Young ICCA Skills Training Workshop: Cross-examination in International Arbitration
Post Event Report
By Bernardo Regueira Campos, Young ICCA Member, intern at Guandalini Sampaio, Curitiba
The Young ICCA Workshop on cross-examination was held on 23 October 2019, during the São Paulo Arbitration Week, at Veirano, São Paulo, Brazil. The event was organized by Young ICCA members Fabiana de Cerqueira Leite (Attorney at Eleonora Coelho, São Paulo) and Matheus Carreteiro (Partner at Veirano, São Paulo), kindly guided by the events coordinator Bruno Guandalini (Partner at Guandalini Sampaio, Curitiba) and Camila Gambarini (Senior Associate at Withers, London).
The event was kindly hosted by Veirano Advogados, ensuring state-of-the-art venues and the set of a real-life hearing. The Center for Arbitration and Mediation of the Chamber of Commerce Brazil-Canada (CAM-CCBC) also sponsored a two-night stay for up to 20 Young ICCA members.
This workshop on cross-examination brought young arbitration enthusiasts up to date with the skills an arbitration lawyer should have when making oral arguments in international arbitration. Divided into two main parts, one introductory and theoretical in the morning, and one practice-oriented during the afternoon, the event gathered over 40 arbitration attendees, from students and young practitioners to experienced arbitrators.
The Young ICCA Events Coordinator responsible for the event, Bruno Guandalini (Partner at Guandalini Sampaio, Curitiba) opened the workshop by emphasizing the importance of such practice-oriented events to open the doors of international arbitration to all by promoting diversity, creating networking opportunities for young practitioners and students and helping them develop their skills.
A Panel on Cross-examination of Witnesses followed the introductory remarks. This morning panel was composed by Gabrielle Kaufmann-Kohler (President of ICCA and Partner at Levy - Kaufmann-Kohler, Geneva), Adriana Braghetta (Partner at L.O. Baptista, São Paulo) and Massimo Benedettelli (Partner at ARBLIT, Milan), as speakers, and Ricardo Saraiva (Senior Associate at Miranda & Associados, Lisbon), as moderator.
Ms. Braghetta explained how cross-examination of witnesses works and how an arbitration lawyer should properly conduct a cross-examination in order to make the most out of it in a hearing. To fully take advantage of cross-examination, Ms. Braghetta stated that you must always remind the objective, namely showing inconsistencies with the written statement and/or the direct examination. She remarked that a good tip is that the lawyer conducting the cross-examination should not ask questions to which he/she not know the answers, as well as to keep in mind whether or not it is worth to perform cross-examination because sometimes it might have an adverse effect on the strategy of case.
Mr. Benedetteli discussed the purposes of each stage of a hearing with a cross-examination and what shall be done in each of them to better present your case. It is necessary to have in mind that witnesses are generally nervous, so it is always good practice to begin with the direct in order to be able to perform cross-examination and re-direct after. He noted that when conducting redirect examination, one must stress a bad point brought by the witness. He concluded by stating that there is no mystery to cross- examination. It may difficult to perform well because it requires dedication and preparation. You must know all the facts, read all the documents and have imagined all possible scenarios. In doing so, it will be easier to prepare the script for the day of the hearing and the ability to anticipate scenarios will come more naturally.
Mr. Saraiva made a point stating that it is important to undergo a thorough preparation and to have a script, but one must be able to swiftly adapt the script considering unexpected answers from the witnesses as well as the reactions of the arbitrators to which special attention should be paid, after all it is the arbitrators we are trying to convince.
Prof. Kaufmann-Kohler explained how to perform cross-examination. She stressed that one needs to be direct, concise and not aggressive. One should try to ensure that the witness answers while looking at the tribunal. During cross-examination, one should not argue with the witness or keep on questioning, and equally it is important not trying to put the witness against the wall otherwise the tribunal might conclude that the she only conceded on that issue because she was pressured or confuse. Since hearings are time and energy-consuming, it is really important to be clear and to stress when you are changing the subject so that the tribunal can follow you.
The Panel concluded by proving final remarks, such as to always remember the purpose of the cross-examination, as well as to remember to challenge the independence of the witness, to stay close to the facts and maintain control of the hearing so that the others may arrive at the conclusion which is best for you.
Turning to the skills training part of the Workshop, there was a total of 4 panels, for which the 40 participants were divided into 8 groups, 4 on Claimant’s side and 4 on Respondent’s. Also, there was 8 witnesses, 2 for each panel. Young ICCA also arranged tutors to help participants prepare. All teams were able to perform direct, cross-examination and redirect examination. The mock case upon which the testimonies were based related to an arbitration conducted under the 2010 UNCITRAL Arbitration Rules. As tutors, helping the participants prepare, Fabiana de Cerqueira Leite, Gisela Ferreira Mation (Machado Meyer, São Paulo), Gustavo Scheffer da Silveira (Tauil & Chequer, São Paulo) and Mateus Carreteiro. As witnesses, Aline Dias (Muriel Medici Franco, São Paulo), Elora Neto Godry Farias (Veirano, São Paulo), Inaê Siqueira de Oliveira (Ruy Rosado de Aguiar, Porto Alegre), Isabela Albini Maté (Lefosse, São Paulo), Lucas de Medeiros Diniz (Barbosa, Mussnich, Aragão, São Paulo), Lucas Farah (Toledo Marchetti, São Paulo), Rodrigo de Oliveira Franco (Thomaz Bastos, Waisberg, Kurzweil, São Paulo) and Vitor Silveira Vieira (Marques, Rosado, Toledo Cesar & Carmona, São Paulo).
After lunch, the first session of cross-examination began with two panels occurring simultaneously. In one room, Ms. Braghetta acted as presiding arbitrator, whilst Ms. Luísa Quintão (Justen Pereira Oliveira e Talamini, São Paulo) and Mr. Daniel Bento (Tolentino, Belo Horizonte) acted as co-arbitrators. In the other, the arbitral tribunal was composed by Mr. Benedettelli (president), Mr. André Monteiro (Mannheimer, Perez e Lyra, London) and Mr. Leonardo Ohlrogge (Meyerlustenberger Lachenal Ltd., Zurich).
After a coffee break, the second session began. In one out of two panels, Ms. Kaufmann-Kohler sat as presiding arbitrator, whilst Mr. André Monteiro and Mr. Leonardo Ohlrogge acted as co-chairs. In the other room, the panel was composed by Ms. Luísa Quintão, as chairwoman, whereas Mr. Jeffrey P. Elkinson (Director, Conyers, Bermudas) and Mr. Daniel Bento sat as co-chairs.
Turning to the end, all participants were invited to cocktail reception provided by Veirano. Finally, it became clear that cross-examination is not an easy task, but it is a necessary skill in international arbitration. And it does not come naturally: it takes considerable preparation.