Aksel Kolstad1
- VP Publications ↩︎
On 3 February 2025, HIALSA held the second installment of its flagship Masterclass Series “The International Arbitration Playbook”. This session, titled “Advocacy in International Arbitration”, explored what distinguishes effective advocacy in international arbitration. Held at Harvard Law School, it brought together leading practitioners with extensive U.S. and international practice experience:
- Luke Sobota – Partner at Three Crowns LLP
- John V.H. Pierce – Partner at Latham & Watkins
- Gaela Gehring Flores – Partner at Hughes Hubbard & Reed
- Mar Villora Valero – Moderator, HIALSA
The panelists started by making some observations on how international arbitration differs from U.S. courts. Arbitral tribunals are often composed of members from different legal traditions. In contrast, U.S. domestic litigation assumes a shared familiarity with local procedure and terminology. Such differences mean that arbitration practitioners must write their submissions not solely based on legal arguments, but also with an eye to the different expectations of structure, tone and legal reasoning. This in turn requires the advocate to research the tribunal’s composition, the backgrounds of its members and their previous legal reasoning. While judicial preferences may be widely understood in domestic courts, arbitration challenges the advocate to anticipate how different members of the tribunal will engage with the submissions.
An important point was also that an advocate should adopt the typical conventions found in international arbitration, rather than default to familiar U.S. litigation language. Terms usually found in U.S. litigation like “discovery” can appear out of place in an international context. Adopting such conventions signals credibility as an advocate comfortable with transnational dispute resolution.
The second point of discussion was how common law and civil law traditions meet on the stage of international arbitration, and that the advocate may have to balance the different expectations found in the legal systems which can result in longer submissions and comprehensive evidentiary records. The panelists went on to highlight some differences in formalities and rhetorical style. In civil law for example, it was mentioned that strict adherence to procedural technicalities was often more debated than in common law contexts. At the same time, the assertiveness usually found in U.S. advocacy will not always land well with a tribunal that values precision and restraint more. Advocates should therefore unpack legal concepts to make them understandable across legal traditions and resist stylistic habits rooted in their home legal systems.
The third point of discussion was how to structure submissions to respect both the tribunal’s time and its need for clarity. Long, sprawling pleadings can overwhelm arbitrators who must digest extensive records. One recommendation was to start with concise, polished introductions that an arbitrator may read first to understand the core of the submission. This section should outline the fundamental theories, legal framework, and key facts without clutter or excessive citation. The remainder of the submission can then build on that foundation. For this reason, writing introductions after the full draft is complete is usually a good idea, as it ensures that the submission accurately captures the case’s through-line.
The panel also commented that an advocate should show restraint when determining what arguments to put forward. While it can be tempting to include every possible argument in a pleading, doing so can dilute the strength of the core arguments and make it harder for the tribunal to understand what the advocate truly relies upon. Over-arguing when there is unwillingness to abandon any defense can be very damaging to the case.
Finally, the panelists noted that advocacy does not stop at submissions and hearings. A well-crafted submission can also help the tribunal write its award. Factual narratives and legal arguments should therefore be crafted to assists the tribunal in drafting clear, reasoned awards. Factual sections should be objective and logically organized, allowing the text to be lifted directly into the award.
The tribunal’s award is not just a decision but must withstand scrutiny from courts and parties alike. A submission that clearly frames the facts and law makes it easier for arbitrators to articulate their reasoning and, on close issues, to acknowledge competing perspectives with intellectual honesty. Awards are not pieces of advocacy. They are the culmination of advocacy’s influence on a tribunal and must demonstrate that the tribunal heard all arguments and reached reasoned conclusions.
Where an award has gaps in its reasoning or does not support the relief granted, it is vulnerable to challenge. In contrast, awards that demonstrate careful engagement with the submissions tend to be upheld even where courts apply strict standards of review. The increasingly public dimension of international arbitration, especially investment arbitration, will also likely lead to increased scrutiny of awards beyond the immediate parties or courts. Writing submissions with this in mind can help the advocate stay within the guardrails.
Across the session, several themes kept recurring: advocacy in international arbitration is not simply about scoring points, but about communicating with different legal cultures, and adapting to procedural norms and the tribunal’s expectations. Successful advocacy also focuses on how pleadings are structured, how different tribunals need to be addressed on their own terms, and how an advocate’s reasoning can carry through from submission to award.