Young ICCA Skills Training Workshop: Cross-examination in International Arbitration

By: Sharvani Navangul, LLB Candidate (Honors in International Law) at National University of Study and Research in Law, Ranchi & Surbhi Shah, BA LLB Candidate at National Law University of India University, Bangalore

 

On 13th October 2018, Young ICCA and CIArb YMG successfully organized their first ever Young ICCA Skills Training Workshop on Cross-Examination in International Arbitration in Asia.

 

The Workshop sought to equip participants with useful practical knowledge on cross examination in international arbitration through an interactive panel discussion, insightful personal guidance, and a hands-on opportunity to practice a cross examination through mock exercises.

 

The Workshop received an overwhelming response and saw participation by a diverse group of about 40 young practitioners, law students, and experts from all over India, Switzerland, UK, Hong Kong and France.

 

Rahul Donde (Senior Associate, Lévy Kaufmann-Kohler, Geneva) and Dharam Jumani (Counsel, Chambers of Mr S.U. Kamdar, SC, Mumbai) welcomed the participants and delivered the opening remarks. Mr. Donde gave the participants a brief overview of the goals and activities of ICCA and Young ICCA. Mr. Jumani briefly spoke about the CIArb, CIArb YMG, the India YMG and their activities.

 

Thereafter, the opening panel, moderated by Mr. Jumani, comprised of Dr Rishab Gupta (Partner, Shardul Amarchand Mangaldas, Mumbai); Mr. Kunal Vajani (Head, Blackrobe Chambers, Member, ICC), and Mr. Donde, discussed the fundamentals of cross examination, the manner and extent of cross examination, and provided some “golden principles” for cross examination.

 

It was an interactive session, with Mr. Jumani posing questions to the panellists to keep the session structured and instructive for the participants. Questions also flooded in from the participants.

 

The panellists presented their nuanced views on the differences in cross-examination in civil and common law jurisdictions, and in domestic and international arbitrations.

 

The panellists also apprised the audience of how cross-examination questions should be structured, and that closed questions which allow the examiner to control the witnesses' responses were preferable.

 

The panellists all agreed that not every witness must be cross examined; only those witnesses that would help further the client's case.

 

There was considerable discussion on the tact and strategy that should be employed to elicit concessions or admissions from a witness, such as putting the witness at ease by building an emotional connect or rapport with him or her.

 

The panel concluded by the panellists narrowing down 7 golden principles to be followed during a cross-examination to the extent possible: (i) being fully prepared; (ii) being brief and to the point; (iii) using questions which are drafted conclusively; (iv) listening to the responses and building up spontaneously; (v) not jumping to conclusions and maintaining “psychological contact” with the witness; (vi) relaxing during the session and treating the witness as a friend up-to-the-point of using his/her trust in your favour; and finally, (vii) remaining relaxed and cool throughout.

 

Post a sumptuous lunch, the participants were divided into groups of 3 to 4 and allotted the role of Counsel for either Claimant or Respondent for preparing and conducting a mock cross examination. Two faculty advisors were also allotted to each team to guide them on how to prepare questions for the mock exercise.

 

This was immediately followed by four mock exercises. The arbitral tribunals were comprised of leading young arbitration practitioners viz. Mr. Biswajit Dubey (Partner, Cyril Amarchand Mangaldas, New Delhi); Mr. Wesley Pang (Managing Counsel, HKIAC); Mr. Atul Daga (Counsel, Bombay High Court); Mr. Anish Wadia (Principal, Chambers of Anish Wadia); Mr. Manavendra Mishra (Principal Associate, Khaitan & Co., Mumbai); Mr. Kartikey Mahajan (Associate, Kirkland Ellis, London); Ms. Dharshini Prasad (Senior Associate, WilmerHale, London); Ms. Trisha Mitra (Associate, Shearman Sterling, Paris); Ms. Kshama Loya (Nishith Desai Associates, Mumbai); Dr. Shashwat Bajpai (New Delhi); Mr. Deepak Narayanan (Partner, BDN Partners, Chennai), and Mr. Sonal Kumar Singh (Partner, AKS Legal, New Delhi, Former ICC YAF Representative for India).

 

Mr. Bharat Chugh (Partner, Luthra & Luthra, New Delhi) and Mr. Kumar Sambhav (Associate, Wadhwa Law Offices) who also formed part of the Steering Committee for the Workshop acted as the witnesses.   

 

At the end of each mock exercise, the participants received feedback from their respective panel of arbitrators on their performance and further tips as to how the hearing sessions would have been held in reality.

 

Mr. Donde then closed the event by delivering the concluding remarks and expressing his gratitude on behalf of Young ICCA, CIArb YMG and the Steering Committee to all the participants and the panellists for their attendance and contribution to the event.

 

To celebrate the end of this successful Workshop, a cocktail reception was held at the venue, providing the participants and speakers with a further opportunity to discuss and interact with each other in a more informal manner.