Opening Statements at Evidentiary Hearings
Barger Prekop attorneys Roman Prekop and Peter Petho address opening statements at evidentiary hearings in international arbitration. The authors consider opening statements to be crucial in helping arbitrators understand the case and in establishing the credibility of counsel. They argue that despite the lack of comprehensive regulation at an international level, counsel should bear in mind potential restrictions on the content of opening statements under rules governing the counsels’ profession and the law governing the arbitral proceedings, such as the US trial system restrictions. In addition, and irrespective of the applicability of these potential restrictions, the authors claim that the opening statement should not create improper expectations in the tribunal. On this basis, the authors recommend how to structure and present an effective and fair opening statement. The authors acknowledge that counsel’s failure to follow mandatory restrictions – let alone recommendations – would unlikely undermine the award. Nonetheless, the authors conclude that counsels may severely damage their credibility and, as a result, the entire case, by presenting the opening statement inappropriately.
Reproduced with permission from Lex Lata BV. This article was first published in Czech (& Central European) Yearbook of Arbitration®, Volume VII, 2017, Conduct of Arbitration. For further information please visit www.czechyearbook.org.