Opening Statements - Chapter 14 - The Art of Advocacy in International Arbitration - 2nd Edition

Doak Bishop is a Litigation Partner and a member of King & Spalding’s Latin American Practice Group. Mr. Bishop has over 27 years experience focusing on international arbitration and litigation of oil and gas, energy, construction, and environmental disputes. He has developed a national reputation for his experience in international arbitration, serving both as an arbitrator and counsel in large business disputes. Mr. Bishop is Board Certified in Civil Trial Law by the Texas Board of Legal Specialization. Mr. Bishop presently serves as Vice Chairman of the Institute of Transnational Arbitration (1990-present) and as a member of the U.S. delegation to the NAFTA Advisory Committee on Private Commercial Disputes. He has previously served as Chairman of the Litigation Section of the State Bar of Texas and Co-Chair of the American Bar Association International Litigation Committee. His experience in litigation and arbitration includes: international litigation and arbitration; oil & gas and energy disputes; construction disputes; environmental disputes; high technology disputes. Mr. Bishop received his B.A. degree with high honors and departmental distinction from Southern Methodist University in 1973, and his J.D. degree with honors from The University of Texas in 1976 where he served as Research Editor of the Texas Law Review.

Toby Landau is a Barrister practising at Essex Court Chambers in London, and also a member of the New York Bar. He specialises in international arbitration both as counsel and arbitrator, and has extensive experience in this field. He has served as Arbitrator in over 50 major international cases in many countries, including ICSID (e.g. Biwater v Tanzania; Impregilo v Pakistan; Hamester v Ghana; GEA v Ukraine; Cambodia Power Cambodia Power Company v Kingdom of Cambodia), ICC, SCC, LCIA, and numerous other institutional and ad hoc arbitrations. As counsel, he has appeared in over 260 major international arbitrations, as well as many of the leading arbitration cases before the English courts.

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

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I. Introduction: The Significance and Function of the Opening Statement

“In my beginning is my end.”
-T. S. Eliot, Four Quartets. East Coker

The practice of international arbitration has evolved somewhat organically, and in its current form now embodies key elements of several different legal traditions. In particular, civil law approaches to written advocacy (e.g. the use of lengthy and all-inclusive written memorials) are often combined with Anglo-American approaches to oral advocacy (e.g. substantial hearings which include detailed oral submissions). Oral opening statements have become the norm, yet there is no fixed understanding as to their precise function. Some regard opening statements as relatively unimportant: a formal exercise in introducing a case that would already have been articulated in written briefs, and which the Tribunal would already have read and fully understood. Some regard them as an important opportunity to advance the debate between the parties beyond the written memorials; to distill the issues in the case; and to present a structure to the Tribunal in which witness and expert testimony might be placed. Others regard opening statements as more important than written briefs and oral testimony, allowing each party to educate and persuade the Tribunal, on the working assumption that written memorials may not have been read fully, or understood fully, and that witnesses and experts may not be believed.

In practice, the use to be made of the opening statement in any given case tends to reflect the particular background and experience of the counsel and arbitral tribunal concerned. For example, in US and English court proceedings, the customary role of the opening statement is to tell the judge / jury what the trial lawyer expects to prove during the course of the trial, and many US and English practitioners automatically assume that the same will apply in an international arbitration. But this assumption is without any foundation. For example, in US / English court proceedings, the parties may not have produced or deployed any evidence at the time of the opening statement, whereas in an international arbitration, the parties would typically already have submitted lengthy memorials, supporting documents, witness statements, and expert reports to the tribunal, and would have already “made” their basic cases in advance of the hearing, so the opening statement would serve no useful purpose if it is merely an introduction to the case.