Advocacy before International Tribunals in State-to-State Cases - Chapter 12 - The Art of Advocacy in International Arbitration - 2nd Edition
James Crawford is a Whewell Professor of International Law, University of Cambridge. He was a member of the International Law Commission (1992-2001) and Special Rapporteur on State Responsibility. Professor Crawford is a member of the Australian and English bars and has an extensive practice before international courts and tribunals and as an arbitrator.
Originally from The Art of Advocacy in International Arbitration - 2nd Edition
Advocacy is the art of persuasion on behalf of a person or cause. Forensic advocacy is that art or skill performed in the context of legal proceedings. In this chapter I deal exclusively with advocacy in international litigation, that is to say, in proceedings before an international court or arbitral tribunal which is distinct from any specific national legal system. Of course this covers a considerable range of possibilities – from the International Court of Justice to ad hoc tribunals; from inter-state arbitral tribunals to mixed tribunals of various kinds dealing with cases between individuals and states – even, on a certain view, to International Chamber of Commerce arbitration which is disconnected from any particular place where the parties worked and the dispute arose and is thus in some sense internationalized. Given this wide range of possibilities, the level of distinctness or autonomy from national court systems will vary from complete autonomy to relative subordination. Nonetheless, one aspect of each of these tribunals – in terms of advocacy, a key aspect – is that the people who appear to argue are not usually qualified or educated within any single legal system or tradition, nor are they subject to any common set of professional standards. The same is true for those who sit on these tribunals to decide. Lacking a single set of professional standards and rules and a more or less common legal grounding, these people must nonetheless interact, function and eventually reach agreement on what is to be said and decided, and must do so at an acceptable level. It is worth reflecting on some of the issues raised by this situation.