Reading these two chapters reminded me of the Garner/Scalia book on oral advocacy that I read last year for LRLW (it's called "Making Your Case", and I highly recommend it). The points made on the importance of the statements, and how to properly execute them, seem logical and straight forward to me, but it is very easy to understand how to present in theory, and much more difficult to execute in practice.
The thing that stood out most to me was keeping the international nature of your tribunal in mind. Footnote 4 was entertainingly cautionary on the potential for confusion when using words or phrases that seem perfectly normal to you, but are hard to understand for your audience. Thus, besides simplifying your argument for the purposes of the opening, in some way language itself must be simplified to reach a level that everyone can understand with relative ease. Naturally, not every situation can be expected ("full and frank" was not something I expected to be uncertain), but it's something to keep in mind. On top of that, I also thought it was interesting that the author noted how mannerisms like looking people in the eye could be taken differently by people from different cultures.
With cultural differences in mind, I wonder if there have been instances of arbitration where, for cultural reasons, female advocates are advised not to represent a case because of their gender (there are still many places in the world that hold strong views on women's places in life).
The question about female advocates is interesting.
ReplyDeleteWhen I was in Afghanistan, there seemed to be two experiences. The first was that if the female soldier wrapped her head in a sort of scarf - leaving the face uncovered, which is not inconsistent with local custom - they were able to deal on an equal basis with Afghan leaders. The officers were working on various nation-building projects.
On the other hand, I remember one incident in particular. My counterpart, an Air Force officer, complained to me that the Afghan leader had basically stonewalled in her solo attempt to discuss an issue, revealing his true concerns in detail only after a male officer joined them. It was a frustrating experience.
However, since that mix of experience was to be found in a moderately developed region of Afghanistan, one of the most anti-women regions on earth, I'd be rather surprised if it were a significant issue in many other places.
Then again, I don't have to deal with it personally and may be less attuned to women's issues. I'd be interested to hear other experiences.
Interesting posts on cultural differences from both of you!
ReplyDeleteI was also shocked about the eye contact part of the reading, it just shows that you have to know the arbitrators cultural background beforehand in addition to your material.
On the other hand, I think that because it is an international arbitration, the arbitrators should have more flexibility, so if having eye contact is considered offensive in their culture, they have to understand that it is not considered as such in other cultures... but it surely is difficult to maintain impartiality when you think the other person is offending you just by staring at you.
Exactly. Even if you know that something is not offensive in another person's culture, it is hard to not be slightly biased because it is offensive in your own culture. At the very least, it would be distracting to have someone doing something that you consider to be highly offensive.
ReplyDeleteThe same may be true for female advocates in some cases. While the arbitrators may understand that many women work in the culture that the female advocate is from, it may be difficult for them to remain impartial.
I tend to agree with Sara (aka clause44) in re: arbitrators having reverse flexibility and understanding that an advocate is not being offensive from their own cultural standpoint. With increasing globalization, and especially if international arbitrators experience a variety of cultural differences everywhere they arbitrate, it seems that the sensitivity would be a little dulled down. Still, I wonder if for whatever reason you were arbitrating in Afghanistan or a similar country it would be better strategy to elect not to have a female arbitrator if you believed it would create a bias from the tribunal.
ReplyDeleteYour note on gender is interesting. Having worked in the MENA region for many years I'm hard pressed to think of a place, other than Saudi and maybe Yemen, where your gender would directly disadvantage you.
ReplyDeleteHaving said that, there may be many places where sexist BS still exists. I am completely empathetic to this sensitive issue. Are there strategies or other techniques that one could use to overcome gender bias?
I'm glad I'm not the only one who thinks that the arbitrators also need to understand the culture of the advocates. I agree that they need to be flexible as well about trivial things like eye contact being offensive or something like that.
ReplyDeleteI think arbitrators need to be more understanding of different cultures too. However, most of these issues are reacted to on an unconscientious level and the problem is that without realizing it, one always judges others negatively or positively for things that are theoretically trivial but at the end of the day become extremely important. Since many of these gestures have profound cultural meaning, we are judging people's cultural values, heritage and prejudices and these things are not easily changed... For them as well as for us...
ReplyDeletePicking the arbitrator to fit everything that is unique about the case is most desired and extremely difficult. Even great arguments in front of an arbitrator who is not right for the case are going nowhere. Remember:
ReplyDeleteNever try to teach a pig to sing. It wastes your time and annoys the pig.
Let's talk a little in class about the way arbitrators are chosen versus the way juries are "chosen".