Young ICCA Skills Training Workshop: Witness Evidence in International Arbitration
Post Event Report
By Catarina Félix Pericão, Associate at PLMJ, Advogados, Lisbon.
On 16 November 2018, Young ICCA organised a skills training workshop on witness evidence in international arbitration in sunny Lisbon, Portugal. The Steering Committee composed of Ana Coimbra Trigo and Mariana Carvalho from PLMJ Advogados, Lisbon and Cristiana Gonçalves Correia from Morais Leitão, Lisbon organised the workshop which was generously sponsored by PLMJ Advogados and Morais Leitão. The workshop was kindly guided by Camilla Gambarini, Young ICCA Co-Chair from Withers, London and was attended by a number of students and young international arbitration practitioners. Catarina Félix Pericão reports.
The workshop was divided into two panels. The first panel concerned Witnesses and Witness Statements and the second one was entitled “Witness in Hearings, Dos and Don’ts with Demo Cross-Examination”.
The workshop began with a brief introduction made by one of the members of the Steering Committee, Ana Coimbra Trigo, who not only presented but gave the floor to Camilla Gambarini, who then introduced the audience to the Young ICCA and its activities.
Camilla Gambarini also presented Manuela Costa from CMS Rui Pena & Arnaut, Lisbon, the moderator of the first panel, who started by introducing David Guerra Bonifácio, from Lalive, Geneva and Jorge Mattamouros, from White & Case, Houston, the two main speakers of the first panel. David Guerra Bonifácio started by telling the audience what they should try to achieve when drafting witness statements, although he admitted that there was no right formula or uniform rule. He recognised, however, the importance of persuasion, strategic approaches, accuracy, ethics, and good practices, such as those that arise from the IBA Rules. Finally, he insisted on the importance of storytelling when drafting witness statements.
Then Jorge Mattamouros answered several questions posed by Manuela Costa. He talked about the common practice of counsel assisting in the drafting of witness statements, witness statements’ structure and flow, and the importance of testing and cross-checking the factual account offered by the witness during the preparation of the witness statement.
After the audience asked some questions to both speakers, there was a coffee break and a bit of networking among those present. This was followed by the second session of the day.
Cristiana Gonçalves Correia, a member of the Steering Committee, introduced Miguel Pereira da Silva, from Cuatrecasas, Lisbon, the moderator of the second panel. Miguel Pereira da Silva made a brief introduction on the subject to be discussed and introduced the two speakers, Mélanie Riofrio Piché, from Armesto & Associados, Madrid, who acts as an arbitrator and secretary to arbitral tribunals in both national and international disputes and Kabir Duggal, from Arnold Porter, New York, who acts mainly as counsel in international arbitrations. These two perspectives were not only useful but of unquestionable importance throughout the session as they allowed the audience to come face to face with the views of arbitrators and counsel on witness statements and cross examination.
Kabir Duggal and Mélanie Riofrio Piché started their presentation by explaining the importance of cross examination in international arbitration and the need to be aware of its real purpose: to convince and persuade the arbitrator by questioning the credibility of a witness and pointing out the inconsistencies of his/her statement. They also mentioned the relevance of psychology when dealing with these matters as cognitive biases affect arbitrators and also witnesses’ recollections of facts. They also warned that memory is malleable, so not fully reliable.
They then presented the most useful tips on cross-examination: “Kabir and Mélanie’s 10 Commandments on Cross-Examination” (based on Irving Younger’s 10 commandments of Cross Examination):
1. Be brief;
2. Use your words wisely;
3. Use leading questions;
4. You can catch more flies with honey than with vinegar;
5. Be prepared;
6. Listen;
7. Avoid repetition;
8. Disallow witness explanation;
9. Know when to let go;
10. Save for summation.
The second panel then moved on to a very interactive, instructive, and most engaging demo cross examination. Miguel Pereira da Silva and Mélanie Riofrio Piché assumed the role of the arbitral tribunal, while Kabir Duggal played the role of counsel. Mariana Carvalho, a member of the Steering Committee, had the difficult task of facing a tough cross examination. The audience actively engaged in uncovering the dos and don'ts of cross examination, following faithfully the 10 commandments that Kabir Duggal and Mélanie Riofrio Piché had previously established.
The event ended with concluding remarks by Ana Coimbra Trigo.
The participants then proceeded to the offices of Morais Leitão to enjoy cocktail reception and continued to talk to the panellists and among themselves.
The event was a resounding success, not only on the merits of the subject and of the speakers, but also because it proved to be very practical and useful. It is safe to say that everyone went home with some good tips on drafting witness statements and preparing cross examinations.