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

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I.    Introduction

In the context of international arbitration, it could well be argued that written advocacy is advanced primarily through the written submissions containing argument, namely the submissions that identify the relevant legal principles, explain why those particular principles are applicable in the circumstances, and apply those principles to the facts that have been established (or are to be established) through the evidentiary phase of the arbitration. Mark Friedman addressed this type – the archetype – of written advocavy in an earlier chapter of this book. Understandably, that is likely the most common perception in relation to written advocacy in an international arbitration.  A written submission containing argument – a brief or memorial – is certainly the vehicle through which a lawyer can most visibly and directly practice his or her written advocacy. After all, in the written sphere, what could be more characteristic of the advocate than the vision of the skilled and experienced practitioner pulling together all of the strands of the case – law and fact – into a compelling brief that is well-organized, logical and going to the essence of the issues at the heart of the dispute?  To that extent, pre- or post- hearing briefs are to written advocacy what the opening statement or closing argument are to oral advocacy.

As Guillermo Aguilar Alvarez aptly demonstrates in his introductory chapter on written advocacy, however, the brief is only one of several components that make a party’s written case convincing. If the brief is the recipe that guides the Tribunal to the conclusions that are sought by the advocate, its success depends on the ingredients, namely law and fact. The advocate finds the law as it exists, be it in the legal codes or statutes promulgated by a jurisdiction's legislative body in the judgments written by its judges and magistrates, and sometimes even in general principles. In this respect, not all legal systems are equal. They also differ in the clarity and quality of expression of their legislation or court judgments. While in most commercial or contractual contexts parties should exercise their prerogative to choose an applicable law well before a dispute arises, based, in part, on the quality of that legal system, the advocate dealing with a case can rarely influence the choice of law, still less the clarity of the applicable legal prinicples and rules as expressed in the primary source material.