the several inaccuracies inserted in the name of poetic license that have caused at least one seasoned professional to leap from his armchair “in a shower of biscuits and fury“.

Rooted in the common law, the practice of counsel examining a fact or expect witness is a well-established way of seeking to confirm or impeach the veracity and accuracy of evidence, or the credibility of the witness.  Simultaneously, counsel for the side that presents the witness has the opportunity to defend the witness during cross-examination, and to rehabilitate the witness on re-direct.

It is perhaps trite to note that cross-examination in international arbitration takes place astride the rift that exists between the civil law and the common law as to the presentation of evidence.  In simple terms, the civil law lays emphasis on documentary evidence and in many instances discounts entirely the testimony of “partial” witnesses.  By contrast, the common law encourages the “testing” of witness evidence by direct confrontation in open court, and allows for credible witness testimony to supersede documents in evidentiary value.  In common law systems, cross-examination is a potent weapon, if deployed effectively.

While significant emphasis has been placed on conducting a proper cross-examination in arbitral proceedings (most recently in a notable book on the subject), less attention has been accorded to what it actually accomplishes. A recent study by Queen Mary University indicates that cross-examination enjoys broad appeal, but only a quarter of those surveyed serve exclusively as arbitrators, so it is unclear whether the results address adequately the impact of the examination process on decision-makers.

In any event, to take an extreme but plausible example, if the arbitral tribunal is inclined to disregard or lend minimal weight to fact witnesses produced by either party, it is open to question whether the lengthy and costly effort behind the examination of such witnesses during a hearing serves any useful purpose – other than possibly to win a “battle of impressions” that may or may not impact the ultimate decision.  This concern would emerge even stronger in the rare scenario where the documentary record would be so complete that witness testimony would play only a corroborative role.

The above considerations lead to the first question: if one or more of the parties to arbitration estimates that calling a witness for cross-examination is unlikely to have an impact on the decision, can they skip the practice altogether?

In certain common law systems, such as England, the evidence of a witness cannot be impeached without affording the witness the opportunity to respond (under the so-called Browne v. Dunn rule).  International arbitration proceedings are not subject to such evidentiary rules, although this technical point may not go far in practice.  Generally, witness evidence could be impeached during oral submissions.  The effectiveness of that approach may depend, among others, on the strength of the documentary evidence on which it relies.

It follows that under certain circumstances the use of cross-examination may not be taken for granted, but rather weighed carefully in a cost-benefit analysis similar to that employed in deciding, for example, whether it is worth having closing or post-hearing submissions.  As noted, a key factor in this calculation would be the profile of the decision-maker(s), but also other tactical considerations such as client management, use of the witness’s testimony in other proceedings, etc.

The second question to consider is whether the usefulness (and, ultimately, the credibility) of witness examination as an evidentiary tool for arbitrators of all legal backgrounds would be augmented by stricter “policing” of the examination process.

Even when conducted in an apparently competent manner by counsel, witness examination can serve as a platform for procedural irregularity or abuse absent adequate supervision from the tribunal.  Commonly occurring problems include unduly extensive and non-responsive answers during cross-examination (a prominent arbitrator has recounted hearing the same question posed to a witness, with no response elicited, over the course of two days), introduction of new evidence on direct, overbroad scope of re-direct, etc.  Such flaws often waste time and costs and can serve to reduce the value of witness examination in the eyes of arbitrators regardless of background.  To avoid such issues, it may be desirable for an arbitral tribunal, in consultation with the parties, to include in its first procedural order a set of rules pertaining specifically to witness examination during hearings.

Having established firmly that witness examination is a part of arbitral procedure, it seems appropriate to start considering its exact place:  is it a sine qua non or an option?  An open-ended “question and answer” session or a rigorous test of a witness’s knowledge and credibility?  There are no easy answers, but the discussion on these topics must continue – lest we be accused that we “can’t handle the truth”.