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The Guide to Advocacy - Second Edition

Introduction

We welcome you to this second edition of The GAR Guide to Advocacy. As editors, we were pleased and perhaps even a little surprised by the overwhelmingly positive reception of the first edition. Global Arbitration Review’s staff has kept us apprised of the volume’s sales and downloads, both of which exceeded expectations. For this encouraging response, we must give credit to the authors of the first edition’s chapters, the arbitrators who contributed ‘text boxes’ and Global Arbitration Review’s dedicated editorial staff, who made the book a runaway success.

For the second edition, we have not sought to alter a successful formula. Rather, we have chosen only to augment the first edition. We are fortunate to therefore welcome a number of new contributors to this second edition, while also having our previous authors provide updates to their chapters, where appropriate. Additionally, this new edition benefits greatly from the contributions of several new senior arbitrators providing the well-received ‘text boxes’, including Juliet Blanch and Hilary Heilbron QC.

The object of the volume remains the same, however. That is to provide guidance on how an advocate can persuade arbitrators to rule in her or his favour. While the first edition covers the basics of doing just that through chapters on, inter alia, written submissions, cross-examination, opening submissions and closing arguments, this second edition adds chapters on facets of the advocacy process previously undealt with, as well as the art of persuasion from different perspectives.

Specifically, Dr Colin Ong QC has honoured us with a chapter previously unaddressed in the first edition – the process of strategising and preparing to be an effective advocate. The importance of this chapter, which we find exceptional, is underscored by the old aphorism assigned to Benjamin Franklin – ‘by failing to prepare, you are preparing to fail’. We have all seen opponents (and, unfortunately, even arbitrators) who have failed to adequately ensconce themselves in the details of a case before a hearing, a situation which, of course, creates an opening for an effective opposing advocate.

Further, we have four new chapters on the different approaches to advocacy from different regions of the world. In particular, several esteemed authors – Alvin Yeo SC, Chou Sean Yu, Jose Astigarraga and Eduardo J De la Peña Bernal – set out the particular flourishes brought to oral advocacy in East Asia and Latin America. International arbitration increasingly finds lawyers from different geographical and cultural milieus pitted against one another. Experienced practitioners will understand the different tactics and styles deployed by practitioners from Asia, and this chapter seeks to draw out those distinctive advocacy techniques. Similarly, David Lewis QC and Laurence Shore have sought to draw out the specific characteristics of the English and American advocacy styles.

While our first edition covered the cross-examination of expert witnesses, we are fortunate enough to have Philip Haberman of the accounting and valuation consultancy Haberman Ilett provide insights on how experts can aid in the advocacy process. Increasingly, and perhaps controversially, technical and damages experts are playing an important role in crafting advocacy strategy, particularly as regards the cross-examination of opposing experts and the trend towards experts providing a short presentation at the outset of their oral evidence. We therefore hope that practitioners can gain valuable insights from Mr Haberman’s views, as an expert, on the advocacy process.

Lastly, in terms of new content, we have another interesting contribution from a non-lawyer. Whitley Tiller from litigation consultancy RLM | TrialGraphix provides a chapter on the increasing use of US-style courtroom technologies in the arbitral hearing room. With assistance from editor Timothy L Foden, Ms Tiller explains the kinds of technologies that are working their way into the arbitral process while addressing some of the concerns and biases that the more senior arbitration vanguard might hold towards courtroom technology.

The editors remain grateful to all of the contributors to this volume, authors and arbitral commentators alike. We hope that it serves international arbitration counsel as both a practical resource and a touchstone of the personal experiences of the authors and arbitrators. As this edition has expanded the number of perspectives on the advocacy process by seeking to address specifically regional differences, we hope that it finds an expanded readership. We will continue to look to expand the scope of this title in the future and remain open to suggestions from our readers.