The United States Perspective and Practice of Advocacy - Chapter 22 - 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.

James H. Carter is a Partner in the New York office of Sullivan & Cromwell LLP and co-coordinator of its International Arbitration practice, in which he is active as counsel and as an arbitrator. He is a graduate of Yale College and Yale Law School, attended Cambridge University as a Fulbright Scholar and served as law clerk to Hon. Robert P. Anderson of the U.S. Court of Appeals for the Second Circuit.

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

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I. Introduction

For better and for worse, U.S.-trained lawyers' practice of and perspective on advocacy in international arbitration proceedings is influenced heavily by U.S. litigation experience. This advocacy training emphasizes delving deeply into the facts of a dispute and using a variety of discovery and motion procedures to shape an adversary proceeding prior to the trial or merits hearing. But this training and experience teaches advocates to leave no stone unturned in the search for the facts and cultivates what some see as an "overstated" style, in which counsel argue their case as strongly and confidently as possible, leaving little or nothing to be inferred. This contrasts sharply with the "understated" British style, in which it is often left to the judge to draw the conclusions.

Although the written brief plays an important role in American judicial advocacy, oral advocacy is at the heart of the American style of advocacy. The reason may be found in the emphasis in U.S. legal education and experience on advocacy intended for a jury system. The jury system was introduced into the United States by Great Britain when the original States of the United States were colonies. Following independence in 1776, the United States maintained and even expanded the jury system. When the jury system was in its infancy in England, many jurors (even aristocrats in the early days) could not read or write, so all evidence was introduced to the jury orally.1 All documents, for example, were read to the jury. This tradition of a largely oral trial has continued in the United States to the present day, and rules of evidence and procedure are shaped to protect lay jurors from improprer exposure to categories of information that are considered unreliable or unduly prejudicial.