Nevertheless, these rhetorical advantages could lead to higher information and credibility risks in international arbitration than in jurisdictions where testimony does not replace direct oral testimony. Calling a witness for cross-examination turns a name on a statement into a person the court is more likely to remember, giving the court the opportunity to assess its credibility and request information through its own questions. In short, cross-examination gives a platform to an opposing witness.11 Britannica.com: Encyclopedia articles on cross-examination Lawyers anticipate hostile responses from witnesses during pre-trial planning and often attempt to shape witnesses` perception of questions to extract information useful to the lawyer`s case. [4] As a general rule, during a lawyer`s closing argument, he repeats all the confessions of witnesses who favor their case. In fact, cross-examination is considered an essential component of the entire adversarial justice system in the United States, as it is “the primary means by which a witness`s credibility and the veracity of his or her testimony are verified.” [5] Another key element that influences the outcome of a trial is jury selection, where lawyers try to involve jurors who they believe can get a positive response, or at least an impartial and fair decision. Thus, while many factors influence the outcome of a trial, the cross-examination of a witness will often affect an open-minded and impartial jury in seeking certainty of the facts on which to base its decision. The origins of cross-examination date back at least to ancient Rome.2 But in modern times, cross-examination has become the main feature of the common law system. When the jury trial took place as it is known today, common law cases also appeared to use cross-examination to show when witnesses had failed to make true and reliable statements.3 A good example of the relevance of cross-examination in common law jurisdictions is the Federal Rules of Evidence, which governs the introduction of evidence in civil and criminal proceedings before U.S. federal courts.4 The scope of cross-examination is generally limited to Questions Restricted during direct investigation. Compared to experts, cross-examination of experts requires a more complete knowledge of the case, careful preparation and a trained interrogation technique. Since a witness called by the other party is considered hostile, cross-examination allows key questions to be asked. On the other hand, a witness called by a direct examiner may be treated as hostile by that examiner only if the judge has authorized him to do so at the request of that examiner and because the witness is openly antagonistic and/or biased towards the party who appointed him.

[1] When preparing for cross-examination, it is essential that defence counsel consider whether it is necessary to cross-examine a particular witness, what would realistically be obtained from a witness, and whether it will assist the client`s case. Therefore, there is usually no need to cross-examine an expert just for himself.13 Expert testimony can cover a variety of topics, “such as gaps in software design, delays in building infrastructure projects, the chemical composition of pharmaceuticals, the valuation of expropriated investments, and legal issues. In order to carry out an effective cross-examination, it is necessary to immerse yourself in the respective subject in a targeted and practical way, usually through close cooperation with your client and your own expert.” In addition, cross-examination has a persuasive function, as in choosing the questions, it gives the lawyer the opportunity to draw the attention of the arbitral tribunal to the relevant issues of the case, as well as to the events or key evidence in support of the cause of that part.7 One of the best tools to be rhetorical is the use of leading questions, 8 a type of interrogation, where the form of the question suggests the answer. The court exercises discretion as to the weight of evidence to be attributed to cross-examination as opposed to written evidence9 and may draw adverse conclusions if the witness is not available for cross-examination.10 Article 5 of the Prague Rules of Procedure states that an arbitral tribunal has the power to decide which witness should be summoned for examination. and it may decide not to call the witness for consideration if it considers that the testimony is not necessary or if the testimony has already been presented. Thus, section 5 does not provide for an unconditional approach in favour of cross-examination. On the contrary, Article 4 of the IBA Rules on the Taking of Evidence requires the witness to appear at the taking of evidence for the taking of evidence.