By Epaminontas Triantafilou, (Of Counsel, Quinn Emanuel, London)
Witness examination, and in particular cross-examination, is a legal process familiar to many due to its frequent use in the numerous legal TV shows and in cinema – discounting of course for the several inaccuracies inserted in the name of poetic license that have caused at least one seasoned professional to leap from his armchair “in a shower of biscuits and fury“.
Rooted in the common law, the practice of counsel examining a fact or expect witness is a well-established way of seeking to confirm or impeach the veracity and accuracy of evidence, or the credibility of the witness. Simultaneously, counsel for the side that presents the witness has the opportunity to defend the witness during cross-examination, and to rehabilitate the witness on re-direct.
It is perhaps trite to note that cross-examination in international arbitration takes place astride the rift that exists between the civil law and the common law as to the presentation of evidence. In simple terms, the civil law lays emphasis on documentary evidence and in many instances discounts entirely the testimony of “partial” witnesses. By contrast, the common law encourages the “testing” of witness evidence by direct confrontation in open court, and allows for credible witness testimony to supersede documents in evidentiary value. In common law systems, cross-examination is a potent weapon, if deployed effectively.
Continue reading Witness examination in international arbitration: doing it right is only the beginning