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The Implications of a Failure to Cross-Examine in International Arbitration

June 2008
MEALEY’S™ International Arbitration Report
Poupak Anjomshoaa

DOWNLOAD PDF: The Implications of a Failure to Cross-Examine in International Arbitration

Cross-examination is a process that permits counsel for one party to test the veracity and accuracy of the testimony of a witness called on behalf of another party. It affords the cross-examiner an opportunity to highlight inaccuracies in, and generally discredit, the testimony of his opponent's witness. However, cross-examination is not merely a right for the benefit of the cross-examining party. In most common law jurisdictions, the process has also given rise to a positive duty to cross-examine or to put one's case to the witness if the crossexamining party intends to rely upon evidence or submit argument which contradicts that witness’s testimony, save in certain limited circumstances. Such a duty is aimed primarily at providing the witness with an opportunity to explain any contradiction or alleged problem in his or her evidence that is highlighted by the cross-examining party. It is in light of this secondary function of the process that a party who does not take the opportunity to cross-examine his opponent’s witness is generally deemed to have accepted that unchallenged evidence as correct.

The practice in the US jurisdictions is somewhat different from most other common law jurisdictions, in that there does not appear to be a duty to "put one's case." However, it remains true even there that counsel is expected to impeach his opponent's witness using any contradictory evidence. Certainly, evidence that is not challenged in cross-examination by the party against whom it has been adduced must generally be accepted by the jury as true unless it is incredible or contradicted by other evidence. It is submitted that this should also be the guiding principle in international arbitration proceedings, where cross-examination is now common practice. Although the tribunal in an international arbitration ultimately retains a discretion to reject unchallenged evidence or place reduced weight on it where appropriate, generally, where cross-examination is permitted, evidence that is not challenged in cross-examination by the party against whom it has been adduced, unless incredible or contradicted by other evidence, should be deemed to have been accepted as true by that adverse party, and should similarly be accepted by the tribunal.

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