One of the most powerful and dramatic interventions in the arsenal of any trial advocate is the devastating statement “no questions” in relation to the other side’s witness or expert. If deployed at the right moment it can inflict more damage upon the opponent's case than many hours of advocacy. It can convey to the court that the evidence of the witness or expert is either of no forensic value to the party which called him/her, or even more startling, that such evidence is of assistance to the opponent. The “Perry Mason” moment can leave the opposing counsel perplexed and worried. However, if deployed at the wrong moment, it can be an unmitigated disaster leaving testimony unchallenged and potentially closing out any complaints about that evidence for all time to come. In other words to adopt the lines of the Kenny Rogers song: You got to know when to hold ’em, know when to fold ’em. Know when to walk away, and know when to run.
In international arbitration, on the other hand, the benefit of such tactics can similarly be achieved, but the nature of the process leads to it being achieved rather differently. Instead of a jury or judge or even a television audience, the Tribunal is composed of experienced international arbitrators not usually susceptible to moments of drama in the course of the hearing. International Tribunals do not react well to surprises in the procedural conduct of a hearing, nor indeed is international arbitration (as widely practiced) structurally amendable to ambush. The procedure is clearly defined in advance with the well-intentioned aim of keeping the proceedings as short as possible, keeping the costs to a minimum and avoiding delay simultaneously ensuring a fair hearing to all parties.