The Future Practice of Law
Edited by William van Caenegem and Mary Hiscock
Chapter 14: Does cross-examination translate?
Many international commercial arbitrations are conducted according to procedural rules similar to those applied in common law jurisdictions, including the use of disclosure and cross-examination. Some civilian lawyers argue that those procedural steps cause delay and that the use of civilian procedure would increase the efficiency of the arbitral process. Most of the hybrid forms of procedure devised for use in such arbitrations assume, however, that disclosure and cross-examination will occur. Does this place lawyers from civil law jurisdictions at a disadvantage? In 2000 the French law changed to permit cross-examination in criminal cases. In civil cases the questioning is still performed by the judge who may ask questions suggested by the parties. French lawyers who practise in commercial arbitration maintain that they have developed skills in cross-examination, can teach other French lawyers the necessary techniques, and forecast that more widespread use of cross-examination will affect the administration of French justice significantly. This chapter considers the likelihood of this occurring and the significance of the topic for the international harmonisation of procedural rules given Paris’s importance as the base for the International Chamber of Commerce's (ICC) International Court of Arbitration. Maritime law is one of the key areas of practice where internationalisation, curriculum and the future practice of law coalesce.
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