The Direct Examination of Witnesses and Experts Not Called for Cross-Examination: Balancing Efficiency
Andrea J. Menaker & Noor L. Davies
The usual practice in international arbitration of substituting written testimony for oral evidence-in-chief is intended to narrow the issues in dispute, avoid surprise at the hearing, and free up hearing time for the cross-examination of witnesses and experts.What happens, however, when a party elects not to call a witness or expert for cross-examination? Should the party presenting that witness or expert be permitted to request his/her appearance at the hearing? Can a party effectively prevent the appearance of a witness or expert by simply waiving his/her cross-examination? All of these questions ultimately require a delicate balancing exercise between fairness, equality, and the party’s right to present its case on the one hand, and procedural efficiency on the other hand.This article evaluates the rules of various arbitral institutions, as well as recent trends in arbitral practice, to offer an approach that preserves both fairness and efficiency.