Cross-Cultural Approaches to Advocacy and Arbitral Decision-Making - World Arbitration and Mediation Review, Vol. 9 No. 4
R. Doak Bishop, Partner in King & Spalding’s Houston Office. Co-Chair of the firm’s International Arbitration Practice Group. Mr. Bishop holds a B.A. degree with high honors and departmental distinction from Southern Methodist University (1973), and JD degree with honors from the University of Texas Law School (1976), where he was Research Editor of the Texas Law Review. Over 35 years of legal practice, with a focus on international arbitration and foreign investment disputes. Board Certified in Civil Trial Law by the Texas Board of Legal Specialization. Board of Directors of the AAA; Board of Trustees of the Center for American and International Law; Chair of the ITA; Member of the US delegation to the NAFTA Advisory Committee on Private Commercial Disputes; Advisor to the American Law Institute’s Restatement of the Law Third – The U.S. Law of International Commercial Arbitration; Adjunct Professor, SMU Law School (1999) (International Commercial Arbitration), University of Houston Law School (2002) (Foreign Investment Disputes), University of Texas Law School (2013) (Foreign Investment Disputes), and University of Oklahoma Law School (2011, 2012) (Foreign Investment Disputes); Co-Chair, International Litigation Committee of ABA’s Litigation Section (1998-2000); Chair, Litigation Section of the State Bar of Texas (1998-1999). Mr. Bishop specializes in international arbitration of international energy disputes, investment and infrastructure disputes, construction disputes, and environment issues. He has registered more than 25 ICSID arbitrations and represented investors in about 30 investment arbitrations against foreign governments. Mr. Bishop has been an arbitrator in about 75 arbitrations, including NAFTA and BIT arbitrations under the UNCITRAL Rules. He is editor of The Art of Advocacy in International Arbitration (2nd ed. 2010); co-author with Professor James Crawford and Professor Michael Reisman, Foreign Investment Disputes: Cases, Materials and Commentaries (2005); and editor in Enforcement of Arbitral Awards Against Sovereigns (2009).
Andrés Jana is one of the founders of the firm Bofill Mir & Alvarez Jana Abogados. Andrés Jana, has accumulated vast experience in the areas of his practice as a trial lawyer and arbitrator. Mr. Jana is currently engaged by the Chilean Government as outside counsel in the dispute between Chile and Bolivia that has been submitted to the ICJ in The Hague. Previously he served as outside counsel for the Government of Chile in the maritime dispute between Chile and Peru, decided by the ICJ in 2014. Mr. Jana is a member of the list of arbitrators of ICSID and the list of arbitrators of the Arbitration and Mediation Center of the Santiago Chamber of Commerce (CAM Santiago). His experience includes acting in arbitrations as arbitrator and party counsel under the rules of ICSID, ICC, LCIA, CAM Santiago and in ad hoc arbitrations.
June Junghye Yeum, is a partner in Clyde & Co’s Singapore and New York Offices. Ms. Yeum specializes in international arbitration, business litigation, and negotiations. Prior to joining Clyde & Co, she was a partner of Lee & Ko in Seoul and Baker & McKenzie in New York. She also sits as arbitrator under the rules of the Korea Commercial Arbitration Board and Singapore International Arbitration Centre. Ms. Yeum is recognized and ranked as a “leading individual” and in Band 1 for Dispute Resolution by the Legal 500 and Chambers legal directories. In 2015, Chambers Global notes June is “an exceptional advocate” and Chambers Asia Pacific states that clients and spectators have described her as “a standout practitioner and fierce negotiator.”
David Brynmor Thomas specializes in complex, high value international commercial arbitration and litigation. He has appeared as advocate before a range of tribunals, under the Rules of the ICC, LCIA, ICDR and AAA, SCC, SIAC, the UNCITRAL Arbitration Rules and others, in a range of jurisdictions. Mr. Thomas has significant experience of disputes arising under joint venture and shareholders’ agreements; contractor and sub-contractor chains; EPC and other contracts for the execution of complex construction and engineering works; PSAs, JOAs and similar arrangements; licenses of intellectual property rights; and disputes in professional partnerships. He has dealt with disputes across a wide range of industry sectors, including construction and engineering projects; oil and gas, power generation and other energy related issues; water and desalination plants; waste disposal; transportation, including rail and aviation; rig hire and related disputes; natural resources; and bonds, guarantees, pensions and other financial instruments. Mr. Thomas is comfortable dealing with cases and conducting cross-examination with a highly scientific or technical content, including metallurgy, organic and inorganic chemistry, microbiology, pharmacology and statistical analysis. Mr. Thomas has also advised on matters ranging from Treaty issues; sanctions (in particular under UK and EU sanctions regimes); the drafting and amendment of industry wide dispute resolution provisions; the ability of Governments to sue on behalf of their citizens for alleged mass torts. As well as appearing as counsel, Mr. Thomas has been appointed on more than fifty occasions as an arbitrator in institutional and ad hoc arbitrations, including arbitrations under the Rules of the ICC, the LCIA, the ICDR, and UNCITRAL’S Arbitration Rules. Mr. Thomas is an Honorary Senior Lecturer in the School of International Arbitration, part of the Centre for Commercial Law Studies at Queen Mary University of London. He is Deputy Chair of the Board of Trustees of the Chartered Institute of Arbitrators, having represented the Chartered Institute at the UNCITRAL Working Group on International Commercial Arbitration, participating in the Working Group’s deliberations on amendments to the UNCITRAL Model Law and its recent amendments to the UNCITRAL Arbitration Rules. He is also a member, nominated by the UK Committee, of the ICC’s Commission on Arbitration. Before moving to the Bar, Mr. Thomas was a partner in the Litigation and Arbitration practice at Herbert Smith, where he practiced as a Solicitor Advocate.
Laurent Lévy, Founding Partner, Lévy Kaufmann-Kohler, Geneva. A dual Swiss and Brazilian national, Dr. Lévy studied law in Paris and Geneva. Dr. Lévy is admitted to the Geneva Bar. Prior to co-founding Lévy Kaufmann-Kohler in 2008, he was a founding Partner at Schellenberg Wittmer, Geneva and Zurich. Dr. Lévy is a Vice President of the ICC Arbitration Court, a Council member of the ICC Institute of World Business Law, a member of the Association suisse de l’arbitrage, and the Milan Club of Arbitrators. He is also a former member and Vice-President of the LCIA and a visiting professor at the School of Law at Queen Mary University of London since 2007. Dr. Lévy is an experienced international arbitrator and has handled more than 200 arbitration proceedings, mostly as an arbitrator, under various rules such as ICC, LCIA, or ICSID in various jurisdictions mostly in Europe.
Originally From World Arbitration and Mediation Review (WAMR)
Cross-Cultural Approaches to Advocacy and Arbitral Decision-Making
R. Doak Bishop
Introduction & Moderator
Panelists: Andrés Jana
June Junghye Yeum
David Brynmor Thomas
A panel of advocates and arbitrators from unique legal and cultural traditions will provide a different perspective on subconscious influences by considering the impact of national and legal cultures on advocacy and judging. Panelists will explore areas of convergence between different groups in experiencing and addressing subconscious influences, reflecting the common threads of human cognition, and decision-making. Panelists will also explore areas of divergence, including the impact of culture on perception and norms of legal process.
Doak Bishop: You just heard an excellent discussion of subconscious influences in arbitral decision-making. Our topic in this next session is related but slightly different. It is cross-cultural approaches to arbitral decision-making and the implications of that for advocacy. As we all know in international arbitration, it is not unusual for us, as advocates, to have a tribunal composed of arbitrators from different countries, different cultures, and different legal systems. The question we pose is: whether you in fact have different types of decision-making by arbitrators from different cultures? If so, what are those differences and their implications for the advocate?
In this regard, I would like you to assume that you are an advocate. The tribunal you are presenting before includes an English barrister, a Swiss lawyer, and a US litigator. What approach to advocacy should you take before that tribunal? Would your approach be different if the tribunal consisted of a Chilean professor, a Korean lawyer, and a Canadian law professor? This raises the question of what cultures are we dealing with in international arbitration? Civil law approaches versus common law approaches? US approaches verses UK approaches versus continental European approaches? Is there a Latin American or an Asian culture to arbitral decision-making? Those are the questions that we are posing as part of this session.