Cross-examination at arbitration cases about construction projects

According to the globalization of the World, like many sectors, in construction sector commercial boundaries are fading away. Today, mostly all around the World, foreign capital and local work power are cooperating to for making constructions. In construction projects, parties are protecting their rights by signing corresponding agreements. Even though, generally while the work is done, unforeseen disputes are occurring. In dispute resolution, litigation has many problems like, getting the verdict in long time, paying high costs, judge's inadequate technical knowledge, difficulty of deciding law at disputes with foreign parties, etc. Arbitration, a form of alternative dispute resolution (ADR), is used very common in response to these problems. In the international area, arbitration is used very common. However, in Turkish construction sector, it has been becoming widespread very recently. Proposed law about establishing an arbitration center in İstanbul is approved at 2015. In Turkish construction sector, especially if all of the parties are Turks, litigation is preferred more often. This attitude overloads courts workload and therefore, cases can be concluded in long terms. In addition to this, constructors loses not only money and time; but also their reputation while waiting for the verdicts of their cases. Even attorneys have some, most of engineers and architects doesn't have enough information about arbitration. As a result, constructors don't have tendency on taking their dispute to an arbitration. Increasing of arbitration knowledge and experience of engineers, architects and constructors who are working at construction sector in Turkey, will increase preference of arbitration in solving disputes of arbitration. Technical experts, such as engineers and architects don't have enough knowledge and experience about any trial processes of arbitration, as well. However, these experts prepare their reports punctiliously, in presenting phase, they have difficulties as a result of their lack of knowledge and experience about trials and examinations. Experts, who are examining by wise attorneys, may lose their self-confidence and temper during their examination. As a result of this, by their speeches or behaviors, they can put themselves in a situation which will make the arbitration tribunal suspect about their report. In arbitration, testimonies of witnesses or reports of the experts are the foundation of the verdict. Because of that, determination of truthfulness and reality of testimonies and reports are essential for an arbitration case. Since it is an essential type of examination, cross-examination contributes to this determination to a large extend. Cross-examination is an examination of a witness or expert witness of the other party in front of the tribunal. Cross-examination is asking clear and brief questions in fast and planned order, on the purpose of clarifying a subject, uncovering the contradictions, detecting the false statement/report, and testing trustworthiness of witnesses or expert witnesses. The purpose of this thesis is to analyze trial and cross examination processes of arbitration about construction cases. To achieve the purpose of this thesis, with the aim of determination knowledge and experience levels of experts who played a role at arbitration, a field research is done in international area. The reason of cross-examining of witness and expert witnesses who played a role at arbitration cases about construction is aimed to be determined. The techniques that representative of parties used during a cross-examination are aimed to be determined, as well. To attain these objectives, after a literature research, a field study is made on a sample group consists of Turk and foreign technical experts and legal councils who have experience about construction based arbitration cases. Data is considered together and individually by the perspectives of Turk experts and foreigners. In the scope of the field study, questions about the education level, professional knowledge and experience levels about arbitration and cross-examination were asked. The field study has detected that education levels, professional experiences, knowledge & experience about arbitration and cross-examination of foreigners are higher than Turk experts. The field study determined that the most common reason for cross-examination is to detect the false statement/report. To clarify a subject, to catch the forgotten points and to uncover the contradictions are the other common reasons for cross examination. According to the results of the field study, in order to manage a successful cross examination, a representative of Party must do the items that are listed below: • highlight an error or confusion, • listen to the answers carefully • ask simple questions by using simple and clear words • get arbitration tribunal involved • narrow the gap of disagreement • use visuals for clarity • display complete respect • show that you understand the Adressee • maintain the control • expose bias • end on a high note • make the Adressee say yes (by asking simple questions that you are sure of yessing) • do not let experts confused by using technical terms According to the results of field study, for doing a successful cross examination, representative of Party's must avoid to do the items that are listed below: • getting angry or quarrel with the Adressee • strengthening the evidences that are against • interfering or interrupting the Addresse unless necessary • asking pointless, unnecessary questions • Nitpicking • using ambiguous questions • having a fade away ending • losing time by writing down the responds According to the results of field study, to survive in cross examination, experts must pay attention to do the items that are listed below: • He should convince arbitral tribunal to his knowledge of the subject. • He should convince arbitral tribunal to his objectivity. • He shouldn't lie in any subject even they are unimportant. • He shouldn't hesitate repeating Cross Examınar's question; he should gain a clear understanding. • He should be aware of giving different answer to trick questions that have the same meaning but in different structure. This research will be a source for cross-examiners, cross-examined experts or academicians.