Start advocacy with your first communication
Do not assume the tribunal will be familiar with all the facts, issues or law when you open your case. Make sure you outline the facts and applicable law clearly in plain English.
Some tribunal members may not:
- speak English as a first language
- be trained in common law
- be legally qualified
Equally, the legal representatives of the parties may come from different legal backgrounds and professions.
Three issues to establish
You’ll need to establish:
- which issues need a decision
- what the facts are
- which legal principles apply
The answers to these will inform the:
- written submissions
- witness statements
- expert reports
- requests for disclosure
Make your time count
Oral openings in international arbitrations usually last for only a few hours or even minutes, rather than days, so you need to make the most of your time.
People understand and respond to spoken information differently from written information, so try to:
- have no more than five significant features or themes
- tell a story with a compelling theme and a beginning, a middle and an end
- follow the rule of three: say what you’re going to tell the tribunal members, tell them, then tell them what you’ve told them
Prepare the cross-examination
A low-risk cross-examination can be just highlighting features that are in the documentary record and so cannot be contradicted easily. These are also more likely to get the tribunal's attention.
Think about the closing brief
Your last advocacy task will be to prepare a written closing or post-hearing brief.
The closing brief should:
- be succinct
- focus on the key issues
- clearly outline the background before moving on to the crucial issues of the case and relevant law