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The Guide to Advocacy - Third Edition

Advocacy in Investment Treaty Arbitration

This chapter features text boxes by the following arbitrators:                    


Rarely in dispute resolution are the stakes as high as they are in investment treaty arbitration. It is a system where foreign investors routinely claim damages for hundreds of millions of dollars – sometimes billions – against sovereign nations, challenging legislative, executive and judicial acts before international tribunals. The measures being challenged often involve important questions of public policy and the most pressing social issues of the day. And if the respondent states lose, public funds will be required to pay the damages.

The quality of this system largely depends on the skill of the advocates in the field. Although earlier chapters in this book discussed advocacy techniques in other forms of international arbitration, it would be a mistake to assume that these techniques can be adopted without modification in the investment treaty context. Advocacy in investment treaty arbitration has many similarities with other forms of international arbitration, but also important differences. Some of these differences are subtle; some less so. And advocates who fail to recognise those differences proceed at their own peril.

In this chapter, we will review the toolkit of advocacy techniques that have proven to be effective in investment treaty arbitration. The section following this introduction discusses the expertise that effective advocates must possess in this field. This chapter then addresses how advocacy techniques are shaped by the unique dynamics of cases involving respondent states. It goes on to analyse the distinctive considerations when selecting arbitrators in investment arbitration. The subsequent section provides recommendations for advocates to improve their written advocacy. The final section offers guidelines for oral advocacy and cross-examination in investment arbitration. Each section concludes with practical advocacy tips, which can serve as a checklist for advocates in future cases.

The advocacy tips described in this chapter respond to a simple reality: the arbitrators who decide investment treaty cases are among the busiest in the world. Given their limited time, we are called on as advocates to navigate the complex matrix of facts, law and politics that invariably arise in investment arbitration, while presenting the case to the arbitrators in a consistent and easy-to-understand manner. Now more than ever, advocates in investment arbitration must eschew bellicose rhetoric, wearisome prose and never-ending briefs. Good advocacy is to the point and engaging, leaving the tribunal trusting the credibility of the advocate and convinced of your client’s position. It is my hope that this chapter will provide a roadmap to that goal.

Know the legal framework

Perhaps the most unique (and the most obvious) skill necessary for advocates in investment treaty arbitration is a deep understanding of the specialised body of substantive law that serves as the foundation of investment treaty disputes. Despite what many novices believe, that specialisation is not gained from work in international commercial arbitration or other forms of dispute resolution. Instead, it is gained from studying the large number of public international law treaties, the case law interpreting them and public international law more generally (including, for example, the law on when acts are attributable to the state for purposes of public international law).

This is no small task. Public international law now includes more than 3,000 bilateral investment treaties, a growing number of multilateral investment treaties and the ICSID Convention itself. Advocates must be intimately familiar not only with the treaties at issue and general principles of public international law, but also with the decisions interpreting other, similarly worded treaties.

The reason that advocates must be familiar with the case law is that many protections granted under investment treaties are worded so vaguely that they communicate little by their own terms. It is the interpretation of these provisions by arbitral tribunals that informs our analysis of the scope of investment treaties, the jurisdictional requirements they impose and the substantive protections they accord. That body of case law now consists of more than 500 awards, which grows by several more each month. While a vivid memory of each case is neither necessary nor realistic, a deep understanding of the rules that have emerged from the case law is imperative.

Advocacy tips

  • Develop a mastery of the legal framework of investment arbitration and keep up with the development of the law as new cases are issued and made public. This is not the kind of understanding that is gained by reading an investment arbitration book overnight, but by the ongoing study of cases as they are released over time to observe settled law, emerging trends and new issues that are on the horizon.
  • Avoid extensive discussion of legal decisions at hearings. Despite needing to be familiar with the legal decisions, the best advocates, while spending time analysing legal decisions in their written submissions, spend far less time doing so orally at hearings. Effective advocates know that arbitral tribunals are generally already familiar with these decisions (having likely written many themselves). Suffice it to say that an in-depth oral recitation of the facts of Tecmed v. Mexico is likely to draw a collective eye-roll from the tribunal.
  • Where there are numerous cases supporting the same proposition, do not discuss every one of them. This is particularly so when the supporting cases are only vaguely related to your point or the point is relatively uncontroversial.
  • Refrain from relying on law (or other idiosyncrasies) from your ‘home’ legal system, unless it applies to the dispute. The temptation of advocates is to rely on national law that is helpful to them (usually from the jurisdiction in which they were trained or are licensed), even if that law does not apply in the arbitration. This is generally ill advised. Except for the law of the host state, the law from an advocate’s ‘home’ jurisdiction is usually no more applicable than the law of any other country in the world. The thrust of international arbitration is respect for diversity of other legal systems, not superiority of one over another.

‘It is totally unnecessary and rather counterproductive to make 200-page presentations of the case law on notions such as FET’

Investment arbitration is an area where submissions very often tend to be too long. Tribunals are aware that large law firms have at their disposal databanks of case law and like to use the resources they provide. They should do so in a reasonable manner. If some issues in investment arbitration remain disputed, many others are well settled. It is therefore totally unnecessary and rather counterproductive to make a 200-page presentation of the case law on notions such as fair and equitable treatment, or full protection and security. It is inefficient and often confusing.

– Bernard Hanotiau, Hanotiau & van den Berg

Know the terrain

Knowledge alone does not make an effective advocate. The best advocates in investment treaty arbitration also understand the unique dynamics of cases involving respondent states. Karl-Heinz Böckstiegel has observed that ‘major differences in the legal culture have an impact in investment arbitration [original emphasis] due to the very different role that governments and other state institutions have . . . .’[2] Precisely because sovereign nations are involved, the stakes are high. As the Chief Justice of the US Supreme Court recently remarked (almost marvelling at the system), ‘a Contracting Party grants to private adjudicators not necessarily of its own choosing, who can meet literally anywhere in the world, a power it typically reserves to its own courts, if it grants it at all: the power to sit in judgment on its sovereign acts.’[3]

The presence of sovereign nations makes investment treaty arbitration fundamentally different from other forms of international arbitration – both for counsel acting for states and for counsel acting against states. Particularly when acting for states, advocates must be aware that states are fundamentally different from commercial parties. The best advocates effectively navigate the bureaucratic waters that invariably become stormy throughout the course of an investment treaty arbitration. The unique aspects of representing states are manifested in a variety of ways.

First, political machinations can make life difficult for advocates. Factions within the vast government bureaucracy may disagree about how to approach the arbitration. Indeed, it is not uncommon for one faction within a government – often in political competition with another faction charged with defending the challenged acts – to publicly state that the acts in question violated international law. When this occurs, advocates for the foreign investor may bring those statements to the tribunal as evidence of a party admission because they came from ‘the state’ as a single, indivisible body, which it is deemed to be under public international law but which it is not in political reality.

Second, even where statements from politicians are well intentioned, they can be problematic. When a country is sued under an investment treaty, it is often the largest dispute in the country and the claim typically involves allegations of wrongdoing by government officials, making it highly politicised. Politicians often make comments relating to the dispute – and do so publicly, without prior consultation with the department from which counsel takes instructions (and therefore without consulting counsel). Coordinating public comments of the various arms of government can be difficult – sometimes impossible. Advocates should encourage their client contacts to caution other organs of government about the risks of public comment and suggest acceptable ways of communicating through ‘talking points’ or something comparable.

Third, evidence gathering can be challenging for state advocates. The initial fact-gathering phase is crucial. Generally speaking, your task as state counsel is to learn whether the state had a rational reason, undertaken in the public interest, for the measures being challenged. That task requires collection of documents and interviewing witnesses early in the process. Despite the importance of this task, former or current state employees are often unwilling to be interviewed or to testify because they are fearful of retaliation if they do so. Some conscientious employees are fearful of losing their jobs or even of criminal prosecution (particularly if they were involved in the measures being challenged).

Fourth, document production can be difficult because the production order may cover documents that could be in the possession of hundreds of government departments. Aside from the sheer scope of such an endeavour, the individuals who work in those departments may not be familiar with arbitration or litigation and, consequently, are not familiar with document production or of the significance of failing to cooperate. Worse still, document production may be unknown under the state’s domestic law, which may not recognise legal privileges that would otherwise protect documents from production.

Counsel representing investors similarly face a number of issues owing to the asymmetry of the relationship with a sovereign state. For example, some states have subjected investors’ businesses, and the individuals behind them, to varying degrees of retaliation or even harassment. The best advocates representing claimants in investment arbitration warn their clients of such risks and are familiar with tools to protect them against potentially adverse effects of initiating international arbitration against a sovereign state. It is also common for claimants’ counsel to ask for adverse inferences when a state fails to produce relevant evidence. If the tribunal draws an adverse inference, this can provide the investor with an additional fact to discharge its burden of proof.

Advocacy tips

  • At the outset of an engagement for a state, identify an individual in the government who will be your day-to-day contact. Your contact should be the person who will give you instructions, who understands the urgency of gathering documents and meeting with potential witnesses, and who can effectively communicate with other government organs. If necessary, it may be helpful to work with the contact to set up an inter-agency task force for the arbitration.
  • Establish a protocol between relevant departments within the government regarding public communications. Through your contact within the government, it is important to communicate to the other relevant government organs that all public statements regarding the dispute must go through the office from which counsel takes instructions and be kept to a minimum. That is not always achievable, but establishing protocols on inter-departmental communication at the outset can help minimise ill-advised public comments in the future.
  • If necessary, provide an explanation to the arbitral tribunal about politically motivated comments and their lack of probative value. When statements are released from political opponents, state advocates need to effectively explain to the tribunal that these statements are not official statements from the government but, rather, form part of the public discourse inherent in a democratic system, where it is natural and to be expected that politically motivated individuals may criticise those from a different political party.
  • Ensure that positions taken will not contradict later positions that the state or the investor wishes to take outside the arbitration (including in future disputes). Precisely because governments are, by definition, public and must continue taking positions on important social issues, failure to be forward-thinking can have adverse consequences for the state. The government must maintain credibility – not just in the investment arbitration, but elsewhere. The same concern applies to the investor, particularly if the investor is involved in court proceedings. The investor’s position before the courts on issues that are relevant in the arbitration must be consistent.
  • Always bear in mind that governments can change. Counsel must always recognise that governments can change – even in the middle of the arbitration. New governments are often fond of looking for reasons to criticise their predecessors. Advocates representing the state should be aware of this possibility when creating an appropriate written record regarding the advice provided and the strategy of the arbitration. Advocates representing the investor should always consider whether the change in the government could be used in the investor’s favour, including whether a change in government may lead to a new willingness to engage in settlement discussions.
  • Identify and utilise people with institutional memory. Changes in government also mean that the politicians and bureaucrats who made the decisions that are now the subject of the dispute are no longer working for the state, and institutional memory is therefore lost. Moreover, the former officials may no longer feel compelled to cooperate with the defence of the state. It is important to reach out to these former officials at an early stage to obtain their voluntary cooperation. If they will not cooperate voluntarily, the state should be alerted and reasonable measures should be undertaken to compel their cooperation.
  • Whether acting for the investor or the state, consider requesting the tribunal to issue invitations to potential witnesses. Where potentially important witnesses are unco­operative, advocates may consider asking the tribunal to compel the witnesses to testify. This may include asking the tribunal to issue an invitation to the witness, which would explain the importance of coming forward to provide evidence. When the invitation comes from the tribunal (rather than the parties), witnesses may be more willing to cooperate.
  • Whether acting for the investor or the state, consider asking for adverse inferences to be drawn if the other side does not make important witnesses or documentary evidence available. Advocates should consider asking the tribunal to draw adverse inferences if the other party has failed to provide all the evidence, whether documentary or in the form of witness testimony, within their control or influence. This is not a request to shift the burden of proof. An adverse inference provides the requesting party with an additional inferred fact to discharge its burden of proof, while the burden remains on that party throughout the proceedings.

Know how to select your audience

There is perhaps no more important decision in any arbitration than who you appoint as an arbitrator and, to the extent you can influence the decision, the selection of the chair. It follows, therefore, that one of the most important jobs of an advocate in investment treaty arbitration is his or her advice on these issues.

In investment arbitration, advocates have two advantages in selecting arbitrators that are generally not available in commercial arbitration. First, unlike in commercial arbitration, most investment treaty awards are public. Second, the issues that arise in investment arbitration are often the subject of prior decisions – particularly legal issues. Therefore, advocates are often able to study how a given arbitrator has ruled on the same or similar issues in the past and predict how the arbitrator may rule on the issue in the future.

The best advocates create a shortlist of potential arbitrators and then carefully research their prior decisions and scholarly articles. The aim is not to determine who is ‘pro-investor’ and who is ‘pro-state’ (the use of these terms all too often reflects an advocate’s inability to understand the nuance in the arbitrator’s prior decisions and relies on stereotypes). Rather, the objective is to identify the issues in your case and to research how potential arbitrators have viewed those issues in the past. Advocates should also ask colleagues who may know a potential arbitrator about his or her past performance. Useful insights often can only be gained through informal conversations.

Chief among other considerations is how often potential arbitrators have been able to secure a majority in past cases. The arbitrator who will agree with your position but who has shown a repeated inability to achieve a majority may not be worth pursuing. An important part of that analysis is calculating how effectively your party-appointed arbitrator will communicate with the other arbitrators – particularly the chair, whose vote is usually the most important on the tribunal.

In sum, investment treaty arbitration affords parties the unique ability to hand-pick arbitrators knowing how they have ruled in the past on many of the key issues in your case. Some arbitrators caution against this approach, noting that prior decisions are only that prior tribunal’s collective decision, not the decision of any one arbitrator. But it would be a mistake not to undertake this analysis. Your adversary certainly will.

‘Focus on the essence of the case’

Arbitrators can be persuaded if they are genuinely helped.

Counsel need to be clear and assist the tribunal in reaching the best possible decision, in identifying what truly matters for the resolution of the case. Counsel live and breathe the case. They speak to the clients, interview the witnesses or the experts, review and select every scrap of document in the file. Arbitrators, on the other hand, no matter how well prepared they are, will never master a case to the same degree.

Counsel must lead the tribunal through the maze of the case and towards their preferred solution in a clear, concise manner without resort to embellishment or polemic.

In doing so, counsel should be mindful not to lose sight of their positive case and not to get caught in the minutiae of the dispute.

It is important that advocates focus on the essence of the case and the main factual and legal issues, those that they want the tribunal to remember when all is said and done and the lights go off in the hearing room.

– Loretta Malintoppi, 39 Essex Chambers

Advocacy tips

  • Create a shortlist of, and research, potential party-appointed arbitrators. Consider not so much who is ‘pro-investor’ or ‘pro-state’, but how potential arbitrators have previously viewed particular issues that have arisen in your case and the potential arbitrators’ relationship with the other arbitrators.
  • In seeking a chair, agreement is more realistic if both parties seek someone who is viewed as fair and impartial. Where one or both of the parties propose potential chairs that would be plainly unacceptable to the other party, little progress can be made. The most constructive approach is to propose individuals who have a reputation for being unbiased, which is usually the result of them having agreed and disagreed with both investors and states in different cases, depending on the facts of the case.
  • Know your audience. Arbitrators have preferences that go beyond previously expressed legal opinions. A retired judge of the Supreme Court of the UK may have very different expectations from a US law school professor or a young Swiss practitioner. It is important to use arguments and styles that will resonate best with your tribunal.

Know how to effectively communicate in writing

The effectiveness of your advocacy in investment arbitration largely depends on your skills as a persuasive legal writer. Investment arbitration is primarily a written rather than an oral process. Indeed, hearings in investment arbitration usually take place only after parties have spent months (or even years) exchanging written submissions. The following three recommendations are among the most important for an advocate to improve his or her legal writing.

The first recommendation is for counsel to better seize the opportunity to advocate at the beginning of memorials – particularly reply and rejoinder memorials. The beginning of a written submission is when your audience – the arbitral tribunal – is still fresh and attentive. Far too often, responsive memorials begin with cumbersome boilerplate and parenthetical definitions that waste the tribunal’s attention. Take the following example:

1. This reply memorial (the ‘Reply Memorial’) is filed on behalf of the French Republic (‘France’) in accordance with the Tribunal’s Procedural Order No. 1 dated 3 June 2012 (‘Procedural Order No. 1’) and the procedural timetable set out in France’s correspondence of 5 May 2014, as adopted by the Tribunal on 8 May 2014.

Those experienced in investment arbitration have seen countless variations of this paragraph. But what does it convey? Presumably the defined terms have already been defined in the opening memorials. In any event, does the reader really need the first definition to understand that the reply memorial is a reply memorial? Or the second definition to understand that the French Republic is France? Or the statement that the reply memorial is being submitted in accordance with the procedural timetable? The answer to all of these questions is, of course, ‘no’. The paragraph has no purpose. It is a waste of the one part of the brief where you have the tribunal at peak attention.

Advocates should use the first paragraph to come right out with a strong, declarative statement that plainly and logically states why you should win, without defining terms and reciting boilerplate that everyone already knows.[4] That paragraph should be the beginning of an introduction or executive summary section that describes your case in a nutshell. If the tribunal reads just that section and nothing else, it should understand all the major points of your brief.

The second recommendation is for advocates to make their written submissions more concise and focused. The length of memorials in investment arbitration has spun out of control. It is now commonplace for advocates to file written submissions several hundred pages long. By contrast, constitutional courts determining issues of national importance require that advocates advance their written cases in briefs measured in dozens rather than hundreds of pages. President Woodrow Wilson said it best: ‘If I am to speak ten minutes, I need a week for preparation . . . if an hour, I am ready now.’[5] What applies to oral advocacy applies with equal force to written advocacy. Prolixity is the enemy of the good advocate.

As the facts are brought to light, it is the advocate’s job to sort out those that will truly drive the outcome of the case and those that will not, always guarding against overloading the tribunal with too much information. This exercise of weighing and measuring the facts – of separating the wheat from the chaff – is one of the most important skills that an advocate can bring to bear on an investment treaty dispute. The guiding question is: at what point is the investment tribunal unlikely to continue reading and processing information?

The final recommendation is for advocates to improve the readability of their prose. Arbitrators’ attention span is understandably limited. They lose interest when they are reading what seems like a user’s manual. And they are captivated when they read easy prose that tells an engaging story. That does not mean overselling your case. It means making your prose as easy to read as possible while being scrupulously concise and accurate.

The likelihood that an arbitrator will read and process your written submissions depends on how concisely you present the ideas, how easily your prose reads, and how clearly you make your points. A skilled advocate works hard at making the tribunal’s job easier. Never assume that the arbitrator will do the work for you.

Advocacy tips

  • Outline before writing. Nothing can send a written submission off the rails more quickly than poor organisation. The best advocates draft outlines of their memorials before drafting individual sections. It not only helps as a roadmap for the argument, but also to keep the writing on point during the drafting process.
  • Follow the three ‘Cs’: clarity, conciseness and chronology. Use precise descriptions and accepted terminology. While striving for clarity, also be concise and to the point. Facts should be described in the order in which they occurred; chronological order is usually the best organisational tool.
  • Use short, simple sentences. The sentences that go on for five lines (especially where the verb appears late in the sentence) often require several readings before the point is conveyed. It causes the flow of the document to grind to a halt. Bryan Garner explains: ‘What is the correlation between sentence length and readability? No one knows precisely. Rhetoricians and readability specialists have long suggested aiming for sentences of varying lengths, but with an average of about 20 to 25 words. And empirical evidence seems to bear out this rough guideline.’[6]
  • Use short, simple paragraphs. Advocates often fail to appreciate how important paragraph structure is to their written submissions. It also impacts the visual appearance on the page or screen. A good rule of thumb is that paragraphs should be three to five sentences long. Those that keep paragraphs to this general range (avoiding the numerous one-sentence paragraphs but also avoiding the never-ending ones) are almost always more thought-out, concise and effective.
  • Include transitions. Transitions are the glue that holds together the different parts of a written submission. There should be transitions between most sections of a memorial to give the reader ‘road markers’ of where the reader is and where the reader is heading next. As Barton Legum notes, ‘[l]egal arguments are better understood when the reader knows where you are going before you get there.’[7] The same principle applies between sentences and paragraphs within the same sections: include transitions where you can, and do so in a way that flows naturally rather than too obviously.
  • Use the active voice rather than the passive voice, unless there is a good justification not to do so.
  • Use party names. Describing the parties as ‘Claimant’ or ‘Respondent’ does not help a tribunal remember who they are. You want to tell a compelling story, and using real names makes your story come alive and helps the arbitral tribunal remember the parties in a way that using procedural labels does not.[8]
  • Avoid legalese. Steer clear of legal jargon and terms that may not have the same legal meaning in different jurisdictions. The object of the document is to inform the reader, not to demonstrate the cleverness of the author.
  • Do not oversell the facts by overuse of superlatives or adjectives. The best advocates provide a neutral presentation of the facts that do the ‘work’ of leading the reader to the obvious conclusion. Particularly at the early stages of a submission, overuse of adjectives can have the opposite impact. Jeremy Bentham’s words nearly 200 years ago are no less applicable today: ‘Beware of those who, by the vehemence of their assertions . . . make up for the weakness of their reasons.’[9]
  • Avoid repeating yourself. Nothing bogs down a memorial more than unnecessary repetition. State the proposition effectively once – and do not repeat it unless there is a good reason to do so. If it is a responsive submission (such as a reply or rejoinder), do not restate everything that was in your initial memorial. Responsive briefs are supposed to be just that – responsive.
  • Yield indefensible terrain. As an advocate, your credibility before an investment tribunal is paramount. Nothing causes you to lose credibility faster than when you take indefensible positions. Show the investment tribunal, vividly and memorably, why you should win while coming across as a reasonable and reliable lawyer.[10] Building credibility and rapport with the tribunal is crucially important. Advocates should strive to be seen by the tribunal as the more reliable of the two sides and the one who should be believed in case of doubt.
  • Be courteous and professional. The tone of an advocate’s writings should avoid bickering and negativity. If an advocate’s adversary has pulled him or her into a tit-for-tat, the adversary has won. Be above it. The tribunal will appreciate you doing so.
  • Never perturb the mind you seek to persuade. This adage applies to every aspect of advocacy. It should guide you in everything you do – from how often you file written submissions and letters seeking the tribunal’s intervention, to the tone of your submissions, to the positions that you take.
  • Self-edit. Even the best written advocates do not generate perfect drafts on their first try. Before you send a draft, you should edit, edit and then edit some more. Ask yourselves: Do I really need every section in the draft? If not, delete the unnecessary sections. Then ask: Do I really need every paragraph in each section? If not, delete the unnecessary paragraphs. Then ask: Do I really need every sentence in each paragraph? If not, delete the unnecessary sentences. Then ask: Do I really need every word in each sentence? If not, delete the unnecessary words. Then – and only then – send out your draft.
  • Have someone review your draft. Getting an honest opinion on your draft from a person not involved in the case can be extremely useful. They are most likely to best represent the arbitrator’s state of mind when reading your briefs. If your reviewer is forced to ask questions to understand your case, revision is necessary.

Listen: especially to your own witnesses

As an advocate it is critically important to listen carefully to every word said in a hearing, especially by your own witnesses. In a treaty-based arbitration the former manager of the claimant’s operations in the respondent state became a turncoat. The respondent included a witness statement from him only in its rejoinder memorial, trashing his former employer, the claimant, and favouring the respondent’s case. The tribunal then correctly permitted the claimant to file a further witness statement responding to the turncoat’s late submission. It came from a senior in-house counsel of the claimant, who testified that he had received a phone call from the turncoat shortly after he was fired, stating that he had done a lot for his former employer, so much so that it should be worth $5 million in severance pay. Cross-examining counsel for the respondent asked the witness, ‘Did you report him to the authorities [in the respondent state]?’, to which the response was ‘No, not then.’ Counsel for the claimant missed the significance of this answer, but as one of the arbitrators in the case, when it was my turn to ask questions, remembering the ‘not then’ that had followed ‘No,’ I asked ‘Did there ever come a time when you reported this person to those authorities?’ It opened a floodgate. The response was ‘Oh, yes, we did. After I received that phone call we convened an emergency meeting in the board room, we sent down to our operations in that country a forensic accounting team and they discovered that that person had embezzled $300,000 from the company. With that we went to the authorities!’ Counsel for the claimant had missed the significance of the soft ‘, not then’ at the end of the claimant’s witness’ ‘No.’ Moral of the story: catch every word, even of your own witness’s answers on cross-examination, as one or two words may be the fuse on a stick of dynamite for you to ignite!

– Charles Brower, 20 Essex Street

Know how to communicate orally and on cross-examination

Although investment arbitration is primarily a written procedure, oral advocacy and cross-examination are also critical components of the process. The following three points are among the most important in this regard.

First, an opening statement should not repeat everything in the memorials and, as noted above, should generally avoid lengthy discussions of the case law. Rather, it should capture the essence of an advocate’s case, highlight what the advocate intends to show at the hearing and why the advocate’s client deserves to succeed on the facts and law.

Second, PowerPoint presentations in the opening statement can be effective if used appropriately. Importantly, however, it is ill advised to have a deck comprising hundreds of slides filled with text. Instead, the most effective presentations are relatively short and show ‘pictures’ of the key excerpts from the evidence, rather than new or regurgitated textual arguments.

Third, cross-examination should be done respectfully and surgically. One of the most significant mistakes that advocates can make (particularly common law lawyers) is to be unnecessarily aggressive in cross-examination. In investment arbitration, cross-examination is a different dance. Witnesses often do not speak the language of the arbitration and have travelled around the world to provide evidence to the tribunal. Tribunals expect that advocates will treat them respect. On the other hand, advocates can be too deferential to witnesses, unnecessarily allowing them room to manoeuvre by asking open-ended questions that are unlikely to elicit important admissions. Know what admissions you want from each witness and have a clear plan for cross-examination that gets you to the answers you want without offending the tribunal.

Advocacy tips

  • Outline your cross-examination, but do not doggedly cling to it. The best cross-examiners do not follow a script; they outline the key issues on which they intend to ask questions and approach the examination with maximum flexibility. Listening to the witness’s answers is key. Many advocates fail to realise when the witness has just provided helpful testimony or when to take a detour from the planned route. Similarly, many advocates fail to realise when to stop asking questions on a particular topic and move on. Having obtained a helpful answer, the temptation is to continue questioning to draw out the ultimate conclusion. The temptation generally should be resisted. That final question often allows the witness to ‘row back’ from the answer just given. Save conclusions for closing argument or post-hearing submissions.
  • Ask leading questions. The general rule of thumb is to ask leading questions – particularly questions for which you have impeachment documents ready so that you can obtain the answer you want from the witness, or else prove to the tribunal that the witness’s answer is not credible. Advocates often make the mistake of asking witnesses open-ended, rather than leading, questions. Cross-examination is not a discussion. You, by virtue of being the questioner, have the advantage. Do not give up that advantage by asking sloppy, open-ended questions. Build up your point incrementally and subtly and win the witness’s trust to the extent possible by asking closed, leading questions to develop the issue.
  • Know your documents. Nothing disrupts a successful cross-examination more than wasting precious time hunting for documents. Know where documents are in the hearing bundle. Write cross-references on your notebook and on the document in your bundle so you know where you are going with your next question. By knowing the documents well, you can direct the witness and the tribunal to the key passages easily and show your mastery of the facts.
  • Know the facts better than the witness. It is surprising how many times a witness will take the stand without fully reviewing his or her own witness statement or the underlying documents supporting it. Take advantage of this. Know every potential document that may come into play during cross-examination and have it on hand. A critical point to your case may be lost if you are unable to promptly show the tribunal that the witness’s testimony is suspect. And know the facts of the case well enough to be able to respond to the unexpected. Cases are won or lost on the mastery of the facts and the documents.


The quality of the system of investment arbitration largely depends on the skill of the advocates in the field. Woven into the seamless fabric of good advocacy are skills unique to investment arbitration – such as mastery of the specialised legal framework and sensitivities to the dynamics of respondent states – and those common to international arbitration generally – such as clear and engaging written and oral advocacy. Investment arbitrations are often the highest-stakes disputes in the world. As advocates, we have the honour of representing clients in those cases. And we can fulfil that high mission through a sophisticated blend of the advocacy techniques described in this chapter, better representing our clients and, in so doing, enhancing the quality of our system.


[1] Stephen P Anway is a partner at Squire Patton Boggs.

[2] Karl-Heinz Böckstiegel, Commercial and Investment Arbitration: How Different are they Today?, p. 579, Arbitration International, Vol. 28, No. 4 (2012).

[3] BG Group Plc v. Republic of Argentina, 134 S. Ct. 1198, 572 U.S., 188 L. Ed. 2d 220 (2014).

[4] Of course, it can be appropriate to start an introductory brief – such as a request for arbitration – with definitions and introducing the parties, as that information is likely not known to the reader at that early stage of the proceeding.

[5] Josephus Daniels, The Wilson Era; Years of War and After, 1917–1923, p. 624 (1946).

[6] Bryan A Garner, Garner’s Modern American Usage (Oxford University Press, USA 2009) 734.

[7] Barton Legum, ‘The Ten Commandments of Written Advocacy in International Arbitration’, 29(1) Arb. Int’l. 1 2013.

[8] Id.

[9] Jeremy Bentham, Works of Jeremy Bentham ed. John Bowring (Edinburgh 1838) 183.

[10] Bryan A Garner ‘Law Prose Lesson #254: The four necessities of brief-writing’ (Law Prose 24 May 2016) www.lawprose.org/lawprose-lesson-254-four-necessities-brief-writing/, accessed 16 September 2016.