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Vol 23 No 3 March/April 2018

Book of the Month

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Scamell and Gasztowicz on Land Covenants

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A Counsel's Guide to Examining and Preparing Witnesses in International Arbitration

ISBN13: 9789041166111
Published: October 2015
Publisher: Kluwer Law International
Country of Publication: The Netherlands
Format: Hardback
Price: £128.00

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Mastering the art of witness examination is essential in order to prevail in international arbitration. Lawyers acting as counsel in arbitration know that witness evidence stands out from the plethora of documentary evidence in terms of uniqueness and authenticity.

A vivid, first-hand live account of the events in issue exerts a strong influence on the arbitrators, and a handful of memorable testimonies can outweigh an avalanche of documents.

This book shows how such mastery in the art of witness examination is accomplished. In the majority of today’s international arbitrations, witness examination is modeled around the common law practice of lawyer-led questioning. Arbitration practitioners are therefore more and more expected to take charge of the examination process. Drawing on the principles of the art of advocacy in the common law tradition, this persuasive and highly engaging book sets out, in great detail, the practical techniques applicable to the use of witnesses in arbitration. The author describes such elements of witness evidence as the following:-

  • differences between common law and civil law systems in regard to taking witness evidence;
  • techniques for interviewing witnesses and preparing witness statements;
  • question techniques for direct examination and cross-examination;
  • methods for developing forceful cross-examinations;
  • the boundaries of witness preparation;
  • preparing the witness for direct examination and cross-examination;
  • psychological risks of witness preparation;
  • guidelines for witnesses during direct examination and cross-examination.
All topics are illustrated by way of practical examples, which also serve as a pool of useful model phrases and expressions. Practical appendices include ready-to-adapt sample documents, such as a procedural questionnaire, procedural rules and a witness statement.

The book will be particularly useful for arbitration practitioners who have had little exposure to the adversarial approach to evidence and who wish to learn the ropes of lawyer-led witness examination and preparation. However, any practitioner stands to gain from applying the book’s practical guidance and the author’s wise counsel.

Arbitration and Dispute Resolution
CHAPTER 1 The Importance of Witnesses: Where the Documents End .
CHAPTER 2 Differences between Common Law and Civil Law Systems in Regard to Witness Examination .
CHAPTER 3 Convergence of the Two Systems.
CHAPTER 4 The Sources of the Rules of Taking of Evidence in Arbitration.
CHAPTER 5 Early Decisions: Which Method of Witness Examination Is the Best (for the Specific Case)?.
CHAPTER 6 Direct Examination.
CHAPTER 7 Witness Statements.
CHAPTER 8 Cross-Examination.
CHAPTER 9 Re-examination.
CHAPTER 10 Witness Conferencing.
CHAPTER 11 Organizing the Hearing.
CHAPTER 12 Preparing the Witness.

APPENDIX I Sample Procedural Questionnaire.
APPENDIX II Sample Procedural Rules.
APPENDIX III Sample Witness Statement.
APPENDIX IV Sample Hearing Schedule.