Conducting a cross examination in an international arbitration proceeding is like conducting a cross examination in a domestic arbitration or trial, but there are some differences. International arbitrations, by definition, involve witnesses, arbitrators, and parties from different countries. Adopting a more civil and polite tone is almost always the best approach when you are representing a party in foreign arbitral proceedings. It is never a mistake.
The language of the arbitral proceedings should be set forth in the arbitration agreement. There is no provision of Thai law requiring that arbitration proceedings be conducted in any language. Although large institutional Thai parties may insist on conducting the proceedings in the Thai language, doing so will often disadvantage foreign parties. If the parties previously agreed to a particular language when the agreement was signed, they are perfectly justified on insisting on compliance with the agreed choice of language. In a large international dispute, the documents are probably in English and there are plenty of lawyers, Thai and foreign, fluent in English. By contrast, the pool of strong commercial advocates fluent in Thai is considerably smaller.
But this does not mean that the aggressive tactics employed in Anglo-American disputes should be employed in disputes resolved in Thailand. In any jurisdiction, witnesses, at least initially, enjoy more sympathy than advocates. You want the arbitral tribunal to be sympathetic to your client. Have some empathy for witnesses. The arbitral tribunal probably does. And remember that a witness that seems to be not lying may not actually be lying, but simply remembering the facts in a way favorable to their side. Or simply intimidated by her or his superiors.
With a favorable witness, elicit favorable testimony before discrediting that witness. Know what facts you need to prove your case and establish those facts first. Draft an outline of your closing argument before you question the first witness and prepare a list of facts you need to support that closing argument.
When questioning witnesses in cross examination, know the answers to your questions before you ask them. Unlike direct testimony, you should typically avoid addressing issues in a chronological order. Cluster questions around issues or themes. Do not ask questions that encourages a witness to repeat her or his direct testimony.
Keep the cross examination short and concise. The longer the cross examination, the greater the risk that it will go awry. International arbitrators are more likely to be aware of the facts of the dispute and there is typically little value in repeating them. You also don’t want the arbitrator to think you are wasting their time. Short and succinct questions are best. Do not ask compound questions and avoid long introductions to questions. Each question should address one point and should rarely exceed 20 words.
Only ask leading ask leading questions. Cross examination is not intended to elicit new information. You should know the answer to a question before you ask the question in cross examination. You want the witness to confirm facts favorable to your client ideally with “yes” or “no” answers.
Listen carefully to the answer. When confronted with a question they don’t want to answer, some witnesses will not answer the question. They will answer another question they wanted you to ask. If this occurs, do not interrupt the witness. Repeat your question. Never rephrase it. Repeat it verbatim. Repeat it slowly. There is no need for hostility.
When cross examining experts, do not attack the witness in their area of expertise. They almost always know more than you do. Challenge their qualifications. Demonstrate that their opinion is not consistent with the opinions of other witnesses. Ask if their opinion changes with a change of the facts. Often difference in the opinions of expert witnesses are attributable to different assumptions about the underlying facts.
Do not ask for conclusions and do not let witnesses explain. Keep the questions simple. Do not argue with witnesses or get angry.
Finally, know when to stop. Do not try to cover too much ground. The most effective cross examination is typically limited to five issues