Closing Arguments - Chapter 19 - The Art of Advocacy in International Arbitration - 2nd Edition
AUDLEY SHEPPARD is a Partner at Clifford Chance where he is an expert in International Commercial Arbitration and International Law, and has many years experience in the resolution of disputes arising out of major infrastructure projects and international contracts, as counsel and arbitrator. He is also Co-chair of the International Bar Association arbitration committee; Visiting professor at the Queen Mary School of Arbitration, London; Member of the ICC Commission on arbitration; and Fellow of the Chartered Institute of Arbitration.
Originally from The Art of Advocacy in International Arbitration - 2nd Edition
What advocate does not imagine himself or herself presenting a closing speech as articulate and as persuasive as that of Portia in the Merchant of Venice. Or that of Atticus Finch in To Kill a Mocking Bird:
“To begin with, this case should never have come to trial. The state has not produced one iota of medical evidence that the crime Tom Robinson is charged with ever took place... It has relied instead upon the testimony of two witnesses, whose evidence has not only been called into serious question on cross-examination, but has been flatly contradicted by the defendant. Now, there is circumstantial evidence to indicate that Mayella Ewel was beaten - savagely, by someone who led exclusively with his left. And Tom Robinson now sits before you having taken the oath with the only good hand he possesses... his RIGHT.”
Unfortunately, the practice of international arbitration is generally much more prosaic and there is limited opportunity for such drama. Nevertheless, oral and written closing arguments are a common feature of international arbitration, although some arbitrators and counsel consider that they are unnecessary or at least overrated. Some arbitrators and counsel would replace closing arguments with a question and answer exercise (oral or written). Some arbitrators (but probably few counsel) would happily close proceedings with the last answer from the last witness or expert at the hearing. This short chapter considers the advantages and disadvantages of these various approaches and the styles of advocacy that may be adopted for each.