Young ICCA Skills Training Workshop: Cross-examination in International Arbitration
Post Event Report
On 29 March 2017, the Italian law firm Lombardi Segni e Associati opened the doors of its office in Milan to the Skills Training Workshop co-organised by Young ICCA, the Italian Association for Arbitration (“AIA”) and ArbIt – the Italian Forum for Arbitration and ADR. Approximately sixty students, young arbitration practitioners, and experienced lawyers from a great variety of cultural, geographical, social backgrounds and level of experience, attended the event. The title of the Workshop was “Cross-examination in international arbitration”. Simona Scipioni, a Research Fellow at the Italian Association for Arbitration (AIA); a Junior Researcher at Assonime (Working Group on Arbitration and Corporate Disputes); and a Trainee Lawyer (Italian Bar), reports.
The distinguished faculty was divided into three sessions and Mr Larry Shore (Partner, Herbert Smith Freehills, New York) was the keynote speaker. The first panel on “Cross Examination of Factual Witnesses” was composed of Mr Andrew Paton (Partner, De Berti Jacchia, Milan); and Ms Athina Papaefstratiou Fouchard (Counsel, Lazareff Lebars, Paris); with Professor Maria Beatrice Deli (Secretary General of AIA and ICC Italia) moderating the panel. The second panel on “Cross Examination of Expert Witnesses” included Mr Richard Edwards (Senior Managing Director, FTI Consulting, London); and Mr Craig Miles (Partner, King & Spalding, Houston), with Ms Aimee-Jane Lee (Counsel, Debevoise & Plimpton, London) moderating the panel. In the third session Mr Jil El Ahdab (Partner, Ginestié Magellan Paley-Vincent, Paris) Ms Sabina Sacco (Partner, Lévy Kaufmann-Kohler, Geneva) and Mr Niccolò Landi (Partner, LandiLegal, Milan) acted as the Arbitral Tribunal in a mock cross-examination case, while Ms Maria Theresia Roerig (Partner, BDC Studio Legale, Rome) and Mr Christophe Guibert de Bruet (Associate, Lalive, Geneva) acted as factual witnesses.
During the first panel, Mr Larry Shore shared his experience on how to approach cross-examination. Practitioners seek to execute an effective, appropriate and by-the-book cross-examination. Mr Shore, however, considered that arbitration advocacy manuals are of minimal help. In practice, arbitrators are flooded with voluminous exhibits and –often- non-compelling witness statements. Accordingly, the task of cross-examiners is to assist the arbitral tribunal in seeing both sides’ truths, so the tribunal is in the best position to decide in favour of one side’s truth. Mr Shore suggested using a video of direct examination or the transcripts of questions and answers, as an alternative to written witness statements to give the tribunal a sense of the witness before the unfriendly fire of cross-examination begins.
Cross-examination is still based on written witness statement, therefore cross-examiners will have to appear before a mixed civil law/common law tribunal and face the possibility that even if they conduct an effective and by-the-book cross-examination, they might still lose the arbitration. Mr Andrew Paton discussed the peculiarities of cross-examination in civil-law systems in which counsel tends to rely more on documents instead of witnesses. Accordingly, in international arbitrations, the IBA Rules on the Taking of Evidence play an important role because they are a compromise among the different procedures used in different legal systems and are particularly useful when the parties come from different legal cultures.
Ms Fouchard focused on what juniors are expected to do when preparing for cross-examination script. First, junior lawyers should establish the points to make during the cross-examination in accordance with the strategy of the case. This can be achieved reading and comparing the various witness statements and think what the witness should have known and has omitted to say. Second, when preparing the line of questions, junior lawyers should either make a list of very simple questions or refer to key words, so that senior lawyers can conduct the cross more naturally. Finally, junior lawyers are always in charge of the preparation of the witness bundle.
During the second panel, Mr Miles conducted a mock cross examination of an expert witness, Mr Edwards, on the valuation of the damages stemming from an expropriation of a company in a developing country. Throughout the mock exercise and the discussion with Ms Lee, the panellists emphasised the traps and difficulties of cross-examining an expert on issues of discount-cash flow, the correct date to calculate compensation, etc.
After a lunch kindly sponsored by LALIVE, the participants were divided into four groups to work on a mock cross-examination where they had the possibility to conduct opening statements, a direct examination and a cross-examination of two factual witnesses in a case concerning a post-merger dispute. To celebrate the end of a successful workshop, a cocktail reception kindly sponsored by ARBLIT was held for all the participants and speakers where they were able to continue exchanging views and experiences.