I’m sure that what I am about to describe has happened to many advocates in international arbitration proceedings. You have spent hours preparing for the cross-examination of a witness. You have planned your questions with surgical precision to extract only the damaging admissions the witness must make. You have taken pains to ensure that you don’t ask the infamous one-question-too-many. You have deliberately avoided the question “why.” You start the examination, and just as you are hitting your stride, an arbitrator jumps in and asks questions you deliberately chose not to ask, undermining all your careful planning. You sit there with your best poker face and remember the words of that great philosopher Mike Tyson: “Everybody has a plan until they get punched in the mouth.”

Here’s an example from a real case in which I was one of the arbitrators. Mr. X was an employee of a party to the arbitration (let’s call it “Smith”). He was intimately involved in the events that were the subject of the arbitration, and had written, received, or been copied on a majority of the emails relating to those events. Despite this, he never submitted a witness statement, and so never appeared at the hearings. His absence was conspicuous. Smith’s lawyer never explained to the Tribunal the reason for his absence. The lawyer for the opposing party (let’s call it “Jones”), decided to make an issue of the missing Mr. X for the first time at the hearings, with the apparent aim of asking the arbitrators to draw an adverse inference from his absence.