Document Type

Article

Publication Date

2018

Abstract

Cross-examination, like it or not, has become a regular feature of international arbitration. As with other procedural cross-roads converging upon international arbitration from different legal traditions, cross-examination invites controversy and debate. This tends to focus on the procedural differences between civil-law “inquisitorial” and common-law “adversarial” systems, and how they inform the (un)desirability of cross-examination, or the need to modify it, in international arbitration. Less explored is how the practice of cross-examination differs in different common-law jurisdictions, including between prominent arbitral seats in the United States and England, Hong Kong and Singapore among others, and how those differences inform the approach to cross-examination in international arbitration. This article focuses on our experience of those differences.

We undertake our exploration in three parts. First, we set the stage by reprising the debate over cross-examination in international arbitration as between civil and common law perspectives. We draw on our own experiences to identify lessons for cross-examination in international arbitration deriving from both legal traditions. Second, we compare and contrast key features of cross-examination as it is practiced in the United States and in the English tradition which prevails in the United Kingdom, Hong Kong, Singapore and across many Commonwealth jurisdictions (Canada, Australia, New Zealand, among others) — here again drawing from our experiences as US cross-examiners representing parties in arbitrations seated elsewhere. Finally, we consider the implications these differences may have for the practice of cross-examination in international arbitration, for practitioners of all backgrounds.

Disciplines

Dispute Resolution and Arbitration | International Law | Law

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