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The Art of Advocacy in International Arbitration - 2nd Edition
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Advocacy Before International Tribunals In State-To-State Cases
James Crawford
I. Introduction
Advocacy is the art of persuasion on behalf of a person or cause. Forensic advocacy is that art or skill performed in the context of legal proceedings. In this chapter I deal exclusively with advocacy in international litigation, that is to say, in proceedings before an international court or arbitral tribunal which is distinct from any specific national legal system. Of course this covers a considerable range of possibilities – from the International Court of Justice to ad hoc tribunals; from inter-state arbitral tribunals to mixed tribunals of various kinds dealing with cases between individuals and states – even, on a certain view, to International Chamber of Commerce arbitration which is disconnected from any particular place where the parties worked and the dispute arose and is thus in some sense internationalized. Given this wide range of possibilities, the level of distinctness or autonomy from national court systems will vary from complete autonomy to relative subordination. Nonetheless, one aspect of each of these tribunals – in terms of advocacy, a key aspect – is that the people who appear to argue are not usually qualified or educated within any single legal system or tradition, nor are they subject to any common set of professional standards. The same is true for those who sit on these tribunals to decide. Lacking a single set of professional standards and rules and a more or less common legal grounding, these people must nonetheless interact, function and eventually reach agreement on what is to be said and decided, and must do so at an acceptable level. It is worth reflecting on some of the issues raised by this situation.
Full Table of Contents from "The Art of Advocacy in International Arbitration - 2nd Edition"
Preface
Edward G. Kehoe
About the Authors
Introduction
Doak Bishop
Part I: Advocacy in International Arbitration
Chapter 1
Cultural Differences in Advocacy in International Arbitration
Jan Paulsson
Chapter 2
Differences in the Approach to Witness Evidence Between the Civil and Common Law Traditions
Anthony C. Sinclair
Chapter 3
The Ethics of Advocacy in International Arbitration
Catherine A. Rogers
Part II. Psychological Persuasion
Chapter 4
Psychological Dynamics in International Arbitration Advocacy
Richard C. Waites and James E. Lawrence
Chapter 5
Psychological Factors in the Arbitral Process
Sophie Nappert and Dieter Flader
Part III: Strategy
Chapter 6
Strategic Considerations in Developing an International Arbitration Case
David W. Rivkin
Chapter 7
Advocacy in Practice: The Use of Parallel Proceedings
Emmanuel Gaillard and Philippe Pinsolle
Part IV: Written Advocacy
Chapter 8
Effective Written Advocacy
Guillermo Aguilar Alvarez
Chapter 9
Pleadings, Memorials, and Post-Hearing Briefs
Mark Friedman
Chapter 10
Witness Statements and Expert Reports
Pierre Bienvenu and Martin J. Valasek
Chapter 11
Organization and Presentation of Documents to the Tribunal
Stephen Jagusch
Chapter 12
Advocacy Before International Tribunals in State-to-State Cases
James Crawford
Part V: Oral Advocacy
Chapter 13
Pre-hearing Advocacy in International Arbitration
Lucy F. Reed and Alexander A. Yanos
Chapter 14
Opening Statements
Toby Landau and Doak Bishop
Chapter 15
Direct and Re-Direct Examination of the Witnesses
Nigel Blackaby
Chapter 16
Cross-Examination and Re-Cross in International Arbitration
Edward G. Kehoe
Chapter 17
Ten Questions Not to Ask in Cross-Examination in International Arbitration
Michael Hwang
Chapter 18
Attacking the Credibility of Witnesses and Experts
Guido Santiago Tawil
Chapter 19
Closing Arguments
Audley Sheppard
Part VI: Regional Differences in International Arbitration
Chapter 20
The British Perspective and Practice of Advocacy
Peter Leaver and Henry Forbes Smith
Chapter 21
The Continental European Perspective and Practice of Advocacy
Teresa Giovannini
Chapter 22
The United States Perspective and Practice of Advocacy
Doak Bishop and James H. Carter
Chapter 23
The Asian Perspective and Practice of Advocacy
Christopher Lau
Part VII: Advocacy from the Perspective of the Arbitrator
Chapter 24
Advocacy From the Perspective of the Civil Law Arbitrator
Bernardo M. Cremades and Ignacio Madalena
Chapter 25
Advocacy from the Arbitrator’s Perspective
L. Yves Fortier and Stephen L. Drymer
Chapter 26
Advocacy Regarding Damages in International Arbitration
Craig S. Miles