Witness Examination in InternationalArbitration – Best Practices RegardingCross-Examination and Related Issues

Abstract

A main feature of international arbitration is the arbitral tribunal’s discretion to decide on most procedural issues that may arise during the proceedings. When deciding on such procedural issues, the arbitral tribunal usually turns to what constitutes best practice. However, what constitutes best practice is not always entirely clear, and it is therefore of interest to examine it so as to provide some degree of clarity. In this chapter, best practice is examined and evaluated in relation to what is often the main event of an oral hearing – witness examination. 
          The following issues are discussed: (i) whether an arbitral tribunal should allow and/or mandate written witness statements, (ii) the evidentiary weight of written witness statements when the witness does not attend the oral hearing, (iii) how direct examination ought to be conducted when written witness statements have been used, (iv) admissibility of questions during cross-examination, (v) whether to allow new evidence during cross-examination to prove a witness is lying, (vi) how digital hearings affect cross-examination, and (vii) issues of witness sequestration, including how digital hearings affect the possibility for sequestration.