Trial Tactics in International Arbitrations

International arbitrations are unique proceedings that can make successful advocacy a challenge. But by implementing tactics trial lawyers use to achieve courtroom success, parties can mitigate some of the challenges presented by the forum and use those procedures to their advantage.

Much of the pre-hearing exchange of information in international arbitration is conducted through formal documents prepared by attorneys. Parties exchange statements of claim and defense supported by substantiating materials. Further discovery is usually limited to the dispute’s most relevant documents. Depositions are rarely allowed.

Instead, the direct testimony of witnesses is usually prepared in written statements that parties exchange and submit to the arbitrator. Because very little direct examination of witnesses generally takes place at the final evidentiary hearing, international arbitration witness statements are highly-detailed documents that can run hundreds of pages.

Counsel at international arbitrations conduct their cross-examinations without knowing exactly how a witness will answer a particular question. In order to keep witnesses in line, questions during cross-examinations should be carefully mapped to the submissions and key evidence. Counsel should identify critical admissions needed from witness and develop back-up plans for getting them.

The global business community believes in international arbitration. The privacy and the finality of its outcomes have come to outweigh the challenges posed by its procedural requirements. Companies can enhance the benefits of international arbitration by applying, or engaging counsel who apply courtroom tactics that help trial lawyers win in conventional litigation.