Linklaters speakers at Tokyo Young ICCA & YJAA cross-examination workshop

On Friday 4 October 2019, Young ICCA and Young Japan Association of Arbitrators (“YJAA”) held a joint skills workshop on the nuts and bolts of cross-examination in international arbitration. The two organisations promote international arbitration through workshops and networking sessions. In Japan, such events are also important as junior practitioners and in-house lawyers may have limited exposure and experience in arbitration.

Practitioners, law students and professors from Japan, China, Finland and the UK attended the workshop in Tokyo. The speakers were from a range of common and civil law jurisdictions, including England & Wales, New South Wales, New York, Russia, and Japan. Melvin Sng (Linklaters’ Head of Dispute Resolution, Asia) spoke on the panel and Eriko Kadota (Linklaters’ Associate, Tokyo) appeared as part of the role-play. Eriko is a member of the YJAA Steering Committee, and was on Young ICCA’s Local Steering Committee for this event.

The evening kicked off with a panel discussion on preparing and conducting cross-examination. Regardless of jurisdiction, the central take-away was that preparation is key. Melvin Sng then led the discussion with his thoughts on the role of junior lawyers in preparing and conducting cross-examination. Again, preparation was highlighted as an important aspect but also that effective cross-examination involves team work. It is vital for junior team members to be able to communicate critical information to senior members of the team at crucial points during the proceedings; and this can include how the Tribunal might be responding to the line of questioning or style of cross-examination.

The panel ended with a comment on lawyers’ ethical and professional obligations, and the impact this might have on witness preparation. Specifically, as international arbitrations often involve various jurisdictions, the panel noted that it is up to each lawyer to comply with the obligations in their home jurisdiction(s), while also being aware of what other conduct rules may apply (e.g. as a result of the seat).

The workshop concluded with a practical demonstration of cross-examination. Eriko Kadota played the role of the witness in three “derailed” cross-examinations, and one “ideal” cross-examination. The mock tribunal was quick to emphasise that rudeness from either cross-examiner or witness will not be tolerated. The demonstration also revealed what can go wrong due to lack of preparation and insufficient familiarity with the documents and facts.