Young ICCA Skills Training Workshop: Cross-examination in International Arbitration
Post Event Report
By Jianying Liu, LLM Candidate (Master of Laws in International Commercial Arbitration) at Stockholm University, member of the Beijing Municipal Lawyers’ Association and Colin P. Gatete, LLM Candidate (Master of Laws in International Commercial Arbitration) at Stockholm University, member of the Rwanda Bar Association and the East African law society
On 10 November 2017, Young ICCA organized a Skills Training Workshop on cross-examination in international arbitration. The workshop was sponsored by Hannes Snellman, the ICAL Alumni Association, Mannheimer Swartling, Roschier and Magnusson and was kindly hosted by the Arbitration Institute of the Stockholm Chamber of Commerce. It was organized by a Steering Committee composed of Mr. David Ackebo (Hannes Snellman), Mr. Fabricio Fortese (Stockholm University), Ms. Helen Lehto (Hannes Snellman), Ms. Asade Pourmand and Ms. Nadia Smahi (Meyerlustenberger Lachenal), kindly guided by Young ICCA Co-Chair Mr. Gardar Vidir Gunnarsson (LEX Law Offices) and Young ICCA Events Coordinator Mr. Panagiotis Chalkias (Hanotiau & van den Berg). Approximately fifty young and international arbitration practitioners and students attended the workshop, which offered them the opportunity to learn more about cross-examination in international arbitration and put their cross-examination skills into practice.
The workshop started off with a keynote address delivered by Professor Dr. Kaj Hobér (Uppsala University, Sweden, and 3 Verulam Buildings, London), who gave an overview of the nine basic principles covered by the book “Cross-Examination in International Arbitration” that is authored by him and Mr. Howard S. Sussman. These nine basic principles were presented in the form of the following practical advices: 1) be fully prepared, 2) be brief, 3) use only the right leading questions, 4) use short, simple and clear questions based on what you want to achieve, 5) listen to the answers and adapt the answers to develop alternative questions, 6) don’t ask final questions or ask for conclusions, 7) don’t let the witness repeat the witness statement, 8) don’t let the witness explain himself/herself, 9) exercise self-control and don’t get angry with the witness.
Following a brief Q&A session, six experienced arbitration practitioners were divided into three pairs to share their views and experiences regarding specific aspects of cross-examination in international arbitration. The first pair, composed of Ms. Melissa Magliana (Counsel, Homburger, Zurich) and Ms. Gretta Walters (Associate, Chaffetz Lindsey, New York), addressed the issues of whether one should cross-examine a witness, what one needs to prepare for a cross-examination and how one can prepare a witness for a hearing, after taking into account any applicable and sometimes conflicting ethical rules. The second pair, composed of Ms. Leena Kujansuu (Senior Associate, Lexia Attorneys, Helsinki) and Mr. John Adam (Counsel, Latham Watkins, Paris), talked about the do’s and don’ts of cross-examination and the usefulness of cross-examination scripts and witness bundles. The morning session concluded with the presentations of Mr. Jeremy Zell (PhD Candidate, University of Stockholm, Stockholm) and Ms. Marion Paris (Senior Associate, Lévy Kaufmann-Kohler, Geneva), who tackled the issues of counsel’s conduct of cross-examination vis-à-vis the arbitral tribunal, the appropriate scope of cross-examination and the often underestimated role of tribunal secretaries in preparing for and during the examination of witnesses.
Then the time came for the participants to be divided into claimant’s, respondent’s and arbitral tribunal’s teams and start getting prepared, with the assistance of their respective tutors, for the afternoon mock hearing sessions. These sessions involved the examination of two factual witnesses, the role of which was played by Mr. Matthew Brown (Foreign Associate, Houthoff, Rotterdam), Ms. Shirin Saif (Senior Associate, Roschier, Stockholm), Mr. Nino Sievi (Associate, CMS, Zurich) and Ms. Maria Teder (Associate, Ellex Raidla, Tallinn), in a mock case concerning a sale and purchase agreement. During these sessions, the participants had the opportunity to conduct direct, cross- and re-direct examination and also play the role of the arbitral tribunal. At the end of each session, the participants received feedback from their respective tutors on their performance and further tips as to how the hearing sessions would have been held in real life.
After a short break, Mr. Robin Oldenstam (Partner, Mannheimer Swartling, Stockholm) closed the event with some useful precautions and some highly entertaining anecdotes to remind the participants that cross-examination is not always necessary and efficient and that one should think about the traps and pitfalls before embarking on a cross-examination.
To celebrate the end of this successful workshop, a cocktail reception was held at the premises of one of the workshop’s sponsors, providing the participants and speakers with a further opportunity to discuss and interact with each other.