Originally from The Art of Advocacy in International Arbitration - 2nd Edition

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I. Introduction

Referring to a "Continental European Perspective and Practice of Advocacy" in international arbitration might seem somewhat odd and old fashioned in light of the number of tools which currently exist providing for a harmonized approach to arbitration practice (e.g. UNCITRAL Model Law, IBA Rules on the Taking of Evidence in International Commercial Arbitration or the IBA Guidelines on Conflicts of Interest in International Arbitration, ICDR Guidelines for Arbitrators concerning Exchange of Information). Nonetheless, cultural differences remain embedded within these harmonized rules, stemming from those practices generally accepted and recognized in certain parts of the world as compared with others; and notably from the legal background, culture, values and languages of arbitrators and counsel.

The purpose of this chapter, dedicated to the peculiarities of Continental European Advocacy, is not simply to recall that these differences exist, but rather to provide counsel with tools to understand the background and expectations of those clients, opposing counsel, and arbitrators based or trained in continental Europe. This will enable counsel to maximize the flexibility that characterizes international arbitration, and prompt "to make the process work" with "some baseline concept of "how do things work" for these diverse participants". In addition, this study will assist counsel to exercise their discretion to organize arbitral procedures, by picking and choosing those tools that appear better sited to each given case. This approach is feasible under most national laws and arbitration rules, which leave wide powers to parties to tailor their arbitral procedure.