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The Guide to Advocacy - Third Edition

Introduction

The topic of this Guide is a rich one. Advocacy in arbitration covers a limitless array of concepts, skills and viewpoints. It is, no doubt, the art of persuasion: the capacity to transcend legal, cultural, contextual and even linguistic barriers to secure a favourable outcome for one’s client. It is the arrows in the advocate’s quiver that allow him or her to marshal evidence and present it in such a way that guides the arbitrators’ decision-making – the power of trenchant and tactful prose, a compelling opening presentation, the artfulness of a line of questioning in cross-examination. But advocacy in arbitration is also the art of strategy: the ability to craft a case theory from a boundless set of facts and an exotic applicable law, the adroitness to tailor the arbitral process to suit one’s strategy. GAR’s The Guide to Advocacy seeks to pull together all of the various strands of arbitral advocacy in one compendium and offer the reader the views of some of the most renowned practitioners in the field.

With great pleasure, therefore, we present to you the Guide’s third edition. We are fortunate that this edition follows on the great success of the Guide’s two previous editions. The positive reception received by the earlier editions eclipsed even our most optimistic expectations. With the second edition, whose distribution has already outstripped that of the first, we can proudly say that the Guide has become an essential read in the arbitration community. We are confident that, with the third edition, the Guide will cement its place as a must-have resource for practitioners both new and seasoned.

The credit belongs not to us, but to the distinguished chapter and text box authors who have graced the Guide with their contributions. While the format of the third edition remains much the same, chapters from the first two editions have been updated and new ones added. As you pore over the pages of this Guide, leading arbitration practitioners will invite you into their break-out room and offer you their thoughts on advocacy through each step of the arbitral process. They will share with you their meditations on how to forge a robust case strategy, execute eloquent written advocacy, conduct effective direct and cross-examination, act as an indispensable resource for the first chair in a hearing, deliver persuasive opening and closing presentations, and much more.

In the second edition, we recognised that advocacy is not merely the rote perfection of a defined set of skills, it is the ability to adapt those skills to the context of one’s case or the cultural sensibilities of one’s decision maker. The third edition goes further. In addition to chapters on advocacy in Asia, Latin America, the United States and the United Kingdom, the reader will find a chapter on Continental Europe by Torsten Lörchner, one on the Middle East by Mohamed Abdel Wahab, and one on India by Tejas Karia and Rishab Gupta. These authors explain the influence that each of these regions’ traditions of advocacy have had on advocacy in arbitration in those regions. Aside from the chapters on advocacy in international sports and investment treaty arbitration, you will also find a new chapter on advocacy in construction arbitration by James Bremen and Elizabeth Wilson. They explain to us that advocacy in construction arbitration requires not only expertise in the legal issues that repeatedly arise, but a detailed understanding of the contractual web of responsibility, a rigorous approach to analysis of the contemporaneous documentary record, and the ability to present technical concepts and analysis in an understandable fashion to a tribunal. In this edition, we are also grateful to have the cogent insight of Yasmine Lahlou, who teaches us how to prepare and perform the perfect mock hearing. She shows us how practice – and a real-time consideration of what may occur at the hearing – can almost make perfect by helping an advocate to anticipate the types of scenarios that may arise and to hone oral argument before the hearing begins.

In yet another new chapter, Juan P Morillo, Gabriel F Soledad and associate editor Alexander G Leventhal share the fruits of their experience regarding advocacy in arbitration where parallel criminal matters are pending. They show us that arbitral advocacy is not merely the art of persuasion, but also the art of executing a global strategy in which arbitration may be but one element. They teach us how to use our advocacy instincts to harness the advantages of arbitration for the needs of a broader game plan and to take advantage of the benefits of other disciplines to advance our objectives in the arbitration.

With great thanks to all of the Guide’s chapter authors, we are able to explore in detail the many facets of advocacy in arbitration.

In addition to the strength of its chapters, however, what sets the Guide apart from any other resource on advocacy are its text boxes. In roughly 500 words, many of the world’s leading arbitrators open their treasure chest of wisdom and share with us some of their most memorable war stories, their most thoughtful musings and their most valuable suggestions. The text boxes are strewn throughout the Guide, nestled within the chapters whose content they touch upon. With the third edition, we are honoured to add to our list of illustrious text box authors George Bermann, Charles Brower, Nayla Comair-Obeid, Laurie Craig, Yves Derains, Andrew Foyle, Pierre-Yves Gunter, Clifford Hendel, Kaj Hobér, Ian Hunter QC, Emmanuel Jacomy, Doug Jones AO, Richard Kreindler, Julian Lew QC, Loretta Malintoppi, Mark Morril, Alexis Mourre, Eric Schwartz, Georg von Segesser, Rob Smit, Luke Sobota, Chris Style QC, Jackie van Haersolte-van Hof and Essam Al Tamimi.

There is no right or wrong way to advocate in arbitration. Each advocate will have his or her own style, routine, execution and point of view. The beauty of advocacy is that it must be a personal exercise – without authenticity, an advocate lacks credibility. As the GAR’s The Guide to Advocacy becomes an establishment in the world of arbitration, we look forward to enriching its content with more topics and more perspectives on the art of arbitral advocacy.

In the meantime, however, we wish you pleasant reading.