Originally from Reflections on International Arbitration - Essays in Honour of Professor George Bermann

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A recurring challenge in international arbitration, and in litigation arising out of international arbitration, is how best to explain to an arbitrator or a judge trained in one legal system how and why the rules of an entirely different legal system require that a dispute be decided in a particular way.  Lawyers representing the parties to such a dispute, who may themselves not be trained in the applicable law, must make tactical decisions about how to put legal arguments to an adjudicator who is not familiar with the legal system, whether that of another country or of international law, out of which those arguments arise.

The lawyers in such a position will generally be looking for the best way to convince the tribunal to see the law their way, while maintaining firm control over how the case as a whole is presented.  The three principal options available to them are: (1) to argue the foreign law themselves; (2) to add a lawyer trained in the relevant law to the legal team representing their client, either to make the argument or to advise the lawyer who will make it; or (3) to submit a report on the foreign law from a lawyer acting as an expert witness.  Each has advantages and drawbacks, which it seems appropriate to explore in an article in honor of George Bermann, who has played many of these roles with distinction, and who has listened as an arbitrator to all three types of presentation.