PDF of Title Page and T.O.C.

Preface
Edward G. Kehoe

About the Authors

Introduction
Doak Bishop

Part I: Advocacy in International Arbitration

Chapter 1
Cultural Differences in Advocacy in International Arbitration
Jan Paulsson

Chapter 2
Differences in the Approach to Witness Evidence Between the Civil and Common Law Traditions
Anthony C. Sinclair

Chapter 3
The Ethics of Advocacy in International Arbitration
Catherine A. Rogers
 

Part II. Psychological Persuasion

Chapter 4
Psychological Dynamics in International Arbitration Advocacy
Richard C. Waites and James E. Lawrence

Chapter 5
Psychological Factors in the Arbitral Process
Sophie Nappert and Dieter Flader
 

Part III: Strategy

Chapter 6
Strategic Considerations in Developing an International Arbitration Case
David W. Rivkin

Chapter 7
Advocacy in Practice: The Use of Parallel Proceedings
Emmanuel Gaillard and Philippe Pinsolle
 

Part IV: Written Advocacy

Chapter 8
Effective Written Advocacy
Guillermo Aguilar Alvarez

Chapter 9
Pleadings, Memorials, and Post-Hearing Briefs
Mark Friedman

Chapter 10
Witness Statements and Expert Reports
Pierre Bienvenu and Martin J. Valasek

Chapter 11
Organization and Presentation of Documents to the Tribunal
Stephen Jagusch

Chapter 12
Advocacy Before International Tribunals in State-to-State Cases
James Crawford


Part V: Oral Advocacy

Chapter 13
Pre-hearing Advocacy in International Arbitration
Lucy F. Reed and Alexander A. Yanos

Chapter 14
Opening Statements
Toby Landau and Doak Bishop

Chapter 15
Direct and Re-Direct Examination of the Witnesses
Nigel Blackaby

Chapter 16
Cross-Examination and Re-Cross in International Arbitration
Edward G. Kehoe

Chapter 17
Ten Questions Not to Ask in Cross-Examination in International Arbitration
Michael Hwang

Chapter 18
Attacking the Credibility of Witnesses and Experts
Guido Santiago Tawil

Chapter 19
Closing Arguments
Audley Sheppard


Part VI: Regional Differences in International Arbitration

Chapter 20
The British Perspective and Practice of Advocacy
Peter Leaver and Henry Forbes Smith

Chapter 21
The Continental European Perspective and Practice of Advocacy
Teresa Giovannini

Chapter 22
The United States Perspective and Practice of Advocacy
Doak Bishop and James H. Carter

Chapter 23
The Asian Perspective and Practice of Advocacy
Christopher Lau
 

Part VII: Advocacy from the Perspective of the Arbitrator

Chapter 24
Advocacy From the Perspective of the Civil Law Arbitrator
Bernardo M. Cremades and Ignacio Madalena

Chapter 25
Advocacy from the Arbitrator’s Perspective
L. Yves Fortier and Stephen L. Drymer

Chapter 26
Advocacy Regarding Damages in International Arbitration
Craig S. Miles

 

About the Editors:
R. Doak Bishop is a Partner and Head of King & Spalding’s International Arbitration Practice group and is based in the firm’s Houston office. Mr. Bishop has over 37 years’ experience focusing on international arbitration and litigation of oil and gas, energy, construction, and environmental disputes. He has developed a world-wide reputation for his experience in international arbitration, serving both as an arbitrator and counsel in large business disputes. Mr. Bishop presently serves as Chairman of the Institute of Transnational Arbitration (2012-2015) and on the Board of Directors of the American Arbitration Association. He also serves as a member of the U.S. delegation to the NAFTA Advisory Committee on Private Commercial Disputes.

Edward G. Kehoe is the Head of King & Spalding's New York Business Litigation Department, and he co-heads the Firm's International Arbitration Practice with Doak Bishop. Mr. Kehoe received his bachelor's degree in accounting at Lehigh University, and he graduated cum laude from St. John's Law School where he was a member of the St. John's Law Review.  He has more than 19 years experience in international business arbitration and litigation, with a focus on energy, professional services liability, construction, pharma, and insurance.  He is recognized in Chambers USA for international arbitration, where it states that he "drew spontaneous applause from esteemed sources for his sophistication and success in handling a number of sizable matters". According to The Legal 500 publication, clients and peers comment that he is "held in very high regard" for his international arbitration skills.  He was selected by his peers as a New York Super Lawyer, and honored in the Corporate Counsel Magazine as one of the "Nation's Top Litigators" in business litigation.  He is a member of the Panel of Neutrals for the AAA International Centre for Dispute Resolution.  Mr. Kehoe also is a frequent writer and lecturer on international arbitration issues; he is a member of the Board of Editors of Global Arbitration Review, and the International Bar Association; and he sits on the Advisory Board of the Institute for Transnational Arbitration.

About the Contributors:

GUILLERMO AGUILAR-ALVAREZ is a Partner and Head of the International Arbitration Group at Weil, Gotshal & Manges. He concentrates his practice in international commercial and investment arbitration. He handles arbitration procedures under the rules of the International Court of Arbitration of the ICC, the AAA, the London Court of International Arbitration, ICSID, the Arbitration Institute of the Stockholm Chamber of Commerce, the Netherlands Arbitration Institute, the Inter American Commercial Arbitration Commission and UNCITRAL.

PIERRE BIENVENU, a Senior Partner of Ogilvy Renault LLP, practices international arbitration, corporate and commercial litigation and constitutional law. He has acted as counsel in many international arbitrations, both ad hoc and institutional, in relation to disputes in the fields of telecommunications, aeronautics, international distribution and joint ventures, mergers and acquisitions, and foreign investments.

NIGEL BLACKABY is a Partner in Freshfields Bruckhaus Deringer's international arbitration group and is head of both the US and Latin America international arbitration groups.  He has acted as counsel and arbitrator in over 80 ad hoc and institutional arbitrations, both commercial and investor-state under bilateral investment treaties, with a focus on Latin America.

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.

BERNARDO M. CREMADES is a Senior Partner of the Spanish law firm B. Cremades y Asociados and Catedrático at the university in Madrid. His practice focuses on international commercial arbitration and transnational investment disputes. He has acted as counsel, party-appointed arbitrator and president of arbitral tribunals in more than 300 arbitrations.

STEPHEN L. DRYMER is a graduate of Yale University and the Faculty of Law of McGill University where he earned degrees in Common and Civil Law, Stephen is Co-Chair of Ogilvy Renault LLP's International Arbitration team.  His practice focuses on domestic and international arbitration and alternative dispute resolution.

DIETER FLADER is a Professor at the Free University of Berlin and at the University of Warsaw, and lectures in communication analysis, linguistics, sociology and psychoanalysis. He is director of the seminar "How to Solve Intercultural Conflicts and Improve Intercultural Management Skills” in Warsaw (in cooperation with the Polish company K2liders and the German Chamber of Commerce). He is communication consultant for international companies.

L. YVES FORTIER is Chairman Emeritus of the firm and is recognized as one of the top arbitrators in the world. Mr. Fortier has served as Chairman or party-appointed arbitrator on more than 100 arbitral tribunals, either ad hoc or constituted by different arbitral institutions, including the International Court of Arbitration of the International Chamber of Commerce (Paris), the London Court of International Arbitration (LCIA), the Hong Kong International Arbitration Court (HKIAC), the Singapore International Arbitration Centre (SIAC), the China International Economic and Trade Arbitration Commission (CITAC), the American Arbitration Association, the Court of Arbitration for Sport, the Zurich Chamber of Commerce, the International Centre for Settlement of Investment Disputes (ICSID), the Canadian Commercial Arbitration Centre, the British Columbia International Commercial Arbitration Centre and the ADR Chambers International Panel.

MARK FRIEDMAN is a Litigation Partner of Debevois & Plimpton based in New York and London. His practice focuses on international arbitration and litigation. He represents clients in commercial and investment treaty cases. He also regularly advises clients in connection with internal investigations and US law matters, including matters involving the Foreign Corrupt Practices Act and similar legislation and regulations.

EMMANUEL GAILLARD has represented corporations, States and State-owned entities in international arbitration matters for over 25 years. He has also acted as sole arbitrator, party-appointed arbitrator or chairman under most international arbitration rules, and is frequently called upon to appear as expert witness on arbitration law issues in international arbitration proceedings or enforcement actions before domestic courts.

TERESA GIOVANNINI is a Partner and founding member at Lalive in Geneva. She specializes in International Litigation and Arbitration, and Art Law. She has acted as counsel, Sole Arbitrator, Co-Arbitrator and Chair in more than 130 international commercial disputes, under the rules of AAA/ICDR, CARICI, ICC, ICSID, LCIA, SCC, the Milan and Venice Chambers of Commerce, Swiss Chambers of Commerce and ad hoc (including UNCITRAL) under civil and common law.

MICHAEL HWANG won a scholarship to Oxford University and read law at undergraduate and post graduate levels. He taught law at the University of Sydney before commencing private practice in 1968 at Allen & Gledhill (now Singapore's largest law firm) where he practiced for over 30 years, except for 1991 to 1992 when he served as a Judicial Commissioner (Fixed Term Judge) of the Supreme Court.

STEPHEN JAGUSCH is a Partner of Allen & Overy, LLP specializing in international commercial and investment treaty arbitration having acted as adviser and advocate in dozens of ad hoc and institutional international arbitrations, conducted in many countries over the world, and subject to a wide variety of governing substantive and procedural laws.

TOBY LANDAU  is a Barrister practising at Essex Court Chambers in London, and also a member of the New York Bar. He specialises in international arbitration both as counsel and arbitrator, and has extensive experience in this field. He has served as Arbitrator in over 50 major international cases in many countries, including ICSID (e.g. Biwater v Tanzania; Impregilo v Pakistan; Hamester v Ghana; GEA v Ukraine; Cambodia Power Cambodia Power Company v Kingdom of Cambodia), ICC, SCC, LCIA, and numerous other institutional and ad hoc arbitrations. As counsel, he has appeared in over 260 major international arbitrations, as well as many of the leading arbitration cases before the English courts.

PETER LEAVER was called to the Bar by Lincoln's Inn in July 1967, and was appointed Queen's Counsel in April 1987. He has practised at the Commercial Bar in England, and has also acted in commercial cases in other jurisdictions. In the last few years he has spent most of his time sitting as an arbitrator in international commercial cases under the rules of many institutions, including the ICC, the LCIA and SIAC. In addition, he is a member of ACICA and the Chartered Institute of Arbitrators, and was for many years an arbitrator at the Court of Arbitration for Sport. He is currently the Chairman of the Board of Directors of the London Court of International Arbitration.

IGNACIO MADALENA is an Attorney with B. Cremades y Asociados in Madrid. His practice is entirely focused on arbitration. He acts as adviser and advocate in institutional and ad hoc arbitrations under all the major arbitration rules, including proceedings between States and investors under the Washington Convention on the Settlement of Investment Disputes.

CRAIG MILES is a Partner in King & Spalding's International Arbitration Group, residing in the Houston office. His practice focuses on representing foreign investors in disputes with host governments, primarily before the World Bank's International Centre for Settlement of Investment Disputes (ICSID), and private parties in commercial disputes before the International Chamber of Commerce (ICC), the American Arbitration Association (AAA), and other domestic and international arbitral institutions.

SOPHIE NAPPERT is an Arbitrator in independent practice, based in London.  Before becoming a full-time arbitrator, she was Head of International Arbitration at a global law firm. Sophie is trained and has practiced in both civil law and common law jurisdictions. Sophie is ranked in Global Arbitration Review's Top 30 List of Female Arbitrators Worldwide and is listed in the International Who's Who of Commercial Arbitration.

JAN PAULSSON is Co-Head of Freshfields Bruckhaus Deringer's International Arbitration and Public International Law groups. He holds degrees from Harvard, Yale and the University of Paris. He has acted as counsel or arbitrator in hundreds of international arbitrations. He has conducted cases under the ICC, UNCITRAL, ICSID, LCIA, and AAA Rules, as well as before the International Court of Justice.

PHILIPPE PINSOLLE is a Partner at Shearman & Sterling LLP in Paris, and specializes in international arbitration. He has been involved, as counsel or arbitrator, in more than a hundred and twenty international arbitrations, both institutional (ICC, ICSID, LCIA, SCC, AFA, Swiss Rules, etc.) and ad hoc, concerning such activities as investment, oil and gas, energy, telecom or defense industry.  

LUCY REED is Co-Head of the Global International Arbitration group of Freshfields Bruckhaus Deringer LLP.  Lucy acts as advocate for private and public clients and sits as arbitrator in international arbitrations under the major institutional and ad hoc rules.

DAVID W. RIVKIN, is a Litigation Partner in Debevoise & Plimpton's New York and London offices, has broad experience in the areas of international litigation and arbitration.  He has handled international arbitrations throughout the world and before virtually every major arbitration institution, including the ICC, AAA, LCIA, ICSID, IACAC and the Stockholm Chamber of Commerce.  

CATHERINE ROGERS is a law professor who teaches a range of comparative and international law subjects at two schools, the Paul M. Hebert Law Center, Louisiana State University, in Baton Rouge, Louisiana, and Istituto Diritto Comparato (IDC), Università Commerciale Luigi Bocconi, in Milan, Italy. The primary focus of her scholarship is international arbitration, with a special emphasis on the development of international standards of professional conduct for attorneys and arbitrators, as well as more generally the nature of the public/private divide in international dispute resolution systems.

ANTHONY SINCLAIR is a member of the International Arbitration Group of Allen & Overy LLP.  He has been counsel in both commercial (administered and ad hoc) and investor-State arbitrations including numerous bilateral investment treaty (BIT) and Energy Charter Treaty (ECT) arbitrations under ICSID and UNCITRAL arbitration rules, as well as twice in ICSID annulment proceedings.  Anthony is co-author of the second edition of The ICSID Convention: A Commentary (Cambridge University Press, 2009) with Christoph Schreuer, Loretta Malintoppi and August Reinisch.

HENRY FORBES SMITH is a Barrister practising international commercial litigation and arbitration at One Essex Court in London. He is a member of the bars of England, New York and New Zealand. He has a LLB (Hons) from the University of Otago, a BCL from the University of Oxford, where he was a Vinerian Scholar and a Domus & Harmsworth Senior Scholar, and a PhD in the conflict of laws from the University of Cambridge, where he was a WM Tapp Student. Before joining the English bar, he practised U.S. law with Davis Polk & Wardwell. He originally trained as a New Zealand lawyer with Chapman Tripp.

GUIDO SANTIAGO TAWIL is a Chair Professor of Administrative Law at the University of Buenos Aires and a Senior Partner at M. & M. Bomchil, in Buenos Aires where he heads the international arbitration and regulatory practices of the firm. Dr. Tawil is the Co Chair of the IBA's Arbitration Committee, a Council member of the International Council for Commercial Arbitration (ICCA), a Court member of the London Court of International Arbitration (LCIA), the ICC's Latin American Arbitration Group, ITA´s Academic Council, the Administrative Law Institute of the National Law Academy, among other institutions.

MARTIN VALASEK, a Partner of Ogilvy Renault LLP, is a leading practitioner in the area of international arbitration. He regularly acts as lead counsel in arbitrations to resolve investor-State and commercial contract disputes. He also practises corporate and commercial litigation, with a particular focus on cross-border disputes.  He has acted in many international arbitrations, covering a wide range of legal systems and industries, including aerospace, airport development, banking, construction, mining, energy, environmental remediation, pharmaceuticals, IT outsourcing, lotteries and steel manufacturing.

Praise for Art of Advocacy in International Arbitration:

"This compendium of articles by a variety of arbitration practitioners from around the world should be of interest to all those wishing to improve their advocacy in international arbitration. The broad array of contributors, and the similarly wide-ranging insights provided, ensure that there will be something for all ... This book contains a useful collection of views from a selection of diverse contributors, each of whom have their own unique perspective to add."
-TDM (Transnational Dispute Management) Reviewed by Philip Clifford and Oliver Browne

"This volume of essays contains many keys to the perceptions one might expect of arbitrators from leading legal traditions. From the advocate's perspective, a foreign arbitrator may seem to be arbitrarily dismissive of some procedural niceties and astonishingly mesmerised by others; but assumptions to that effect are at the advocate's peril. There is always a reason for the arbitrators' attitude, and that reason will invariably be a function of their cultural baggage. Mr. Bishop has brought together a cosmopolitan group of distinguished practition ers - of which he is himself a full-fledged member - who in these pages open quite a few fascinating trunks and valises. Above all, these pages are filled not with abstractions, but with a myriad of concrete suggestions which invariably merit consideration."
- Jan Paulsson, Freshfields Bruckhaus Deringer, Head of the firm's International Arbitration Group. He has also been involved in 17 ICSID cases. Mr. Paulsson is a Vice-President of the London Court of International Arbitration and a Judge of the World Bank Administrative Tribunal.

"This excellent book, which is written by some of the leading practitioners in their field, deals with the finer points of advocacy in international arbitration and litigation. This book provides the reader with a blueprint for constructing their styles of advocacy and helps to navigate through the different complex rules and procedures that make up this hybrid system of dispute resolution in the international arena. This book is essential for all those involved in international arbitration and litigation. The techniques of preparing for written and oral advocacy from different cultures discussed therein should stand the advocate in good stead with any tribunal."
- Christopher To, Former Secretary General, HKIAC; Asian Dispute Review

"The contributing authors are experienced arbitration practitioners from different legal and cultural traditions - the result is a rich variety of perspectives on advocacy skills in international arbitration. . . . The main benefit of this guide is that it is practice-oriented. The reader is offered concrete advice on how to develop effective lawyering skills in all aspects of the arbitral process, from the choice of the tribunal to the preparation and presentation of a case before it. . . . More importantly, the reader can gain a better understanding of the diverse legal and cultural traditions that underlie advocacy in international arbitration, which will in turn help the advocate adapt his or her advocacy style to that which best suits his or her audience."
- Sarah Wazen, Hanotiau & Van Den Berg, Brussels

"The book, which contains fifteen essays from highly experienced practitioners from various jurisdictions, will be of particular use to those who wish to extend their knowledge of different forums and different legal traditions when it comes to advocacy, both written and oral. It contains extensive concrete and useful recommendations on how to present a case - including conducts to avoid - in international arbitration."
- ASA Bulletin