I. Introduction

In international arbitration, advocacy remains a decisive factor. While most practitioners understand the basics—preparing their case, presenting arguments clearly, and adhering to procedural rules—the line between competent and compelling advocacy is thinner than many realize. Great advocacy doesn’t just argue a case; it assists the tribunal in deciding it.

This article explores advanced strategies in arbitration advocacy, drawing on tribunal-side experience. It is not about basic technique, but about strategic communication—the subtle, disciplined, and respectful forms of persuasion that resonate with arbitrators and elevate counsel performance.

II. Rethinking Opening Statements

A. What Arbitrators Actually Want

Tribunals typically come well-prepared to hearings. Arbitrators read submissions thoroughly, annotate pleadings, and identify key issues and questions in advance. When counsel launches into a lengthy, scripted opening that merely repeats the written case, arbitrators disengage. A 30-minute speech reiterating witness statements or restating the facts already covered in submissions rarely adds value.

What arbitrators truly want is assistance in structuring the dispute. They want to know: What matters? Where should we focus? What will we learn during this hearing that we didn’t already know? The opening statement should offer direction, not repetition.

B. Make the Opening Count

An effective opening statement does three things:

1. Clarifies the structure of the case — What is the claim or defense really about? What issues are truly in dispute?

2. Previews the roadmap of proof — What witnesses and documents will be key, and what will they help the tribunal understand?

3. Identifies key tensions — Where are the major factual or legal contentions?

Rather than walking through your case chronologically, invite the tribunal into your theory of the case. For example: “You’ll hear two very different accounts of the events in May 2020. Ours is supported by three contemporaneous emails. Theirs relies on a witness with no involvement at the time.”

C. Strategic Framing

One of the most effective tools in an opening is to contrast your position with the other side’s—but with professionalism and structure. Rather than saying “they’re wrong,” say: “If X is true, our case follows. If Y is true, theirs might. Today, we’ll show you why the evidence supports X.”

This creates a narrative fork in the road. It equips the tribunal with a framework for evaluating the case as it unfolds. Acknowledge the disagreement. Frame it in terms that naturally favor your theory.

D. Avoid Pitfalls

Counsel often undermine their own credibility by:

• Repeating witness statements verbatim.

• Ignoring the opposing case entirely.

• Failing to highlight what the hearing will add to the written record.

Remember, the tribunal already knows what you’ve written. The best opening statements are focused, forward-looking, and honest about the dispute’s complexity.

III. Direct Examination: Guiding Without Leading

A. Don’t Be Predictable

Tribunals generally know what the witness is going to say—so don’t waste time restating the witness statement in Q&A form. Instead, emphasize tone, clarity, and confidence.

Start with a few basic, grounding questions. For example:

• “Please state your name and current position.”

• “Were you involved in the contract negotiations?”

• “What was your role during the project?”

Then guide the witness through key events. Let them tell the story in their own words. Reinforce their credibility by asking about contemporaneous records. “Is this your email from June 12?” “Did you send this while on site?”

B. Address Weaknesses Head-On

If your witness has a clear bias—say, they’re employed by your client—don’t ignore it. Acknowledge it:

• “You are employed by the claimant?”

• “How long have you been with the company?”

• “Do you understand the importance of telling the truth in this proceeding?”

Addressing it directly takes the sting out of opposing counsel’s likely attack. It shows you’re not hiding anything.

C. Supportive Questioning

Help your witness succeed. Ask questions that allow them to speak confidently:

• “Did you document that decision?”

• “Were there any internal concerns at the time?”

• “What were your instructions from senior management?”

When the tribunal sees that your witness is coherent, thoughtful, and consistent—even under pressure—it builds credibility for your case.

IV. Cross-Examination: Subtlety Over Confrontation

A. Respect, Always

Aggressive cross-examination often backfires. Counsel who interrupt, raise their voice, or mock the witness lose credibility with the tribunal. Worse, the arbitrators may be forced into a parental role, calming the situation or reminding counsel of proper decorum.

Maintain composure. Ask short, clear, leading questions. Let the silence do the work.

B. Don’t Aim for a “Gotcha” Moment

Cross-examination is not about theatrics. Few witnesses break down and confess. Your goal is not to win a moment but to gather fragments that support your closing.

Let’s say a witness insists he was unaware of a key delay. Rather than trying to trap him in a contradiction, walk him through the timeline:

• “You were copied on this email, correct?”

• “This refers to the delay caused by Equipment B?”

• “And this was dated May 12—before the formal notice of dispute?”

This sequence doesn’t force the witness to admit guilt. It sets up an inference: he knew and failed to act.

C. Tactical Line-Building

If you plan to challenge an expert’s reliability, build a foundation:

• “How long have you practiced in this field?”

• “How many expert reports have you authored?”

• “Do you review each report personally before submission?”

Then, bring up the error:

• “In your report, you refer to the claimant as ‘Mark ABC.’ That’s not correct, is it?”

• “You meant to refer to James DEF?”

• “Would you describe that as a typographical error or a factual error?”

The goal is not to shame but to show that errors exist and credibility must be questioned.

V. Responding to Tribunal Questions

A. Understand the Intent

Not all tribunal questions are hostile. Many are exploratory. Arbitrators ask to:

• Clarify a timeline.

• Test the consistency of your theory.

• Understand practical consequences.

Pay attention to the pattern. If the same question is asked in different ways by multiple arbitrators, it’s a signal. There’s confusion—or skepticism—that needs to be addressed.

B. Don’t Panic—Engage

When questioned, remain composed. A thoughtful answer can become the centerpiece of your case.

Example: If asked about your expert’s methodology, use the opportunity to:

• Re-express the core of your case theory.

• Contrast with the opposing expert’s assumptions.

• Reinforce how your method aligns with industry practice.

Invite follow-up: “Would it be helpful if I walked through the steps our expert took?”

VI. Closing Arguments: Reflecting the Hearing, Not Repeating Submissions

A. Be Responsive

Closing arguments should respond to what actually happened during the hearing—not what was planned in advance.

Example: “The witness confirmed he was aware of the delays and did nothing to mitigate them. That fact, combined with the documentary record, undermines the respondent’s entire causation theory.”

Highlight three or four key takeaways. Speak directly to the tribunal’s concerns. Emphasize what changed.

B. Be Selective and Strategic

Don’t try to summarize the whole case. Focus on pivotal turning points.

If the tribunal seemed unconvinced by a particular legal argument, revisit it with fresh evidence from the hearing.

If a credibility issue emerged, frame it: “The tribunal now has two competing narratives. One is consistent with contemporaneous emails, independent witnesses, and expert analysis. The other is not.”

VII. Post-Hearing Submissions: Writing the Award for Them

A. Make the Tribunal’s Job Easier

Structure your brief around the issues to be decided. For each issue:

• State your position.

• Support it with citations (transcripts, exhibits).

• Explain how the hearing clarified the issue.

Use clear headings: “Issue 1: Was there a breach of Clause 14?”

Include a table of contents. Use footnotes, not inline citations.

B. Build Consensus Within the Tribunal

Not every arbitrator will be on your side. Write for the skeptical one.

Assume this person is tasked with summarizing your position to the others. Make it easy for them.

Avoid hyperbole. Be courteous. Let the strength of the facts do the work.

C. Keep It Professional

Follow every instruction precisely. A late or bloated brief frustrates arbitrators.

Avoid sarcasm or aggression toward opposing counsel.

You’re not arguing anymore—you’re persuading through clarity.

VIII. Conclusion

True advocacy in international arbitration is not about theatrics or volume. It is about understanding what the tribunal needs in order to do its job—and helping them get there efficiently, logically, and confidently.

Preparation is the foundation. But strategic listening, respectful framing, and adaptive storytelling are what separate good advocates from exceptional ones.

The best counsel don’t just argue their case. They build a bridge for the tribunal to walk across—to a well-reasoned, well-supported award in their favor.

When advocacy is done right, the outcome doesn’t feel like persuasion. It feels inevitable.