Chapter 17 TEN QUESTIONS NOT TO ASK IN CROSS-EXAMINATION IN INTERNATIONAL ARBITRATION Michael Hwang* Introduction. This chapter identifies ten questions that an international arbitration practitioner should take pains to avoid in cases concerning, contractual interpretation and breach. ‘The recommended abstinence applies mainly to cross-examination where the governing law is common law, but the majority of the questions from which Counsel should abstain in common law should in most cases be likewise avoided during cross-examination where the arbitration is governed by civil law. The lesson to bear in mind is that, in his preparation for ctoss-examination, Counsel must have a firm grasp of his case theory, before trying to establish the facts that are the foundation stones of that theory. He must first understand the rules of contractual interpretation and contractual breach (these being the two most common issues in practice), and focus his mind on the significance of questioning witnesses in contract cases and whether certain questions should be asked. Even where questions ate permissibie, they may not be (1) relevant to the legal issues at hand, or (2) helpful to the Tribunal in deciding the key issues. _* Barrister and Arbitrator, Singapore. I am grateful to my associates, Charis Tan and Su Zihua, for theit assistance in the preparation of this chapter. 431432 ART OF ADVOCACY IN INTERNATIONAL ARBITRATION Il. The Ten Questions to Avoid 1. Questions about the unarticulated intention of witnesses, e.g. wha did you mean when you wrote this letter/ these minutes? 2. Questions about the motives of witnesses relating to actions or omissions, e.g. why did you insert this clause in the agreement? Why did _you do| not do something? 3. Questions about a witness’ interpretation of letters or contractual documents unless it impacted on his subsequent actions, eg, what does this clause of the contract mean to you? What do you think the suriter of this letter meant by paragraph X? 4. Questions to demonstrate what is or is not in a document, eg. where in this document does it say [whatever]? Do you agree that this clause does not say anything about [sonntthing]? Look at this document ~ does it contain any reference to [x]? 5. Questions for dramatic effect which do not add to the knowledge of the Tribunal, e.g. I put it to you that you are not telling the truth (unless Counsel has built up a foundation for this suggestion by previous questioning). Could you please read out the third paragraph of Jour letter? 6. Questions designed to make the witness concede facts in favour of the opposing party which are apparent from the record and are not denied, e.g. do yox agree that you never replied to nay client's letter? 7. Questions solely aimed at attacking credibility or creating prejudice, ie. having no direct relevance to the issues, but designed to question the witness’ credibility or character by asking him questions on other matters outside the events covered by the existing arbitration.‘TEN QUESTIONS NOT TO ASK IN CROSS-EXAMINATION 433 8, Questions that seek to argue a legal issue with a lay witness, e.g. do you agree that Clause X means...? Do you agree that my client acted Lanfully in terminating your employment? 9. Questions which take a witness through facts and documents with a view to making the witness agree with the other party's interpretation of a document or characterization of events (rather than the actual facts themselves), e.g. do you agree that my client behaved reasonably under the circumstances? 10. Questions which end — “answer yes or no” when the question is not a “Yes or no” question. II, Why Avoid the Ten Questions? A. The principles of contractual interpretation render such questions pointless (Questions 1, 2 and 3) (1) The approach to contractual interpretation is objective (Question 1) Under English law, interpretation of a contract is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the patties in the situation in which they were at the time of the contract.' In short, the English approach to interpretation is an objective one and is so without controversy.” The objective approach is also applied in Australia, ' Inestors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 (‘Investors Compensation”) at 912, seaffirmed by the House of Lords in Chartbrook Ltd v Persimmon Homes Ltd [2009] 1 AC 1131 (“Chartbrook”) ? Sir Kim Lewison, The Interpretation of Contracts (Sweet & Maxwell: London, 2007) (“Lewison”) at [2.03]. 3 In Austealia, courts have adhered to an explicitly objective approach to the construction of contracts, particularly of written contracts signed by the parties. Both in determining what terms have been incorporated in a contract, and in interpreting those terms, the task of construction is not to ascettain the subjective434 ART OF ADVOCACY IN INTERNATIONAL ARBITRATION New Zealand,’ Singapore,’ the United States,’ and Canada.’ Thus, common law embraces an objective approach to interpretation. In the common law context, the aim of interpretation is not to probe the real intentions of the parties but to ascertain the contectua! ‘meaning of the relevant contractual language. The question to be asked is what a reasonable person, given the factual matrix in which the contract was made, would have understood the parties to have meant by the nse of specific language. The answer to this question is to be gathered from the text under consideration and its relevant SEE EEE EEE Ee Eee eee eee SSeS eee intention of the parties, but rather to determine what a reasonable person in thet situation would have intended or assumed. See N C Seddon and M P Ellinghaus, Cheshire and Fifoot’s Law of Contract, 9th Australian Ed. (LexisNexis Butterworths: ‘Australia, 2008) (“Cheshire Australia”) at 394 and 429. Accordingly, it is ‘unequivocal that the court cannot receive evidence from one party 25 10 its ‘uncommunicated intention, understanding ot expectation of the contract. Such extrinsic evidence of subjective intention is in principle not admissible, Chesire Australia, at 411 to 412. + Lewison, at 26. 5 Zurich Insurance (Singapore) Pte Ltd v B-Gold Interior Design & Construction Pte Lid [2008] SGCa 27 (“Zurich Insurance”) © Contractual interpretation in the United States similarly takes such an objective approach. The object in construing a contract is to ascertain the mesning ‘and intent of the parties as expressed in the language used in the contract. Primary importance is placed upon the words of the contract, and therefore, the actual intent of the pasties is ineffective unless it is expressed in some way in the writing ‘Thus, the court should not inquire into the actual mental processes of the parties in entering into the particular contract; rather the law presumes that the pares understood the import of their contract and that they had the intention which its terms manifest. Richard A. Lord, A Treatise on the Lav of Contracts, vol. 11, 4th ed. (West Group: United States, 1999) (“US Conteact Law”) at 271 to 277. Itis dea, therefore, that it is not the real intent but the intent expressed or apparent in the wiiting which is sought; itis the objective, not the subjective, intent that controls US Contract Law, at 281 to 283. 7 Tn Canada, itis similarly accepted that an objective approach is necessary (0 make sense of the words used in a contract. When asked to give meaning to the ‘words the parties have used, courts have to start from the position that the jnterpretation of those words has to be established objectively, ie. as they would be understood by the reasonable person as familiar as necessary with the ‘business and the likely shared understandings of the parties. John Swan, Canadian Contra Lax Ast ed. (LexisNexis: Canada, 2006) (“Canadian Contract Law”) at 492.‘TEN QUESTIONS NOT TO ASK IN CROSS-EXAMINATION 435, contextual scene.’ However, where the contract is complete on its face, the language of the contract constitutes prima facie ptoof of the partes’ intentions? and it is only in limited circumstances that the Courts can seek to interpret the document using information from beyond the four corriets of the contract. Whete the courts indicate that they will give effect to the intention of the parties when interpreting a contract, the intention referred to is the articulated rather than the actual intention of the parties. In other words, what is important is not one party’s subjective intention, or even what he might have conveyed, or attempted to convey to a third patty (Le. a non-contracting party) about his understanding of what he was doing."” What is important is what was expressed, and what a reasonable person would have understood from what was expressed. Consequently, the subjective intentions of the parties have no role to play in contractual interpretation. This is why questions aimed at demonstrating the parties’ subjective intentions at the time of the contract (ie. Question 1-type questions), are unhelpful and irrelevant to the legal issue at hand. It makes no difference to the outcome of the case, even if it can be established what the witness meant when he penned a letter ot typed a document. It makes no difference why the witness inserted a particular clause into the agreement, or phrased the clause the way he did at the time of the agreement, since both these questions go to the question of what was in the parties’ own minds and theit uncommunicated intentions. There is one exception where the subjective intention of the patties of the parties can override the cleat meaning of the written words, which is when one party applies for rectification’ of the ® Per Lord Steyn in Sirius International Insurance Co v FAI General Insurance Ltd (2004) 1 WLR 3251. > Zurich Insurance at (40). 10 Pacific Carriers Ltd » BNP Paribas (2004) 218 CLR 451. '\ Ia Charthrook, the House of Lords also clatified the scope of application and test for allowing rectification. According to the House, rectificiation is not confined to cases where there was 2 concluded antecedent contract with which the final conttact did not conform but is also available when there was no binding i436 ART OF ADVOCACY IN INTERNATIONAL ARBITRATION contract so that the written words will reflect the actual intention of the parties but, unless such an application is made, the remarks made above will apply. While a civil law court or tribunal is theoretically requited to interpret a contract by way of discerning the parties’ common b: intention” or real intention,” which suggests that a subjective approach need be taken in the interpretation of a contract, courts and tribunals adopt an objective approach'* to interpretation in practice antecedent agreement but the parties had a common continuing intention ia respect of a particular matter in the instrument in respect of which rectification is sought. In both cases the question is what an objective observer would have thought the intentions of the patties to be. In onder to get rectification it has to be shown that the parties were in complete agreement on the terms of their contract but by an error wrote them down wrongly. If, by looking at what the patties said or wrote to each other in coming to their agreement and then comparing it with the contract they signed, it can be predicated with certainty what their contract was, and that itis by common mistake wrongly expressed in the document, the document canbe | rectified, but nothing less will suffice. Rectification is carely sought as a remedy, but such a claim would justify a more liberal approach to cross-examination of the actual intentions of the parties as manifested by what they said or wrote. ‘2 This is the French position under Ast 1156 of the Code Civil (French Civil Code) which says that the primary role of interpretation is to discover the conmmune intention des parties (common intention of parties). See Konrad Zweigert and Hein Katz, Introdution to Comparative Lav, 3rd ed. (Clarendon Press: Oxford) ey (“Comparative Law”) at 402. 18 ‘The German position under Section 133 of the Birgerliches Gesetzbuch (German Civil Code) is that the aim of construction is to ‘discern the real intention’ and the crucial thing is the actual historical will of the partics. See Comparative Law i at 403. 14 The French courts incline towards the subjective approach to interpretation, Nonetheless, where no common intention can be found, the judge is supposed to ascertain the ‘hypothetical’ intention of the parties ot to adopt the interpretation which in all cizcumstances, objective and subjective, must be regarded as the one i i the parties would reasonably have intended. Fusther, since a judge will very rarely : able to discern any actual intention common to the parties, he generally has ao ‘option but to focus on ‘objective’ considerations and ask how the term in question should and would normally have been understood in that particular context by 4 reasonable man and remains free to come to his conclusion on the basis of objective considerations and call it the conmune intention des partes contractants wines he comes to write his judgment. See Comparative Law at 402. While Section 133 of‘TEN QUESTIONS NOT TO ASK IN CROSS-EXAMINATION 437 Jn short, they interpret a contractual term by reference to what a reasonable petson would have understood it to mean in that particular context. Consequently, questioning exercises seeking to expose the unarticulated intention of witnesses are limited in value and Question 1-type questions should also be eschewed even where civil law governs the contract. (2) The court only looks at a limited factual matrix (Question 2) Questions on motives should be avoided. The common law position (taken in England,’ Singapore,'® Australia!” Canada!® and the United States of America’) is that the background factual matrix the German Civil Code explains that the aim of constmuction is to ‘discern the real intention’, thus suggesting a subjective approach must be taken, other parts of the same Code presuppose that an objective approach to interpretation be taken and there is a certain tension between the objective and subjective tests. German case law has suggested that contracts will generally be interpreted objectively although this is subject to certain important qualifications, for instance, where the true intention of both parties coincides but deviates ftom the objective meaning of their declaration, the literal meaning need not prevail. The classic example is the famous Haakjéringskid case, in which parties intended to buy and sell whale meat, but esctibed it as shark meat. The court took the view that the contract was for the sale of whale meat and that the delivery of shark meat was a breach of contract, See Basil’ Markesinis, Hannes Unberath and Angus Johnston, The German Law of Contract, 2nd ed. (HHaxt Publishing: Cornwall, 2006) at 133-135 18 See for instance, Investors Compensation 6 See for instance, Zeid Insurance " See for instance, Codelfa Constructions Pty Lid v State Rail Authority of NSW (1982) 149 CLR 337 *8 Similarly, in Canada, it is accepted that words cannot be understood apart fom their context. Contractual language cannot be understood without some Knowledge of their context and the purpose of the contract. Words, taken individually, have an inherent vagueness that will often require courts to determine their meaning by looking at their context and the expectations that the parties may have had. Canadian Contract Law, at 493. Tn the United States, extrinsic evidence at the time the contract is made, is also admissible. The circumstances surrounding the execution of a contract may always be shown and are always relevant to a determination of what the parties438 ART OF ADVOCACY IN INTERNATIONAL ARBITRATION surrounding the execution of the contract may be taken into account to aid the court in the interpretation of the written words of a document. This is because words used in a contract cannot be divorced from the circumstances prevailing at the time the contract was made, and a court secking to ascertain the meaning of a contract must look to the factual matrix surrounding its execution. ‘The significant point to note is that, under the common law position, background evidence that is admissible is limited to faa, circumstances in reality, and factual matrices. The emphasis is upon what happened, and what a party did or did not do, there is no question of why a party did what he did. A party’s motivations for doing what he did or did not do do not impact upon the interpretation of the contract (or whether he has been in breach) and should be disallowed as irrelevant {although questions of admissibility are not decided in asbitration on the basis of rules of evidence but on the ‘Tribunal’s perception of what is relevant ot helpful to its decision). Cross-examination questions that concern the surrounding facts, circumstances and factual matrices, go to the background and context of the transaction, and ate therefore relevant. In contrast, questions which seek to cast light on a patty’s private intentions and motivations, are not. There are two exceptions to this principle: ‘A. the contract itself makes motive a relevant element (e.g a clause that allows a right to terminate a contract if one patty has reasonable cause to believe in a certain state of facts). ee Jntended by the words they chose. In construing a contract, a court setks 10 ‘ecertain the meaning of the conttact at the time and place of its execution. ‘Thus, the eizcumstances surrounding the execution of the contract will always bear pos the contract's meaning. US Contract Lav, at 435 to 436. The term “surrounding ‘Grcumstances” refers to the commercial or other setting in which the contract wit negotiated and other objectively determinable factors that give a context to the transaction between the parties. It would include, for example, whether one of both parties was new to the trade, whether either or both had Counsel, the nature and of their relationship, as well as their relative age, expetience, education and sophistication. US Contract Law, at 439.| 439 "TEN QUESTIONS NOT TO ASK IN CROSS-EXAMINATION B. the issue is assessment of damages, the principle of mitigation is important, and questions may legitimately be asked about the innocent party’s attempts to mitigate his damage which will often involve questions about the reasons for the innocent party's acts or omissions in mitigation. Consequently, these exceptions apart, Counsel in a common law intetnational arbitration would be ill-advised to subject the Tribunal to questions about wly Mr X did ot did not do something, ot questions which explore each individual patty’s motivations for how they negotiated, ot even internal emails within each individual party (where the party is a company) which discussed the clauses of the contract, such questions being inadmissible where the applicable law of the contract is common law. Questions on motives, however, may potentially find applicability in atbitrations governed by civil law, which places fewer restrictions on the admissibility of evidence. For instance, French law does not place a priori limitations on the admissibility of materials deemed xelevant for that purpose: all materials likely to help shed light on the parties’ actual intention in principle ate admissible, including materials pertaining to such contextual factors as pre-contractual, collateral, or subsequent statements or actions by the parties, even such materials as may pertain to one party’s intention undisclosed to the other.22 However, even civil law tribunals do not in practice find questions on unarticulated motives ot intentions relevant to questions of contractual intention. % Catherine Valcke, “Contractual Interpretation at Common Law and Civil Law—An Exercise in Comparative Legal Rhetoric”, 2008, in Exploring Contract Law University of Toronto, Faculty of Law) (“Catherine Valcke”) at 23 to 24.440 ART OF ADVOCACY IN INTERNATIONAL ARBITRATION (3) Questions of construction are a matter for the ‘Tribunal or dictionaries. Further, pre-contractual negotiations and post-contract conduct may generally not be taken into account for contractual interpretation. (Question 3) Aside from avoiding questions on unatticulated intention and motives, Counsel should also abstain from asking questions about the witness’ interpretation of letters or contractual documents (unless the interpretation impacted on that witness’ subsequent actions). This is for two reasons. First, questions of construction, whether of domestic or foreign documents, are matters of law and not of fact and belong exclusively to the court and the opinions of experts theteon are irrelevant.” In short, the interpretation of contractual or commercial documents is a matter for the Tribunal to decide, and it makes no sense for Counsel cross-examine a witness on his interpretation of a particular document unless his understanding of the document (tight or wrong) is helpful in explaining why he took a particular course of action (provided the reasons for his action are themselves relevant in deciding the critical issues in the case). Second, where the Tribunal is unable to interpret certain terms in a written instrument, its first course of action would be to construe { the terms by teference to dictionaries and other material’ and a witness’ interpretation will seldom be relevant. Accordingly, Question 3-type questions should be avoided. Of coutse, some Counsel believe that it is good advocacy to develop a case (which is capable of argument on the documents alone) through the mouths of witnesses, particularly by forcing witnesses on the other side to agree with the interpretation canvassed by cross-examining Counsel. While it is debatable whether this 21 Michael Howard & others, Phipson on Evidence, 16th ed. (Sweet & Maxwel: py London, 2005) at 1032. See also LHS Holdings Ltd » Laporte PLC [2001] EWCA Gv 278 reported at [2001] 2 All ER (Comm) 563. 2 Investors Compensation at 13‘TEN QUESTIONS NOT 'TO ASK IN CROSS-EXAMINATION 441 achieves a greater forensic effect than a well-reasoned brief, T suggest that, in commetcial arbitration, cross-examination should generally be confined to matters of fact rather than matters of argument. Questions about a witness’ interpretation of letters or contractual documents can relate to the witness’ knowledge of contractually related matters before as well as after the making of the contract. Another reason for discouraging ‘why’ questions about a witness’ interpretation of letters or contractual documents is that the common. law generally excludes from evidence, the _pre-contractual negotiations and post-contract conduct of patties” (this general % The English position is that evidence of pre-contractual negotiations is generally inadmissible in suppost of the construction of a contract because, in the course of negotiations, parties’ positions ate constantly changing, and their agreement is only recorded in their final agreement. Lord Wilberforce in Prewm v Simmonds (1971] 1 WLR 1381. This position was re-affirmed in Chartbrook, where the House of Lords was invited to reconsider the rule in Prom » Simmonds but declined on the basis that to allow such evidence would create uncertainty of ‘outcome in disputes over interpretation and add to the cost of advice, litigation ot atbitration given that statements in the course of pre-contractual negotiations were subjective and could, if oral, be disputed, and it was not often easy to distinguish between statements which reflected the aspirations of a party and those which ‘embodied a provisional consensus which might help in the interpretation of the ‘contract eventually concluded, Under English law, the exclusion of pre-contractual negotiations is not absolute and evidence of pre-contractual negotiations is admissible to establish (a) that a fact was known to both parties; (b) where the Parties have agreed on the meaning of a word or phrase in negotiations; (¢) to decide (in a consumer contract) whether a term has been individually negotiated; nd (@) to determine which party put forward a particular term. Lewison at (3.08). Pre contractual negotiations could also be used fo suppott a claim for rectification ot estoppel. Chartbrook. In respect of the subsequent conduct of parties, the general nile is that English courts do not look at subsequent conduct to interpret a written Agreement. However, where the agreement is partly written and partly oral, subsequent conduct may be examined for the purpose of determining what were the full terms of the contract. Additionally, the subsequent conduct of the parties ay be examined where an estoppel by convention is alleged; where it is alleged that the agreement was a sham; and probably for the purposes of determining the boundaties of an ambiguous grant of land. Levison at [3.15]. In Singapore, there is no absolute or rigid prohibition against previous 2¢gotiations or subsequent conduct, although, in the normal case, such evidence is likely to be inadmissible for non-compliance with the three conditions that (a) the442 ART OF ADVOCACY IN INTERNATIONAL ARBITRATION EEE oo See material must be relevant; (b) the material must have been reasonably available 19 all contracting pasties; and (¢) the material must relate to a cleat and obvious context. Zurich Insurance at para.s [125], [127] to [129], and [132(d)]. In Gob Guan Chong v Aspentech, Inc [2009] SGHC 73 at [58], Ang J opined that in addition tp previous negotiations and subsequent conduct, drafts of contracts which satisfy the three conditions could also be admissible. This was because there was no reason, in principle, to differentiate drafts from contractual negotiations. Ang J also commented that documentary evidence of negotiations as they appeared in drafis would tend to be more relible than oral evidence though where the parties respective positions changed with each draft, drafts would provide only scant assistance and ultimately, the weight Gf any) to be given to drafts as extrinsc evidence would have to differ from case to case depending on the factual matrix, In Australia, where parties have recorded the terms of theit contract in a document, the parol evidence rule applies to exclude evidence of pre-contrictual terms that “subtract from, add to, vaty or contradict the language of a written instrument”. In respect of whether the subsequent conduct of the parties is admissible, the Australian courts have not been unanimous. The objection to such evidence is that post-contractual conduct may be deliberately tailored so as to give veracity to a meaning not intended at the time of formation of the contract. Many courts have professed adherence to the rule that subsequent conduct is inadmissible, but at the same time, the dogmatic application of this view has been openly criticised by others. Cheshire Australia, at 416. Tn the United States, the admissibility of pre-contractual negotiations between the parties is also one of difficulty. On one hand, pre-contractual negotiations are not admissible to prove that the actual intent of the parties is at variance with the words of the wiitten instrument when those words are given their appropriate local meaning, On the other hand, pte-contractual negotiations are admissible to prove that the parties were dealing in regard to a particular matter or to secure a particular object, or under circumstances where the local usage would give a particular meaning to the language. Negotiations are also admissible to, where the locel meaning is ambiguous, to show that the parties attached one appropriate meaning to their words, rather than another equally appropriate meaning, US Contrad Lav, at 836. The United States is quite likely the most liberal where admission of evidence of the parties’ subsequent conduct is concerned. The American courts take the position that, given that the purpose of judicial interpretation is to ascertain the parties’ intentions, the parties’ own practical interpretation of the contract, i. how the parties actually acted, thereby giving meaning to their contract in the course of performing it, can be an important aid to the court. US Contrat Law, at 491 to 492. The American courts therefore give great weight to the patties’ practical interpretation, unless it is contrary to the plain meaning of the contract, O= clearly one sided. The conduct of the parties therefore provides nearly conchisive‘TEN QUESTIONS NOT TO ASK IN CROSS-EXAMINATION 443 exclusion is of course subject to exceptions). Hence, the answers to questions asking what the witness interpreted certain pre-contractual Titers which deal with the price of goods to be sold or questions Gadence of the parties’ contractual intentions, this is particularly true when the contzact is ambiguous. US Contrast Law, at 507. ‘The Canadian position in respect of pre-contractual negotiations is not absolute. Evidence of what took place during the negotiations may or may not be considered by the cout that is asked to interpret an agreement. Ifthe agreement is eld to be the sole and final expression of the parties” agreement, evidence of what occurred during the negotiations will be irrelevant. On the other hand, what happened during the negotiations may provide useful and important evidence of the meaning to be given to the words and expressions used by the parties and of their expectations. Evidence, for example, of what one party knew (or should have known) of what the other expected may be sufficient to deny the first party the right to enforce the contract on any terms but those accepted or proposed by the other party. Canadian Contract Law, at 525. However, a balance has to be found between an examination of every scrap of evidence that a party may offer to prove that the agreement does not mean what it appears to mean, and a refusal to consider anything outside the four comers of the agreement. The Canadian courts find the necessary balance by considering a number of factors: (a) is the transaction or the relation created by the agreement and the language of the agreement standard or common? (b) Is the language (or at least on a first impression) clear and are the consequences of applying the plain words reasonable? (¢) Is the position of the party who is claiming that the agreement is not the final expression ‘unreasonable and implausible? (@) To the extent that the agreement is a standard agreement governing many similar cases, is there an argument that similarly situated patties should be treated in the same way? (¢) Does the elation between the patties, their relative sophistication, knowledge, access to legal advice and bargaining power, indicate that one party does not need protection from the other? To the extent that these five questions can be answezed in the affirmative, the party who seeks to adduce evidence of prior negotiations or other external factors will bear a heavy burden to persuade the court that these external factors are relevant. Canadian Contract Law, at 526. In Canada, there is no prohibition against the use of subsequent conduct to aid in interpretation of the contract. The rule with respect to subsequent conduct is that if, after considering the agreement itself, including the Particular words used in their immediate context and in the context of the ‘agreement as a whole, there remain two reasonable alternative interpretations, then certain additional evidence (such as subsequent condu¢t) may be both admitted and taken to have legal relevance if that additional evidence will help to determine Which of the two reasonable alternative interpretations is the correct one. Canadian Notional Railways v Canadian Pacific Ltd [1979] 1 WWR 358 at 372.444 ART OF ADVOCACY IN INTERNATIONAL ARBITRATION secking to show that the witness behaved in a manner inconsistent with the words of a contract after the dates of the contract (to show that the contract does not mean what it says) may (depending on the governing law) be irrelevant (unless some argument based on estoppel is being mounted) and it would make little sense to waste the Tribunal’s time on such questions. Consequently, unless a careful scrutiny of the laws of contractual interpretation has been conducted, Counsel may wish to reconsider questions seeking to uncover a witness’ interpretation of pre- or post-contractual documents ot even post-contractual behaviour as a tool of contractual interpretation. ‘As mentioned above, civil law (theoretically) places a different emphasis on the relevance of evidence of contractual intention, Consequently, while Counsel in a common law case should abstain from doing so, Counsel in a civil law case theoretically starts with the right to ask questions about the witness’ interpretation of letters ot contractual documents. However, because civilian lawyers in practice adhere to the objective technique of contractual interpretation, questions about the parties’ actual intentions do not generally interest civilian trained arbitrators, who tend to interpret contracts based on the actual words used and their normal meaning. Unless, therefore, there is a reason to believe that both parties to a contract understood particular words in a contract differently from their plain and ordinary meaning (as in the Haakjéringsked case), ctoss-examination of the actual intentions of the patties in agreeing to the words used in a contract ate unlikely to be of great interest, even to a civilian arbitrator. B. Asa matter of practice, “forensic” questions (questions 4, 5, 6 and 7) are not helpful and merely waste time unnecessarily “Forensic” questions are questions which do not enlighten the ‘Tribunal but are solely designed to introduce what ate largely uncontroversial mattets and are therefore asked cither as “throat: clearing” exercises for the cross-examiner, or because Counsel wants to use the witness to demonstrate his own folly ot lack of credibility,‘TEN QUESTIONS NOT TO ASK IN CROSS-EXAMINATION 445 to ptejudice the Tribunal or simply for dramatic effect. These types of questions will seldom be welcome by arbitral tribunals, and should be avoided by Counsel whether at an arbitration governed by common or civil law. ‘The first thing that arbitration neophytes have to lear is that arbitrators (even common law atbitrators) both in Europe and Asia do not like fixing long evidential hearings to the same length as a coutt trial. This is particularly true if the arbitration is institutional rather than ad bos, as institutional rules like SIAC (2007 version), ICC, BANI (Indonesian Arbitration Institute) and KCAB (Korea’s national arbitration institution) fix fees by reference to the value of the claim rather than by the time spent. Accordingly, a Tribunal held under the auspices of these rules will often be disinclined to fix long hearings because the arbitrators are not going to be paid anything more for the longer hours that they will spend. The institutions value efficiency in disposing of a case, so arbitrators are under an incentive to complete hearing as soon as they decently can consonant with the principle of giving each party a (teasonably) full opportunity to present its case. Even if parties have a large number of witnesses, the Tribunal is more likely than not to adopt some form of case management system to bring both time and costs under control. The Tribunal may therefore exhort parties to get together to agree the maximum time each witness will have, subject to the final discretion of the Tribunal to extend time. The Tribunal may even adopt the “chess clock” method and confine parties to a total amount of time and then making all parties stick to it so matter what excuses may be made. Under such circumstances, Counsel in such fixed time atbitrations will need to be frugal with use of time, and will have to be very selective about the line of ctoss-examination he wants to adopt. In short, he needs to get to the point very quickly and there is no room in arbitration for forensic questions. International arbitration does not allow a time budget for questions which ate purely designed to rattle a witness without advancing the knowledge of the Tribunal about the matters in issue.446 ART OF ADVOCACY IN INTERNATIONAL ARBITRATION With regard to questions which demonstrate what is or not in a document, Counsel should note that most tribunals respond better to a reasoned and structured argument from Counsel on undisputed facts rather than heating them emerge in piecemeal fashion on cross. examination. Consequently, such questions serve little practical purpose and should not be asked. Instead, Counsel should concentrate on developing his points about what emerges from the documents in his Opening or Closing Submissions so that facts and documents can be blended into a proper theory of the case. With regard to questions for dramatic effect or questions which do not add to what is in the record or knowledge of the Tribunal (as well as questions designed to make the witness concede facts in favout of the opposing party which are apparent from the record and not denied), Counsel should note that such questions are only exercises in forensic skill which do not assist the Tribunal in its decision but serve to spend (if not to waste) valuable hearing time. Further, if the witness is not co-operative in answering, a disproportionate amount of time will have been lost by such techniques which in turn will destroy the value of this weapon in Counsels armoury, and simply frustrate the Tribunal if one patty runs out of time. While some Counsel will be skilful enough to achieve their desired effect (depending on their forensic skill and the defensive ability of the witness), such questioning, is, in arbitration terms, a luxury which will genetally not be tolerated and should therefore be eschewed. ‘Although the common law tule in litigation is that cross- examination need not be confined to evidence-in-chief of the witness but may extend to any relevant issue in the case, courts generally allow ctoss-examination questions which are justified as testing the credibility of the witness, even if they do not relate to any selevant issue to be decided, However, given that, in the great majotity of commercial arbitrations, the credibility of a witness is not usually the key factor in determining whether or not the Tribunal accepts that witness’ evidence, most arbitral tribunals are unlikely to be so generous, and would be unwilling to give a roving commission to Counsel to ask a series of questions about an unrelated matter simplyTEN QUESTIONS NOT TO ASK IN CROSS-EXAMINATION 447 to demonstrate that the witness is generally untruthful or unreliable. Questions attacking credibility should thus be avoided unless necessary to prove a ctitical element in the case. Questions aimed at prejudice are closely related to questions aimed at attacking credibility and are questions which, while related to the factual narrative or background of the case, nevertheless do not bear on the legal issues of liability or quantum, but are asked solely to establish that a witness (being a party representative) has acted in a questionable manner viewed from a moral perspective, but not directly bearing on the issue of liability. Many lawyers forget that the law of contract is based on strict liability. For better ot worse, the law of contract is not concerned with who is the “good guy” and who is the “bad guy”, but rather who has acted in breach of the terms of the contract. Admittedly, however, the position is somewhat different in civil law where the concept of good faith is an important feature in the law of contract, but even then, good faith is not an excuse for roving attacks on a witness’ character and it is only relevant under cleatly defined principles where the conduct of the contracting patty can be said to have breached the legal standard of good faith. In the tesult, aside from abstaining from questions atiacking credibility save when absolutely necessary, questions which aim to prejudice should also be avoided. C. Legal issues are matters for submission (Question 8) Nothing pains a Tribunal mote than to hear a Counsel trying to poiat of law with a lay witness. “Ts if not car that Clanse mans,..?. Any Tribunal should (and usually will) stop Counsel with the pained admonition “is that not a matter for Counsel’s submission?”.448 [ART OF ADVOCACY IN INTERNATIONAL ARBITRATION D. Questions which take a witness through facts and documents with a view to making the witness agree with the other patty’s interpretation of a document or characterization of events (rather than the actual facts themselves) are generally not worth the time (Question 9) “The questions are a vatiant of the Question 4 to 7 type. They are forensic to a degree but involve a high degree of argument with the witness as Counsel seeks to take an undisputed fact or document and put a spin on it which he endeavours to persuade the witness to accept. As the saying goes, “nice work if you can do if”, but realistically, in the limited time available for cross-examination in international arbitration, such an exercise is likely to end in frustration as the Tribunal is not going to be generous in allowing Counsel extra time to persuade a witness to agree with Counsel’s version of interpreting or characterizing facts or documents. E. “YES” or “NO” questions may be unfair (( ‘Question 10) ‘A favourite technique of some cross-examining Counsel is to tell a witness to “please answer YES or NO”, While this technique is justifiable to some extent in ensuring clarity in the position taken by witnesses, there are times when such an approach is unfair, when the question is not really capable of a “YES” or “NO” answer (the classic example taught in law school being “and when did you stop beating your wife?”). ‘This warning can further be extended to include questions based ona false or unproven premise. An alert opposing party (or Tribunal) will usually spot the impropriety of such questions and make an objection. Some of such questions, however, inevitably fall through the cracks and can lead a witness to be confused and give an answer which will give ctoss-examining Counsel temporary satisfaction but which will eventually have to be explained ot modified when the misunderstanding of the witness is revealed. Like the server in tennis, cross-examining Counsel has a advantage in his interaction with a witness of being able to frame a‘TEN QUESTIONS NOT TO ASK IN CROSS-EXAMINATION 449 question in the way he likes, but if he abuses that privilege and frames a question in an unfair way, he will lose the sympathy of the watching Tribunal without corresponding strategic gain. These warnings apply equally whether the arbitration is conducted under common ot civil law. IV. Conclusion ‘The importance of cross-examination in international arbitration is often over-rated. It is not a pre-requisite of natural justice” and can be eschewed completely or substantially if the case is primarily about interpretation of documents, of if there are no substantial disputes of fact. Common lawyers are familiar with the litigation procedure known as otiginating summons, where the court rules on a case without heating oral evidence, simply on the basis of affidavit evidence alone, so it is possible to conduct an arbitration on the basis of documentary evidence alone, with no ot minimal oral evidence in support. ‘Arbitrators have more often than not been disappointed by how little they have learnt from hearing the witnesses, as opposed to reading their witness statements and reviewing the relevant documents. Indeed, what arbitrators find lacking in international arbitration is the time spent on oral advocacy, whete Counsel explain their written submissions before the Tribunal, which can then exercise a Socratic dialogue with Counsel in clatifying and testing those submissions. If more time is spent on oral submissions, that would add more value to the Tribunal’s appreciation of the facts and issues and arguments than long hours with the witnesses. But if we are to have otal witness evidence in an international arbitration, then Counsel should bear the following precepts in mind: He should ascettain what the rules of contractual interpretation and liability are under the applicable law, and plan his ctoss-examination based on what is necessary to establish or deny contcactual liability (as the case may be) under that law. And considering the time constraints in % The University of Colon v Fernando [1960] 1 WLR 223450 ART OF ADVOCACY IN INTERNATIONAL ARBITRATION international arbitration, Counsel should limit cross-examination to areas which are most necessary. As a rule of thumb, he should test his proposed questions by asking himself: “what use cam I make of th ‘answers to these questions in ny Post Flearing Brifé”. If he cannot answer his own question, then he should probably omit that question. The mantra for ctoss-examination should be “less is more”.